Zherka v. Ryan et al

Filing 30

OPINION re: 22 MOTION to Dismiss the First Amended Complaint filed by Lois Lerner, 6 MOTION to Dismiss the First Amended Complaint filed by Ryan, Ashcroft, 19 MOTION for Jay Goldberg, Jay Goldberg P.C. to Withd raw as Attorney filed by Selim Sam Zherka. As set forth within. defendant Lerner's motion to dismiss is granted in its entirety. Defendants Ryan and Ashcroft's motion to dismiss is denied in its entirety. The outstanding motion to withdraw as co-counsel is granted. This opinion resolves the motions listed as document numbers 6, 19, and 22 in this case. SO ORDERED. (Signed by Judge Thomas P. Griesa on 9/30/2014) (ajs)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
ZHERKA
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Plaintiff,
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– against –
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RYAN, et al.,
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Defendants.
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13-CV-3940 (TPG)
OPINION

Plaintiff Selim Zherka filed this Bivens action claiming that
employees of the Internal Revenue Service hindered his application for tax
exempt status and initiated an investigation against him as part of a
broader effort to penalize members of the Tea Party for their political
activities. Defendants have filed motions to dismiss pursuant to Federal
Rules of Civil Procedure 12(b)(1),(5), and (6). For the following reasons,
defendant Lerner’s motion to dismiss is granted. Defendants Ryan and
Ashcroft’s motion to dismiss is denied.
The Complaint
Beginning in 2009, plaintiff published newspaper articles and held
rallies criticizing government officials for political corruption and
“confiscatory tax policies.” Plaintiff organized and supported the creation
of the Tea Party, a political party that received extensive publicity in the
news media. At some point, plaintiff sought tax-exempt status for an

organization he and others used primarily for educational purposes.
However, plaintiff claims that defendant Lois Lerner (“defendant Lerner”),
an IRS employee, subjected his application to an inordinately high level of
scrutiny, forcing him to abandon his efforts to obtain tax-exempt status.
Plaintiff alleges that in 2011, agent Ryan of the Federal Bureau of
Investigation 1

(“defendant

Ryan”)

and

agent

Ashcroft

(“defendant

Ashcroft”) of the IRS began an investigation into his commercial real estate
dealings. Plaintiff claims these defendants issued over 75 subpoenas to his
business associates, threatening them with criminal prosecution should
they withhold information incriminating plaintiff. Plaintiff alleges that as
a result, many of these business associates terminated their relationship
with him out of a fear of “running asunder of federal agencies.” He asserts
that defendants’ conduct was part of a broader government strategy to
penalize Tea Party members for their political speech.
Plaintiff claims to have lost business as a result of the ongoing
investigation. Moreover, he claims that defendants’ actions have chilled
his political activities, damaged his reputation, and caused emotional
injuries. Plaintiff brings this Bivens action asserting five causes of action
arising under the First Amendment, Fifth Amendment, and Fourteenth
Amendment. Plaintiff served defendants Ryan and Ashcroft with a copy of

1 As discussed below, the court takes judicial notice of the fact that agent Ryan was and
at all times has been employed by the Internal Revenue Service, not the Federal Bureau
of Investigation.

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the summons and complaint within the periods allowed by the Federal
Rules of Civil Procedure. However, he never served defendant Lerner with
a copy of the summons and complaint.
Discussion
A. Whether to Grant Defendant Lerner’s Rule 12(b)(5) Motion to
Dismiss for Insufficiency of Process.
Federal courts lack jurisdiction over a defendant unless the
procedural requirement of service of summons has been satisfied. Omni
Capital Int'l, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 104 (1987). “If a
defendant is not served within 120 days after the complaint is filed, the
court—on motion or on its own after notice to the plaintiff—must dismiss
the action without prejudice against that defendant or order that service
be made within a specified time.” Fed. R. Civ. P. 4(m). The court may
extend the time for service for good cause. Id. In determining whether good
cause exists, the court will consider whether “the plaintiff was diligent in
making reasonable efforts to effect service, including but not limited to
whether plaintiff moved under FRCP 6(b) for an extension of time in which
to serve the defendant.” AIG Managed Mkt. Neutral Fund v. Askin Capital
Mgmt., L.P., 197 F.R.D. 104, 108 (S.D.N.Y. 2000).
The court must look to matters outside the complaint in determining
whether it has personal jurisdiction. Mende v. Milestone Tech., Inc., 269
F. Supp. 2d 246, 251 (S.D.N.Y. 2003). It is the plaintiff’s burden to prove
that service was adequate. Burda Media, Inc. v. Viertel, 417 F.3d 292, 298–
99 (2d Cir. 2005). A plaintiff satisfies this burden by making a prima facie
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showing, through specific allegations and supporting materials, that
service was proper. Kwon v. Yun, No. 05–CV–1142, 2006 WL 416375, at
*2 (S.D.N.Y. Feb. 21, 2006). “However, conclusory statements are
insufficient to overcome a defendant's sworn affidavit that he was not
served.” Darden v. DaimlerChrysler N. Am. Holding Corp., 191 F. Supp.
2d 382, 387 (S.D.N.Y. 2002). Service of process on an attorney not
authorized to accept service for his client is ineffective. Santos v. State
Farm Fire & Cas. Co., 902 F.2d 1092, 1094 (2d Cir. 1990).
The defense of insufficient service of process may be waived. Fed. R.
Civ. P. 12(h)(1). A party waives the defense by failing to assert it promptly
by motion or in the responsive pleading, or by participating in the litigation
without questioning personal jurisdiction. Id.; Datskow v. Teledyne, Inc.,
Cont'l Products Div., 899 F.2d 1298, 1303 (2d Cir. 1990). Merely making
a general appearance before the court will not constitute a waiver of the
defense so long as the party makes a timely challenge to the court’s
jurisdiction. Grammenos v. Lemos, 457 F.2d 1067, 1070 (2d Cir. 1972)
(“The need to file a special appearance in order to object to jurisdiction or
venue has vanished. A party can file a general appearance and object to
personal jurisdiction or venue at any time before the answer is filed or in
the answer.”).
Plaintiff has not satisfied its burden of showing that it served
defendant Lerner with a copy of the summons and complaint. Plaintiff filed
the First Amended Complaint on December 20, 2013. Dkt. #5. Four days

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earlier, plaintiff emailed Alicia Simmons, an Assistant United States
Attorney, to ask whether she would accept service of the First Amended
Complaint on defendant Lerner’s behalf. Simmons Decl. ¶ 2. Simmons
responded that she had not yet been authorized to represent Lerner, and
could not accept service on her behalf. Id. ¶ 4. This email exchange is the
sole example of plaintiff’s efforts to effect service of process. As of July 21,
2014, plaintiff had still not served defendant Lerner with a copy of the
summons and complaint. Lerner Decl. ¶ 2.
Plaintiff now argues that defendant Lerner waived service because
Assistant United States Attorney Simmons entered an appearance on her
behalf and filed the instant motion to dismiss and supporting papers. Pl’s.
Brief. Opp. Def. Lerner’s Mot. Dismiss at 6. Ostensibly, plaintiff suggests
that defendant should have made a special appearance, instead of a
general appearance, to challenge the sufficiency of service of process. See
id. However, Simmon’s general appearance on defendant Lerner’s behalf
did not constitute waiver of the defense, since defendant Lerner has
consistently, in each of her filings before the court, challenged the
sufficiency of process. See Grammenos, 457 F.2d at 1070; see also dkts.
22; 27; 28.
Plaintiff has offered no materials showing that defendant Lerner has
participated in the litigation. While defendant Lerner filed the instant
motion to dismiss, she did so expressly to challenge this court’s
jurisdiction. Indeed, all of defendant Lerner’s papers on the motion are

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prefaced with a challenge to this court’s jurisdiction. See Mem. Law. Supp.
Def. Lois Lerner’s Mot. Dismiss at 4; see also Reply Mem. Further Supp.
Lerner’s Mot. Dismiss at 1 (“Plaintiff’s claims against Lerner should be
dismissed . . . for his failure to serve the First Amended Complaint on
Lerner.”).
As of this writing, it has been a full 277 days since plaintiff filed the
First Amended Complaint. Plaintiff has not shown, through any
supporting materials, that he ever served defendant Lerner with a copy of
the summons and First Amended Complaint. Moreover, Plaintiff has made
no request for an extension of time pursuant to Federal Rule of Civil
Procedure 6(b), much less argued that his delay in effecting service of
process was for good cause. Consequently, this court lacks personal
jurisdiction over defendant Lerner and her Rule 12(b)(5) motion is granted.
Counts one and two of the First Amended Complaint are dismissed.
B. Whether the Doctrine of Sovereign Immunity Bars Plaintiff’s
Claims.
Defendants Ryan and Ashcroft argue that they are immune from
suit in their official capacities under the doctrine of sovereign immunity.
The United States, as sovereign, is immune from suit except where it
consents to be sued. F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1994). “The
terms of the United States’ consent to be sued in any court defines that
court’s jurisdiction to entertain the suit.” United States v. Mitchell, 445
U.S. 535, 538 (1980). A suit against federal officials acting in their official
capacities is essentially a suit against the United States, and is thus
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barred by sovereign immunity. Robinson v. Overseas Military Sales Corp.,
21 F.3d 502, 510 (2d Cir. 1994). However, sovereign immunity will not
shield federal officials from judicial scrutiny where they committed
constitutional torts in their individual capacities. Bivens v. Six Unknown
Named Agents, 403 U.S. 388, 397 (1971). Thus, claims against federal
employees acting in their official capacities will be dismissed outright, but
claims against federal officials acting in their individual capacities will be
evaluated on the merits. See Robinson, 21 F.3d at 510.
Plaintiff does not specify in the First Amended Complaint whether
he brings his claims against defendants in their official or individual
capacities. Plaintiff claims that defendants Ryan and Ashcroft served more
than 75 subpoenas on his business associates and threatened them with
criminal prosecution if they failed to cooperate in a criminal investigation
against him. FAC ¶¶ 20, 26. While it could be argued that this conduct
flowed from defendants’ official duties, the First Amended Complaint seeks
damages against defendants personally. FAC at 12.
Defendants are correct in arguing that they are immune from suit
in their official capacities. Nevertheless, it is well established that federal
officials are not immune when sued in their personal capacities. Because
the First Amended Complaint is ambiguous in this regard, the court will
construe plaintiff’s claims as applying to defendants Ryan and Ashcroft in
their individual capacities, and address the merits of the motion to
dismiss.

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C. Whether Plaintiff’s Claims are Cognizable in a Bivens Action.
Defendants argue that plaintiff’s First and Fifth Amendment claims
are not cognizable in a Bivens action. While Section 1983 of Title 42 of the
United States Code creates a cause of action against state officials for their
constitutional torts, there is no such statutory cause of action against
federal officials. See Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009). However,
in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics,
the Supreme Court recognized an implied cause of action for damages
against federal officers for violations of Fourth Amendment rights. Id.
Since implied causes of action are disfavored, the Supreme Court “has
been reluctant” to expand Bivens to new contexts, id., doing so only for
violations arising under the Due Process Clause of the Fifth Amendment
and the Eighth Amendment. Wilkie v. Robbins, 551 U.S. 537, 549 (2007).
The Supreme Court has expressly recognized Bivens claims arising under
the equal protection component of the Due Process Clause of the Fifth
Amendment. See Davis v. Passman, 442 U.S. 228, 245 (1979).
The case law is unsettled as to whether Bivens applies to retaliation
claims under the First Amendment. In Hudson Valley Black Press, the
Second Circuit considered whether to allow a First Amendment cause of
action against Internal Revenue Service officials who audited a newspaper
publisher in retaliation for printing an article highly critical of the IRS.
Hudson Valley Black Press v. I.R.S., 409 F.3d 106, 107 (2d Cir. 2005). The
Court declined to do so, reasoning that: (1) Congress had already enacted

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a comprehensive statutory scheme to challenge improper tax audits,
including creating a civil cause of action for damages under the “Taxpayer
Bill of Rights;” and (2) Congress had considered, but ultimately rejected,
proposals to hold IRS agents liable for damages in their individual
capacities. Id. at 111–13. The Court stated: “today we join our sister
circuits and hold that Bivens relief is not available to taxpayers who allege
First Amendment violations based on retaliatory tax audits.” Id. at 113.
Plaintiff points to a later case, Hartman v. Moore, to suggest the
Supreme Court has recognized First Amendment retaliation claims as
cognizable in a Bivens action. In Hartman, the Supreme Court considered
whether the plaintiff could state a claim against United States Postal
Service inspectors who initiated investigations against him in retaliation
for lobbying Congress to adopt his novel mail-sorting technology. Hartman
v. Moore, 547 U.S. 250, 252–53 (2006). There is strong language in
Hartman suggesting such claims are cognizable. The Supreme Court noted
that “as a general matter, this Court has held that the First Amendment
prohibits government officials from subjecting an individual to retaliatory
actions, including criminal prosecutions, for speaking out . . . . A vengeful
federal officer is subject to damages under Bivens.” Id. at 250. However,
the Court decided the case on the narrow issue provided, whether a
plaintiff must plead an absence of probable cause to maintain a Bivens
claim for retaliatory prosecution. Id.

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Notably, in Ashcroft v. Iqbal, the Supreme Court assumed, without
deciding, that First Amendment claims were actionable under Bivens. See
Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009). However, the Second Circuit
has not recognized a Bivens action sounding in the First Amendment.
Zielinski v. DeFreest, 12 CIV. 1160 JPO, 2013 WL 4838833, at *9 (S.D.N.Y.
Sept. 10, 2013).
In determining whether plaintiff’s claims should be cognizable in a
Bivens action, the court must consider: (1) whether an alternative process
exists as “a convincing reason for the Judicial Branch to refrain from
providing a new and freestanding remedy in damages;” and in the absence
of such an alternative process, (2) whether special factors counsel
hesitation before authorizing a new kind of federal litigation. Wilkie v.
Robbins, 551 U.S. 537, 538 (2007). In making this determination, courts
must consider all “relevant policy determinations made by the Congress.”
Bush v. Lucas, 462 U.S. 367, 373 (1983).
The Internal Revenue Code does not provide a sufficiently
comprehensive scheme to preclude damages against defendants. While
the Internal Revenue Code does allow an applicant for tax exempt status
to challenge an adverse decision, 26 U.S.C. §§ 7248–49, it provides no
damages remedy except where the IRS wrongfully collects taxes. 26 U.S.C.
§ 7433. This is not the key inquiry, but it is illustrative. Indeed, while the
IRS is overseen by the Treasury Inspector General for Tax Administration
as well as the Office of Taxpayer Advocate, Norcal Tea Party Patriots v.

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I.R.S., No. 13-CV-341, 2014 WL 3547369, at * 6 (S.D. Ohio July 17, 2014),
these offices do not appear well positioned to assist taxpayers in
confronting the extraordinary type of conduct plaintiff alleges. The Office
of Taxpayer Advocate, while formed to “assist taxpayers resolving
problems with the Internal Revenue Service,” is meant to “propose
changes in the administrative practices of the Internal Revenue Service to
mitigate problems” and to “identify potential legislative changes which
may be appropriate to mitigate such problems.” 26 U.S.C.A. § 7803. It
does not appear to be equipped to remedy problems of retaliatory
investigation in individual cases. Special factors are also insufficient to
preclude plaintiff’s claims. While the legislative history of the Internal
Revenue Code indicates Congress’s desire to create a non-monetary
scheme to challenge IRS employee misconduct, Hudson Valley Black
Press, 409 F.3d at 112, Congress did not consider, nor could it have
considered, the scenario plaintiff has alleged.
In the instant case, plaintiff alleges that defendant Ashcroft is an
employee of the Internal Revenue Service and “the person responsible for
directing the IRS’ investigation of plaintiff.” FAC ¶ 3. Plaintiff claims that
defendant Ashcroft, with defendant Ryan, 2 issued more than 75

2 Defendant Ryan has filed a declaration stating that he is not employed by the FBI, but
rather has been continuously employed by the IRS since 1983. Ryan Decl. ¶ 1. Defendant
Ryan’s declaration presents the courts with matters outside the pleadings. To consider
the declaration, the court would normally be required to convert defendants’ motion to
dismiss to a motion for summary judgment upon proper notice to the parties. Fed. R. Civ.
P. 12(d). However, the court may take judicial notice of certain facts. Tellabs, Inc. v. Makor
Issues & Rights, Ltd., 551 U.S. 308, 322 (2007). The court may take notice of facts “(1)
generally known within the territorial jurisdiction of the trial court or (2) capable of

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subpoenas to his business associates to punish him for his political
activities. FAC ¶ 20. He alleges that defendants questioned his business
associates about his political beliefs, and threatened them with criminal
prosecution to induce their cooperation in the investigation. FAC ¶¶ 27–
28. The investigation has continued for more than 24 months, chilling
plaintiff’s political public advocacy in support of the Tea Party. FAC ¶¶ 30;
35. Moreover, as a result of defendants’ alleged conduct, plaintiff has
experienced a dramatic loss of business. FAC ¶ 22.
These allegations are troubling. Unlike in Hudson Valley Press,
plaintiff is not alleging a mere retaliatory tax audit, but a retaliatory
investigation involving potential criminal sanctions. Defendants’ argument
that plaintiff’s claims are not cognizable in a Bivens action ignores the
simple fact that constitutional rights, if they are to be rights at all, must
have some discernible remedy. Indeed, the Supreme Court in Hartman,
Iqbal, and Davis has implicitly recognized claims similar to those asserted
here. Leaving plaintiff to pursue administrative remedies through the very
agency he asserts has targeted him for retaliatory investigation would be,
in essence, no remedy at all. Thus, plaintiff’s claims are cognizable in a
Bivens action.

accurate and ready determination by resort to sources whose accuracy cannot reasonably
be questioned.” Int'l Star Class Yacht Racing Ass'n v. Tommy Hilfiger U.S.A., Inc., 146
F.3d 66, 70 (2d Cir. 1998). Defendant Ryan’s declaration attesting to his long and
exclusive employment with the IRS is unquestionable. Moreover, there are no possible
other sources to contradict this assertion. Thus, the court takes judicial notice of the fact
that defendant Ryan is employed by the Internal Revenue Service.

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D. Whether Plaintiff Has Sufficiently Stated His Claims.
To survive a motion to dismiss under Federal Rule of Civil Procedure
12(b)(6), a complaint must plead sufficient facts to state a claim for relief
that is plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The plaintiff must show
“more than a sheer possibility that a defendant has acted unlawfully.”
Iqbal, 556 U.S. at 678. In deciding the motion, the court accepts as true
all well-pleaded allegations contained in the complaint and draws all
reasonable inferences in favor of the plaintiff. See Twombly, 550 U.S. at
555-56. However, “threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S.
at 678.
1. Counts Three and Four: First Amendment Retaliation and
Violation of Equal Protection.
Plaintiff alleges First Amendment retaliation and denial of the equal
protection of the laws. To state a claim for First Amendment retaliation, a
plaintiff must show: (1) that the speech or conduct at issue was protected,
(2) that the defendant took adverse action against the plaintiff, and (3) that
there was a causal connection between the protected speech and the
adverse action.” Garcia v. S.U.N.Y. Health Sciences Center, 280 F.3d 98,
106–07 (2d Cir. 2001).
To state a claim under the equal protection component of the Due
Process Clause, a plaintiff must show that he was treated differently than
others similarly situated as a result of intentional and purposeful
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discrimination. Phillips v. Girdich, 408 F.3d 124, 129 (2d Cir. 2005). The
courts will apply a strict scrutiny analysis where the discriminatory
treatment was based on the person’s exercise of fundamental rights.
Windsor v. United States, 699 F.3d 169, 196 (2d Cir. 2012), aff'd, 133 S.
Ct. 2675 (2013). Fundamental rights include the freedom of speech
guaranteed by the First Amendment, especially speech directed at “the
structures and forms of government, the manner in which government is
operated or should be operated, and all such matters relating to political
processes.” Mills v. State of Ala., 384 U.S. 214, 218-19 (1966). To satisfy
strict scrutiny, the government must demonstrate a compelling need for
the differential treatment and show that its actions are narrowly tailored
to achieving its objective. Windsor, 699 F.3d at 196.
In the instant case, plaintiff alleges that defendants intentionally
targeted him for investigation because of his active membership in a new
political party. The First Amended Complaint indicates that defendants
initiated their broad investigation solely against plaintiff because of his
political efforts, and did not pursue similar investigations against apolitical
businesses and taxpayers. FAC ¶ 32. Plaintiff’s activities centered on
advocating for a reduction in local, state, and federal tax levies. FAC ¶ 8.
Plaintiff claims that as a result of his political activities, defendants issued
over 75 subpoenas to his business associates, and contacted dozens of
them individually in a search for incriminating information. FAC ¶¶ 22–
30. Defendants’ alleged conduct appears to have significantly damaged

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plaintiff’s business prospects and “curtailed his public advocacy.” FAC ¶
35.
Plaintiff has made a plausible showing on his First Amendment and
equal protection claims. His speech, which is directed at reforming
government spending, is clearly protected. He has alleged facts showing
that defendants targeted him for a wide-ranging investigation because of
this speech, and that he was treated differently than other taxpayers and
businessmen who did not espouse anti-taxation beliefs. Thus, plaintiff has
pleaded sufficient facts to state a plausible claim for relief on his First
Amendment and equal protection claims.
2. Count Five: Plaintiff’s Substantive Due Process Claim.
Plaintiff alleges that defendants’ conduct is so shocking as to
amount to a violation of his substantive due process rights. The Due
Process Clause of the Fifth Amendment provides that: “No person shall . .
. be deprived of life, liberty, or property, without due process of law . . . .”
U.S. Const. amend. V. “The touchstone of due process is protection of the
individual against arbitrary action of government, whether the fault lies in
a denial of fundamental procedural fairness or in the exercise of power
without any reasonable justification.” Cnty. of Sacramento v. Lewis, 523
U.S. 833, 845–46 (1998). In essence, to state a claim under the substantive
component of the Due Process Clause, a plaintiff must show that the
defendant’s misconduct is “conscience shocking, in a constitutional
sense.” Collins v. City of Harker Heights, 503 U.S. 115, 128 (1992). Only

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“the most egregious official conduct” meets this threshold. Sacramento,
523 U.S. at 846.
The question of whether conduct is shocking in a constitutional
sense is highly context specific. Bolmer v. Oliveira, 594 F.3d 134, 143 (2d
Cir. 2010). In Rochin v. California, the Supreme Court held that the forced
pumping of a suspect’s stomach was sufficiently shocking to constitute a
substantive due process violation. 342 U.S. 165, 172 (1952). However, in
County of Sacramento v. Lewis, the Supreme Court held that a police
officer's decision to commence a high speed chase of a motorcyclist that
resulted in his death did not “shock the conscience.” 523 U.S. 833, 118
(1998). Similarly, in Cox v. Warwick Valley Central School District, the
Second Circuit affirmed denial of a substantive due process claim against
a school administrator who reported unfounded suspicions of child abuse
to state officials. 654 F.3d at 271. Likewise, in Lombardi v. Whitman, the
Second Circuit affirmed dismissal of the plaintiff’s substantive due process
claim where federal officials made public statements erroneously
indicating that the air at the site of the September 11, 2001 terrorist
attacks was safe to breathe. 485 F.3d 73, 85 (2d Cir. 2007).
Here, plaintiff alleges that he has been subjected to more than two
years of investigation by defendants. FAC ¶ 30. He claims that defendants
have threatened his business associates with criminal prosecution in order
to secure their cooperation in the investigation. FAC ¶ 28. Moreover, he
claims that defendants have inquired into his political activities and

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political affiliations, demonstrating a motivation to retaliate against him
for his political speech. FAC ¶ 20. Plaintiff claims that defendants’ conduct
has severely damaged his reputation and harmed his business
relationships. FAC ¶ 22.
These allegations are disturbing and sufficiently shocking to allow
plaintiff’s claim to go forward. While defendants did not subject plaintiff to
forced-stomach pumping or other physical deprivations, they have
allegedly investigated him for nearly two years based solely on his political
message. Defendants’ alleged conduct appears to have jeopardized many
if not most of plaintiff’s business relationships, causing him dramatic and
permanent harm. Given plaintiff’s low burden at this stage in the litigation,
he has alleged facts egregious enough to shock the conscience in a
constitutional sense.
E. The Outstanding Motion to Withdraw as Co-Counsel.
There is before the court an outstanding motion by Attorney Jay
Goldberg to withdraw as co-counsel for plaintiff. District courts have broad
discretion in deciding a motion to withdraw as counsel. Whiting v. Lacara,
187 F.3d 317, 320 (2d Cir. 1999). Courts will consider whether withdrawal
is likely to disrupt the prosecution of the suit. Id. They will also consider
whether granting withdrawal will jeopardize judicial economy or provide
the withdrawing party a mechanism to stall and thus gain a strategic
advantage in the litigation. Id.

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Here, Attorney Goldberg's withdrawal from the case is not likely to
cause disruption. Plaintiff will continue to be represented by co-counsel,
attorney Michael Sussman. Moreover, allowing withdrawal of one of
plaintiffs attorneys is unlikely to give him a strategic advantage going
forward. Consequently, the motion to withdraw is granted.
Conclusion
For the reasons given above, defendant Lerner's motion to dismiss
1s granted in its entirety. Defendants Ryan and Ashcroft's motion to
dismiss is denied in its entirety. The outstanding motion to withdraw as
co-counsel is granted.
This opinion resolves the motions listed as document numbers 6,
19, and 22 in this case.

SO ORDERED
Dated: NewYork, New York
September 30, 2014

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Thomas P. Griesa
U.S. District Judge

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