LAMONT v. PROSKAUER ROSE LLP et al

Filing 93

MEMORANDUM OPINION granting 11 , 21 , 31 , 47 , [ 49 , 79 the six motions to dismiss filed by various defendants; and denying the following motions filed by Plaintiff: 12 motion to disqualify the representative capacity of the New York State Attorney General; 44 motion for leave to file an amended complaint; 91 motion to amend the motion for leave to file an amended complaint; 89 motion to file a surreply; 18 motion to require the United States Marshals Service to serve summons and complaint; 36 motion to require United States Marshals Service to Serve Two New York State Defendants and for Sanctions; and 88 motion for a preliminary injunction. Signed by Judge Barbara Jacobs Rothstein on 8/8/12. (lcbjr2)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
P. STEPHEN LAMONT,
Plaintiff,
Civil Action No. 11-0949 (BJR)
v.
MEMORANDUM OPINION
PROSKAUER ROSE, LLP, et al.,
Defendant.

DENYING PLAINTIFF’S MOTION TO DISQUALIFY THE REPRESENTATIVE CAPACITY OF NEW
YORK STATE ATTORNEY GENERAL; GRANTING DEFENDANTS’ MOTIONS TO DISMISS;
DENYING PLAINTIFF’S MOTION FOR LEAVE TO FILE AN AMENDED COMPLAINT; DENYING
PLAINTIFF’S MOTION TO AMEND HIS MOTION FOR LEAVE TO FILE AN AMENDED COMPLAINT;
DENYING AS MOOT PLAINTIFF’S MOTION TO REQUIRE UNITED STATES MARSHALS SERVICE
TO SERVE SUMMONS & COMPLAINT; DENYING PLAINTIFF’S MOTION TO REQUIRE UNITED
STATES MARSHALS SERVICE TO SERVE TWO NEW YORK STATE DEFENDANTS AND FOR
SANCTIONS ON THE OFFICE OF THE NEW YORK STATE ATTORNEY GENERAL’S OFFICE;
DENYING AS MOOT PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION AGAINST
DEFENDANT TIME WARNER; DENYING PLAINTIFF’S MOTION TO FILE A SURREPLY
I. INTRODUCTION
It is a rare event indeed when a court can resolve a truly voluminous case in a succinct,
laborsaving manner; fortunately, this case is one in which that rare event will occur. The various
Defendants 1 in this case have filed respective motions to dismiss, raising similar, if not identical,
1

Plaintiff has filed suit against twenty-three named defendants. Three of these defendants – Brian
G. Utley; Michael A. Reale; Raymond T. Hirsch – have not yet been served and have not had
counsel enter an appearance in this matter. See supra n.9. Hereinafter, “Defendants” refers to
those named defendants who have been served and are represented by counsel in this matter.
Plaintiff has additionally filed suit against John & Jane Does and John Doe Companies.
Defendants have self-categorized into the following six groups, each of which has filed a
respective motion to dismiss: (1) the “Proskauer Defendants” include: Proskauer Rose, LLP;
Kenneth Rubenstein; Christopher Wheeler; Steven C. Krane (2) the Metlzer Defendants include:
Meltzer, Lippe, Goldstein & Breistone, LLP; Lewis S. Meltzer; (3) the Foley Defendants
include: Foley & Lardner, LLP; William J. Dick; Douglas A. Boehm; Steven C. Becker; (4) the
New York Defendants include: the State of New York; Thomas J. Cahill; Martin R. Gold;
Richard T. Andrias; David B. Saxe; Lawrence DiGiovanna; Diana Maxfield Kearse; James E.

arguments. Among their arguments, Defendants assert that pro se Plaintiff, Mr. P. Stephen
Lamont, previously litigated these claims and that they were ruled upon by the United States
District Court for the Southern District of New York. The court agrees, and dismisses Plaintiff’s
sole federal claim under the doctrine of res judicata. Accordingly, the court grants defendants’
motions to dismiss. Additionally, the court denies the following motions filed by Plaintiff:
motion to disqualify the representative capacity of the New York State Attorney General; motion
for leave to file an amended complaint; motion to amend the motion for leave to file an amended
complaint; motion to file a surreply; motion to require the United States Marshals Service to
serve summons and complaint; motion to require United States Marshals Service to Serve Two
New York State Defendants and for Sanctions; and motion for a preliminary injunction.
II. BACKGROUND
A. Factual Background
The following alleged facts are presumed true for purposes of this order. Plaintiff,
proceeding pro se, alleges that in the fall of 1998, three individuals (none of whom are Plaintiff)
“stumbled upon” new technologies that would allow superior digital video. Compl. ¶ 32.
According to Plaintiff, these technologies allow for the “encoding and transmission of digital
video across all transmission networks,” allow the digital zoom feature “on all video capture
devices,” and, lastly, allow the remote control of video devices. Id. ¶ 5. The three inventors
soon formed a company called Iviewit, of which Plaintiff is currently the Chief Executive
Officer. Id.
Sometime after 2000, Iviewit presented this new technology to Time Warner, Corp. and
that company began to utilize the new technologies pursuant to specific agreements. Id. ¶ 47. In

Petlzer; (5) Defendant Time Warner, Inc.; (6) Raymond A. Joao. For ease, these categories will
be used throughout this memorandum opinion.

2

the summer of 2001, however, Plaintiff alleges that Time Warner began using the technologies in
unauthorized ways. Id. ¶ 49. Indeed, Plaintiff claims that Time Warner continues such
unauthorized use, id. ¶ 1, and he has recently filed a preliminary injunction to halt this behavior,
see generally Pl.’s Mot. for Preliminary Inj. 2
In 2002, Iviewit discovered that the patent applications filed on its behalf with the United
States Patent and Trademark Office (“USPTO”) were “facially defective.” Id. ¶ 50. Plaintiff
believes that patent attorneys from the law firms of Proskauer Rose, LLP; Meltzer, Lippe,
Goldstein & Breistone, LLP; and Foley Lardner, LLP committed fraud by filing such faulty
applications and, in the case of Proskauer Rose, LLP, by representing Iviewit when there was a
conflict of interest with another client, MPEGLA LLC. Id. ¶ 1, 62-65. As a result, Iviewit
lodged a flurry of grievance complaints against these patent attorneys with the appropriate New
York state disciplinary committees and the United States Patent and Trademark Office. Id. ¶¶
50-57.
In 2011, Plaintiff commenced suit against Iviewit’s prior patent lawyers and their
respective law firms, the State of New York and several of its officials, past officers of Iviewit,
Time Warner, and Jane and John Does and John Doe companies. 3 See supra n.1 ; Compl. ¶¶ 530. Plaintiff asserts that all of the defendants, with the sole exception of Time Warner, violated
42 U.S.C. § 1983. Additionally, Plaintiff invokes the court’s supplemental jurisdiction to raise
claims for fraud, conspiracy to commit fraud, breach of contract, and legal malpractice. Plaintiff
demands that he is entitled to damages because he has suffered “more than twelve years of
unpaid royalties on the [unauthorized use of these] technologies” and the “loss of value in the
2

As elaborated herein, the court determines that Plaintiff’s case should be dismissed, and therefore
denies as moot Plaintiff’s motion for a preliminary injunction.

3

This case was transferred to the undersigned judge on April 3, 2012.

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capital shares held by shareholders.” Id. ¶ 79. Defendants now move to dismiss Plaintiff’s
complaint.
B. Plaintiff’s Prior Case in the United States District Court for the
Southern District of New York
In 2007, Plaintiff, proceeding pro se, along with Eliot Bernstein, one of the inventors of
the technology at issue, filed suit in the Southern District of New York against hundreds of
defendants, including the majority of defendants being sued before this court. 4 See generally
Bernstein v. State of New York, 591 F. Supp. 2d 448 (S.D.N.Y. 2008). In rendering a 2008
memorandum opinion dismissing the case, Judge Scheindlin labored through a 1,000 paragraph
complaint and summarized in great detail Plaintiff and Bernstein’s factual allegations. See id. at
452-58.
In that case, as here, Plaintiff alleged that Bernstein and others had invented video
technologies that would allow one to “zoom almost infinitely on a low resolution file with
clarity,” and that those technologies became incorporated into “almost every digital camera and
present screen display device.” Id. at 453. The Bernstein complaint further asserts that
Proskauer partner Christopher C. Wheeler put Bernstein in touch with another Proskauer
attorney, Kenneth Rubenstein and an attorney from Meltzer Lippe Goldstein Wolf & Schlissel,
P.C., Raymond Joao. Id. Rubenstein and Joao then performed trademark, trade secret, and
copyright work for Iviewit, notwithstanding that Rubenstein was also counsel to MPEGLA LLC,

4

In the instant case, only the following five defendants were not named defendants in Plaintiff’s
previous litigation: Proskauer partner, Christopher Wheeler; Time Warner, Inc.; Iviewit’s former
President and CEO, Brian G. Utley; Iviewit’s former Vice President of Operations, Michael A.
Reale; and Iviewit’s former financial officer, Raymond Hirsch. Although not named defendants
in the previous case, Wheeler, Utley, and Reale were referred to by name and their role in the
alleged conspiracy was discussed in Judge Scheindlin’s 2008 order. See Bernstein, 591 F. Supp.
2d at 453-55.

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one of the largest users of the invented technology. Id. at 453-454. According to the Bernstein
complaint, Rubenstein and Joao schemed to steal the new technologies, filing defective patents
for Iviewit while creating illegitimate companies with names similar to Iviewit’s and filing valid
patent applications in those companies’ names. Id.
The Bernstein complaint also details how Iviewit then obtained the services of Foley
Larner LLP, who Plaintiff and Bernstein also alleged filed false patent applications. Id. at 454.
At this point, Brian Utley and Michael Reale allegedly threatened Bernstein, stole Iviewit’s
equipment, and blew up Bernstein’s car. Id.
Bernstein and Plaintiff contacted the New York Attorney General’s Office and requested
that the Attorney General and the New York State Disciplinary Committee investigate these
attorneys’ actions. Id. at 456. According to Plaintiff, Proskauer arranged for one of its partners,
Steven C. Krane, to have the disciplinary complaints delayed and dismissed. New York judges
of the First and Second Department Disciplinary Committee and the Court of Appeals were also
allegedly part of the conspiracy. Id.
Based on these allegations, Plaintiff and Bernstein brought several federal claims,
including, of particular note, a claim that defendants violated 42 U.S.C. § 1983 by “engag[ing] in
a massive conspiracy to violate their civil rights.” Id. at 452. Plaintiffs also brought a litany of
state law claims, including fraud, breach of contract, and legal malpractice. Id. at 457.

On

August 8, 2008, Judge Scheindlin dismissed the § 1983 claims on statute of limitations grounds,
defendants’ immunity from suit, and the plaintiffs’ failure to allege any wrongdoing. Id. at 46468. She declined to exercise supplemental jurisdiction on the state claims. Id. at 469. In
denying leave to replead, Judge Scheindlin found that there was “no reason to believe [that

5

Plaintiff and Bernstein] would ever be able” to state “a legally cognizable federal claim against a
single defendant.” Id.
Immediately thereafter, Plaintiff and Bernstein moved for reconsideration, but Judge
Scheindlin declined to grant them such relief because the federal court system was “not the
appropriate forum for plaintiffs to seek redress of these grievances.” Order, Bernstein v. State of
New York, Civ. No. 07-11196 at 3 (S.D.N.Y. Aug. 19, 2008). The Bernstein plaintiffs appealed
and, on February 5, 2010, the Second Circuit dismissed their appeal as frivolous. Mandate, filed
February 5, 2010, Bernstein v. State of New York, Civ. No. 07-11196.
On October 5, 12, 2010, Plaintiff, “individually, and on behalf of shareholders of Iviewit”
moved to re-open the case. Pl. Lamont’s Mot. to Reopen, filed Oct. 12, 2010, Bernstein v. State
of New York, Civ. No. 07-11196. Judge Scheindlin denied this request. See Order, filed Dec. 15,
2010, Bernstein v. State of New York, Civ. No. 07-11196. Plaintiff again appealed and, on May
5, 2011, the Second Circuit dismissed the appeal as “lack[ing] an arguable basis in law or fact.”
See Mandate, filed May 5, 2012, Bernstein v. State of New Yorkl, Civ. No. 07-11196.
III. ANALYSIS
A. The Court Denies Plaintiff’s Motion to Disqualify the Representative Capacity of the
New York State Attorney General
As a threshold matter, Plaintiff moves to disqualify the Office of the New York Attorney
General from representing current or former New York State officials that have been named as
defendants in this case. See generally Pl.’s Mot. to Disqualify. Plaintiff argues that a conflict of
interests exists because Plaintiff previously requested that the New York Attorney General
prosecute the defendants in the instant action. Id. at 2.
As far as the court is aware, the New York Attorney General has not actually prosecuted
any of the New York defendants, notwithstanding Plaintiff’s requests to do so. For this same

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reason, Judge Scheindlin previously denied Plaintiff’s identical request to disqualify the New
York Attorney General’s representation in the case before her. See N.Y. Defs.’ Opp’n to Pl.’s
Mot. to Disqualify, Judge Scheindlin’s Ex. 1 (concluding that “the Attorney General does not
face an improper conflict of interest in representing the State Defendants”). Accordingly,
Plaintiff’s motion to disqualify the Office of the New York Attorney General is denied.
B. The Court Grants Defendants’ Motions to Dismiss Based on Res Judicata Grounds 5
1. Legal Standard – Res Judicata
“[T]he doctrine of res judicata holds that a judgment on the merits in a prior suit bars a
second suit involving identical parties or their privies based on the same cause of action.”
Apotex, Inc. v. Food & Drug Admin., 393 F.3d 210, 217 (D.C. Cir. 2004). “Res judicata plays a
central role in advancing the ‘purpose for which civil courts have been established, the
conclusive resolution of disputes within their jurisdictions.’” Id. (emphasis added) (quoting
Montana v. United States, 440 U.S. 147, 153 (1979)). “To preclude parties from contesting
matters that they have had a full and fair opportunity to litigate protects their adversaries from
the expense and vexation attending multiple lawsuits, conserves judicial resources, and fosters

5

On August 6, 2012, Plaintiff moved for leave to file a surreply as to Defendants’ motions to
dismiss and Defendants’ motions for sanctions. See generally Pl.’s Mot. for Surreply. Plaintiff
wishes to bring to the court’s attention an “emergency motion” purportedly filed on July 27, 2012
by Bernstein in the case in the Southern District of New York. See id., Ex. 1 (“Proposed
Surreply”). According to Plaintiff, through this emergency motion, Bernstein now seeks to
convert Plaintiff into a co-defendant in the Bernstein matter, notwithstanding that the matter has
been closed since 2008. As of this writing, the purported emergency motion is not on the
Southern District of New York’s electronic docket. Nevertheless, the allegation that Bernstein
now wants to sue Plaintiff in the Bernstein litigation is of no moment to the court’s determination
that res judicata applies. Because the decision to grant or deny leave to file a surreply is
committed to the sound discretion of the court, see Am. Forest & Paper Ass’n, Inc. v. Envtl. Prot.
Agency, 1996 WL 509601, at *3 (D.D.C. Sept. 4, 1996), and because the proposed surreply
would add nothing to the court’s analysis, the court denies Plaintiff’s motion for leave to file a
surreply.

7

reliance on judicial action by minimizing the possibility of inconsistent decisions.” Montana,
440 U.S. at 153-55.
Two distinct applications of res judicata exist: claim preclusion and issue preclusion.
NextWave Pers. Commc’ns, Inc. v. Fed. Commc’ns Comm’n, 254 F.3d 130, 142 (D.C. Cir.
2001). Under the claim preclusion, “a final judgment forecloses ‘successive litigation of the very
same claim, whether or not relitigation of the claim raises the same issues as the earlier suit.’”
Taylor v. Sturgell, 553 U.S. 880, 892 (2008). “Issue preclusion, in contrast, bars successive
litigation of an issue of fact or law actually litigated and resolved in a valid court determination
essential to the prior judgment, even if the issue recurs in the context of a different claim.” Id.
(internal quotations omitted).
2. Res Judicata Bars Plaintiff’s § 1983 Claims
a. Claim Preclusion
Noting the previous litigation in the Southern District of New York, Defendants argue
that Plaintiff’s complaint must be dismissed pursuant to the principles of res judicata. 6 See, e.g.,
Foley Defs.’ Mot. to Dismiss at 9-13. Claim preclusion bars a subsequent lawsuit “if there has
been prior litigation (1) involving the same claims or cause of action, (2) between the same
parties or their privies, and (3) there has been a final, valid judgment on the merits, (4) by a court
6

Defendants further argue that Plaintiff lacks standing because he does not have the right to sue in
his own name, even as an individual shareholder, to assert Iviewit’s property interests and
because a pro se plaintiff cannot represent a corporation. See, e.g., Proskauer Defs.’ Mot. at 1213. Because this issue is not jurisdictional, and because this case is properly dismissed under the
doctrine of res judicata, the court declines to reach this issue. See Labovitz v. Washington Times
Corp., 172 F.3d 897, 900 (D.C. Cir. 1999) (“Although the [Defendant] characterizes this as a
standing question, the issue here is who is the real party in interest, see Fed. R. Civ. P. 17(a), to
bring a lawsuit ‘under the governing substantive law to enforce the asserted right.’”); Whelan v.
Abell, 953 F.2d 663, 672 (D.C. Cir. 1992) (noting that while “[s]tanding and real-party-in-interest
questions do overlap . . . the question whether the suit should be brought by [and individual
stakeholder] or the Corporation really depends, as we have noted, on considerations and
conventions of corporate law - whether the corporation should be entitled to bring an action, at
least in the first instance, without the distraction of stockholders’ suits - which we think are
brought into play under Rule 17(a) of the Federal Rules of Civil Procedure”).

8

of competent jurisdiction.” Smalls v. United States, 471 F.3d 186, 192 (D.C. Cir. 2006).
Additionally, claim preclusion has the additional requirement that the nonmoving party had a full
and fair opportunity to litigate the claim. Li v. Montgomery, 2000 U.S. App. LEXIS 15467, at
*3 (D.C. Cir. 2000).
There is little question that this case meets the first four elements of claim preclusion.
First, this suit involves the same § 1983 claims as the previous litigation in the Southern District
of New York. As described above, Judge Scheindlin dismissed Plaintiff’s § 1983 claims relating
to the alleged “conspiracy regarding the theft of inventions,” the same claim asserted here.
Bernstein, 591 F. Supp. 2d at 468. Plaintiff cites to case law for the notion that res judicata does
not apply in the event that “other facts or conditions intervene” since the time of the first
litigation. However, he does not argue nor point to any new factual developments since Judge
Scheindlin’s ruling that would form a new basis for a claim. See Pl.’s Opp’n to State Defs.’ Mot.
to Dismiss at 9.
As to Defendants’ role in the previous litigation, all but five of the named defendants
were also defendants in Plaintiff’s previous suit. See supra n.4. Thus, with respect to the
defendants who are “repeat players,” this action and the previous action are “between the same
parties or their privies” for purposes of res judicata.
Further, the court notes that Judge Scheindlin’s decision to dismiss the § 1983 claims was
a final judgment on the merits arising from a court of competent jurisdiction, the United States
District Court for the Southern District of New York. See Smalls v. United States, 471 F.3d 186,
192 (D.C. Cir. 2006) (observing that an Article III court is a court of competent jurisdiction).
Plaintiff argues that Judge Scheindlin’s dismissal was not a final judgment on the merits because
it relied, in part, on the expiration of the applicable statute of limitations. See Pl.’s Opp’n to

9

State Defs.’ Mot. to Dismiss at 10. The D.C. Circuit, however, has explicitly treated a dismissal
on statute of limitations grounds as a judgment on the merits. Smalls, 471 F.3d at 192.
Therefore, the first four elements of claim preclusion are met.
Lastly, the court turns to inquire whether Plaintiff received a full and fair opportunity to
litigate the § 1983 claims before the Southern District of New York. See Bernstein, 591 F. Supp.
2d at 448. Plaintiff contends that he was not an individual plaintiff in the previous litigation, see
Pl.’s Opp’n to Def. Joao’s Mot. to Dismiss at 10, and also rejects the notion that he acted as a
representative of the shareholders in the previous action, see Pl.’s Opp’n to Meltzer Defs.’ Mot.
to Dismiss at 15. In other words, Plaintiff insists that he was not a litigant in the Southern
District of New York case. The record in that case, however, indicates otherwise. In his motion
to re-open the case before Judge Scheindlin, Plaintiff describes himself as an “individual
Plaintiff.” See Pl. Lamont’s Mot. to Re-Open, dated October 5, 2012, Bernstein v. Appellate
Division First Dep’t, et al, Civ. No. 07-11196 (S.D.N.Y.). Indeed, Plaintiff’s pro se status
confirms that he was in fact suing as an individual. See Ivey v. Geithner, 2009 U.S. App. LEXIS
7774, at *2 (D.C. Cir. Apr. 10, 2009) (noting that a pro se litigant “may not represent the
interests of other parties”). Thus, the “P. Stephen Lamont” who filed suit pro se in this court is
the same “P. Stephen Lamont” who filed suit pro se before the Southern District of New York.
Plaintiff next argues that he did not receive a fair opportunity because two of the judges
involved in that prior case should have recused themselves due to conflicts but failed to do so.
Pl.’s Opp’n to State Defs.’ Mot. to Dismiss at 11-12. More specifically, Plaintiff claims that
Judge Scheindlin owned shares of IBM and Intel. Plaintiff also claims that his previous litigation
was tainted because United States Court of Appeals for the Second Circuit Judge Richard C.
Wesley received a pension from the State of New York, a defendant in this matter. Plaintiff

10

claims that Judge Wesley took part in the Bernstein appeal. However, there is no record that
Circuit Judge Wesley took part in this litigation. See Mandate, Bernstein v. Appellate Division
First Dep’t, et al, Civ. No. 11-5303 (2d. Cir. May 5, 2011) (indicating that the three-judge panel
that heard Plaintiff’s appeal was composed of Judges Ralph K. Winter, José A. Cabranes, and
Mark Kravitz). In any event, Plaintiff should have raised these concerns regarding recusal in his
previous litigation, instead of filing a new case before this court with the exact claims in order to
raise his untimely recusal concerns. Accordingly, the court concludes that Plaintiff received full
and fair opportunity to litigate his § 1983 claims before the Southern District of New York.
In sum, the court finds that the elements of claim preclusion are met with respect to the
Plaintiff’s § 1983 claims against Defendants who were also parties in the Bernstein matter.
Because those claims are properly barred under claim preclusion, the court dismisses them with
prejudice.
b. Issue Preclusion
With respect to those five that were not litigants in Bernstein, issue preclusion bars
Plaintiff’s § 1983 claims. 7 “The objective of the doctrine of issue preclusion (also known as
collateral estoppel) is judicial finality.” Yamaha Corp. of Am. v. United States, 961 F.2d 245,
254 (D.C. Cir. 1992). Under issue preclusion or collateral estoppel, “once a court has decided an
issue of fact or law necessary to its judgment, that decision may preclude relitigation of the issue
in a suit on a different cause of action involving a party to the first case.” Id. (quoting Allen, 449
U.S. at 94). Issue preclusion applies if three criteria are met: (1) if in the prior litigation, the

7

The court notes that under these circumstances claim preclusion may also bar the § 1983 claims
against the non-Bernstein Defendants. Hinton v. Rudasill, 624 F. Supp. 2d 48, 51 (D.D.C. 2009)
(explaining that non-mutual defensive estoppel “bars a party who has had a full and fair
opportunity to litigate an issue in an earlier case and lost from relitigating that same issue in a
later case against a different defendant”). Because issue preclusion applies, however, the court
declines to reach the applicability of claim preclusion.

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issue was “actually litigated, that is, contested by the parties and submitted for determination by
the court;” (2) if the prior litigation was “actually and necessarily determined by a court of
competent jurisdiction;” and (3) if “preclusion in the second trial [does] not work an unfairness”
to the party bound by the first determination. Otherson v. Dep’t of Justice, 711 F.2d 267, 273
(D.C. Cir. 1983) (citations omitted). “An example of such unfairness would be when the losing
party clearly lacked any incentive to litigate the point in the first trial, but the stakes of the
second trial are of a vastly greater magnitude.” Yamaha Corp. of Am., 961 F.2d at 254.
As previously discussed, Plaintiff received a full and fair opportunity to litigate his
§ 1983 claims in the Southern District, a court of competent jurisdiction. There is nothing to
suggest that Plaintiff lacked the proper incentive to litigate his § 1983 claims in the Bernstein
litigation. Moreover, Judge Scheindlin rendered a final judgment, determining that Plaintiff’s §
1983 claims should be dismissed, inter alia, on statute of limitations grounds and for failure to
state a claim. See generally Bernstein, 591 F. Supp. 2d at 464-68. Before this court, Plaintiff
again raises § 1983 claims based on the same factual allegations – claims that Judge Scheindlin
has already found to be faulty under the applicable law and statute of limitations period.
Therefore, because these § 1983 claims were litigated and determined in the Southern District of
New York and because no unfairness to Plaintiff has been demonstrated, issue preclusion bars
Plaintiff’s § 1983 claims against the five non-Bernstein defendants.” See Yamaha Corp. of Am.,
961 F.2d at 254-55 (“[O]nce an issue is raised and determined, it is the entire issue that is
precluded, not just the particular arguments raised in support of it in the first case.”).
Accordingly, Plaintiff’s § 1983 claims – the only federal claims before this court – are
dismissed pursuant to the doctrine of res judicata. 8 With respect to Plaintiff’s remaining claims,
8

The court is inclined to dismiss Plaintiff’s case for a variety of reasons, aside from res judicata
grounds. Because, however, one of the main purposes behind the doctrine of res judicata is to

12

the court declines to assert its supplemental jurisdiction and dismisses this case in its entirety. 9
See 28 U.S.C. § 1367(c)(3).
C. The Court Denies Plaintiff’s Motion for Leave to Amend the Complaint
Plaintiff seeks to amend his complaint by: (1) dismissing Defendants Krane, Andrias, and
Saxe, and (2) adding a § 1983 claim against Defendant Time Warner. However, as discussed
above, Plaintiff’s claims (including his § 1983 claims) are dismissed. See supra at Part III.B.
Plaintiff’s proposed amendments would not change this result. Raising an additional § 1983
claim against Time Warner would be futile because the claim would be dismissible for the same
reasons discussed above. See supra n.8. Moreover, Plaintiff’s attempt to amend his complaint
so as to dismiss the claims against three of the Defendants is not necessary because the claims
against these Defendants are dismissed as a result of this order. Accordingly, Plaintiff’s
proposed

conserve judicial resources and encourage the finality of judgments, the court declines to do so.
See Allen v. McCurry, 449 U.S. 90, 94 (1980).
9

Plaintiff has not served three Defendants: Defendants Utley, Reale, and Hirsch. Instead, Plaintiff
moves the court to require the United States Marshals Service to serve the summons and
complaint upon these defendants. See generally Pl.’s Mot. to Require U.S. Marshals Service to
Serve Summons & Compl. Because the court determines that Plaintiff’s suit is barred pursuant to
the doctrine of res judicata, Plaintiff’s motion to compel the United States Marshals Service to
serve specific defendants is denied as moot.
Similarly, Plaintiff moves the court to require the United States Marshals Service to serve two of
the New York State Defendants – Lawrence DiGiovanna and James Peltzer, and asks that the
court impose sanctions on the New York Attorney General for allegedly evading service with
respect to these two defendants. See generally Pl.’s Mot. to Require U.S. Marshals Service to
Serve Summons & Compl. & Mot. for Sanctions. The court previously ordered that this motion
be held in light of the pending motion to dismiss by the New York Defendants. Because the court
now determines that dismissal is appropriate, Plaintiff’s motion is also denied as moot.

13

amendments would be futile, Plaintiff’s motion to amend is denied. 10 Nat’l Wrestling Coaches
Ass’n v. Dep’t of Educ., 366 F.3d 930, 945 (D.C. Cir. 2004) (stating that “a district court has
discretion to deny a motion to amend on grounds of futility where the proposed pleading would
not survive a motion to dismiss”).
SO ORDERED.
August 8, 2012

BARBARA J. ROTHSTEIN
UNITED STATES DISTRICT JUDGE

10

On August 7, 2012, Plaintiff moved to amend his motion to amend. See Pl.’s “Amended Mot. for
Leave to File a First Amended Compl.” In addition to his previous proposed amendments,
Plaintiff seeks to “[m]ore particularly specify the claims against Defendant Time Warner, Inc.”
and “expand” on his breach of contract claim against Defendant Time Warner, Inc. to include a
“breach of duty not to oppose injunctive relief” claim. Because, however, this additional
proposed claim would fall under the rubric of a contract claim, and because the court has declined
to exercise supplemental jurisdiction as to those claims, the court denies Plaintiff’s motion to
amend his motion to amend.

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