Zahl v. Kovosky et al

Filing 97

MEMORANDUM OPINION AND ORDER: For the foregoing reasons and for substantially the reasons argued in the motions to dismiss the Complaint, the Moving Defendants' motions are granted and the Complaint is dismissed in its entirety as against all defendants. The Clerk of Court is respectfully requested to enter judgment dismissing the Complaint in accordance with this opinion and to terminate all pending motions, close this case. (Signed by Judge Laura Taylor Swain on 3/3/2011) (jpo)

CNJTED STATES DiSTRICT COURT SOUTHER1\ DISTR1CT OF NEW YORK

-------------------------------------------------------\
KENNETH ZAHL, M,D" 'nd'v.dually and on behalf of his child, Plaintiff.
-\'-

1\0, 08 Civ, 8308 (LTS){THK)

KAREN KOSOVSKY, MD, et aI., Defcnuants,
__________________________ -- -- ---- - ,.--- ------- -- ------- J\

l\'lnIORA:"IDtiM 01'1:"110" A:"ID ORDER

Plaintiff Kenneth ZuhL M,D,,' ("Plaintifl" or "ZahI") brings this actionj)IQ se against Karen Kosovsky, M ,D, ("Kosovsky"), Harry Kosovsky, M.D" and Gertrude Kosovsky (with Kosovsky, the "Koso\sky Defendants"), Kevin McKeown ("McKeowll"), Robert Dobrish, Esq, and Dobrish, Zeit', Gross, Wrubel. LLP (Ihe "Dobrish Defcnuants")' .10 Ann Douglas, Esq, ("Douglas"), SoftSplit LLC and Soft Splil Kids LLe (the "Soft Split Defendants"), New York State Supreme Court Justice Marilyn G, Diamond,' individually, New York State Supreme Court Justice Joan B, LoblS, in her individual and oft1eial capacities, ;,Jew York State Supreme Court Justice Laura Visitacion-Lewis, in her official capacity, Juslice Jonathan Lippman; in his individual and oHicial

Zahl purports [0 br.ng this action individually and on behalf of hIS daughter. However, "a non-attorney parent l11ust be represented by counsel in bringing an action on bchaJf or his or her child," Chsung,\l, Youth Orches.!ra FQl.mdation of Buffalo, Inc, 906 F,2d 59,61 (2d Cir. 1990), The Courtlherefore dismisses, sua spon!&:, the claims brought on Zuhl's uaughtcr's behalf. See Benios v.eNew York Cilv Housing Authorit)( 564 F3d 130, 134 (2d Cil'. 20(9) (ciling ~V"nger y, Canastota Central School District 146 F.3d 123, 125 (2e1 eir. I(N8), The caption names "Judge !vlarylin G, Diamond:' The New York State Unitlcd Court Syslem website confirms that the Court's spelling 's correct Then- Justice Lippman is now the ChicfJl1dgc oflhe New York Stale Court of Appeals,
IIt'-1 \11!; 11!'1l

capacities. and Justice Jacqueline Silbermann. in her individual and omcial capacities (the "Judicial Defendants"), tbe New York SI:lle Unified Court System and its Oftice or Court Administration ("l'\YS liCS" and "OCA." respectively. and together wilh the Judicial Defendants. the "State Defendants"). and John and Janc Docs 1 through 100. seeking a declaratory judgment pursuant to 28 U.S.c.
~

2201 and asserting causes ofaclion pursuant

LO

42

t;.s.c.~§

1')83. 1985(3). and 1986. the 1962(b), (cl and (d). Title

RackelCcr Illtluenecd and Corrupt OrganL,;ulion Act ("RICO").

18lj.sC.~

III of the Omnibus Crime Control and Sat'c Streets Act of 1968. ("\.\firetap Act"). 18 U.sC§ 2511 (1 lea). 18 USc.
~

1708.42 U .S.c. § 408(a)(7). 18 U.S.c. ~§ 1503 and 1512, New York Penal Seclion487 of the New York Judiciary Law. und common law civil

Law Anic!es 155 and I

conspiracy. In a series of motions. all defendants except the Soh Split and Doc defendants (the "Moving Defendants") move to dismiss the complaint pursuant to Rules 8(a) and 12(h) of the Federal Rules of Civil Procedure. as inadequately plead. 1'01' lack of subject malleI' jurisdiction and t()r failure to state claims upon which reltcf may be granted. Plaintiff asselts that the Court has original jurisdiction of his federal claims and supplementnl jurisdiction of his state law claims. The Court has considered thoroughly the parties' submissions and. for the following reasons, the Moving Defendants' motions will be granted in their enl1rely and the case will be dismissed in its entirety.

The Soft Split Defendants have not entered appearances, although the COlin has received several coml11unications from an individual through whOlll son Split Kids was purportedly served and who claims no afIiliatioll with that entity. The Court has slispended PlaintilTs effort to obtain deluultjudgments against the Soft Split entities pending resolution of tile instantmotiol1 practice.

The Complaint includes the Collowll1g factual allegatIOns." Plail1tilI und Defendant Karen Koso,sky were married
011

September 9. 1990. (Compl.'i
\W.,~!

~6.)

Plaintiff' and Kosovsky's

daughter, AI. was born on Junc 4, 1991.

22.) Plaintiff and Koso'vsky separated on AZ.'s

second birthday. amI later that year Kosovsky IiIcd for divorce in New York ('ounty Supreme Court.

(kL '1" 40-41.) Defendant Robert Dobrish, who is the managing partner of Defendant Dobrish, Zeit'.
Gross, Wrubel, LLP, has represented Kosovsky in the state matrimonial action at all relevant times.
09~ '1'124-25.)

A thirteen-day trial was held in 1993 on the isslIe of clIstody of AZ. before Justice
199). culminating in a decision issued in February 1996 awarding sole custody to
ad.~.

David Saxe

Wi ·

Kosovsky with "Iiberal'" visitation to Zahl.

202.) TIle divorce aspect oftlle action, including

the issues of child support and distribution of assets, was bifurcated and len for a later date.

liD
llL ~~

Justice Saxe was elevated to the Appellate Division shortly after issuing the custody decision. 202,222)

The case was reassigned to several ditTerent judges over the next year. and Justice Saxe's custody decision was modiflcd scveral times. ad. "'1220-23,233,238.) Shortly aftcr Justice Saxe's deparmre. defendant ,10 Ann Douglas was appointed as a law guardian to represent A.Z. 223.) The case was eventually assigned to Justice Marilyn Diamond in or around April 1997

kL ~

llL 'I~I

239,243.) At about this lime PiaintitThccame unable to continue pnymg his attomey and proceeded
l2IQ se in the matrimonial action. (leL' 247.) Plaintiff alleges that J llstice Diamond ovelTode the

random assignment procedure normally llsed to assign judges to matrimonial cases in order to ensure tbal tbe case would bc assigned to ber. ilii·!'1240-42.) Justice Dimnond reappointed .10 Ann

The 367-page long Complaint contains 702 paragraphs, with many subparagraphs. In Iigbt of Plaintiirs l2IQ sc status, the Court bas cndeavored to construe the Complaint liberally.

Dougbs as law gum'dian, (ld. ~i 250). and ultimately presided over the "divorce and financial phase" of the action. including distribution orassels and determination of child support:'

(!Ji ~ 239,)

Justice

Diamond also issued nn order on Fcbruury 24. 1999, regarding cusLOdy or AZ., modifying prior custody orders. (ld.
~i

329.)
II

In or around August 2002 PlaintilT IIled

petitioll.£l:Q se, in New York Family ('ourt,

seeking to entbrcc Justice Dinrnomf s custody order entitling him to limited visitation and Ihus "reslore a relotionsl1ip with AL" I Compl. ~I' 4n. 480.) At about the same time Karen Kosovsky [lied a motion relating to child slipport in '-lew York Supreme Court, which was assigned to Defendant Jnstice Lohis. and Plaintiff agreed to have his pctitiolltrallsferred to Justice Lobis Ibr joint consideration with the child support motion.

Wi': 481.)

Plaintiff alleges that Justice Diamond

contacted Justice Lobis in Odober 2002 in order to "prejudice [Justice Lobis] against Dr. Zahl and continue to terminate Dr. Zahl's parental rights" and to "manipulate[]" Justice Lobis.

!Ji '1562.)

A

hearing was held on February 28. 2003 ild.~· 4(1). at the conclusion o1'\Vhich Justice Lobis refused to enlbrce the Diamond cuslody order or to disqualify dekndants Rohert Dobrish and Jo Ann Douglas.' (Comp1.~' 495.) In or ahout August 2()07, Plainti!T filed a petition Ibr a writ of habeas corpus in l\ew York County Family Court seeking to "redress the lack of contact [between PlaintifI and AZ.], and illegal aClS hy some oflhe named dcfcndmns." (hL 11500.) The Family ('ourt judge assigned to the

The Appellate Division, First Department. decision amnning the judgment and related orders notes that judgmenl or divorce was entered on July 10, 1998. Kosovsky v. ZahL 684 N.Y.S.2d 524. 525 (App. Div. 1999). This order. moditled on March 3, 19{)9 (Dccl. or Kate Burson ("Burson DccL"), Ex. D). was artirl11cd by the Appellate Division. First Department. Kosovskv v. Zah~ 707 '-I.Y.S.2d 168 (API'. Div. 20(0). Justice Lobis isslIcd IwO written decision, both of which rerer to the "post-judgment l11atrimonial action," dated January 27, 2003. and April 14.2003. addressing these and other issues. Burson DecL. Exs. E and I.)

petilion ruled in Plaintiff's favor "lth respect to certain prelimmary matters. IlL~! 503-06.) Robert Dobrish. presumably
011

behalf of Karen Kosovsky, tiled all application for an Order to Show Cause

to have the habeas petition "rel11o\'(o back" to Justice Lobis shortly bct()re the "return date" in Family CourL
Wi~'

506.) Justice Lobis transferred Plaintitrs petition to the post-judgment

cnforcernent section or tile Matrimonial Section ofthc New York County Supreme Court. where it was assigned to Defendant Justice Visiweion-Lewis. fuL c. 507.) Justicc Visilacioll-Lcwis reappointed Douglas as law guardian. issued the Order to Show Calise. consolidated Plaintiffs petition wlth the post-juogmentmatrimonial action, and "suspended'" Plaintiffs haheas corpus petition hy an order issued in Novemher 2007. (Compl.'l c, 513, 515. 516; Burson Dec!., Ex. G.l .Iustice Visitacion-Lewis's decision was aftirl11ed on appeal by the Appellate Division, First Department. (Comp!. c· 515.) Justice Visita,ioll-Lewis dismissed Plaintiffs petition on October 14, 2008, (5",; Burson Dec!.. Ex. 11,) No later than 20()3, Plaintiff hecame aware of the existence of the Soft Split Defcndants and their cOllnection to other defenoants. (CompL
~"1437,

493.) Thc Soft Split

Defendants provided individuals affected hy divorce with resources meam to help them cope vvith the attendant difticulties. including anonvmous access through a website to a "faculty" of lmvyers, mental health prolcssionals, and accountants.

Wi '101 434-

Defendants Robert Dohrish and .10

Ann Douglas were afliliated with the son Split Defcndants.

fuL·· 437.)

Plainti rf asserts that during the litigation or the state matrimonial action, up through the trial be/'Jrc Justice DiamoncL the Kosovsky Defendants. thc Dobrish Defendants, and Mc.Keown harassed. intimidated, SllITcilled, and scole from Plaintiff. all
1I1

ordcr to undermine his ability to

It appears li'olll the appellate decision that, in connection with Plaintifl's Ilabeas corpus petition, a so"ca lied Lincoln hearing was scheduled and that Plaintiff was ordered to have no contact with A.Z. until atter that hearing, hut that the petition was not actually suspended. Kosovskv \. Z;JhL 859 KY.S.2d 442 (KY. App. Div, 20(8).

present his case at trial and ultimately deprive

111111

of access to AZ. Plaintiff alleges that, to that end,

the Koso\sky Defendants hired "armed private invcstigators"lcd by :V1cKeown to provoke pub lie conti'onlatiolls during transfers of Al. \\hieh they videotaped in the hope of catching PlainUfT behaving objcctionahly.

(hi '1'

41. 201, 204, 2()6.j The Kosovsky Defendants or McKeown sent

anonymous derogatory letters and faxes to Plaintiffs colleagues, employees and other associates. (Id. ' I O}.) MCKeown's team of armed private investigators lollowcd Plaintiff during his trips to pick up A.Z.. using multiple ears. video cameras. and eavesdropping on Plaintiffs cellular telephone calls. U!l ~i'" 335-339..'(,0-61.1 Occasionally. the Kosovskys or the investigators conii'onted Plaintiff physically. and some private investigators displayed weapons.
~J

Thc Kosovskys contacted the

police in early June 1'N) and claimed that Plaintit}'was armed and intended to kidnap A.Z., and that he had assaulted Karen Kosovsky, causing cight police officers to approach Plaintiff with guns drawn while he was silling in 1m car with two year old A.L on his lap.

l:!l'1 339.) McKeown used the

transcript of Plail1liffs psychiatrist's deposition. taken by Dobrish. to inJuce New Jerscy authorities to revoke Plaintiffs gun permit on trumped up accusations.

hl": 35(l-59.) When A.Z. was three or

tour years old, the Kosovskys had their private imestigators videotape Plaintiff reading to A.Z. while
in his twenty-IiI'S! 1100r apartment in Manhattan.
1!.<1~:

363.) McKeown also illegally obtained

Plaintiff's telephone records (!J1 "1 364-71. 3 73- 74) and bank records (id. ~: -' 75). searched his trash

(bi' 372).

and harassed Plaintiffs current wite. attempting to dissuade her li'ommurrying him in

1998 (isL'O: 381-85i. McKeown \\TGtc a book entitled "Your Secrets are my Business," published in 2000, which detailed the activities he had unJertakcn at the behest of the Kosovsky Defendants.

l:!l

"'123. 207. 340. 352-85).
The Kosovskys "withheld" AI li'om Plaintiff in violation of court orders J.!l ~!'I 199
ZOO. 208-09, 217-18). and coached A.7.
(0

make false allegations of "Imse against Plaimiil J.!l ,;

2451. DUring the divorce trial. Dobrish presented a pension statement that was stolen from PlaintitTs
/H-,I \11 :),\\1'11
(,

possession and used it to create the false impressionlhat Plaintiff had lied on his "Statement of Net WOI111."

Wi'" 2(,5-69.) Dobrish also il1lroliuced an illegally obtained letter wri1ten by Plaintiffs

secretnry to a patient and cOlllidential patient records to falsely imply l11at Pbintiffhad surreptitiously siphoned money li'om his medical practice and had performed a medical procedure that showed his Jisability claimlO have been rrauduient. which submission induced Justice Diamond to rule against Z<lhl on a number of issues.

W1": 271- 7'.)

The Complaint seeks visitation with A.Z .· other injunctive relief, and money damages in respect or litigation-related aHomeys' fees and expenses and allegedly excessive child support obligallons imposed by the state court. It is rife with allegations of bias and misconduct by the state judicial ofliecrs and institutions that have handled the Zahl-Kosovsky domestic relations litigation. Indeed. Plainti IT characterizes the Matrimonial Part of the
~ew

York State Supreme

COllrt and other participants in the litigation and related matters as a "Matrimouial Mafia Entcrprise" and the "NY \lalrimonial :V1alla Inc." in conuection with his RICO claims. (See, !'.lb Compi. ','1578.607.) The various deprivations and obligations of which Plaintiff complains are traceable to the judicial decisions, including the appointments of a gU<lrdian ad litem for A.Z. and the assessment of costs and fees relating to the guardianship. made in the course of the state court litigation. DISCLSSION The pending molions raise several grounds for dismissal of the complaint, the mosl pertinent of which arc discussed here "Dctcrminmg the cx islcnce or subject matter Jurisdiction is a threshold inquiry and a claim is properly dismissed lor lack of subject Il1;]tterj urisdiction under Rule 12(b)(1) when the district court lacks the slatutory or constitutional power to adjudicate it." ArarLi\shcroft, 532

/11 \1 \-11":) ,'I'll

F3d I

.168 (2d CiL1(08) (internal citations and quotation marks omitted). H[T]he court must

take all liKts allegcd in the complaint as true and draw all reasonaille inferences in favor of plaintiff" Morrison v. National Australia Bank Ltd. 547 F.Jd 167. 170 (2d eir. 200S) (quotingl':iatural Res. p.eL Council v.Johnson. 461 F.3d 1M. 171 12d Or. 20(6)). However: "[aJ plaintiff asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it exists." id. (quoting Makarova \. United State& 201 F.:1<1 J J0, ILl (2d eir. 2(00)). and "that showing is not made by drawing li'om the pleading:s inferences favorahlc to the party asserting" suhject matter jurisdiction. [d, Iquoting AI'.W[' v. ['QUCt: 343 r.Jd 619. (,23 (2d CiL 20(3)). In determining whether it has subject matter jurisdiction of the clulIns, the courlmay rcly on evidence outside the pleaclings. Id. Rooker -Feldman D()clrine The Rookcr,.F",ldnWJl doctrine deprives lower federal eourts of sulljcct matter jurisdiction of any claim "that asserts injury based on a state judgment and seeks review and reversill of that judgment." !:.loblock v. Albany !.·ountv Board of Elections, F..'ld 86 (2d CiL 2005). A

district eourI's exercise of jurisdiction in such a case would he tantamount to appellate review of the stale court j udgmel1l, in violation of 28 U.S.c. ~ 1257, which vests federal appeHale jurisdiction of stute eourtJudgments exclusivelv in the United States Supreme Court. See Exxon Mobil Corp. v. Saudi Basic Industries Corp.. 544 U.S. 280, 291-n (200S). Roo.kcr-Feldmun applies only when four requircments arc mel: Firs!, the federal-court plaintiff must have lost in statc court. Second, the plaintiffl1lust "complaill[] ofinturies caused by [a] Slate-court Jutlgment[.l" Third, the plainliffmust "inlit[c] district court review and rejection of [that] j udgment[ ]." F ollrth, the slate-collrt judgment must havc hcen "rendered belorc the district court proceedings commenced" i.e .. Rooker·Feldman has no application to tCtlcral-coul1 suits proceeding ill parallel with ongoing slate-court Iiligall0n.

Hob lock, 422 F.3d at 85 (alterations in original) (quotingExxon Mobil Corp., 544 U.S. at 284). "The first and fourth or these requiremenls 111"Y be loosely termed procedural; the second and third may be termed S lIbstallti vc." All
0

101
I'lhe Movll1g De fcndants assert that the Court laeksjurisdictiol1 of Pl8intiff s

claims because all of the claims are, in essence, attacks on the state COllrt decisions in the matrimonial proceedings and seek modification or reversal orthc decisions. DetCndants' point is wcll-taken ... Plaintiff seeks a dc<;laration that all of the complained-of actions (including the cuslody. child support and law gnardian appointment decisions) were illegal slleh that they may be adjudicated null and void. and s.:eks damages for expenses incurred in connection with the procccdll1gs anelior by virtue 0 Cthe stale court orders. The Court lirst considers the "substantivc" Rooker-Feldman requirements. A federal suit is burrcd ollly to the extel11 that "it complains of injury fi"om the stale-collrt judgmcnt and seeks review and rejection of that judgmem. but not
~to

the extent that] it raises' some independent claim. ,,.

Hoblock. 422 F.3d at 8(l (quoringExxQIl Mobil Corp .. 544 U.S. at 293). If the claim in the federal suit was not raised in state court bnt "nonetheless complains of injury from a state-co1ll1judgment and secks to have that state-court judgment reversed." then it is nor indepcndellt. ld. The substantive requirements encompass all claims "whether or not raised in state court. that a,sertl] injury based on a state Judgment and seek[] review and reversal of that judgment." Ill.; sec !!Iso McKithen v. Brown. 481 F.3d 89.97-98 (2d eir. 20(7) ("'[Tlhe applicability of theRQoker-F eldl11ill1 doctrine turns not on the similamy between a party's state-collrt and federal-court claims. . but rather on tile causal relationship between the statc-court judgment and the injury of which tlte party complains in federal court:'). The Second C!rclliCs discussion, inHobloek. ofa hypothetical case in which a federal court plaintiff who relies On a thcllry not raised in state court hut is nevertheless harred by theRooker, Feldman doctrine is instructive here bccuuse it describes a situation similar to that presented in this
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case.
Suppose a state COlirL based purely on statc law. terminates a father's parental rigills and orders the stalc to toke custody or his son. If the father sues ill fedefal court lor the return of his son on grounds that the state judgment nolates his federal substantive due-process rights as a parcnL hc is complaining of an injury caused by the state judgment and seeking its reversal. This he may not do. regardless of whether he mised any constitutional claims in SlalC cOllrt. because only the Supreme COllrt may hcar appeals !1'Otll state-comt judgments. Hoblock. 422 F.3d at 87. This hypothetical is also similar to the situalion underlying the Supreme Courfs decision ill RQokcr v. fidelity Trust Co. which held that federal district courts lack subject
Blatter jurisdiction to entertuin a suil seeking to ha\"e a state COUl1 jUdgll1Cl1t "ueclareJ null and void."

2(,3 U.S. 41 J ( 192.< 1. The Supreme Court explained that "[i] r the [state coun] decision was wrong,
that did not makc the .iucigl1lent void. but merely left it open to reversal or modification in an appropriate and timely appellate proceeding." ld. at 415. Because the district court did not have appellate jurisdiction. it was without autlll)rity to adjudicate tile matter. In the instDin case. "state comt[s], based purely
Oil

hl at41 ().

stute law." adjudicated the

matrimonial proceedings. including child custody and support ISSlles, between Kenneth Zahl and Karen Kosovsky. Zahl now sues in lederal court lor the reestablishment of his right to greater \'isilation with hIS child [or the reversal of the state contt judgment
~

on the ground that the

state decisions \ iolate his federal constilUtiollal rights. and Jar a declaration to that etTeCl. Plaintiff also asserts other claims. including RICO claims . but all of his claims of injnry in the form oflost contact and untoward expenses arisc fundamentally fI'olTllhe state judges· decisions in the stale court matrimonial proceedings. PlaimilTs claims thus faJl squarely within tileRooker-Fcldman doctrine's substantive requirements because they seek to redress injuries caused by the state court judgments by \yay of review and modi Ikation or rC\'cr5al of those judgments. hl at 8(1. The Court no\\" turns to the "proccclural"RQQkcr:feldmal1requiremellls. It is

uncontested that Plainti iT lost in slale coun with respect to each decision that forms the basis ofh;s claims. The first requircment is therefore met. Judgment was entered in J 999 and was thus rendered before the instant action was commenced. on September 26. 2008. Proceedings were held subsequent to tbe entry ofjudgmcn1. including the
2()()~

denial of Plaintiffs petition to enforce the 199<)

l1loditied custody order and rulings relating to Plaintiffs 2007 habeas corpus petition (although final disposition of that petition had not occurred as of the time of the tiling of the instant action). Justice Lobis expressly reli:rred to the state court action as one in a ··post-judgment'" Jlosture when she decided the matters belore her in 2003. The distinction between the earlier Hjudgment" and each post-judgmcnt Hdecision and order.'· which did not contemplate any further proceedings and which were no longer appealable at the time thc instant action was tiled, is purely nomenclatural and thus immaterial tor Roo[(g:-Feldnlan plllvoses. The fourth requirement. that the state court judgment have been rendered prior to the commenccment of proceedlllgs in district court. is satisfied as to these decisions. The Kovcmber 200" order by Justice Visitaeion-Lewis, however. was not tlnal when this case was commenced. It was issued in clear contemplation of furthcr proceedings. namely the resolution of the mcrits ofthe habeas corpus petition. which was still pending after thc issuance of the subject order. Plaintiffs appeal of the November Z007 order was affirmed in June 2008, before this action was tiled. and Justice Visitation-Lewis dismissed the petition on October 14,2008. To the extent that the non-finality orthe '\ovember 2007 illteriocutory order prec.ludes the dismissal of the claims pertaining to tbat order pursuant to tbe RookeScFeldman doctrine. the Court abstains from exercising jurisdiction of those claims forthe reasons stated infra. Because the j(lur Hobloek requircments are met with respect to Plaintiffs claims insofar as they seck reilCr from tile requirements or consequences
COll1t
/11 \1

(If

the state conrts' orders. the

is withoutjurisdiclion ofthosc claims. Accordingly. Counts I-X. XII. and XVII are dismissed.
II

\I! I) \\1'1'

Eleventh Amendment The State Defendants seck dismissal of the claillls against NYS

lies and OrA and

all claims asserted against the J udieial Defendants in their officia I capacities, on grounds of
immunity under the l':lcvcnth Amendment to the Constitution. Each state. as we11 as "state agents and state inslrumentalilies that are. effectively. armS of a state." enJOY sovereign immunity under the Eleventh Amendment Ii-om suit. JIlcluding lhose brought by the statc'S own citizens. Woods
v~Rondolit See,~,

Vallev Central schopl Dis!. Bd oflCdllc. 466 F.3d 232.236 (2d Cir. 2(06)

(citations and internal qlLowtion marks omittcd). Eleventh Amendment imlllunity may be waived or abrogated by Congress. Sec (;0110111)1\. SpitLer. 568
F.~d

355. 3(,6 (2d Cir. 20(9) (citingWoods.

466 F.3d at 236). There is nO indication. and Plaintiff does not argue. that the Stale Delendants have
waived. or that Congress has abrogated. their Eleventh Amendment immunity. "[T]llc ?\ew York State Lnjjjed
COlll1

System is unquestionably an 'arlll of the State:

and is entitled to Eleventh Amendment s(1\'creign immunity." Gollomp, 568 F.3d at 368 (2d Cir.

2(09) (citing Woods. 466 F.3d at 236). State ofticials slIed in their onieial capacity are likewise
entitled to Eleventh Amendment sovereign immunity because "the real party in interest in an official-capacity suit is the governmental elltity and not the named onida\." U.S. 21.
2~

Hafer v. Melo, 502

( 1(91) (discussing Kelltuck v v. Graham 473 U.S. 159 (1985) alld MOllel.!v. New York
SclVicc~

City Dept. of SOCIal

436 US. 658 (: 978)). Otliciakapacity ,overeign immunity extends to
~,

a statejndge sued in her ollicial capacity.

Sund\\all v. Leuba. 28 Fed. App'x 11 (2d Cir.

200l): MgTris v. Main. No. OS eiv. 813 (GLS) (ORH). 2009 WL S90634. at *2 (N.D.N.Y. Mar. 31. 20(9): Winkler v.
Gran~

No. 07 Civ. 6280T. 2008 WI. 1721758. at *2 (W.O.N.Y. Apr. 8, 20(8);

Daniel v. SaJir, n5 F. Supp. 2d 367. 372 (E.O N.Y. 2001 ):I:\mWl1 v.City ofNcw York 210 F. SlIpp. 2d 235. 237 (S.D.N"Y" 19(9). Therefore, PlaimifCs claims against NYS UCS alld OCA and his claims against the Judicial Dctendams. to the extent they are asse11ed against those defendants in their
/11;1

\F]}

',\1'11

official capacities and do not seck purely prospective relief, are barred by the Eleventh Amendment. Accordingly, Connts L III-X, and XVIl arc dismissed to the extent that they arc asserted against NYS UCS and OCA or any Judicial Defendant in his or her oftleial capacity, However. the Eleventh Amendment does not bar onieial-capacity claims against state ofticwls seeking only prospective relief. See !Jarris v, Mills. 572 F,3d 66, (2d Cir. 20(9) (citingEx parte

Young. 209 lJ.S, 123 (1908»), Tile only such claim. Count 11, is therefore no! subject 10 Eleventh Anlcndnlent sovereign inl111unity.i Younger Abstention Count II orthe Complaint seeks 10 have this ('Ollrt "enjoin the eflicaey of the [sic] New York Judge Visitaeion-Lc\\'is'rslorder removing Zalll's Ilaneas Corpus Petition Ii'om Family Court" (Compl. .' (22). and impose a "prospective injunction prohibitingthe continued denial of contact with A.Z,. the forced
pa~'ment
n

of up to $7,000 monthly to Defendaut Karen Kosovsky in
(24) (cmphasis in original), [( appears that Plaintiff was

child support and add-on expenses'

(&.

seeking to preclude the Supreme ('ollrt liolll taking turther action on the habeas petition that he had initiated in Familv COllrt. and to obtain an injunction against cnltlrccmen! oethe custody and child support orders of the state court." In Younger v" Harris. the Supreme Court reminded lower federal courls Ihat it had "repeal[cd] time and lime again that the 110rmal tillng to do when federal COllrts arc asked to enjoin

'"

Count II sceks to eUloin the "el'lkacy" of Judge Visitaeion-Lewis's November 2007 order. have this Court either lake jurisdiction orthc state habeas corpus petition or remand il to Family Court. prohibit the continued denial of contact between PlaintitJ and his daughter, and lemlinatc the monthly child supporl and add-on cxpense payments. To 'hc extent that PlainufCs claim in Counl II seeks 10 enjoin enforcement of prior orders, rather than to enjoin the habeas corpus proceedings in stale court, that claim is a direct challenge to the \ ,didily of Ihose prior orders and must be dismissed on Roo,kJ:~r~F cldman grounds Ihr Ihe reasons discussed above.

pending proceedings ill slate courts

IS

not to issue such injunctions." 401 U.s, 37,45 (1971), This

rule of abstention relleets "a strong Cedernl policy against federal-courl interference with pending state judicial procccdlllgs absent extraordinary circumstances." Mj,j,iiescx County Ethics Committee
Y.

Garden State Bar Ass'rt 457 US 423. 431 (1982). Although YOlll1'tcr itself involved an attempt to

enjoin a state criminal prosecution, "[t]hc policies underlying Younger arc fully applicable to noncriminal judicial proccedings when important statc interests arc involved." Middlesex, 457 U,S. at 432. "Younger gencrally prohihits courts fi'om 'takingjurisoiclion over federal constitutional claims that lm'01ve or call into question ongoing state proceedings' sO as to avoid unnecessary friction." SparL;o. 351 F.3d at 75 (quoting))lul11ot1d "D::Constr. Corr. v. McGowm\ 282 F,3d I'll. 198 (2e1 CiL 2()02)). Youn'tcr abstention is mandatory when three conditions are mcl: "( I ) there is a pending s!ale proceeding, (2) tilat implicates an important state intercst, and (3) the state proceeding affords the federal pbimitf an adequate opportunity for Judicial review of his or her federal constitutional claims." Sparg:o, 35 I F.3d at 75. However, even when these conditions are met "a federal eourt may stili intervenc in state proceedings i r the plaintiff dcmonstrates bad faith, harassment or any other unusual circumstance that would call t;,r equitable relief" ld, at 75, n, II (internal guotations and citations omitted). Count I I secks to enjoin the
stalC

courtli·om acting

011

a pending state haheas corpus

proceeding in which Plaintiff asserted essentially the same claims as hc docs here. The first and third requiremerns lor mandatory abstention are therefore mct In addition, "few intercsts can bc considered more central than a slate's interest in regulating its own judicial system," Id. at 75. Just as it would be improper for a federal court "to substitute itsclffor the State's appellate eourts,"Huffman
.,~Pursue,

Ltd" 420 U.S. 592, 6U9 (1975). it is equally inappropriate for a fcdcrJl court to suhstitute

itself lor the state's adjudicator of petitions lor post judgment relief. The state has an important interest in ensuring that its "judicial system [will] hc fairly accorded the opportunity to resolve
/11
\I

\111) \'. .'1'

federal issues arising in its courts." ld. The second requirement lor mandatory abstention is therefore also mel. PlaintIff's allegatiolls ormiseollduct by Justice Diamond and interference by Justice Diamond with .iuslice Lobis's decisions in 2003 do not defeat the propriety of Yolinger abstentioll. They are not directed at the Judge who presides over the pending state proceediugs, Justice Visitacion-Lcwis. Those allegations do not call into doubt .iustice Visitaeion-Lewis's ability to properly adjudicate Plaintiffs constitutional claims in the context of his state court habeas corpus petition. Accordingly. Coum II is hereby dismisscd. "-rrdici;.!1 lmlllunitv A judge has absolute judicial immunity Ji'om suit with respect to claims brought against her in her individual capacity. provided lhat her actions were taken in her judicial capacity and not "in the complete abscllceofalljurisdictioll." M.irelcs
Y.

Waco, 502 U.S. 9,11-12 (1991).

"[.iJudicial immunity is not ovcrcome by allegations of bad faith or malice." 1<1.· al II. "rWJhether an act by
<I

judge is a 'j Lldicia]' one relater s 110 the nature of rhe acl itself. i.e .. whether it is a function

normally performed by a j IIdge. and to the eXpeClatlOns of the parties. i.e .. whether they dealt with the jndge in hisjudictal capacity." at 12 (second :Jlteration in original) (quotillg SlUmp v. Sparkman,

435 U.S. 349. 362 (1978)). "The fact that a proceeding is 'informal and ex parle ... has not been thought to imply that an act otherwise wilhin a Judge's lawful jurisdiction was deprived of its judicial charaeter."· Bliven \. Hun!,
~7'l

F.3d 204. 210 (2d ('iL 20(9) (quotingFo1T",stcr

Y.

White- 484 U.S.

2 I 9.227 (1988)). With the exception of cenain actions allegedly taken by Justice Diamond. all of the .i UdtClal Defendants' actions of which Plaintiff complains (incluctlllg bul1101 limited to decisions regarding cllstody. 1m\' guardianship and compensatlon therefor, child support and litigation expensc allocation) were acts "normally performed by ajudge" and are therefore within the scope of ahsolute judicial immunity.
\.1 \: Ii l, 1\ I'll
\ ! ih .. )", ; (j

Plainti ff asscI1s [hat ,I ustiee Diamond is not entitled to judicial immunity because she allegedly manipulated the assignment system to take control of Plaintiffs case, and because she failed to recuse herself for alleged conflict of interest. Plaintiff cites no relevant authority in support of his conclusory assertions thaI such actions vitiated Justice Diamond's jurisdiction to handle his case. and the Court has Ilmnd none. The fai lure of a judge
10

reCuse herself in light of a conflict of inlerest docs not

deprive her of all jurisdiction to try the case before her. so as to deprive her ofjndicial immunity. See. Sylvester v. Sorrell \10. 08-CV -88. 2009 WL 819383. at *3 (D, VI. March 25, 200t)) (citing !:.Iavncs v. Schimclman. 2000 WL 502623. at *1 (D Conn, ,\1arch 8. 20(0))&[ Rudow v, City of New York, 822 F.2d ,124, .'28 (2d Cir. I()8 7 ) (conllict of intcreSI does not defeut proseeutorial immunity. which. like iudicial immunitv. requires th.lt Ihe proseculorial act not have been undenaken in the absence ofjunsdiction). Furthermore. "the scope of the judge's j urisdiclion must be construcd broadly where the issue is the immu!1l1y oUhe judge. A judge will not be deprived of immunity because the action he took was in error, was done maliciously, or was in excess of his authority."
SUi.1lll, 435 U,S. at]5(" An erroneous application oflhe law. even ifll causes signifie<mt hann to a

party. is an act in excess. bur not in the absence. ofiurisdiclion and docs not deprive the judge of immunity, Ill" at 357. 11.7 (explaining that even convicting a criminal defendant of :lJlllonexistent crime is nOt an act undertaken without jurisdiction). Plaintilrs claims against the Judicial Defendants arc premised on Ihe judges' alleged misapplication of the law and consequent alleged violation of Plaintiffs constitutional rights. These arc precisely the kinds of claims from which the Supreme Court has held judges to be immune, The .Iudicial Detend::mts arc therefore entitled to absolute judicial immunity as to all claims arising out of these judicial acts asscI1ed against them in their individual capacities, Accordingly, Counts I. Ill-X, and XVII are dismissed to the extent that they are asserted against auy Judicial Defendant in his or
hi
\I

\1 l!l

\'.T,'

\ , H:o-!i"i ., : 1 )

her individual capacity. Law Guardian Immunitv Dekmbnl Douglas. regardless of "whether [she acled] as a 'law guardian' or guardian
ad litem," is similurly entitled to absolute quasi-judicial immunity. "'-"=='-'-'~=~, 164 Fed.

App'x 97,98 (2d Cir 2(06); ,,~e

Yelp; V. Kondratveva 'io. 07-4800-CV, 2009 WL 2030359, at

*1 (2d CiL 20(9). Accordingly. COllnts l. IV, and VI-Xll are herehy dismIssed as against Douglas.
Failtlre to State Claims When deciding
<J

motion to dismiss a complaint for failure to state a claim pursuant

to Federal Rule ofCi,il Procedure 12(b)(), the Court accepts as tflle the !1on-conclusory factual

allegations in the complaint, and draws all reasonable inferences in Plaintiffs favor. Roth v. Jennings. 48') F.3d 499.501 (lei Cir.20(7); see also Ashcroft v. lobal, 129 S.C'!. 1937, 1949 (2009). "Threadbare recitals of the elements of a cause of action, Slippol1ed by mere conclusory statements, do not sufflcc." Iqbal. 129 S.Ct. at 1l)49 (citing BellAJjantic v. Twombly, 550 C.S. 544, 555 (2007»). To survive
H

motion

to

dismiss, a complaint must plcad "enough tacts to state a claim to

relief that is plausible on its face." Twomblv. 550 L.S. at 570. This plausibility standard governs pleadings in illl civil actions. Iqbal. 12l) S. CL at 1053. "Even nlier Twombly, though, [courts] remain obligated to construe a IrrQ sc complaint liberally." -,-,-,,,-,-,-,,-,,,-,-=,,-,,,572 F.3d 66, 72 (2d Cir. 2(09) No Private Right of Action tor Certain Claims Plaintiff purports to assert claims for violations of 'l. Y. Penal Law Articles 155 and 175 (Count XI), 18 U.S.C
~

170S (Collnt XIV), 42 U.S.C

~

408(a)(7) (Count XV), 42li.S.C

~~

]028 and ]029 (Count XV]), amI 18 US.C. ~~ 1503 and 1512 (Collnt XVII). However, thcse

criminal statutes do not provide tor" private right of action and Plaintiff provides no authority

suuocstino- otherwise. Sec, oc> b

Peavev

Y.

Holder. :.lo. 05-8 i ') (RWR). 2009 WL J080464. at *9
~

(D.D.C. SePt. 28. 200'» (no pl'ivate right of action pursuant to 18 U.S.c.

15(3):8ates v .

.l'I9l1hwestcm Human Services. Inc., -l(,6 F. Supp. 2d 69,100 (.o.D.C. 20(6) (no private right of
actiol1 pursuant to 42

eSc. ~ 408); Alexander v. WashllHHon Gas Light Co., 481

F. Supp. 2d 16,

33 (DDC. 200()) (same): Lucas-Cooper v. f'ahm;l!o GBA, No. 05-cy-OO'>59, 2006 WL 2583407, at

*:\ (N.D. Ohio Sept.

7, lOO(,) (no private right or action pursuant to 42 USC

~

1(28); Fra§er

V"

Fidl!cialY Trust Co., Intern., No. 04 Ci,. ()958(R.;'vlB)(GWG). 2005 WL 6328596, at *14 (S.D.N.Y. June 23, 2(05) (no private right oracliol1 pursuant to 181].5.C.
~

1512): Moore v. New York City

Dept. of Educatiol1. No. 03 Ci,. 2034 (LAP). 2004 WL 691523. UI "5 (S.D.N.Y. Mar. 31,20(4)
(110

pri vate right or action cll1dcr N. Y. Penal Law

~~

175.40 and 195.(0): Garav v' ,1).5. fl.ancoq},
~

J03 F. Supp. 2d 209. 301-03 (E.D.N.Y. 20(4) (no private right ofactioll pursuant to 42 USC. 1(28); Bootb v. Bannon, No. eiv. OI,I-l7-JO. 2001 WL 34736641, at *1 (D. Or. June 8, 20(1) (same); Bartolomeo\'. Liburdi. No. 97-0624-\,IIL, 1999 WL 14:1097. at

(D.R.1. Feb. 4,19(9). In

general, in delermining "hether a criminal slatule implies a private right of action "Ibe 'dispositive question' is whether Congress intended to create a private right of action," and courts "are to be 'especially reluctanl' to imply a private right of action where the statutc explicitly provides a different remedy." Alaji Salahuddin v. Alaji. 232 f.3d 30S, 308 (2d eif. 2(00) (citations omitted). In the absence of any authority to support an implied right of action pursuant to the above-named criminal statutes. the Court remains "especlallv reluctant" to infer such a right. Accordingly, Counts XI and

XIV-XVII arc hereby dismissed.
SlatUlcs of Limita[ions Under the federal "t1iseoyery rule" a claim accrues when the "plaintiff knows or has reason to know of the injury which is the basis of his action." Pearl v. City of Long Beach 296 F.3d

76,80 (2d

(IL

20(2) (4uotingSinglelon \. City of~ew York 632 F.2d 185,191 (2d Cir. 1980)).

While the 367-page Complaint is not entirely coherent, il is clear that Plaintiff had suffered and discovered the injuries which give rise 10 his claims. namely the loss of his relationship with his daughter and the imposition oflile iinuneial burdens resulting from the support and add-on expense determinations, by the time of.ludgc Lobls's "decision and order" on April 14,2003. By that date, Justice Diamond IlJd issued the July 10, 1998, judgment of di"oree, including the resolution of the outstanding IInancial issues and the February 24. 1'l99. order modifying the prior custody order, and Justice Lohis llad issued the orders of January 27, 2003, and April 14,2003, and had heard oral argument
011

Plaintiffs petition and Karen Kosovsky's motion on February 28.2003. These two

judges had also made the appointments of defendant Jo Ann Douglas and the various "forensics" to whieh Plaintilf objecled. Indeed, Plaintiff alleges no new injury, other than the continuation and extension of the existing injuries. alier April lOO). Plaintiffs claims therefore accrued no later than April 14. 2()OJ. Plaintiff contends that the accrual of his claims should be delayed or the running of the statutes of limitations should he tolled 011 two grounds. Plaintifftirst argues that the ongoing naHlre of the Defendants' alleged conspiracies lolls the statutes of Iil11iwtions. Howeyer, it is well established that the limitations period is not affected by the existence of an ongoing conspiracy that encompasses otherwise lil1le-barrcJ claims. e.g., PinJud v. County of sunol", 52 F.3d 1139.

1157 (2d ('ir. 1')95):Csoka v. County OfSuf1(llk 85 F. Supp. 2e1 117, 121 (E.DN.Y. 20(0); Covington v. City ofNe" York 916 F. Supp. 282, 286 (S.D.N.Y. 1')96). Plaintiff also argues conelusorily that Defendants' fraudulent concealment tolls the statutes oflilllitations. To succeed in tolling the limitations period on this argument. PlaintifT must pl'Ove: "'( 1) wrongful concealment by

lDefendants J, (2) which prevented

[his 1discovery of the nature of the claim within the limitations

period, and ,3) due diligence in pursuil1',! the discmery of the claim." lil.r£ Merrill Lvncp Ltd.p'ship

Lit.. 154 LId 56. 60 (2d eiL 1998). However. Plaintilf proffers 110 facts substuntiating any inslance
of concealment Hlleged to have occurred or continued in or after 200:1. and instead points to recent c\ents that are manifestly ill open view (namely, the ongoing litigation in state cOllr!)':' Therefore, neither the time of aec"'lJl
1101'

the running of the limitmions periods is affected.

Section i 983. 1')85 and 198(,. Claims Federal courts apply the federal "discovery rule" lor claim accnwl and the "general or residual [state] statute roflimitatiol1s] I,x p<;rsonal injury actions" to seClIon 1983 claims. Pearl, 296 F.Jd at 7lJ-80 (alterations in original) (quotingQwens v. Okura 488 U.S, 235. 249-50 (1989)), [n this case. that period is three years. See id. (citing N.Y, CP.L.R.
~

214(5)), Similarly. the statute of

limitations for section 11)85 claims is three years, See Paige ' .., Police Dept. ofSchencetady, 264 F.3d
197. 1'J'J 11,2 (lei eir, 200 I) (cilingCo[!l\\ ell v. Robinson. 23 f..1 d 693. 704 (ld CiL 1994)).

fheret()rc. the limitations period expired

llO

later than /\pril 14.2006. and Plaintiffs section 1983 and

1985 claims arc untimely, Section 198(, claims are subject to a one year stalute of limitations. 42

U,S.CA,

~

1986 (West 20(3). Accord Paige. 264 F.3d at 19911.2. Therefore. the limitations period

expired no later than April 14.2004, and Plaintiff's section 1986 claims arc untimely, Accordingly. Counts 111-V nrc dismissed in their entirety, RICO Claims While RICO claims arc subject to the salllc accrual rulc as other federal
claimsS'~

Iv1errill Lvnch. 154 F.:1d at 58. they ar" al.,o capable of "separate accrual," starting a new limitations period nmning each time a "nc\\ and independent" RICO violation occurs.iel. at 59 (citing Bankers

In any c\·cnl. Plainriffhad amplc opportunity to discoler the non-Stale Defendants' alleged conlribll1ion to his injuries by April 14. 20().' He attempted to present cvidence during the divorce trial or the Kosovsky Defendants' and Dohrish's misappropriation and improper lIse of certain documents. and Defendant McKeown's 2000 book detailed all orhis actions. on behalfoflhc Kosovsky Defendants, to torment Plni11liiT anel undermine his rights in the matrimonial action.
/11 \1 \

t I 1) \\

,'I'

Trust Co. v. Rho~des, 859 F.2d ]0<)(" ] lO3 (2d eil'. ]988)). Sec also Rotella v. Wood, 528 U.S. 549, 554 (20(0) (adopting the injllrY discovery rule lor RICO cl8imsj. This is because "in some l11stances a continuing series of li-<llIdulent transactions undertaken within a C0111mon scheme can produce multiple injuries which each have separate limitations periods." Merrill L vnch, 154 F.3d at 58 (citing Bin2ham v. ZolL 66 F.Jd 55J. "59·(>! (2d Cir 1(95)) (noting that theBingham court had tound that the "new injuries" had been "caused by a variety of schemes which were related only in their ultimate goal"). Later eITons to conceal the injurv, however, arc not ",separate and distinct Ihlllduicnt acts resulting in new and Independent inJuries," and thus do not cause the "separale accrual" of subsequent RICO claims.

1ll at 59-(J(1. The Second Circuit has held that "[ciolleetion in later years

cannot be viewed ilS a separate and distll1ct tbud creating new injuries as it was simply a part of the alleged scheme."

hl at 60.

See gisQ Long Islan<:iLighting Co. v.

11110

Indtjs" Inc, 6 F.3d 876, 887

(2d Cil'. 19(3) (holding that dalllilge resulting from plaintiffs instilliarion of equipment previously known to be defective WilS not suflleiemly lI1depcndent fi'om the injury caused by the receipt orthe defective equipment to give rise to scpurate accl'ual);Raticr v. Liddle, No. 05 eiv. 4296 (TPG), 2006 WL 2255093, at *7 (S.D. N.Y. Aug. 4, 20(6) (holding that plalllliffs inlury was her potential liability for sllbseqllelll attorneys fees, and there was theretore no separate accrual when those fees vvere actually imposed); N,lfl Group (or COl11mc'n 2d
25.~,

~nd

Computers. Ltd. v. Lucent Tecll., 1119.,420 F. Supp.

266 (S.D. N.Y. 20(6) (refusing to apply separu[c accrual rule where plaintiff could have

discovered "the full ex tent of rdated. future injuries al the outset or a single, unlawful scheme"); Pharr v. Evergreen Gardens, Inc. No. 03 ('1\'. 5520 (HB), 2004 WL 422(J2, at *2 (S.D.kY. Jan. 7,

20(4) (holdmg that it was "beyond peradventure" that each oC defendants' monthly maIlmg of illegal
renl bills did not give rise to un injury new and independent li'OJl1 the initial injury caused by the
underlying illcg~lity).

The only post-April 20()3 mjuries of which Plaintiff complains arc the direct results of
, I

the enlorcement ot: and compl iance with, prior court orders and decisions, many of which were the products of Plaintitrs own initiation of proceedings
111

state court These injuries flowed directly

from Plaintifrs losses in the state court proceedings in or before April 2003. and arc not "new and independent" and thus do not implicate the separate accrual rule. Similarly, the alleged occurrence of RICO predicate acts subsequent to Plaintiffs discovery of his injuries docs not affect thc ;,ccrual of his RICO claims. InRotella, th" Supreme Court reiterated its earlier reJcction of the Third Circuit's "last predicate act rulc" which had held that a RICO claim accrucs when the plaintiffkncw or should havc known ofthe injury and the pattern of racketeering activity, and begins to rUll Jnew upon each predicate act tanning part of the same patte} n.
52~

L.S. at

~54

i citingj(lei1r \. A.O. Smith Corp, 521 U.S. 179 (1997)). Accordingly,

Plaintiff s allegmions th;'1 thc ddend'lnts have c0111mitted recent acts, namely the mailing of court orders and declsions,
e\C11

if those acts could be legitimately construed as RICO predicate acts, do

not renew or otherwise delay the accrual of his RICO claims. Pbintiffs RICO claims are subject to a four-year statute of limitations. See Agencv Holdin£! Corp. \, Malley-Duff & ASSOCiates. Inc. 483 C.S. 143, 156 (1987): accord Pearl, 296 F.3d at 79 n.l. ['Iailltiff argucs that the limitations periods have nOI begun to run on Ihese claims because the objectives of tile RICO conspiracies have not yet been achieved or abandoned. (Opp. B1'. 37.) Plaintiff cites several Second Circuit criminal appellate dccisions in sUpp011 of his argument, but fails to appreciate the distinction between criminal and civll RICO claims. Thus. it is true thaI the statute of limitations lor the criminal prosecution ot' a RICO conspiracy "does not begin to run until the objcctives orthc conspiracy have been either achieved or abandoned,"Unitcd States ,'. Eppolito, 543 F.3d 25, 48-49 t2d Clr. 2(08), "I hlut there are signit\canl ditkrcnces bc(wcen civil and criminal RICO actions, and [thc Suprcme Court] has held that criminal RICO does 110t provide an apt analogy" Jor the purpose or determining the ci\'il limitations period,Klehr, 521 U.S. at 188. At any
/1' \' \', r~!

\\ 1'1,

rate, it is now well established that the civil RICO statute oflimitatiolls begins to run, as do other CIvil statutes or limitatJons, when the rlaintiffdiscovers, or should have discovered, his injury, See Merrill Lvnch, 154 F,3d at 58, Therefore. the limitations period on Plaintitrs RICO claims expired no latcr than April 14,2007, and those claims are untimely, Accordingly, Counts VI-IX are dismissed in their entirety, Wiretap Act Claims The Wiretap Act 18 IJ,S,C,
~~

251 Oct seq., provides a private right of action to "any

person whose wire, omL or cicctronic communication is intercepte,L disclosed. or intentionally used in violation of this chapter." 18 U,S,CA,
~

2520 (Wesl Supp, 2()09). Claims under the Wiretap Act

are subject to a two-year statute of limitations. which begins to run from "the dale upon which the claimant tirst has a reasonable opportunity to discover the violation." 18 U,S,CA,
~

2520(e) (West

20(3). Therefore. the limitations period on Plailltitrs Wiretap Act claims expired no later than April
14, 20llS. and those claims are untimely. Accordingly. Count XIII is dismissed in its entirely.

Claims Against Soft Snlit Defendants The Court has held in abeyance Plaintiff's efforl to obtain judgment by default against the Soft Split Defendants, one oCwhose alleged agcnt for service of process has denied holding any slIch authority. PlainlitTs claims against the Soil Split DcfcI1dants arc of the same nature. and based on the substantially the same convoluted, cOl1clusory and ultimately defIcient allegations as those against the other Defendants, Even if proper service were assumed and any well-pleaded racllwl allegations taken as admittcu, the Complaint is plainly deficient to state ,my federal claim uJlon which rclicfcan be granted against the Soft Splil Defendants, Accordingly. the complaint will be dismissed as against the Soli Split Defendants as well.

State Law Claims

In light nl' rhe preclusion anti/or detlciency of Plaintiffs federal claims. the Court
declines to exercise snpplcmclltaljllrisdiction of his slale law claims, See::>8 USC §1367{c)(3),
CO~CLl!SION

For the foregoing reasons, and for snbstantial1y the reasons argned in the motions to
dismiss the Compillinl. the Moving Delcndants' motions afC granted and the Complaint is dismissed in its entirety, as agmnsl all defendants,
The Clerk of COlu1 is respectfully requested to enter jUdgment dismissing the

Complaint in accordance with this opinion and 10 terminale all pending motions, and close this

SO ORDERED,

Dated: New York, New York March ), 20 II

NL4::,~:;;-==-,~~--,,-L A TAYLOR SWAIN Lnited Stutes District Judge

II!" \1 :1) \\

1'[,