Neroni v. Coccoma et al
Filing
59
MEMORANDUM-DECISION & ORDER that defts' motions to dismiss (Dkt. Nos. 29, 30, and 44) are GRANTED; that Neroni's cross motions for disqualification or recusal of the court, transfer venue, and disqualification of counsel (Dkt. Nos. 40 and 47) are DENIED; that Neroni's complaint (Dkt. No. 1) is DISMISSED; and the Clerk close this case. Signed by Chief Judge Gary L. Sharpe on 6/5/2014. (see)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
FREDERICK J. NERONI,
Plaintiff,
3:13-cv-1340
(GLS/DEP)
v.
ELLEN L. COCCOMA et al.,
Defendants.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Frederick J. Neroni
Pro Se
203 Main Street
Delhi, NY 13753
FOR THE DEFENDANTS:
Ellen L. Coccoma, Michael V.
Coccoma, Robert Mulvey, A. Gail
Prudenti, Kevin Dowd, Eugene
Peckham, Karen Peters, Thomas
Mercure, Kelly Sanfilippo
HON. ERIC T. SCHNEIDERMAN
New York State Attorney General
The Capitol
Albany, NY 12224
Hinman, Howard & Kattell, LLP
Hinman, Howard Law Firm
P.O. Box 5250
80 Exchange Street
700 Security Mutual Building
Binghamton, NY 13902-5250
BRUCE J. BOIVIN
Assistant Attorney General
JAMES S. GLEASON, ESQ.
Levene, Gouldin and Thompson, LLP,
Margaret Fowler
Hiscock, Barclay Law Firm
One Park Place
300 South State Street
Syracuse, NY 13202-2078
ROBERT A. BARRER, ESQ.
Gary L. Sharpe
Chief Judge
MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiff pro se Frederick J. Neroni commenced this action against
defendants1 pursuant to 42 U.S.C. 1983, alleging violations of his Fourth,
Fifth, and Fourteenth Amendment rights, along with violations of the
Nobility Clause.2 (Compl., Dkt. No. 1.) Pending are defendants’ motions to
dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6),
(Dkt. Nos. 29, 30, 44), and Neroni’s cross motions for disqualification of the
court, to transfer venue, and to disqualify counsel, (Dkt. Nos. 40, 47). For
the reasons that follow, defendants’ motions are granted, Neroni’s cross
1
Defendants include Ellen L. Coccoma, Michael V. Coccoma,
Robert Mulvey, A. Gail Prudenti, Kevin Dowd, Eugene Peckham, Karen
Peters, Thomas Mercure, and Kelly Sanfilippo (collectively, “Judicial
Defendants”); Hinman, Howard & Kattell, LLP; and Levene, Gouldin and
Thompson, LLP and Margaret Fowler (collectively, “LGT Defendants”).
2
See U.S. Const. art. I, § 9, cl. 8.
2
motions are denied, and Neroni’s complaint is dismissed.
II. Background3
This case presents yet another chapter in a barrage of lawsuits 4 filed
by Neroni, a disbarred and disgruntled former attorney. 5 In his lengthy and
disjointed complaint, Neroni names as defendants a host of New York state
judges, court officials, private attorneys, and private law firms, and weaves
a tangled web of judicial corruption, political favoritism, and professional
improprieties, resulting in a range of—barely decipherable—constitutional
transgressions. (See generally Compl.)
While difficult to discern, many of Neroni’s claims tangentially relate
to the circumstances surrounding his disbarment, (id. ¶¶ 8, 83-85, 140);
others pertain to a New York state case, Kilmer v. Moseman, No. 2009298, pending in Supreme Court in Delaware County before Justice Kevin
3
The facts are drawn from Neroni’s complaint, and presented in the
light most favorable to him.
4
See Neroni v. Zayas, No. 3:13-CV-0127, 2014 WL 1311560
(N.D.N.Y. Mar. 31, 2014); Neroni v. Grannis, No. 3:11-CV-1485, 2013 WL
1183075 (N.D.N.Y. Mar. 21, 2013); Bracci v. Becker, No. 1:11-cv-1473,
2013 WL 123810 (N.D.N.Y. Jan. 9, 2013); Neroni v. Becker, No. 3:12-cv1226, 2012 WL 6681204 (N.D.N.Y. Dec. 21, 2012), aff’d in part, vacated in
part by 2014 WL 657927 (2d Cir. Feb. 21, 2014).
5
See In re Neroni, 86 A.D.3d 710 (3d Dep’t 2011).
3
Dowd, in which Neroni’s only involvement was receiving an order
compelling him to appear for a deposition, (id. ¶¶ 18, 20, 34, 69, 86-95, 9899). In an attempt to provide some clarity, below, the court addresses the
relevant facts pertaining to, and the claims asserted against, each
defendant.
A.
Ellen L. Coccoma
Ellen Coccoma is an attorney in private practice at Hinman, Howard
& Katell, LLP (HHK) and a former member of New York’s Committee on
Professional Standards (COPS). (Id. ¶¶ 8, 82.) Neroni alleges that, during
her time as a member of COPS, Ellen Coccoma “participated in [the]
investigation and decision-making” that led to his disbarment, (id.), and
used certain, unspecified information gained from the investigation for
“private gain,” (id. ¶¶ 84-85). Neroni further alleges that, during her
involvement in his disciplinary case, Ellen Coccoma “accepted a private
case prosecuting [his] then corporation for fraud.” (Id. ¶ 83.) Ellen
Coccoma’s actions, Neroni contends, resulted in a deprivation of his
Fourteenth Amendment due process rights. (Id. ¶ 85.)
In addition to her involvement in Neroni’s disciplinary action, Ellen
Coccoma is also involved as a private attorney in Kilmer. (Id. ¶ 18.)
4
Neroni seems to allege that Ellen Coccoma exploited her relationship with
her husband, Deputy Chief Administrative Judge Michael V. Coccoma, to
obtain favorable treatment and avoid the imposition of sanctions in Kilmer.
(Id. ¶¶ 18-19.) Ellen Coccoma was also involved in procuring a court order
requiring Neroni to provide deposition testimony in Kilmer, which, Neroni
contends, violated his Fourth Amendment rights. (Id. ¶¶ 18, 86, 92, 138.)
Neroni seeks treble, actual, and punitive damages against Ellen Coccoma.
(Id. ¶¶ 138, 147.) He also seeks declaratory and injunctive relief, including
a declaratory judgment that his disbarment is void. (Id. ¶¶ 120, 140.)
B.
HHK
Neroni claims that HHK, a private law firm, acting in concert with its
employee, Ellen Coccoma, “obtained by fraud . . . an order to involuntarily
depose [Neroni]” in the Kilmer state court litigation, resulting in a violation
of Neroni’s Fourth Amendment rights. (Id. ¶¶ 11, 92, 138.) HHK, as Ellen
Coccoma’s employer, is also responsible, Neroni claims, for Ellen
Coccoma’s “fraudulent failure” to disclose to the parties and court in Kilmer
that she was involved with Neroni’s disciplinary case. (Id. ¶ 138(c)(v).)
Neroni seeks treble, actual, and punitive damages as against HHK. (Id. ¶¶
138, 147.)
5
C.
Judge Coccoma
As noted above, Judge Coccoma is the Deputy Chief Administrative
Judge for courts outside of New York City, and Ellen Coccoma’s husband.
(Id. ¶¶ 14, 16.) As the Chief Administrative Judge, he “controls [the]
assignment of judges in courts” in upstate New York. (Id. ¶¶ 16-17.)
Neroni claims that Judge Coccoma “controlled and monitored” the
assignment of the justice to the Kilmer action, so that Ellen Coccoma could
obtain favorable treatment, including, among other things, avoiding
sanctions.6 (Id. ¶ 18.) Additionally, at least briefly, Judge Coccoma
presided over Mokay v. Mokay, No. 2007-695, the New York Supreme
Court case in which Neroni was found to have committed a fraud upon the
court, and which ultimately led to his disbarment. (Id. ¶¶ 8, 15); see In re
Neroni, 86 A.D.3d 710, 710-11 (3d Dep’t 2011).
Neroni further claims that, pursuant to 22 N.Y.C.R.R. art. 122, a
retired Supreme Court justice may be appointed as a judicial hearing
officer. (Compl. ¶ 22.) Neroni states that judicial hearing officers have the
potential to earn up to $75,600 per year, which could “more than double a
6
Neroni contends that Ellen and Judge Coccoma “have [a] common
budget,” thus rendering sanctions imposed against Ellen Coccoma
adverse to both Ellen and Judge Coccoma’s interests. (Compl. ¶ 19.)
6
retired judge’s income,” and are appointed by the Deputy Chief
Administrative Judge—in this case, Judge Coccoma. (Id. ¶¶ 22, 23, 25, 26,
28.) Because Judge Coccoma has this power, Neroni alleges, the justices
have a financial interest in doing favors for him, such as providing Ellen
Coccoma with special treatment in matters that are before them. (Id.
¶¶ 28, 40, 56-57, 61, 95, 97.) Neroni claims that this violates the Nobility
Clause of the United States Constitution, because Ellen Coccoma,
ostensibly, has been “elevated to the ranks of nobility.” (Id. ¶¶ 97, 106,
143.) Neroni seeks declaratory relief. (Id. ¶ 141.)
D.
Justice Dowd
Justice Dowd is a New York Supreme Court justice and was
assigned to the Kilmer action by Judge Coccoma, after the previous
judge—former New York Supreme Court Justice Eugene Peckham, also a
defendant in this action—recused himself from the case. (Compl. ¶¶ 20,
34, 40, 41.) In Kilmer, Justice Dowd granted Ellen Coccoma’s motion to
compel and ordered Neroni to appear to provide deposition testimony, in
violation of Neroni’s Fourth Amendment and due process rights. 7 (Id.
7
Although far from clear, it appears that Neroni allges that his Fourth
Amendment rights were violated because Justice Dowd lacked jurisdiction
to issue the order compelling Neroni’s deposition testimony because, after
7
¶ 98.) Neroni surmises that, because Justice Dowd is nearing retirement,
and will soon be eligible to be appointed to the position of a judicial hearing
officer, Justice Dowd has a financial stake in granting favors to Judge
Coccoma.8 (Id. ¶¶ 28, 95, 97.) Neroni seeks damages against Justice
Dowd and an injunction and a declaratory judgment prohibiting Justice
Dowd from presiding over any cases where Neroni is a party or a non-party
witness sought to be subpoenaed. (Id. ¶¶ 105, 134, 137.)
E.
Judge Robert Mulvey
Judge Mulvey is the Administrative Judge of the Sixth Judicial
District, and is responsible for assigning cases within that district. ( Id.
¶¶ 36, 38.) Judges Coccoma and Mulvey, acting together, “helped deprive
[Neroni] of his rights by assigning [Justice] Dowd to the Kilmer action where
sanctions were requested against [Judge] Coccoma’s wife.” (Id. ¶¶ 40, 94.)
Neroni claims that, as Judge Coccoma’s “subordinate,” Judge Mulvey has
“a financial incentive to please” Judge Coccoma. (Id. ¶¶ 39, 40.)
the death of a party, William Kilmer, Justice Dowd failed to “properly
restor[e] jurisdiction.” (Compl. ¶¶ 18, 67, 68, 86, 92, 98, 100-105.)
8
Other favors Justice Dowd allegedly provided to Ellen Coccoma
include denying requests for sanctions against her and allowing her to
have depositions in public buildings for private clients “at taxpayers, and
[Neroni’s], expense.” (Compl. ¶¶ 40, 93, 110, 113, 136.)
8
F.
Former Justice Peckham
Justice Peckham is a former New York Supreme Court justice. (Id. ¶
41.) Justice Peckham retired from his post in 2011, and has since joined
the private law firm Levene Gouldin & Thompson (LGT)—perhaps not
surprisingly, another defendant in this action. (Id. ¶¶ 41-43, 63.) Prior to
his retirement, and before Justice Dowd was assigned, Justice Peckham
presided over the Kilmer action. (Id. ¶ 41.)
Additionally, after his retirement, Justice Peckham was appointed to
the position of judicial hearing officer in Delaware County Supreme Court.
(Id. ¶¶ 56-57, 61.) Neroni claims that Justice Peckham’s position as a
judicial hearing officer, coupled with Judicial Defendants’ failure to publicly
post a list of judicial hearing officers, should disqualify his law firm, LGT,
from all matters in Delaware County Supreme Court. (Id. ¶¶ 57, 58, 64, 69,
70.) Neroni seeks treble, actual, and punitive damages as against Justice
Peckham. (Id. ¶¶ 138, 147.)
G.
LGT Defendants
LGT is a private law firm in Binghamton, New York. (Id. ¶ 44.)
9
Margaret Fowler is a partner in LGT; she also previously represented two
codefendants in the Kilmer action, and “supported” Ellen Coccoma’s
motion to compel Neroni to provide deposition testimony. (Id. ¶¶ 46, 6569.) LGT and Fowler “failed to announce to the Kilmer court that [Justice]
Peckham, the previous judge on the Kilmer case, joined . . . LGT . . . as a
partner.” (Id. ¶ 64.) LGT and Fowler’s actions, Neroni claims, violated his
Fourth Amendment rights. (Id. ¶ 69.) Neroni seeks treble, actual, and
punitive damages as against LGT Defendants. (Id. ¶¶ 138, 147.)
H.
Judge Gail A. Prudenti, Justices Karen Peters and Thomas
Mercure, and Kelly Sanfilippo
Neroni’s claims against Chief Administrative Judge Prudenti, Justice
Peters, Presiding Justice 9 of the Appellate Division, Third Judicial
Department, Justice Mercure, former acting Presiding Justice 10 of the
Appellate Division, Third Judicial Department, and Kelly Sanfilippo, Court
Clerk of Delaware County Supreme Court, boil down to the fact that they all
9
While Neroni captions Justice Peters’ official position as “Chief
Judge,” (Compl.), she is, in fact, Presiding Justice. The court will use her
correct title.
10
Again, Neroni captions Justice Mercure’s official position as
“former acting Chief Judge,” (Compl.), when, in fact, he was the former
acting Presiding Justice. The court will use his correct title.
10
had a duty to publicly disclose Justice Peckham’s position as a judicial
hearing officer, failed to do so, and allowed LGT and Fowler to continue to
litigate the Kilmer matter. (See generally id. ¶¶ 56-61.) As a result,
Neroni’s Fourth Amendment rights were violated when he was ordered to
provide deposition testimony in Kilmer. (Id. ¶ 69.) Neroni seeks injunctive
relief against Judge Prudenti and Justice Peters, essentially requiring them
to publicly post the appointments of judicial hearing officers. ( Id. ¶¶ 81,
142.)
III. Standard of Review
The standards of review under Rules 12(b)(1) and 12(b)(6), which are
“substantively identical,” Lerner v. Fleet Bank, N.A., 318 F.3d 113, 128 (2d
Cir. 2003), are well settled and will not be repeated. For a full discussion of
those standards, the parties are referred to the court’s decisions in Unangst
v. Evans Law Associates, P.C., 798 F. Supp. 2d 409, 410 (N.D.N.Y. 2011),
and Ellis v. Cohen & Slamowitz, LLP, 701 F. Supp. 2d 215, 218 (N.D.N.Y.
2010), respectively.
Furthermore, in general, pro se plaintiffs are “entitled to special
solicitude,” and the court has a duty to read and interpret a pro se party’s
submissions “to raise the strongest arguments that they suggest.”
11
Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 477 (2d Cir. 2006)
(internal quotation marks and citations omitted). However, where “a
particular pro se litigant is familiar with the procedural setting as a result of
prior experience such that it is appropriate to charge [him] with knowledge
of . . . particular requirements, it falls well within a district court’s discretion
to lessen the solicitude that would normally be afforded.” Tracy v.
Freshwater, 623 F.3d 90, 102 (2d Cir. 2010).
IV. Discussion
Given that Neroni graduated from law school and spent over thirty
years practicing law, 11 the court “will not grant him the leeway afforded to
legal neophytes.” NMD Interactive, Inc. v. Chertok, No. 11 Civ. 6011, 2013
WL 1385213, at *12 (S.D.N.Y. Mar. 18, 2013).
A.
Neroni’s Motion For Disqualification of the Court
Neroni seeks the court’s disqualification or recusal pursuant to 28
U.S.C. § 445. (Dkt. No. 47.) Neroni’s motion is denied.
Neroni seeks the court’s recusal based on several statutory
11
Neroni is a graduate of Albany Law School and was admitted to
the New York State Bar in 1974. See Zayas, 2014 WL 1311560, at *1.
He was disbarred on July 7, 2011. See id.; In re Neroni, 86 A.D.3d at 711.
12
provisions.12 (Dkt. No. 40, Attach. 1 at 1-9.) As relevant here, recusal is
appropriate under § 455(a) when a judge’s “impartiality might reasonably
be questioned.” 28 U.S.C. § 455(a). Section 455(b)(1) provides for recusal
when a judge “has a personal bias or prejudice concerning a party.” Id. §
455(b)(1). Section 455(b)(3) also mandates recusal when “[the judge] has
served in governmental employment and in such capacity participated as
counsel . . . concerning the proceeding or expressed an opinion concerning
the merits of the particular case in controversy.” Id. § 455(b)(3). And
finally, recusal is appropriate under § 455(b)(5)(ii) when “a person within
the third degree of relationship to [the judge] . . . [i]s acting as a lawyer in
the proceeding.” Id. § 455(b)(5)(ii).
A recusal decision rests within the sound discretion of the judge
whose recusal is sought. See United States v. Lovaglia, 954 F.2d 811,
815 (2d Cir. 1992). The standard for recusal is whether “a reasonable
12
Reasserting previously-made arguments, Neroni also claims that
recusal is mandated “as a matter of due process of law.” (Dkt. No. 40,
Attach. 1 at 7-9.) “Consistent with a defendant’s due process right to a fair
trial, a district judge must recuse himself ‘in any proceeding in which his
impartiality might reasonably be questioned.’” United States v. Basciano,
384 F. App’x 28, 32 (2d Cir. 2010) (quoting 28 U.S.C. § 455(a)). Because
this inquiry is identical to that considered under § 455(a), (id.), the court
need not separately address Neroni’s due process argument.
13
person, knowing all the facts, [would] conclude that the trial judge’s
impartiality [might] reasonably be questioned.” Id. (citation omitted). “Or
phrased differently, would an objective, disinterested observer fully
informed of the underlying facts, entertain significant doubt that justice
would be done absent recusal?” Id. (citation omitted). Notably, recusal is
not required where a case “involves remote, contingent, indirect or
speculative interests.” Id. To permit otherwise would be to “bestow upon
litigants the power to force the disqualification of judges who are not to
their liking.” United States v. Ahmed, 788 F. Supp. 196, 202 (S.D.N.Y.
1992), aff’d, 980 F.2d 161 (2d Cir. 1992).
First, Neroni contends that, based on prior adverse rulings, including
sanctions, of this court against him, recusal is mandatory under §§ 455(a)
and (b)(2). (Dkt. No. 40, Attach. 1 at 1-4.) Prior adverse rulings, however,
are generally not a basis for disqualification. See Gallop v. Cheney, 645
F.3d 519, 520-21 (2d Cir. 2011) (noting that an adverse ruling alone was
insufficient to establish the sort of extreme antagonism required for
disqualification); see also Liteky v. United States, 510 U.S. 540, 555
(1994) (noting that “opinions formed by the judge on the basis of facts
introduced or events occurring in the course of the current proceedings, or
14
of prior proceedings, do not constitute a basis for a bias or partiality motion
unless they display a deep-seated favoritism or antagonism that would
make fair judgment impossible”).
Second, Neroni contends that recusal is necessary under
§ 455(b)(3) because the court was involved with a criminal prosecution
against Neroni in 1982, which was mentioned in his order of disbarment.
(Dkt. No. 40, Attach. 1 at 4.) All that Neroni claims, however, is that at the
time of the criminal prosecution, the court was “part of the prosecuting
office.” (Id.) Neroni does not claim, as § 455(b)(3) contemplates, that the
court was actually involved in the prosecution. See Maunsell v. WCAX
TV, 477 F. App’x 845, 846 (2d Cir. 2012). Moreover, 28 U.S.C § 455(b)(3)
mandates recusal where the judge, while serving in government
employment, participated in a material way “concerning the proceeding” or
“expressed an opinion concerning the merits of the particular case in
controversy.” (emphasis added). Accordingly, even if the court was
involved with Neroni’s criminal prosecution, it has nothing to do with the
merits of this proceeding. Neroni’s argument suggests precisely the sort
of “remote, contingent, indirect or speculative interests” that militate
against recusal. Lovaglia, 954 F.2d at 815.
15
Third, Neroni argues that recusal is appropriate under § 455(b)(5)(ii)
because “Judge Sharpe’s son Michael A. Sharpe is employed as an
Assistant Attorney General in the office that” represents Judicial
Defendants. (Dkt. No. 40, Attach. 1 at 5-7.) As LGT Defendants point out,
however, this is a civil matter, and Sharpe has: (1) not appeared in this
action; and (2) serves as an Assistant Deputy Attorney General in the
Organized Crime Task Force, and, as such, has no involvement in this
matter, as he investigates and prosecutes criminal matters. (Dkt. No. 41
at 3-4.) Under these circumstances, recusal is not warranted. See, e.g.,
Microsoft Corp. v. United States, 530 U.S. 1301, 1301-03 (2000)
(statement of Chief Justice Rehnquist explaining his decision not to recuse
himself in a case in which his son was a partner at a law firm representing
a party before the Court); Faith Temple Church v. Town of Brighton, 348
F. Supp. 2d 18, 21 (W.D.N.Y. 2004) (holding that recusal was not required
where the judge’s son had been hired by a law firm that was representing
a party in the action).
As the Second Circuit has observed, “where the standards
governing disqualification have not been met, disqualification is not
optional; rather, it is prohibited.” In re Aguinda, 241 F.3d 194, 201 (2d Cir.
16
2001). Accordingly, Neroni’s motion for recusal or disqualification of the
court is denied.
Below, the court addresses the relevant arguments advanced by
defendants in support of their motions to dismiss, Neroni’s responses in
opposition, and, finally, Neroni’s remaining cross motions.
B.
Judicial Immunity
First, Judicial Defendants argue that the claims against Judges
Coccoma, Mulvey, and Prudenti, and Justices Dowd, Peckham, Peters,
and Mercure must be dismissed because they are entitled to absolute
judicial immunity. (Dkt. No. 44, Attach. 2 at 6-9.) Neroni counters that
judicial immunity does not apply. (Dkt. No. 47, Attach. 2 at 2-7.) The court
agrees that Judges Coccoma and Mulvey and Justice Dowd are immune
from suit in their individual capacities. 13 Further, while Judge Prudenti and
Justices Peckham, Peters, and Mercure are not entitled to absolute
13
Judicial immunity shields judges from suit to the extent that they
are sued in their individual capacities. See Martinez v. Queens Cnty. Dist.
Attorney, No. 12-CV-06262, 2014 WL 1011054, at *8 n.8 (E.D.N.Y. Mar.
17, 2014); McKnight v. Middleton, 699 F. Supp. 2d 507, 521-25 (E.D.N.Y.
2010), aff’d, 434 F. App’x 32 (2d Cir. 2011). As further discussed below,
the Eleventh Amendment, on the other hand, shields judges from suit to
the extent that they are sued in their official capacities. Martinez, 2014
WL 1011054, at *8 n.8.
17
judicial immunity, Neroni fails to state a claim against them.
“It is well settled that judges generally have absolute immunity from
suits for money damages for their judicial actions.” Bliven v. Hunt, 579
F.3d 204, 209 (2d Cir. 2009) (citations omitted). This immunity is “from
suit, not just from ultimate assessment of damages.” Mireles v. Waco, 502
U.S. 9, 11 (1991) (citation omitted). The 1996 Congressional
amendments to § 1983 bar injunctive relief, unless a declaratory decree
was violated or declaratory relief was unavailable. See Montero v. Travis,
171 F.3d 757, 761 (2d Cir. 1999). Therefore, a judge is immune from all
forms of suit unless he has acted either beyond his judicial capacity, or “in
the complete absence of all jurisdiction.” Mireles, 502 U.S. at 12.
In determining whether or not a judge acted in the clear absence of
all jurisdiction, the judge’s jurisdiction is “to be construed broadly, and the
asserted immunity will only be overcome when the judge clearly lacks
jurisdiction over the subject matter.” Ceparano v. Southampton Justice
Court, 404 F. App’x 537, 539 (2d Cir. 2011) (internal quotation marks and
citation omitted). “Whether a judge acted in a judicial capacity depends on
the nature of the act [complained of] itself, i.e., whether it is a function
normally performed by a judge, and [on] the expectations of the parties,
18
i.e., whether they dealt with the judge in his judicial capacity.” Id. (internal
quotation marks and citation omitted). Moreover, if the judge is performing
in his judicial capacity, immunity does not give way even if “the action he
took was in error, was done maliciously, or was in excess of his authority.”
Id. (internal quotation marks and citation omitted).
1.
Judges Coccoma and Mulvey
The gravamen of Neroni’s claims against Judges Coccoma and
Mulvey is that they manipulated the assignment of judges so that Ellen
Coccoma could obtain favorable treatment. (Compl. ¶¶ 18, 40, 94.) Citing
no authority, Neroni argues that these actions are outside the scope of
judicial immunity. (Dkt. No. 47, Attach. 2 at 2-4.)
Contrary to Neroni’s unfounded assertions, courts have held that the
assignment of cases is a judicial function and is therefore a protected act
under judicial immunity. See Martinez v. Winner, 771 F.2d 424, 434 (10th
Cir. 1985) (“Although it is an ‘administrative’ act, in the sense that it does
not concern the decision who shall win a case, the assignment of cases is
still a judicial function in the sense that it directly concerns the
case-deciding process.”), vacated on other grounds sub nom. Tyus v.
Martinez, 475 U.S. 1138 (1986); Parent v. New York, 786 F. Supp. 2d 516,
19
532 (N.D.N.Y. 2011) (“The assignment of cases and issuance of
consolidation orders are judicial functions.”), aff’d, 485 F. App’x 500 (2d
Cir. 2012); see also Zahl v. Kosovsky, No. 08 Civ. 8308, 2011 WL 779784,
at *9 (S.D.N.Y. Mar. 3, 2011) (holding that the alleged manipulation of the
case assignment system is protected by judicial immunity), aff’d, 471 F.
App’x 34 (2d Cir. 2012).
Accordingly, Judges Coccoma and Mulvey’s judicial assignment
decisions are clearly judicial functions. As such, Judges Coccoma and
Mulvey are entitled to judicial immunity, and the claims asserted against
them in their individual capacities are dismissed.
2.
Justice Dowd
Although Neroni makes numerous factual allegations against Justice
Dowd, they generally concern his rulings and actions in Kilmer, particularly
his ruling on Ellen Coccoma’s motion to compel, which ordered Neroni to
provide deposition testimony. (Compl. ¶¶ 40, 98, 99, 101-08.) Neroni also
complains of Justice Dowd’s failure to impose sanctions on Ellen
Coccoma, due to improper financial and political motives, and his
20
acquiescence to her rent-free use of public buildings. 14 (Id. ¶¶ 28, 40, 93,
94, 97, 98, 110, 113, 136.)
Issuing orders compelling parties or nonparties to provide deposition
testimony and deciding whether to impose sanctions are actions well
within Justice Dowd’s judicial capacity, and are also well within his
jurisdiction.15 See Chandler v. Suntag, No. 1:11-cv-02, 2011 WL 2559878,
at *3 (D. Vt. June 28, 2011) (“Each of these alleged activities—considering
complaints, facilitating subpoenas, and permitting certain forms of
discovery—involve fundamental judicial functions, and are protected from
liability by absolute judicial immunity.” (citing Mireles, 502 U.S. at 11));
Kapsis v. Brandveen, No. 09-01352, 2009 WL 2182609, at *2 (E.D.N.Y.
14
Neroni also attacks Justice Dowd’s mental capacity and claims
that he has “mental health problems that appear to make him unfit to
make decisions from the bench which are changing lives and affecting
constitutional rights of individuals.” (Compl. ¶¶ 121-30.)
15
In his opposition, Neroni contends that judicial immunity should
not apply to Justice Dowd because Neroni has “alleged enough to be
entitled to prospective injunctive relief under Ex Parte Young.” (Dkt. No.
47, Attach. 2 at 4.) Neroni confuses judicial immunity with Eleventh
Amendment immunity, which is addressed below. As discussed above,
while judicial immunity does not bar injunctive relief if a declaratory decree
was violated or declaratory relief was unavailable, Neroni has not alleged
that Justice Dowd violated a declaratory decree or that declaratory relief
was unavailable. See Montero, 171 F.3d at 761.
21
July 20, 2009) (noting that judicial immunity protects judges’ decisions
regarding whether to impose sanctions). Thus, Justice Dowd is immune
from suit in his individual capacity.
3.
Judge Prudenti and Justices Peckham, Peters, and Mercure
The essence of Neroni’s claims against Judge Prudenti and Justices
Peters, Peckham, and Mercure is that they all failed to publicly disclose
Justice Peckham’s position as a judicial hearing officer, and allowed LGT
and Fowler to continue to litigate the Kilmer matter, which violated
Neroni’s Forth Amendment rights. (Compl. ¶¶ 56-61, 69.)
Neroni claims the judges’ failure to “post names of judicial hearing
officers prominently where the public could see” was not judicial, but
administrative. (Dkt. No. 47, Attach. 2 at 6-7.) While the court agrees that
posting names of judicial hearing officers is properly characterized as
administrative, thus putting these omissions outside of the scope of judicial
immunity, Neroni’s claims against these defendants nevertheless fail
because he has failed to state a cognizable federal claim. See Morris v.
Katz, No. 11-CV-3556, 2011 WL 3918965, at *3 (E.D.N.Y. Sept. 4, 2011)
(holding that the Chief Administrative Judge was not entitled to absolute
immunity for administrative acts, but plaintiff, in any event, failed to state a
22
claim); Collins v. Lippman, No. 04-CV-3215, 2005 WL 1367295, at *3
(E.D.N.Y. June 8, 2005) (noting that the Chief Administrative Judge’s
alleged failure to direct clerk to provide the plaintiff with copies of
documents he requested was “beyond the scope of judicial immunity”).
Although these defendants are not entitled to judicial immunity,
Neroni has failed to state a claim. “[F]or a plaintiff to recover in a section
1983 action, he must establish a causal connection between the acts or
omissions of each defendant and any injury or damages he suffered as a
result of those acts or omissions.” Porath v. Bird, No. 9:11–cv–963, 2013
WL 2418253, at *23 (N.D.N.Y. June 3, 2013). As an initial matter, aside
from receiving an order compelling him to appear for a deposition in
Kilmer—which, by his own admission, he did not attend, (Dkt. No. 47,
Attach. 2 at 6)—Neroni has failed to allege what injury, if any, he suffered
as a result of defendants’ failure to post the names of judicial hearing
officers. Moreover, while Neroni contends that defendants’ failure to post
the names of judicial hearing officers caused a Fourth Amendment
violation when he was compelled to provide deposition testimony in an
action in which a judicial hearing officer’s private law firm was representing
a private party, (Dkt. No. 47, Attach. 1 at 7), this attempt to articulate
23
causation is attenuated at best.
Further, aside from his bald, conclusory assertions, Neroni has cited
no authority indicating that these judges were under a duty to post the
names of judicial hearing officers. An “omission can. . . only amount to an
actionable claim under § 1983 if [defendants were] under a constitutional
obligation.” Zigmund v. Wynne, 189 F.3d 462, 1999 WL 642951, at *2 (2d
Cir. 1999); see N.Y. Coastal P’ship, Inc. v. U.S. Dep’t of Interior, 341 F.3d
112, 117 (2d Cir. 2003) (noting that failure to act may constitute a § 1983
violation only where the plaintiff identifies a duty); see also Morris, 2011
WL 3918965, at *3. Accordingly, all claims asserted against Judge
Prudenti and Justices Peckham, Peters, and Mercure regarding their
failure to post or disclose the names of judicial hearing officers are
dismissed.
C.
Quasi-Judicial Immunity
Judicial Defendants also argue that, to the extent that Neroni
asserts any claims against Ellen Coccoma in her capacity as a member of
COPS, she is entitled to quasi-judicial immunity. (Dkt. No. 44, Attach. 2 at
11-12.) The court agrees.
24
It is well settled that quasi-judicial immunity is absolute if the official’s
role “is ‘functionally comparable’ to that of a judge.” Butz v. Economou,
438 U.S. 478, 513 (1978); see Cleavinger v. Saxner, 474 U.S. 193, 201
(1985) (“Absolute immunity flows not from rank or title or location within
the Government, but from the nature of the responsibilities of the individual
official.” (internal quotation marks and citation omitted)); Gross v. Rell, 585
F.3d 72, 81 (2d Cir. 2009) (“Judicial and quasi-judicial immunity are both
absolute immunities.” (citations omitted)).
Members of COPS are entitled to quasi-judicial immunity for conduct
performed “within the course of their duties.” Koziol v. Peters, No. 12-CV823, 2012 WL 4854589, at *8 (N.D.N.Y. Oct. 11, 2012) (holding that three
members of the Third Department COPS were protected by quasi-judicial
immunity for their conduct in the course of an investigation); see
Anonymous v. Ass’n of the Bar of N.Y., 515 F.2d 427, 433 (2d Cir. 1975)
(observing that New York state courts regard disciplinary proceedings as
“judicial proceeding[s]” and determining that the state bar association’s
grievance committee acted as a quasi-judicial body and an arm of the
Appellate Division); accord McKeown v. N.Y. State Comm’n on Judicial
Conduct, 377 F. App’x 121, 124 (2d Cir. 2010). Accordingly, any claims
25
against Ellen Coccoma relating to her conduct as a member of COPS,
including her investigation and prosecution of Neroni’s disciplinary action,
must be dismissed because she is entitled to quasi-judicial immunity.
D.
Eleventh Amendment Immunity
Judicial Defendants argue that Neroni’s claims against them in their
official capacities must be dismissed because they are entitled to immunity
under the Eleventh Amendment. 16 (Dkt. No. 44, Attach. 2 at 14-17.) The
court agrees.
The Eleventh Amendment provides a state with sovereign immunity
from suit. See V.A. Office for Prot. Advocacy v. Stewart, 131 S.Ct. 1632,
1638 (2011) (citation omitted). “[A]bsent waiver or valid abrogation,
federal courts may not entertain a private person’s suit against a State.” Id.
at 1638. Generally, New York and its agencies enjoy sovereign immunity
from suit in federal court under the Eleventh Amendment. See Woods v.
Rondout Valley Cent. Sch. Dist. Bd. of Educ., 466 F.3d 232, 236 (2d Cir.
16
Neroni contends that the Eleventh Amendment does not bar
claims of citizens against their own states. (Dkt. No. 47, Attach. 2 at 8,
15.) This same, baseless argument, offered by Neroni himself, was
recently considered and rejected by a court in this District. Bracci, 2013
WL 123810, at *9 n.5. Accordingly, the court declines to entertain this
obviously meritless argument again here.
26
2006) (holding that the Eleventh Amendment extends beyond the states
themselves to state agents and state instrumentalities).
Under the doctrine established in Ex Parte Young, however, a
“plaintiff may avoid the Eleventh Amendment bar to suit and proceed
against individual state officers, as opposed to the state, in their official
capacities, provided that his complaint[:] (a) alleges an ongoing violation of
federal law[;] and (b) seeks relief properly characterized as prospective.”
Clark v. DiNapoli, 510 F. App’x 49, 51 (2d Cir. 2013) (internal quotation
marks and citation omitted). Nevertheless, declaratory relief, while
equitable in nature, is barred by the Eleventh Amendment “when it would
serve to declare only past actions in violation of federal law: retroactive
declaratory relief cannot be properly characterized as prospective.” Kent
v. New York, No. 1:11-CV-1533, 2012 WL 6024998, at *7 (N.D.N.Y. Dec.
4, 2012) (internal quotation marks and citation omitted).
1.
Monetary and Non-Prospective Declaratory or Injunctive Relief
Here, to the extent that Neroni’s complaint seeks monetary relief
and/or non-prospective injunctive or declaratory relief against Judicial
Defendants in their official capacities, they are immune from suit pursuant
27
to the Eleventh Amendment. This includes: (1) as against Ellen Coccoma
acting in her capacity as a member of COPS, Neroni’s request for (a)
treble damages, (Compl. ¶¶ 138, 147), and (b) a declaratory judgment that
his disbarment is void, (id. ¶ 140), as it is properly characterized as
retroactive declaratory relief, see Nat’l R.R. Passenger Corp. v. McDonald,
No. 12 Civ. 2731, 2013 WL 5434618, at *13 (S.D.N.Y. Sept. 26, 2013); (2)
as against Judge Coccoma, Neroni’s request for “a declaratory judgment
that Ellen Coccoma’s participation in the disciplinary action against [him]
. . . where [Judge] Coccoma recused [himself] from the related case
involving [Neroni] . . . constituted re-entry of [Judge] Coccoma into the
Mokay case through his wife and a violation of [Neroni’s] due process,”
(Compl. ¶ 141), as it is also properly characterized as retroactive
declaratory relief, see Nat’l R.R. Passenger, 2013 WL 5434618, at *13; (3)
as against Justice Dowd, Neroni’s request for money damages; and (4) all
claims against Justice Mercure, Judge Mulvey, Justice Peckham, and
Sanfilippo,17 as Neroni has not requested prospective injunctive relief as
17
For the first time, in his opposition to Judicial Defendants’ motion
to dismiss, Neroni claims that he seeks prospective injunctive relief
against Sanfilippo. (Dkt. No. 47, Attach. 2 at 7-8.) Even if he properly
stated so in his complaint, Neroni would be unable to circumvent Eleventh
Amendment immunity because, as discussed infra Part IV.D.2, he has
28
against any of these Judicial Defendants in his complaint.
2.
Prospective Injunctive Relief
Neroni seeks prospective injunctive relief against Justice Dowd,
Judge Prudenti, and Justice Peters. Specifically, as against Justice Dowd,
Neroni seeks an injunction and a declaratory judgment prohibiting Justice
Dowd from presiding over any cases where Neroni is a party or a nonparty
witness sought to be subpoenaed. (Compl. ¶¶ 134, 137.) As against
Judge Prudenti, Neroni seeks injunctive relief “requiring her to promptly
forward orders of appointment of judicial hearing officers to the County
and Court clerks of the respective counties, as well as to the Court Clerks
of the Appellate Divisions . . . and to post the names of appointed hearing
officers on the website of the Unified New York Court system.” (Compl.
¶ 81.) Similarly, as against Justice Peters, Neroni seeks an injunction
“ordering her to post all orders of appointment of all judicial hearing
officers and of all members of . . . [COPS] of her court going back [fortyfive] years on her website.” (Id. ¶ 142.) Because, as discussed supra Part
IV.B.3, Neroni fails to state a claim against these defendants regarding
their failure to post the names of judicial hearing officers, a discussion of
failed to allege an ongoing violation of federal law.
29
whether Neroni’s requested relief related to these claims fits within the Ex
Parte Young exception is academic. 18
E.
State Action
HHK, LGT Defendants, Ellen Coccoma, and Justice Peckham
contend that any claims that Neroni asserts against them in their
capacities as private attorneys or law firms must be dismissed for lack of
state action. (Dkt. No. 29, Attach. 2 at 4-8; Dkt. No. 30, Attach. 3 at 6-8;
18
The court notes, however, that even if Neroni did state a claim,
Neroni’s requested relief does not fit within the Ex Parte Young exception.
“Whether a litigant’s claim falls under the Ex parte Young exception to the
Eleventh Amendment’s bar against suing a state is a straightforward
inquiry that asks whether [the] complaint alleges an ongoing violation of
federal law and seeks relief properly characterized as prospective.” In re
Dairy Mart Convenience Stores, Inc., 411 F.3d 367, 372 (2d Cir. 2005)
(internal quotation marks and citations omitted). Here, while the relief
Neroni requests is prospective in nature, he has failed to allege that this
relief will remedy an ongoing violation of federal law. Clark, 510 F. App’x
at 51; McKeown, 377 F. App’x at 123. The sole bases for Neroni’s
requested relief are that Justice Dowd violated Neroni’s Fourth
Amendment rights by ordering him to provide deposition testimony in
Kilmer, and that Justice Peters and Judge Prudenti violated his Fourth
Amendment rights by failing to publicly disclose the list of judicial hearing
officers, thus allowing LGT to continue to represent private parties in
Kilmer while Justice Peckham was a judicial hearing officer. (Compl.
¶¶ 56-61, 98.) Because Neroni has alleged only discrete, past acts or
omissions, not an ongoing violation of federal law, Justice Peters, Justice
Dowd, and Judge Prudenti are also entitled to Eleventh Amendment
sovereign immunity and dismissal of any claims asserted against them in
their official capacities.
30
Dkt. No. 44, Attach. 2 at 9-12.) Neroni retorts that he sufficiently alleged
that all private conduct rose to the level of state action by way of
conspiracy. (Dkt. No. 40, Attach. 2 at 2-4; Dkt. No. 40, Attach. 3 at 2-6;
Dkt. No. 47, Attach. 2 at 18-20.) The court agrees with defendants that
dismissal is required.
“In order to state a claim under § 1983, a plaintiff must allege that he
was injured by either a state actor or a private party acting under color of
state law.” Ciambriello v. Cnty. of Nassau, 292 F.3d 307, 323 (2d Cir.
2002) (citation omitted). In order to prove a § 1983 conspiracy claim, a
plaintiff must allege: “(1) an agreement between a state actor and a private
party; (2) to act in concert to inflict an unconstitutional injury; and (3) an
overt act done in furtherance of that goal causing damages.” Id. at 32425. However, “[a] merely conclusory allegation that a private [individual]
acted in concert with a state actor does not suffice to state a § 1983 claim
against the private [individual].” Id. at 324 (citation omitted). Instead, a
plaintiff must show “a sufficiently close nexus between the State and the
challenged action of the [private] entity so that the action of the latter may
be fairly treated as that of the State itself.” Jackson v. Metro. Edison Co.,
419 U.S. 345, 351 (1974) (internal quotation marks and citation omitted).
31
Here, despite his vehement contentions to the contrary, Neroni has
failed to establish that any of the private law firms or attorneys were state
actors for § 1983 purposes. As an initial matter, it is black letter law that
“[p]rivate law firms and attorneys . . . are not state actors for section 1983
purposes.” Jaffer v. Patterson, No. 93 Civ. 3452, 1994 WL 471459, at *2
(S.D.N.Y. Sept. 1, 1994) (citing Polk Cnty. v. Dodson, 454 U.S. 312, 318
(1981)); see O’Bradovich v. Vill. of Tuckahoe, 325 F. Supp. 2d 413, 419
(S.D.N.Y. 2004) (“Private attorneys and law firms . . . do not act under
color of state authority.”) Furthermore, it is equally well settled that mere
use, and even misuse, of the state courts does not turn private parties into
state actors. See Cramer v. Englert, 93 F. App’x 263, 264 (2d Cir. 2004)
(“[T]he mere invocation of New York legal procedures does not satisfy the
state actor requirement under § 1983.” (internal quotation marks and
citation omitted)); Dahlberg v. Becker, 748 F.2d 85, 92-93 (2d Cir. 1984)
(dismissing § 1983 action against private attorney because allegations of
“misuse of a state statute” did not give rise to a § 1983 action); BarrogaHayes v. Susan D. Settenbrino, P.C., No. 10 CV 5298, 2012 WL 1118194,
at *8 (E.D.N.Y. Mar. 30, 2012) (holding that the issuance of and
32
compliance with a subpoena did not transform defendants into state
actors).
The genesis of Neroni’s claims against these defendants is that
Ellen Coccoma, a private attorney, avoided the imposition of sanctions,
and filed a motion to compel Neroni’s deposition testimony in Kilmer,
which Justice Dowd granted solely as a favor to Judge Coccoma, resulting
in a violation of Neroni’s Fourth and Fourteenth Amendment rights.
(Compl. ¶¶ 18, 19, 86, 91, 92, 98.) Because Ellen Coccoma is an
employee of HHK, Neroni argues, HHK and Ellen Coccoma “were the
same legal person.” (Dkt. No. 40, Attach. 2 at 3.) Further, because LGT
Defendants “supported” Ellen Coccoma’s motion in Kilmer, and because
Justice Peckham, an LGT partner, was also a judicial hearing officer, LGT
Defendants and Justice Peckham were part of the conspiracy to violate
Neroni’s Fourth Amendment rights. (Compl. ¶¶ 65, 67, 69, 99, 114,
138(c).) At best, however, Neroni has alleged misuse of state court
procedures, which, as discussed above, does not morph private action
into state action. Neroni even admits that “Ellen Coccoma and [Justice]
Peckham were sued predominantly for their conduct as private attorneys.”
(Dkt. No. 47, Attach. 2 at 22.)
33
Further, Neroni also has not alleged facts demonstrating a “meeting
of the minds,” Dahlberg, 748 F.2d at 93, an agreement between private
parties to deprive him of his constitutional rights, Ciambriello, 292 F.3d at
323, or a “a sufficiently close nexus between the State” and the actions of
the private attorneys and law firms, Jackson, 419 U.S. at 351. Instead,
Neroni conclusorily contends that judges nearing retirement, such as
Justice Dowd, are financially motivated to provide Ellen Coccoma with
special treatment in matters that come before them so that Judge
Coccoma is incentivized to appoint these judges to judicial hearing officer
positions upon their retirement. (Compl. ¶¶ 28, 40, 56-57, 61, 95, 97.)
Such far-removed and unfounded speculation does not a conspiracy
make. See Delbene v. Alesio, No. 00 Civ. 7441, 2001 WL 170801, at *10
(S.D.N.Y. Feb. 21, 2001) (holding that private attorneys’ coordination of
deposition with county attorney allegedly in violation of the plaintiff’s First
Amendment rights did not give rise to a conspiracy and did not elevate the
private attorney to a state actor). Accordingly, Neroni’s § 1983 claims
against HHK, LGT Defendants, Ellen Coccoma, and Justice Peckham are
dismissed.
34
F.
State Law Claims
Defendants contend that, to the extent that Neroni asserts state law
claims against them, the court should decline to exercise supplemental
jurisdiction. (Dkt. No. 29, Attach. 2 at 9-19; Dkt. No. 44, Attach. 2 at 1920.) While no state law causes of action are readily apparent on the face
of the complaint, to the extent that Neroni asserts state law claims, the
court agrees that they must be dismissed.
“In the absence of original federal jurisdiction, the decision of
whether to exercise jurisdiction over pendent state law claims is within the
court’s discretion.” Butler v. LaBarge, No. 9:09-CV-1106, 2010 WL
39077258, at *3 (N.D.N.Y. Sept. 30, 2010) (citing Kolari v. N.Y.
Presbyterian Hosp., 455 F.3d 118, 121-22 (2d Cir. 2006)). Where, as
here, all federal claims have been eliminated before trial, the balance of
factors in deciding whether to exercise jurisdiction over remaining state
law claims leans toward dismissal. Kolari, 455 F.3d at 122. Accordingly,
the court declines to exercise jurisdiction over any state law claims and
they are dismissed from this action.
35
G.
Leave to Amend
Although a pro se plaintiff’s complaint “should not [be] dismiss[ed]
without granting leave to amend at least once when a liberal reading of the
complaint gives any indication that a valid claim might be stated,” Shomo
v. City of N.Y., 579 F.3d 176, 183 (2d Cir. 2009) (internal quotation marks
and citation omitted), “leave to amend is not necessary when it would be
futile,” Ashmore v. Prus, 510 F. App'x 47, 49 (2d Cir. 2013). As an initial
matter, as discussed above, supra Part IV, given his legal education and
experience, the court, in its discretion, declines to afford Neroni any
special solicitude. Moreover, Neroni has not requested leave to amend in
any of his submissions. And in any event, considering the analysis above,
any amended complaint would be just as frivolous, baseless, and
vexatious as his original, and amendment, therefore, would be futile.
Accordingly, Neroni’s complaint is dismissed with prejudice.
H.
Costs and Attorneys’ Fees
In requesting dismissal of Neroni’s claims, HHK and LGT
Defendants seek costs and reasonable attorneys’ fees pursuant to 42
U.S.C. §§ 1988 and 1927. (Dkt. No. 29, Attach. 2 at 10-12; Dkt. No. 30,
Attach. 3 at 16-20.) Because defendants did not provide any
36
documentation upon which the court could quantify costs or attorneys’
fees, however, this request is denied with leave to renew. 19
I.
Neroni’s Remaining Cross Motions
1.
Transfer of Venue
Providing no authority or analysis, Neroni requests a transfer of
venue “to a court where the Chief Judge does not have relatives working
in the office of New York State Attorney General.” (Dkt. No. 40 at 1.)
Neroni’s motion is denied.
Section 1404(a) of Title 28 of the United States Code authorizes a
district court to “transfer any civil action to any other district or division
where it might have been brought or to any district or division to which all
parties have consented.” 28 U.S.C. § 1404(a). The decision to transfer
venue is entrusted to the sound discretion of the trial court, see Filmline
(Cross–Country) Prods., Inc. v. United Artists Corp., 865 F.2d 513, 520
(2d Cir. 1989) (citations omitted), and the party seeking transfer bears the
burden of proof, see Rescuecom Corp. v. Chumley, 522 F. Supp. 2d 429,
449 (N.D.N.Y. 2007). Because venue is proper in this district, and Neroni
19
Notably, while Neroni argues against the imposition of sanctions,
(Dkt. No. 40, Attach. 2 at 15-16; Dkt. No. 40, Attach. 3 at 9-10), no Rule 11
motion is presently before the court.
37
has not demonstrated that transfer is warranted, Neroni’s motion to
transfer venue is denied.
2.
Disqualification of Counsel
Finally, Neroni moves to disqualify the New York State Office of the
Attorney General (OAG) from representing Ellen Coccoma and Justice
Peckham against Neroni’s claims related to the conduct of these
defendants solely in their private capacity, to strike any filings made by
OAG on their behalf, and to sanction the Attorney General and Assistant
Attorney General.20 (Dkt. No. 47; Dkt. No. 47, Attach. 2 at 22-23.) Judicial
Defendants oppose Neroni’s motion. (Dkt. No. 53 at 2-3.) For the
reasons discussed below, Neroni’s motion is denied.
Motions to disqualify counsel “are subject to fairly strict scrutiny” and
“the courts must guard against tactical use of motions to disqualify
counsel.” Lamborn v. Dittmer, 873 F.2d 522, 531 (2d Cir. 1989). A district
court may “disqualify counsel where necessary to preserve the integrity of
20
As an initial matter, it is unclear that Neroni has standing to object
to the representation of Ellen Coccoma and Justice Peckham by the
Attorney General, as he “has failed to demonstrate that he has been
aggrieved in any way different in kind and degree from the community
generally by the Attorney General’s representation” of these defendants.
Zaccaro v. Parker, 169 Misc. 2d 266, 269 (N.Y. Sup. Ct. 1996).
38
the adversary process,” typically in the following situations: (1) where an
attorney’s conflict of interests in violation of New York’s Rules of
Professional Conduct “undermines the court’s confidence in the vigor of
the attorney’s representation of his client”; or (2) “where the attorney is at
least potentially in a position to use privileged information concerning the
other side through prior representation, . . . giving his present client an
unfair advantage.” Bd. of Educ. of N.Y.C. v. Nyquist, 590 F.2d 1241, 1246
(2d Cir. 1979) (citations omitted); see Grant v. Harvey, No. 09 Civ. 1918,
2012 WL 1958878, at *1 (S.D.N.Y. May 24, 2012).
Further, New York Public Officers Law § 17(2) states, in relevant
part:
the state shall provide for the defense of the employee in
any civil action or proceeding in any state or federal court
arising out of any alleged act or omission which occurred
or is alleged in the complaint to have occurred while the
employee was acting within the scope of his public
employment or duties.
Judicial Defendants contend, and the court agrees, that the complaint
raises allegations that certain conduct by both Ellen Coccoma and Justice
Peckham, while acting within the scope of their public employment and
duties, injured Neroni. (Dkt. No. 53 at 2-3; Compl. ¶¶ 8, 41, 82, 84-85.)
39
Indeed, the caption of the complaint, which, in addition to their individual
capacities, names Ellen Coccoma as a defendant “as a former member of
the Committee for Professional Conduct, Appellate Division, Third Judicial
Department,” and names Justice Peckham as a defendant “as the former
Acting Supreme Court Justice assigned to the Delaware County Supreme
Court case Kilmer v. Moseman, Delaware County Index No. 2009-298,
and as a judicial hearing officer in Delaware County Supreme Court.”
(Compl.)
Because Neroni alleged in the complaint that at least some of the
events giving rise to this action occurred while defendants were acting
within the scope of their employment with the state, Ellen Coccoma and
Justice Peckham are entitled to be represented by OAG unless the
Attorney General determines that representation is inappropriate. See
N.Y. Pub. Off. Law § 17(2); Grant, 2012 WL 1958878, at *2. Here, no
such determination was made. Further, Neroni does not claim any
violation of New York’s Rules of Professional Conduct that would
undermine the court’s confidence in the vigor of the Attorney General’s
representation of his clients, and he does not claim that a conflict of
40
interest exists. Accordingly, there is no basis on which to grant Neroni’s
motion, and it is therefore denied.
V. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that defendants’ motions to dismiss (Dkt. Nos. 29, 30,
44) are GRANTED; and it is further
ORDERED that Neroni’s cross motions for disqualification or recusal
of the court, transfer of venue, and disqualification of counsel (Dkt. Nos.
40, 47) are DENIED; and it is further
ORDERED that Neroni’s complaint (Dkt. No. 1) is DISMISSED; and
it is further
ORDERED the Clerk close this case; and it is further
ORDERED that the Clerk provide a copy of this MemorandumDecision and Order to the parties.
IT IS SO ORDERED.
June 5, 2014
Albany, New York
41
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