Zappin v. Cooper
Filing
57
OPINION AND ORDER re: 40 MOTION to Dismiss filed by Matthew F. Cooper: For the foregoing reasons, Defendants motion to dismiss is GRANTED. The Clerk of Court is directed to terminate all pending motions, adjourn all remaining dates, and close this case. (Signed by Judge Katherine Polk Failla on 2/2/2018) (jwh)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
ANTHONY ZAPPIN,
:
:
:
Plaintiff,
:
v.
:
:
MATTHEW F. COOPER, a Justice of the
:
Supreme Court of the State of New York, in :
his individual and personal capacity,
:
:
Defendant. :
:
------------------------------------------------------- X
USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: February 2, 2018
______________
16 Civ. 5985 (KPF)
OPINION AND ORDER
KATHERINE POLK FAILLA, District Judge:
This is one in a series of federal actions that Plaintiff Anthony Zappin 1
has filed against individuals and entities connected to his divorce proceedings
in New York State Supreme Court. He filed two lawsuits against news
companies for their allegedly defamatory coverage of those proceedings; this
Court dismissed one of those suits with prejudice last year, see Zappin v. Daily
News L.P., No. 16 Civ. 8762 (KPF), 2017 WL 3425765, at *15 (S.D.N.Y. Aug. 9,
2017) (“Zappin Federal I”), and dismisses the second one today, see Zappin v.
NYP Holdings, Inc., et al., No. 16 Civ. 8838 (KPF) (“Zappin Federal II”). Plaintiff
also recently filed a fourth lawsuit, this time against several judges; individuals
involved with the attorney disciplinary process in the New York State Supreme
1
Plaintiff is an attorney proceeding pro se in this matter. While “a court is ordinarily
obligated to afford a special solicitude to pro se litigants,” such as by liberally
construing their pleadings, “a lawyer representing himself ordinarily receives no such
solicitude at all.” Tracy v. Freshwater, 623 F.3d 90, 101-02 (2d Cir. 2010).
Court Appellate Division, First Department; and the New York County District
Attorney. See Zappin v. Collazo, et al., No. 17 Civ. 8837 (KPF).
The instant suit names as Defendant Matthew F. Cooper, the New York
County Supreme Court Justice who presided over most of Plaintiff’s divorce
proceedings. Plaintiff here seeks to hold Defendant liable for transmitting to
purportedly unauthorized recipients a judicial opinion that, Plaintiff alleges,
contains false, malicious, or defamatory statements about Plaintiff. In his First
Amended Complaint (the “FAC”), Plaintiff asserts claims of defamation,
intentional infliction of emotional distress, and tortious interference with
prospective economic advantage, among others. Defendant moves to dismiss
the FAC under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) on
multiple grounds, including absolute judicial immunity, sovereign immunity,
the Rooker-Feldman doctrine, collateral estoppel, and failure to state a claim.
At first blush, Defendant’s alleged conduct would appear to fit within the
ambit of judicial immunity, and were this suit against a federal judge, such
might be the case. But New York law governs the substantive judicial
immunity inquiry here, and a relic of that body of law appears to leave state
judges briefly exposed for the very particular conduct at issue. Still, because
Plaintiff’s claims would necessarily require relitigation of material and decisive
factual issues previously adjudicated in state court, this Court grants
Defendant’s motion and dismisses the FAC with prejudice on collateral
estoppel grounds.
2
BACKGROUND 2
A.
Factual Background
The Court assumes familiarity with its decision in Plaintiff’s earlier suit
against Daily News L.P., see Zappin Federal I, 2017 WL 3425765, at *1-3,
which described some of the underlying factual and procedural history of
Plaintiff’s divorce proceedings. The New York chapter of those proceedings
began in February 2014, when Plaintiff initiated the divorce action Zappin v.
Comfort in New York County Supreme Court (the “Divorce Action”). (Sanctions
Decision 5). Defendant began presiding over that case after reassignment in
July 2015 from a different New York judge. (FAC ¶ 12).
Plaintiff alleges that from the first hearing before Defendant (or the “Trial
Court”), in July 2015, through multiple orders and proceedings, Defendant
engaged in personal attacks on Plaintiff that “impugned [Plaintiff’s] character
2
This Opinion draws from the First Amended Complaint (the “FAC” (Dkt. #26)), the wellpleaded facts of which are taken as true for purposes of this motion. See City of Los
Angeles v. Preferred Commc'ns, Inc., 476 U.S. 488, 493 (1986); see also Ashcroft v. Iqbal,
556 U.S. 662, 679 (2009). The Court has considered the 17 exhibits attached to the
FAC, but finds most of them to be either tangentially or not at all relevant to the issues
presented by the instant motion. This Opinion principally draws on five sources beyond
the FAC: (i) Defendant’s (or the “Trial Court”) September 18, 2015 decision resolving
several motions and sanctioning Plaintiff, attached as Exhibit 1 to the FAC (Dkt. #26-1
(the “Sanctions Decision” or the “Decision”)); (ii) Plaintiff’s chart of allegedly erroneous
statements in the Decision, attached as Exhibit 5 to the FAC (Dkt. #26-5); (iii) Plaintiff’s
July 11, 2016 brief filed in his appeal of the Sanctions Decision to the First
Department, attached as Exhibit A to the Declaration of Michael A. Berg (“Berg Decl.”)
in support of Defendant’s motion to dismiss (Dkt. #41-1 (“Zappin Appellant Br.”)); (iv)
the First Department’s January 17, 2017 affirmance of the Trial Court’s Sanctions
Decision (the “Affirmance”), see Zappin v. Comfort, 49 N.Y.S.3d 6 (1st Dep’t 2017)
(“Zappin State I”) (also contained in Berg Decl. Ex. B (Dkt. #41-2)); and (v) the First
Department’s affirmance of the Trial Court’s ultimate judgment of divorce, including its
orders of protection, child support, supervision, and custody, see Zappin v. Comfort, 65
N.Y.S.3d 30 (1st Dep’t 2017) (“Zappin State II”). The grounds for the Court’s
consideration of these materials at the motion to dismiss stage are set forth in the
Discussion section infra. And for convenience, Defendant’s moving brief is referred to
as “Def. Br.” (Dkt. #42); Plaintiff’s opposition brief as “Pl. Opp.” (Dkt. #46); and
Defendant’s reply brief as “Def. Reply” (Dkt. #48).
3
and questioned his professional competency [as an attorney].” (Id. at ¶¶ 1416). 3 According to Plaintiff, Defendant’s September 18, 2015 decision, which
resolved several motions and ultimately imposed sanctions on Plaintiff (referred
to in this Opinion, somewhat imprecisely, as the “Sanctions Decision” or the
“Decision”), was “nothing more than a publicity stunt” that was “designed to
summarily destroy Plaintiff’s reputation, employment prospects and legal
career[.]” (Id. at ¶¶ 3-4).
1.
The Trial Court’s Sanctions Decision
Plaintiff alleges that the Sanctions Decision was “instigated” by the
court-appointed attorney for Plaintiff’s child (the “AFC”), who filed two motions
that are relevant here. (FAC ¶ 17). One was to quash a subpoena that Plaintiff
had served on her prior to the July 2015 hearing seeking, inter alia,
information about the amount of fees billed to Plaintiff’s wife, whom Plaintiff
suspected had been under-billed to his detriment. (Id.). The second motion
sought several things. First, the AFC moved for permission to communicate
with, and release certain court documents to, the New York State Office of
Professional Medical Conduct (the “OPMC”) regarding a confidential
3
Plaintiff notes that he described Defendant’s “improper conduct … in a September 1,
2015 affidavit filed before the [Sanctions] Decision” (FAC ¶ 16), and Plaintiff attaches
the affidavit as Exhibit 3 to the FAC (FAC Ex. 3), not Exhibit 2 as Plaintiff erroneously
cites (FAC ¶ 16). Plaintiff’s September 1, 2015 affidavit notes in relevant part that
Since unlawfully taking over this case on July 22, 2015,
[Defendant] has attacked me personally and impugned my
character and integrity relentlessly, going so far as to endanger my
legal career by threatening to file disciplinary charges and
gratuitously mentioning the name of my employer on the record
and in various court orders.
(FAC, Ex. 3, at 3).
4
disciplinary complaint that Plaintiff had filed against the AFC’s retained
medical expert witness. (Sanctions Decision 3; FAC ¶ 18). The motion also
sought any attorneys’ fees and damages that the expert may have incurred as a
result of Plaintiff’s OPMC complaint. (Sanctions Decision 3). Finally, the AFC
asked the Trial Court to impose financial sanctions on Plaintiff “as a result of
his actions with respect to her expert and his overall misconduct throughout
the pendency of the [D]ivorce [A]ction.” (Id.). Plaintiff points out, and the
Sanctions Decision acknowledges, that the AFC requested sanctions in her
reply papers. (See FAC ¶ 19; Sanctions Decision 19).
Of note, the Sanctions Decision resolved Plaintiff’s cross-motions
seeking: (i) to have the AFC disqualified; (ii) permission to call as a witness and
cross-examine the AFC at trial; (iii) to renew Plaintiff’s application for leave to
take his child to a hospital for a developmental assessment; and (iv) to vacate
the Trial Court’s July 22, 2015 order granting the AFC a money judgment
against Plaintiff for outstanding fees. (Sanctions Decision 3-4). In the course
of resolving those motions, the Sanctions Decision made a series of factual
findings addressing Plaintiff’s misconduct throughout the Divorce Action,
including misconduct directed towards Defendant, his predecessor judge,
opposing counsel, the AFC, and the medical expert witness. The details of
those findings are discussed as appropriate throughout this Opinion. Broadly
speaking, the Decision found that Plaintiff had “done everything in his power to
undermine the legal process and use his law license as a tool to threaten,
bully, and intimidate,” behavior that “call[ed] into question [Plaintiff’s] fitness to
5
practice law.” (Sanctions Decision 3). The Trial Court likewise found that
Plaintiff’s “tactics, and the language he employ[ed] in his motion papers, ha[d]
grown [ever more] extreme and out of step with what is appropriate and
permissible advocacy by an attorney, even one who is representing himself.”
(Id. at 9; see id. (describing behavior as a “maelstrom of misconduct”)).
Moreover, while the Trial Court found Plaintiff’s filing of the OPMC
complaint to be particularly egregious (see Sanctions Decision 18), it expressly
considered “the circumstances under which the [OPMC conduct] took place”
pursuant to the relevant judicial sanctions provision, 22 NYCRR § 130-1.1 (id.
at 21). In this respect, the Trial Court observed:
As should be obvious from the recitation of the history
of this case, [P]laintiff’s misconduct exhibited with
regard to the OPMC complaint is not an isolated
incident. Regrettably, it is but one instance in a pattern
of improper behavior. Although the hope was that
[P]laintiff would heed the court’s admonitions and
represent himself according to the dictates of his
profession, that has not happened.
Under these circumstances, where warnings have had
no effect on [P]laintiff’s conduct, it is incumbent — for
the integrity of the judicial process, as well as for the
protection of the other litigants and the child — that
penalties be imposed.
(Id. (emphasis added)).
Ultimately, the Sanctions Decision (i) quashed Plaintiff’s subpoena on the
AFC; (ii) denied as moot the AFC’s motion for relief concerning Plaintiff’s OPMC
complaint; (iii) denied Plaintiff’s cross-motion in full; and (iv) imposed sanctions
on Plaintiff in the amount of $10,000, with half due to the AFC for attorney’s
6
fees incurred as a result of Plaintiff’s misconduct and half due to New York’s
Lawyer’s Fund for Client Protection. (Sanctions Decision 26).
2.
The First Department’s Affirmance of the Sanctions Decision
Plaintiff appealed the Trial Court’s Sanctions Decision to the Appellate
Division of the First Department, which unanimously affirmed the Decision.
See Zappin v. Comfort, 49 N.Y.S.3d 6, 6 (1st Dep’t 2017) (“Zappin State I”).
Specifically, the appeals court described the Trial Court’s Decision as “detailed”
and “amply supported by the record.” Id. The First Department concluded:
The record establishes that [Plaintiff] engaged in
unprofessional, outrageous and malicious conduct on
multiple occasions, most recently by filing the bad faith
disciplinary complaint against the attorney for the
child's (AFC) medical expert with the Department of
Health's Office of Professional Medical Conduct. Under
the circumstances, particularly where [Plaintiff] has
exhibited a pattern of bad faith conduct throughout the
proceedings despite repeated warnings not to do so, the
sanctions imposed by Supreme Court were entirely
proper.
Id. at 6-7. The First Department also rejected Plaintiff’s argument that
Defendant had imposed sanctions without fair notice:
We have considered each of [Plaintiff’s] procedural
arguments, including that he was entitled to a hearing
because he did not have fair notice that sanctions were
being considered against him, and find them
unavailing. [Plaintiff] had fair notice that sanctions were
being considered, as the AFC requested sanctions in
both her moving affirmation[ 4] and again in her reply
4
Plaintiff argues that the First Department erred in stating that the AFC’s request for
sanctions was initially made in her moving affirmation. This Court does not sit in
review of the First Department; whether that court made such an error and, if so,
whether the error was material to Plaintiff’s appeal of the Sanctions Decision are issues
that could have been properly raised elsewhere, including in Plaintiff’s motion to the
First Department for reargument of the Affirmance or alternatively leave to appeal to the
New York Court of Appeals, which motion the First Department denied. See Zappin v.
7
papers on the motion, but [Plaintiff] did not address the
AFC’s request either in opposition or in surreply.
[Plaintiff] was also warned repeatedly throughout the
proceedings that he must adhere to the Rules of
Professional Conduct.
Id. at 7 (citations omitted) (emphasis added). Plaintiff then moved the First
Department for reargument or leave to appeal the January 17, 2017 decision to
the New York Court of Appeals, but the First Department denied the motion in
an April 13, 2017 decision. See Zappin v. Comfort, No. 301568/14, 2017 N.Y.
Slip Op. 70559(6), 2017 WL 1360299, at *1 (1st Dep’t Apr. 13, 2017).
3.
Defendant’s Publication and Dissemination of the Sanctions
Decision
According to Plaintiff, Defendant’s ulterior motives were revealed in his
publication of the Sanctions Decision; in brief, he alleges that Defendant “used
[the AFC’s] sanctions request in her reply papers as pretext to inappropriately
impose sanctions on Plaintiff.” (FAC ¶ 20). Worse yet, “the main thrust” of the
Sanctions Decision, Plaintiff alleges, “was to purposefully inject into the media
and publicize scandalous and false statements of fact about Plaintiff designed
to harm his reputation and professional standing.” (Id.). In this regard,
Plaintiff repeatedly acknowledges that the instant action does not seek to
challenge the merits of the Sanctions Decision. (See, e.g., Pl. Opp. 14 (“Plaintiff
is not complaining of harm caused by the imposition of the sanction or
[Defendant’s] issuance of the Sanctions Decision. What Plaintiff seeks relief
Comfort, No. 301568/14, 2017 N.Y. Slip Op. 70559(6), 2017 WL 1360299, at *1 (1st
Dep’t Apr. 13, 2017). More generally, the issue of adequate notice is discussed infra in
the context of whether Plaintiff received a full and fair opportunity to litigate the
Sanctions Decision’s factual findings for collateral estoppel purposes.
8
from is [Defendant’s] separate and distinct unlawful extrajudicial conduct of
publishing and disseminating the Sanctions Decision to the media and tabloid
newspapers[.]”); FAC ¶ 2 (“It was not Defendant’s rendering of the [Sanctions]
Decision that caused Plaintiff the harm complained of herein[.]”); id. at ¶ 25 (“It
was not the sanction itself that devastated Plaintiff. Rather, it was [Defendant’s]
extrajudicial actions taken after issuing the [D]ecision that caused irreparable
harm.”)). 5
Plaintiff says he “received the [Sanctions] Decision by e-mail from
Defendant’s law clerk … in the afternoon of Friday September 18, 2015,” and it
was clear to him based on the “form and substance of the [D]ecision that
Defendant intended to publish it.” (FAC ¶ 26). Plaintiff and his counsel “sent a
series of e-mails that day and over the weekend to [Defendant], his law clerks
and the New York Attorney General’s Office requesting that the [Sanctions]
Decision be embargoed until Plaintiff had an opportunity to brief the issue of
publication,” but “[a]ll of Plaintiff’s e-mails were ignored and [Defendant] went
on to publish and disseminate the [D]ecision to the media.” (Id.).
5
Despite Plaintiff’s provisos, the FAC devotes dozens of pages to criticizing the merits of
the Decision or of the Trial Court’s administration generally of the Divorce Action, with
only a threadbare connection to the ostensibly narrow, dissemination-based claims
asserted here. (See, e.g., FAC ¶¶ 96-99, 101-02, 110-38). This Court will not
adjudicate those merits, but instead takes judicial notice that the First Department has
affirmed the Trial Court’s Sanctions Decision, see Zappin State I, 49 N.Y.S.3d at 6, as
well as the Trial Court’s ultimate judgment of divorce, including its orders of protection,
child support, supervision, and custody, see Zappin State II, 65 N.Y.S.3d at 31. To be
clear, the Court finds it difficult to resolve the etiological issue of the degree to which
Plaintiff was harmed by the issuance of the Sanctions Decision and the degree to which
he was harmed by any one transmission of it. However, to decide the instant motion,
the Court can and does accept Plaintiff’s representations about the precise conduct of
Defendant for which he seeks redress.
9
Indeed, the FAC alleges, Defendant “took extrajudicial steps to inject the
[Sanctions] Decision into the media and ensure that it would be published by
the press and receive maximum publicity.” (FAC ¶ 25). These steps included
Defendant’s alleged dissemination of the unredacted Sanctions Decision to the
New York Law Journal and one of its bloggers as well as to the New York Post
and the Daily News. (See id.). The FAC further alleges that “[this] initial
dissemination … set off a cascading series of articles, blogs, Facebook posts
and the like across the Internet.” (Id.).
a.
The New York Law Journal
Plaintiff alleges that Defendant “[b]y his own admission … sent the
[Sanctions] Decision to The New York [Law] Journal for publication, which was
an ostensible act to ensure the [D]ecision would receive publicity.” (FAC ¶ 27).
As a result, “the [D]ecision can be obtained from numerous other sources with
a simple web search including, but not limited to, Westlaw, LexisNexis and
Justia,” and remained “publicly accessible as of the date of filing of [the FAC].”
(Id. at ¶ 28). Plaintiff states upon information and belief that the Sanctions
Decision has “been viewed by thousands of people as a result of its publication
in The New York Law Journal.” (Id.).
Plaintiff further alleges that Defendant sent the Sanctions Decision to
New York Law Journal blogger Benjamin Bedell, who, on September 21, 2015,
contacted Plaintiff for comment about the Decision. (FAC ¶ 30). When Plaintiff
asked Mr. Bedell how he obtained the Decision, Mr. Bedell responded that he
received it directly from Defendant’s chambers. (Id). The same evening, “Mr.
10
Bedell published a blog post summarizing the [Sanctions] Decision,” which post
Plaintiff believes “has been viewed by thousands of people.” (Id. at ¶ 33).
Somewhat more troublingly, the FAC alleges that on the same evening “Mr.
Bedell briefly published a copy of the [Sanctions] Decision that he obtained
from chambers on The New York Law Journal’s website,” but that “Mr. Bedell’s
copy differs substantially from the version sent to the parties in the [Divorce]
Action.” (Id. at ¶ 32). Specifically, the version posted by Mr. Bedell was
“unsigned and contains several typographical errors and formatting mistakes,”
which Plaintiff claims indicates that “Mr. Bedell received an unsigned draft
copy of the [Sanctions] Decision.” (Id.; id. at Ex. 7).
b.
The New York Post and the Daily News
Plaintiff alleges that Defendant also sent the Sanctions Decision to
journalists Julia Marsh at the New York Post and Barbara Ross at the Daily
News, both of whom “have written virtually all of the numerous articles
disparaging litigants appearing in [Defendant’s] courtroom” (FAC ¶ 34; id. at
Ex. 2), and with whom Defendant has allegedly “conspired” to defame Plaintiff
(id. at ¶¶ 36-37). Ms. Marsh and Ms. Ross “contacted Plaintiff numerous times
via e-mail and telephone requesting comment concerning [the Sanctions]
Decision.” (Id. at ¶ 34). Plaintiff claims that “[b]ased on records confirming the
time of the calls and the e-mails, Ms. Marsh and Ms. Ross were in possession
of the [Sanctions] Decision at least several hours (and possibly days) prior to its
publication on The New York Law Journal website and the New York State
Official Reporter’s archive of unpublished decisions.” (Id.). “Defendant’s law
11
clerk … provided Ms. Marsh and Ms. Ross a copy of the [Sanctions] Decision by
e-mail on September 18 shortly after it was provided to the parties.” (Id. at
¶ 35).
On September 22, 2015, “Ms. Marsh wrote an article in the print and
online editions of The New York Post … [that] summarize[d] and extensively
quote[d] from Defendant’s [Sanctions] Decision.” (FAC ¶ 36). Plaintiff alleges
that “the online version of the article appeared on the front page of The New
York Post’s website for multiple days … [and was] viewed by thousands of
people.” (Id.). Also on September 22, 2015, Ms. Ross wrote an article in the
print and online editions of the Daily News that likewise summarized and
quoted from the Sanctions Decision, and which article “appeared on the front
page of The Daily News’ website for multiple days … [and] has been viewed by
thousands of people.” (Id. at ¶ 37).
c.
Further Dissemination
According to Plaintiff, “[t]he articles published in The New York Law
Journal, The New York Post and The Daily News were a direct result of
[Defendant’s] dissemination of the [Sanctions] Decision to those publications,
which spawned numerous other articles,” including “published articles and
blog posts by prominent publications in the legal industry such as the ABA
Journal, Law360.com, The Family Lawyer Magazine and Above the Law.” (FAC
¶ 38). The Sanctions Decision “also generated perpetual coverage of the
matrimonial action by tabloids The New York Post and The Daily News, which
continued to target Plaintiff well-after the [Sanctions] Decision by publishing
12
untrue allegations made by Ms. Comfort throughout the remainder of the
proceeding.” (Id.).
4.
Plaintiff’s Claims
Plaintiff principally sues for defamation resulting from Defendant’s
dissemination of the Sanctions Decision and also asserts a series of related
claims. Plaintiff alleges that Defendant’s conduct “tortiously interfered with
Plaintiff’s employment and professional standing” by causing the termination of
Plaintiff’s employment. (FAC ¶¶ 85-90). This conduct also caused Plaintiff to
suffer severe emotional distress. (Id. at ¶¶ 91-93). Finally, Defendant’s
dissemination of the Sanctions Decision denied in various ways Plaintiff the
right to a fair trial on the custody of his child, including causing prejudicial
media coverage and impairing Plaintiff’s financial ability to prosecute the trial
(Id. at ¶¶ 94-108). In all, the FAC asserts five causes of action: (i) defamation
and injurious falsehood (id. at ¶¶ 141-47); (ii) intentional infliction of emotional
distress (id. at ¶¶ 148-51); (iii) tortious interference with prospective economic
advantage (id. at ¶¶ 152-56); (iv) prima facie tort (id. at ¶¶ 157-61); and
(v) denial of due process and a fair trial under 42 U.S.C. § 1983 (id. at ¶¶ 16268).
B.
Procedural Background
Plaintiff filed the Complaint, with its 34 attached exhibits, on July 27,
2016 (Dkt. #1), and the FAC, with its 17 attached exhibits, on
November 8, 2016 (Dkt. #26). Defendant filed his motion to dismiss and
supporting materials on March 13, 2017. (Dkt. #40-42). Thereafter, the Court
13
granted Plaintiff’s request on consent to extend the briefing deadlines.
(Dkt. #44). On April 27, 2017, Plaintiff filed his opposition brief and supporting
materials (Dkt. #45-46), and on May 15, 2017, Defendant filed his reply brief
(Dkt. #48).
On June 8, 2017, Plaintiff sought leave to file a sur-reply, but the Court
denied that request after finding that a sur-reply was neither necessary nor
appropriate. (Dkt. #50-52). Two days later, Plaintiff submitted a 32-page
filing, consisting of a letter to the Court and supporting attachments, which
Plaintiff captioned as a “supplemental response” to five-month-old
correspondence from Defendant. (Dkt. #54). The Court’s resulting
endorsement warned Plaintiff that “[i]nsofar as [his] correspondence was
designed as an end-run around the Court’s [order denying leave to file a
sur-reply], … the Court w[ould] not consider Plaintiff’s correspondence as part
of the briefing on the pending motion to dismiss”; that briefing was completed
upon the filing of Defendant’s reply brief. (Dkt. #55).
DISCUSSION
A.
Applicable Law
1.
Motions to Dismiss Under Rule 12(b)(1)
“When presented with a motion under Rule 12(b)(1) to dismiss for lack of
subject matter jurisdiction and Rule 12(b)(6) to dismiss for failure to state a
claim upon which relief can be granted, the Court must first analyze the Rule
12(b)(1) motion to determine whether the Court has subject matter jurisdiction
necessary to consider the merits of the action.” Wong v. CKX, Inc., 890 F.
14
Supp. 2d 411, 414-15 (S.D.N.Y. 2012) (collecting cases). “A case is properly
dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the
district court lacks the statutory or constitutional power to adjudicate it.”
Lyons v. Litton Loan Servicing LP, 158 F. Supp. 3d 211, 218 (S.D.N.Y. 2016)
(quoting Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000)). In
resolving a Rule 12(b)(1) motion, “the district court must take all
uncontroverted facts in the complaint ... as true, and draw all reasonable
inferences in favor of the party asserting jurisdiction.” Fountain v. Karim, 838
F.3d 129, 134 (2d Cir. 2016) (quoting Tandon v. Captain’s Cove Marina of
Bridgeport, Inc., 752 F.3d 239, 243 (2d Cir. 2014)). “A plaintiff asserting
subject matter jurisdiction has the burden of proving by a preponderance of
the evidence that it exists.” Id. (quoting Makarova, 201 F.3d at 113).
2.
Motions to Dismiss Under Rule 12(b)(6)
When considering a motion to dismiss under Rule 12(b)(6), a court
should “draw all reasonable inferences in [the plaintiff’s] favor, assume all
well-pleaded factual allegations to be true, and determine whether they
plausibly give rise to an entitlement to relief.” Faber v. Metro. Life Ins. Co., 648
F.3d 98, 104 (2d Cir. 2011) (internal quotation marks omitted) (quoting Selevan
v. N.Y. Thruway Auth., 584 F.3d 82, 88 (2d Cir. 2009)). Thus, “[t]o survive a
motion to dismiss, a complaint must contain sufficient factual matter, accepted
as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)).
15
“While Twombly does not require heightened fact pleading of specifics, it
does require enough facts to ‘nudge [a plaintiff’s] claims across the line from
conceivable to plausible.’” In re Elevator Antitrust Litig., 502 F.3d 47, 50 (2d
Cir. 2007) (per curiam) (quoting Twombly, 550 U.S. at 570). “Where a
complaint pleads facts that are ‘merely consistent with’ a defendant’s liability,
it ‘stops short of the line between possibility and plausibility of entitlement to
relief.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557). Moreover,
“the tenet that a court must accept as true all of the allegations contained in a
complaint is inapplicable to legal conclusions. Threadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do
not suffice.” Id.
In resolving a Rule 12(b)(6) motion, “a district court may consider the
facts alleged in the complaint, documents attached to the complaint as
exhibits, and documents incorporated by reference in the complaint.”
DiFolco v. MSNBC Cable LLC, 622 F.3d 104, 111 (2d Cir. 2010) (collecting
cases). “Even where a document is not incorporated by reference, the court
may nevertheless consider it where the complaint ‘relies heavily upon its terms
and effect,’ which renders the document ‘integral’ to the complaint.” Chambers
v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002) (quoting Int’l Audiotext
Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d 69, 72 (2d Cir. 1995) (per curiam)).
Here, the Court considers the FAC, along with the 17 documents attached as
exhibits totaling roughly 350 pages; the most relevant of these exhibits is the
Sanctions Decision, attached as Exhibit 1 (Dkt.#26-1), and Plaintiff’s chart of
16
allegedly false and erroneous statements in the Decision, attached as Exhibit 5
(Dkt.#26-5). See Goel v. Bunge, Ltd., 820 F.3d 554, 558-59 (2d Cir. 2016)
(including exhibits attached to the complaint as among the documents that
may properly be considered in resolving a motion to dismiss).
A court may also consider on a Rule 12(b)(6) motion “matters as to which
judicial notice may be taken, such as pleadings in other lawsuits and other
public records[.]” Rosado-Acha v. Red Bull Gmbh, No. 15 Civ. 7620 (KPF), 2016
WL 3636672, at *6 (S.D.N.Y. June 29, 2016) (quoting Agron v. Douglas W.
Dunham, Esq. & Assocs., No. 02 Civ. 10071 (LAP), 2004 WL 691682, at *2
(S.D.N.Y. Mar. 31, 2004)) (internal quotation marks omitted); see also
Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67, 75 (2d Cir. 1998) (“It is well
established that a district court may rely on matters of public record in
deciding a motion to dismiss under Rule 12(b)(6).”).
More specifically, “[i]n the Rule 12(b)(6) context, a court may take judicial
notice of prior pleadings, orders, judgments, and other related documents that
appear in the court records of prior litigation and that relate to the case sub
judice.” Jianjun Lou v. Trutex, Inc., 872 F. Supp. 2d 344, 350 n.6 (S.D.N.Y.
2012); see also Rothman v. Gregor, 220 F.3d 81, 92 (2d Cir. 2000) (taking
judicial notice of pleading in another lawsuit). The Court may also “take
judicial notice of a document filed in another court not for the truth of the
matters asserted in the other litigation, but rather to establish the fact of such
litigation and related filings.” Glob. Network Commc’ns, Inc. v. City of N.Y., 458
F.3d 150, 157 (2d Cir. 2006) (internal quotation marks and citation omitted).
17
As such, the Court takes judicial notice of Plaintiff’s July 11, 2016 merits
brief in his appeal of the Sanctions Decision to the First Department, attached
as Exhibit A to the Berg Declaration (Dkt. #41-1 (“Zappin Appellant Br.”)). The
Court likewise takes judicial notice of the First Department’s January 17, 2017
affirmance of the Trial Court’s Sanctions Decision, see Zappin State I, 49
N.Y.S.3d at 7, and the First Department’s November 21, 2017 affirmance of the
Trial Court’s ultimate judgment of divorce, including its orders of protection,
child support, supervision, and custody, see Zappin v. Comfort, 65 N.Y.S.3d 30,
31 (1st Dep’t 2017) (“Zappin State II”).
B.
The Court Has Subject Matter Jurisdiction over This Action
The Court begins by considering Defendant’s jurisdictional arguments.
See Wong, 890 F. Supp. 2d at 414-15. Defendant maintains that Eleventh
Amendment immunity and the Rooker-Feldman doctrine each divest the Court
of subject matter jurisdiction. These arguments fail.
The Eleventh Amendment bars suits against states unless the state
expressly waives, or Congress abrogates, the state’s sovereign immunity.
See Va. Office for Prot. & Advocacy v. Stewart, 563 U.S. 247, 253-54 (2011);
Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 73 (1996). Claims barred under
the Eleventh Amendment must be dismissed for lack of subject matter
jurisdiction. See Stewart, 563 U.S. at 253-54; Doe v. Delaware State Police, 939
F. Supp. 2d 313, 320-21 (S.D.N.Y. 2013). A state’s immunity extends to state
officials sued in their official capacities where the state is the “real, substantial
party in interest.” See Huang v. Johnson, 251 F.3d 65, 69-70 (2d Cir. 2001).
18
Here, Defendant argues that he is being sued in his official capacity
because the FAC challenges the merits of the Sanctions Decision and the
administration of the Divorce Action, which he terms “quintessential judicial
acts.” (See Def. Br. 14-15). But despite Plaintiff’s extraneous rumblings to the
contrary, identified supra, the Court is holding Plaintiff to representations in
his pleadings and his briefing that he is suing Defendant in his individual
capacity and only for harms arising from the purportedly “extrajudicial”
conduct of allegedly disseminating the Decision to unofficial publishers, a
claim evaluated below. (See FAC ¶¶ 1-2; Pl. Opp. 13-14). The Court thus
rejects Defendant’s Eleventh Amendment immunity argument as presented.
Defendant’s Rooker-Feldman argument fails for similar reasons. The
Rooker-Feldman doctrine bars federal courts from hearing claims “‘brought by
state-court losers complaining of injuries caused by state-court judgments
rendered before the district court proceedings commenced and inviting district
court review and rejection of those judgments.’” Hoblock v. Albany Cty. Bd. of
Elections, 422 F.3d 77, 85 (2d Cir. 2005) (quoting Exxon Mobil Corp. v. Saudi
Basic Indus. Corp., 544 U.S. 280, 284 (2005)). In other words, under the
doctrine, “federal district courts lack jurisdiction over cases that essentially
amount to appeals of state court judgments, including claims that are
inextricably intertwined with a prior determination of a state court.” Rountree
v. U.S. Bank NA, No. 15 Civ. 9018 (KPF), 2017 WL 31405, *7 (S.D.N.Y. Jan. 3,
2017) (internal quotation marks and citations omitted). Courts sparingly apply
Rooker-Feldman, see Exxon Mobil, 544 U.S. at 287-88 (collecting cases), and
19
“[f]ederal plaintiffs are not subject to the Rooker-Feldman bar unless they
complain of an injury caused by a state judgment,” Hoblock, 422 F.3d at 88
(emphasis removed); see also McKithen v. Brown, 481 F.3d 89, 97-98 (2d Cir.
2007) (“[T]he applicability of the Rooker-Feldman doctrine turns … on the
causal relationship between the state-court judgment and the injury of which
the party complains in federal court.” (emphasis removed)).
Again, although the FAC at times blurs the line between injuries arising
from the rendering of the Sanctions Decision, as opposed to its extrajudicial
dissemination, the Court binds Plaintiff to his representations that he “is not
complaining of harm caused by the imposition of the sanction or [Defendant’s]
issuance of the Sanctions Decision. What Plaintiff seeks relief from is
[Defendant’s] separate and distinct unlawful extrajudicial conduct of
publishing and disseminating the Sanctions Decision to the media and tabloid
newspapers[.]” (Pl. Opp. 14; see also FAC ¶ 2 (“It was not Defendant’s
rendering of the [Sanctions] Decision that caused Plaintiff the harm complained
of herein[.]”)). Accordingly, the Rooker-Feldman doctrine is inapplicable
because Plaintiff does not complain of an injury caused by the Sanctions
Decision itself, but rather of an injury caused by Defendant’s alleged
dissemination of that Decision.
C.
The Doctrine of Judicial Immunity Does Not Bar This Action
Defendant claims absolute judicial immunity from this suit, arguing that
the FAC tries to hold him liable for the “quintessential judicial acts” of issuing
the Sanctions Decision and presiding over the Divorce Action. (Def. Br. 10).
20
Plaintiff disputes this claim, principally on the ground that Defendant acted
extrajudicially in disseminating the Sanctions Decision to unofficial publishers.
(Pl. Opp. 2-13). Examining the relevant New York state law, which governs the
inquiry, the Court finds that Defendant’s immunity argument falls short.
1.
Judicial Immunity General Principles
It is settled law that judges are absolutely immune from civil liability for
actions performed in their judicial capacity. See Bliven v. Hunt, 579 F.3d 204,
209 (2d Cir. 2009) (collecting cases); Alvarez v. Snyder, 702 N.Y.S.2d 5, 11-12
(1st Dep’t 2000). This immunity “is an immunity from suit, not just from [the]
ultimate assessment of damages.” Alvarez, 702 N.Y.S.2d at 12 (citing Mireles v.
Waco, 502 U.S. 9, 11 (1991) (per curiam)). As the New York Court of Appeals
has explained:
Judicial immunity discourages inappropriate collateral
attacks on court rulings and fosters judicial
independence by protecting courts and judges from
vexatious litigation. Indeed, most judicial mistakes or
wrongs are open to correction through ordinary
mechanisms of review, which are largely free of the
harmful side-effects inevitably associated with exposing
judges to personal liability. Allowing members of the
judiciary to exercise independent judgment, without the
threat of legal reprisal, is critical to our judicial system.
Mosher-Simons v. Cty. of Allegany, 99 N.Y.2d 214, 219 (2002) (internal
quotation marks, citations, and alterations omitted).
Consequently, “[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.” Huminski v. Corsones, 386 F.3d 116, 137 (2d Cir. 2004) (internal
citations omitted). Rather, a judge will be subject to liability only when (i) “a
21
Judge does not act as a Judge,” or (ii) “a Judge, though acting under color of
judicial authority, lacks any jurisdiction supporting judicial authority for the
action taken.” Alvarez, 702 N.Y.S.2d at 12 (citing Mireles, 502 U.S. at 11-12);
see also Huminski, 386 F.3d at 138 (“if the relevant action is judicial in nature,
the judge is immune so long as it was not taken in the complete absence of
jurisdiction”). Plaintiff here maintains that both exceptions apply to Defendant,
though he bases each argument on slightly different conduct.
2.
Analysis
a.
Defendant Had Jurisdiction to Impose Sanctions
As to the latter exception, Plaintiff argues that Defendant “acted wholly
in the absence of subject matter jurisdiction” when he sanctioned Plaintiff for
filing what Defendant deemed a “frivolous” OPMC complaint. (Pl. Opp. 7-8).
Plaintiff explains that this sanctioning necessarily adjudicated the merits of
Plaintiff’s OPMC complaint, a matter beyond Defendant’s jurisdiction. (Id.).
Plaintiff’s argument misses the mark. Under the judicial immunity
exception, “there is a critical distinction between jurisdiction and authority,
and jurisdiction, for these purposes, is to be broadly construed.” Alvarez, 702
N.Y.S.2d at 12 (citing, inter alia, Stump v. Sparkman, 435 U.S. 349, 355-56
(1978)). Plaintiff’s filing of the OPMC complaint may have been the tipping
point for the imposition of sanctions, but it was by no means the exclusive
basis; in Defendant’s view, the OPMC complaint was part of Plaintiff’s
documented “campaign of harassment and abuse” throughout the litigation.
(Sanctions Decision 25; see id. at 21 (“As should be obvious from the recitation
22
of the history of this case, [P]laintiff’s misconduct exhibited with regard to the
OPMC complaint is not an isolated incident. Regrettably, it is but one instance
in a pattern of improper behavior.”)).
Moreover, even if the imposition of sanctions were necessarily an implied
appraisal of the merits of Plaintiff’s OPMC complaint, and even if that appraisal
were in excess of Defendant’s authority — two factual premises that the Court
is not prepared to endorse at this time — Defendant’s conduct was sufficiently
tied to the divorce proceedings. Defendant’s imposition of sanctions was within
the context of presiding over and managing the Divorce Action in the face of
Plaintiff’s pattern of misconduct; addressing what Defendant viewed as
“cynical[] and malicious[] interefer[ence]” with the medical license of a court
expert witness; and resolving the related motions pending before Defendant.
Accordingly, this Court easily finds that Defendant’s imposition of sanctions
was not “in the clear absence of all jurisdiction.” See Mireles, 502 U.S. at 13
(concluding that even if judge’s conduct were in excess of his authority, it was
“taken in the very aid of [his] jurisdiction over a matter before him [and] cannot
be said to have been taken in the absence of jurisdiction”).
b.
Defendant’s Dissemination of the Sanctions Decision to
Unofficial Publishers May Not Be a Judicial Act Under
New York Law
i.
Immunity Principles Related to Judicial Decisions
“A judge is not protected under the doctrine of judicial immunity … if the
action in question is not judicial in nature,” so the question here is whether the
conduct for which Defendant is being sued is properly considered judicial or
23
extrajudicial. See Huminski, 386 F.3d at 138. The Second Circuit employs a
“functional” approach to determining whether an act by a judge is “judicial”
because judicial immunity “is justified and defined by the functions it protects
and serves, not by the person to whom it attaches.” Bliven, 579 F.3d at 209-10
(quoting Forrester v. White, 484 U.S. 219, 227 (1988)) (internal quotation marks
omitted). Generally, “acts arising out of, or related to, individual cases before
the judge are considered judicial in nature,” id., whereas for example,
“[a]dministrative decisions, even though they may be essential to the very
functioning of the courts, have not similarly been regarded as judicial acts,”
Forrester, 484 U.S. at 228. As the Supreme Court observed in Forrester:
When applied to the paradigmatic judicial acts involved
in resolving disputes[,] the doctrine of absolute judicial
immunity has not been particularly controversial.
Difficulties have arisen primarily in attempting to draw
the line between truly judicial acts, for which immunity
is appropriate, and acts that simply happen to have
been done by judges.
Id. at 227.
The Second Circuit has confirmed that it is state law that informs
whether an act by a state judge is judicial or extrajudicial in nature. See
Huminski v. Corsones, 396 F.3d 53, 76 (2d Cir. 2005) (examining Vermont state
law to determine whether Vermont state judges acted within their jurisdiction
and in their judicial capacities such that they were entitled to judicial
immunity); Shtrauch v. Dowd, 651 F. App’x 72, 73-74 (2d Cir. 2016) (summary
order) (examining New York state law to determine whether New York state
judge’s conduct was judicial in nature and thereby entitled to immunity); see
24
also Marino v. Jonke, No. 11 Civ. 430 (VB), 2011 WL 3251585, at *2 (S.D.N.Y.
June 30, 2011) (same); cf. Garfield v. Palmieri, 297 F.2d 526, 527 (2d Cir. 1962)
(holding that federal law governs the contours of judicial immunity afforded a
federal judge). 6
In analyzing whether Defendant’s alleged dissemination of the Sanctions
Decision to unofficial publishers is a judicial act under New York law, it is
helpful to review first the legal context in which that inquiry arises. For
starters, it is clearly established under New York law that publishers are
entitled to absolute immunity for a “fair and true,” meaning substantially
accurate, publication of a judicial decision. See Beary v. West Publishing, 763
F.2d 66, 68-69 (2d Cir. 1985) (citing N.Y. Civ. Rights Law § 74 and recognizing
that New York’s fair and true report privilege “grants absolute immunity to the
publisher of a true report of a New York state court judicial opinion”); see
generally Zappin Federal I, 2017 WL 3425765, at *7-8 (discussing contours of
the § 74 privilege). Importantly, the Second Circuit has held that this
immunity applies irrespective of “whether the reporter is classified as ‘official’
or ‘unofficial.’” Beary, 763 F.2d at 69. Here, that means both official and
unofficial publication of the Sanctions Decision is absolutely immune conduct
so long as the publication is a substantially accurate reflection of the Decision.
6
In Gross v. Rell, the Circuit clarified that for federal claims against state judges in
federal court, the federal law test of judicial immunity applies, but the substantive
inquiry turns on state law. See 585 F.3d 72, 80 (2d Cir. 2009) (citing Huminski v.
Corsones, 386 F.3d 116, 137 (2d Cir. 2004), as amended on reh’g, 396 F.3d 53 (2d Cir.
2005)). By contrast, for state law claims against state officials in federal court, state
law “determine[s] if judges enjoy immunity and, if so, under what circumstances.” Id.
Here, the substantive state law inquiry dictates the same result for Plaintiff’s state law
claims as well as his federal § 1983 claim.
25
Next, shifting perspectives from publisher to composer, there is no
dispute that Defendant’s act of composing the Sanctions Decision is a judicial
act entitled to absolute judicial immunity. See Murray v. Brancato, 290 N.Y.
52, 56 (1943) (“It is clear that even if those opinions had been written with
knowledge of their falsity and with actual intent to injure the plaintiff, the
defendant, in accord with the well-established public policy, would be exempt
from liability for ‘composing’ the opinions.”). It is also undisputed that
Defendant’s act of disseminating the Sanctions Decision to official publishers is
likewise judicial in nature. Id. (“[E]ach judge [has] an official duty to facilitate
the publication in the official reports of opinions worthy of being reported. …
[W]e assume that all acts done in connection with th[is] statutory duty fall
within the scope of judicial immunity though done maliciously [or] corruptly.”).
That leaves one interstitial possibility, and it is the critical issue here:
Whether a judge is absolutely immune from suit for the act of disseminating a
judicial decision to an unofficial publisher. Where the judge is a federal judge,
the answer in this Circuit is clear: yes. In Garfield v. Palmieri, the Second
Circuit held that under federal law — which governs the contours of judicial
immunity afforded a federal judge “for statements made by him in an opinion
written by him” — the judge’s transmission of an opinion to an unofficial
publisher “was within the perimeter parking the outlines of the absolute
privilege of federal judges against civil liability[.]” 297 F.2d at 527. Such
immunity, the court explained, is “necessary in order that federal judges may
26
act fearlessly in performing their vital responsibilities that include duties in the
administration of justice as well as in the deciding of cases.” Id.
ii.
Murray’s Judicial Immunity Gap
But New York state law furnishes a different answer for state judges.
The New York Court of Appeals has squarely held that a state court judge is
not entitled to judicial immunity for disseminating a decision to an unofficial
publisher because such conduct is functionally non-judicial. See Murray, 290
N.Y. at 56-58. In Murray, the state high court reasoned:
[A] judge has no official duty in connection with any
publication of opinions except in the official reports.
The publication of an opinion begins when the judicial
decision is complete, and though in some degree
connected with the exercise of a judicial function, since
the law imposes upon the judge no duty to publish
opinions in unofficial reports, acts connected with such
publication are not performed by the judge in his
judicial capacity. The judge’s rights and duties there
are the same as those of any private person and if he
chooses to act he must be held liable like any other
person for damages resulting from a wrongful act
maliciously performed with intent to injure another[.]
Id. at 57. Murray’s facts resemble those here. There, an attorney sued a Kings
County judge for “maliciously compos[ing]” two opinions containing defamatory
statements about the plaintiff and then facilitating the publication of those
opinions in unofficial reporters, including the New York Law Journal. Id. at
54-55. As noted, the court ultimately found that while the judge “is exempt
from liability for all acts done in the exercise of his judicial function,” the act of
transmitting an opinion for publication in an unofficial report is “not [an act]
27
performed by the judge in his judicial capacity,” and so ineligible for judicial
immunity. Id. at 57-58.
iii.
The Court Cannot Accept Defendant’s Efforts to
Distinguish Murray
Defendant tries to avoid the consequences of Murray’s holding, but none
of his proffered bases is ultimately persuasive. First, he argues that Murray’s
distinction between official and unofficial publishers is no longer valid, citing
the Second Circuit’s rejection of this bifurcation in the § 74 reporting privilege
context and the Northern District of New York’s observation that “Murray is not
the current law in New York.” (See Def. Br. 12 n.4; Def. Reply 4-5). But a
closer look at these decisions reveals no basis to consider Murray’s distinction
abrogated or otherwise cabined as applied here.
As Defendant acknowledges, the Second Circuit’s decision in Beary
involved New York’s fair and true report privilege, see N.Y. Civ. Rights Law
§ 74, and specifically the question of “whether [the privilege] provides an
absolute defense to [an unofficial publisher].” See Beary, 763 F.2d at 68. (Def.
Br. 12 n.4). The Circuit was concerned with the scope of a statutory privilege
for publishers; it did not opine upon the scope of judicial immunity for judges.
Indeed, this was the Second Circuit’s basis for distinguishing Murray. Id. at
69. The Beary plaintiff had relied on Murray to argue that § 74’s immunity
extends only to official reporters of judicial decisions. Id. at 68-69. Far from
rejecting Murray in response, the Circuit acknowledged the decision’s
bifurcation of official versus unofficial reporters for judicial immunity purposes,
but distinguished Murray on the basis that that decision had “declined to rule”
28
on the § 74 question. Id. at 69. Then, relying on a series of subsequent New
York state court decisions, Beary rendered its conclusion concerning the scope
of the statutory, § 74 privilege. Id. Nothing in Beary’s analysis indicates an
abrogation of Murray’s judicial immunity holding.
Defendant also relies on the Northern District of New York’s decision in
Nationwide Tarps, but that decision appears to misperceive the interplay of
Murray and Beary. Nationwide Tarps understands Murray to have held “that
[§ 74] did not extend absolute immunity to judges for opinions they authored
and sent to ‘unofficial’ reporters,” and understands Beary to have “disavowed”
that rule in holding that “[§] 74 provides an absolute immunity to both the
‘official’ and ‘unofficial’ publishers of New York state judicial opinions”; it was
on the basis of this analysis that the district court commented that “Murray is
not the current law in New York.” Nationwide Tarps, Inc. v. Midwest Canvas
Corp., 228 F. Supp. 2d 202, 211 (N.D.N.Y. 2002). But as indicated above,
Murray expressly reserved decision on questions of § 74 statutory immunity
since “[t]he defendant ha[d] pleaded only his absolute immunity from liability
for any acts done in his judicial capacity,” and so “no such questions [about
the statutory privilege] [we]re [t]here presented or considered.” Murray, 290
N.Y. at 58-59. So, contrary to Nationwide Tarp’s analysis, Murray’s judicial
immunity holding was not at issue in Beary, much less disavowed.
Defendant next argues that even assuming “Murray’s distinction between
official and unofficial reporters remains valid, subsequent cases have held that
arranging to publish a case in the [New York] Law Journal is now a judicial act
29
entitled to absolute immunity.” (Def. Br. 12). For this proposition, Defendant
cites only Sassower v. Finnerty, where the Second Department held:
The execution of an annual contract with the publisher
of the New York Law Journal pursuant to … the
Judiciary Law imposes an implied duty upon the [the
judge] to make copies of opinions and decisions
available to the New York Law Journal for publication.
Consequently, an act to procure the publication of a
judicial decision or opinion in the New York Law
Journal is now a judicial act entitled to absolute
immunity.
465 N.Y.S.2d 543, 545 (2d Dep’t 1983) (citations omitted). But when Plaintiff
responds in opposition that the First Department (as opposed to the Second in
Sassower) has yet to expressly recognize the New York Law Journal as an
official reporter (Pl. Opp. 5), Defendant offers no rebuttal, and indeed is silent
on the issue altogether in reply (see generally Def. Reply 3-6). 7 In any event,
the FAC alleges that Defendant disseminated the Sanctions Decision to
numerous other publications beyond the New York Law Journal, such as the
New York Post and the Daily News. Defendant fails at this stage to undermine
a key factual premise of Plaintiff’s suit: that Defendant transmitted the
Sanctions Decision to unofficial publishers of the Decision.
Finally, Defendant argues that as a “practical matter,” decisions like the
Sanctions Decision are “routinely reported” to unofficial publishers (Def.
Br. 13), and that it “defies logic” to expose judges to lawsuits based on their
7
At this stage, the Court need not conclusively decide whether the New York Law Journal
is an official reporter of judicial decisions in the First Department. Plaintiff has pleaded
that it is not. (FAC ¶ 27). Defendant has offered no legal authority or other judicially
noticeable source at this stage that contradicts that allegation. Thus, for purposes of
this motion, the Court presumes that the New York Law Journal was not an official
reporter of the Sanctions Decision at the time of Defendant’s alleged conduct.
30
transmission of judicial decisions to unofficial publications (Def. Reply 5). This
Court tends to agree with Defendant, and yet must exercise restraint and reject
Defendant’s judicial immunity argument nonetheless for the reasons discussed
next.
c.
Murray Governs This Court’s Analysis
To review, the labyrinth of judicial decision-related immunity under New
York law immunizes a judge in composing and rendering a judicial decision
and in transmitting that decision to an official publisher; it also immunizes
both official and unofficial publishers alike in accurately reporting the decision.
And yet, because of Murray, the same judge is not immune in transmitting the
same decision to an immunized unofficial publisher because New York law
does not consider that act judicial in nature. This Court shares Defendant’s
skepticism about the sensibility and continued vitality of this carve-out,
announced by the New York Court of Appeals nearly 75 years ago in a divided
4-3 decision. And while Plaintiff is correct that Murray continues to be cited
today, it is frequently cited for general principles of judicial immunity. Indeed,
neither party has proffered, nor has this Court found, any modern case that
relies on this aspect of Murray’s holding to strip a judge of immunity.
In this Court’s view, Murray’s immunity gap leaves judges exposed in a
manner inconsistent with judicial immunity principles. And were this Court
free to do so, it would adopt here the Second Circuit’s analogous stance on
federal judicial immunity under federal law: that transmission of a decision to
an unofficial publisher is conduct “within the perimeter parking the outlines of
31
the absolute privilege of federal judges against civil liability.” Garfield, 297
F.2d at 527. But the Court enjoys no such liberty. As earlier examined, New
York state law governs whether the action of a New York state court judge is
judicial in character and, so, entitled to immunity. See Huminski, 396 F.3d at
76; Shtrauch, 651 F. App’x at 73; see also Marino, 2011 WL 3251585, at *2.
Murray is squarely on point and remains the state law on the books, relic
though it may be. This Court hesitates to defy the New York Court of Appeals’
clear statement of New York judicial immunity law in favor of implementing
what this Court may think sensible. 8 This is particularly the case where, as
here, Defendant presses an alternative, narrower ground for dismissal —
collateral estoppel — that this Court finds persuasive. 9
8
Unlike the Circuit, this Court of course does not have authority to certify questions to
the New York Court of Appeals, see Amalfitano v. Rosenberg, 533 F.3d 117, 125 (2d Cir.
2008), such as whether Murray’s unofficial publisher holding should be abrogated (see
Def. Reply 5).
9
Given this Opinion’s judicial immunity and collateral estoppel analyses, the Court need
not resolve the question whether Defendant’s dissemination of the Sanctions Decision
violated N.Y. Domestic Relations Law § 235’s statutory seal. (See FAC ¶ 164; Pl.
Opp. 10-13). However, the Court notes that the First Department, in affirming the Trial
Court’s ultimate judgment of divorce, acknowledged the public release of the Sanctions
Decision and rejected the argument that Defendant’s conduct caused Plaintiff’s loss of
employment. The appeals court held:
[P]laintiff claims that he was terminated from his position at his
law firm because of the negative publicity he received after he had
been sanctioned during [the Divorce Action] proceedings in 2015.
Even if he was terminated for that reason, the sanctions — and
therefore his unemployment — resulted from his own misconduct
at trial, not from the [Trial] [C]ourt’s conduct in sanctioning him or
publicly releasing the sanctions order.
Zappin State II, 65 N.Y.S.3d at 32 (emphasis added) (citing the Sanctions Decision and
the Affirmance).
32
D.
The Doctrine of Collateral Estoppel Bars This Action
Defendant argues that Plaintiff’s claims are barred by the doctrine of
collateral estoppel because the factual issues dispositive of those claims were
litigated and decided in the Divorce Action proceedings that resulted in the
Sanctions Decision and its Affirmance.
The collateral estoppel analysis here reveals an idiosyncratic situation
arising directly from Murray’s awkward judicial-immunity carve-out. That is,
the Sanctions Decision serves a dual role. On the one hand, the Decision is
itself the disseminated document that contains the allegedly false, defamatory,
or malicious statements at the heart of Plaintiff’s claims. On the other hand,
the Decision remains a judicial decision on the merits issued by “a court of
competent jurisdiction,” whose factual findings, i.e., the allegedly false and
defamatory statements themselves, were rendered after litigation in the Trial
Court and later affirmed by the First Department on appeal. Thus, even
accepting Murray’s holding that the act of disseminating the Sanctions
Decision to unofficial publishers is not a judicial act, that conclusion does not
undermine the fact that the Decision remains a judicial decision, eligible to
command preclusive effect on subsequent proceedings if the requisite
conditions are met. 10 For the reasons discussed below, the Court finds those
conditions satisfied and dismisses Plaintiff’s claims.
10
This result is not inconsistent with Murray. That decision acknowledged the
possibility — without passing judgment — of protecting a judge against suit via the fair
and true report privilege for disseminating a decision to an unofficial publisher, since
the privilege immunizes from suit “any person … for the publication of a fair and true
report of any judicial proceeding[.]” See Murray v. Brancato, 290 N.Y. 52, 58-59 (1943)
(acknowledging that the privilege “was extended to cover publications by all persons,”
33
1.
Collateral Estoppel Generally
Collateral estoppel, also known as issue preclusion, “prevents parties or
their privies from relitigating in a subsequent action an issue of fact or law that
was fully and fairly litigated in a prior proceeding.” Marvel Characters, Inc. v.
Simon, 310 F.3d 280, 288 (2d Cir. 2002); see generally Proctor v. LeClaire, 715
F.3d 402, 414 (2d Cir. 2013).
The doctrine “serves to relieve parties of the cost and vexation of multiple
lawsuits, conserve judicial resources, and, by preventing inconsistent
decisions, encourage reliance on adjudication.” Envtl. Def. v. EPA, 369 F.3d
193, 202 (2d Cir. 2004) (quoting Allen v. McCurry, 449 U.S. 90, 94 (1980))
(quotation marks omitted); see also Kaufman v. Eli Lilly & Co., 65 N.Y.2d 449,
455 (1985) (recognizing that the doctrine is “based upon the general notion that
it is not fair to permit a party to relitigate an issue that has already been
decided against it”).
Non-mutual collateral estoppel allows a defendant who was not party to
the previous litigation to bar issues raised in subsequent litigation. See
Ranasinghe v. Kennell, No. 16 Civ. 2170 (JMF), 2017 WL 384357, at *3
(S.D.N.Y. Jan. 25, 2017); see also Blonder-Tongue Labs., Inc. v. Univ. of Illinois
Found., 402 U.S. 313, 329 (1971) (“Permitting repeated litigation of the same
issues as long as the supply of unrelated defendants holds out reflects either
questioning “whether the statute is intended to apply to the publication by a judge of an
opinion written by himself,” and concluding that “[n]o such questions are here
presented or considered. The defendant has pleaded only his absolute immunity from
liability for any acts done in his judicial capacity, and the courts below considered no
other defense”).
34
the aura of the gaming table or a lack of discipline and of disinterestedness on
the part of the lower courts.” (internal quotation marks omitted)).
Collateral estoppel can be “offensive” or “defensive,” and as relevant here,
defensive use “occurs when a defendant seeks to prevent a plaintiff from
asserting a claim the plaintiff has previously litigated and lost against another
defendant.” Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322, 326 n.4 (1979).
Thus, “once an issue is actually and necessarily determined by a court of
competent jurisdiction, that determination is conclusive in subsequent suits
based on a different cause of action involving a party to the prior litigation.”
Montana v. United States, 440 U.S. 147, 153 (1979); see also Ryan v. New York
Tel. Co., 62 N.Y.2d 494, 500 (1984) (recognizing that preclusion can apply
“whether or not the tribunals or causes of action are the same”).
Here, Defendant’s invocation of the doctrine implicates non-mutual
defensive collateral estoppel because Defendant seeks to bar relitigation of fact
issues in this proceeding that he contends were decided in the Divorce Action
proceedings, a prior litigation in which Defendant was not a party but the
presiding judge. See Jasper v. Sony Music Entm’t, Inc., 378 F. Supp. 2d 334,
343 (S.D.N.Y. 2005) (“[A] new defendant in the plaintiff’s second lawsuit may
defensively invoke collateral estoppel regarding issues of law or fact decided in
the plaintiff’s first action.”).
2.
Collateral Estoppel Under New York Law
“To determine the effect of a state court judgment, federal courts,
including those sitting in diversity, are required to apply the preclusion law of
35
the rendering state.” Conopco, Inc. v. Roll Int’l, 231 F.3d 82, 87 (2d Cir. 2000)
(citing Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 81 (1984)); id.
(“Federal courts may not employ their own rules ... in determining the effect of
state judgments, but must accept the rules chosen by the State from which the
judgment is taken.” (internal quotation marks and citation omitted)). This
applies to claims under 42 U.S.C. § 1983, as well. See Leather v. Eyck, 180
F.3d 420, 424 (2d Cir. 1999); Migra, 465 U.S. at 82-83. Thus, New York law
governs the preclusive effect of the Sanctions Decision on all of Plaintiff’s
claims. See Marvel Characters, 310 F.3d at 286.
Under New York’s collateral estoppel doctrine, 11 a party may not
relitigate an issue that is “[i] identical to an issue already decided … in a
11
The precise elements of New York collateral estoppel doctrine are the source of some
confusion within the Second Circuit and the New York state courts. The Second Circuit
has offered conflicting guidance on whether there exists any material distinction
between the federal and New York state doctrines. In Marvel Characters, the Court
accepted the parties’ position that “there is no discernible difference between federal
and New York law concerning … collateral estoppel.” Marvel Characters, Inc. v. Simon,
310 F.3d 280, 286 (2d Cir. 2002). This echoed its conclusion from a year earlier, see
Pike v. Freeman, 266 F.3d 78, 91 n.14 (2d Cir. 2001) (“[T]here appears to be no
significant difference between New York preclusion law and federal preclusion law[.]”),
and it is a position that the Circuit has reiterated recently as well, see, e.g,. NML
Capital, Ltd. v. Banco Cent. de la Republica Argentina, 652 F.3d 172, 185 (2d Cir. 2011).
But just a few months before its decision in Marvel Characters, the Circuit had issued
LaFleur, which identified a distinct element under New York collateral estoppel law,
namely, that the issue “be ‘decisive of the present action.’” LaFleur v. Whitman, 300
F.3d 256, 271 (2d Cir. 2002) (quoting Schwartz v. Public Adm’r of Bronx, 24 N.Y.2d 65,
71 (1969)). The Circuit confirmed this view the following year and expressly recognized
that this requirement “makes New York collateral estoppel law slightly different from
federal collateral estoppel law.” Curry v. City of Syracuse, 316 F.3d 324, 331 & n.4 (2d
Cir. 2003). Here too, subsequent decisions have maintained this position and
recognized the element as distinct under New York law. See, e.g., Indus. Risk Insurers
v. Port Auth. of N.Y. & NJ, 493 F.3d 283, 287-88 (2d Cir. 2007); Jenkins v. City of New
York, 478 F.3d 76, 85 (2d Cir. 2007).
Further confusing matters, the New York Court of Appeals has itself offered conflicting
guidance in recent years. Compare Howard v. Stature Elec., Inc., 20 N.Y.3d 522, 525
(2013) (using “decisiveness” formulation), with Conason v. Megan Holding, LLC, 25
N.Y.3d 1, 17 (2015) (making no mention of “decisiveness” formulation).
36
previous proceeding [ii] in which that party had a full and fair opportunity to
litigate, and where [iii] the issue that was raised previously is decisive of the
present action.” Indus. Risk Insurers v. Port Auth. of N.Y. & NJ, 493 F.3d 283,
287-88 (2d Cir. 2007) (quoting Curry v. City of Syracuse, 316 F.3d 324, 331 (2d
Cir. 2003)) (internal quotation marks and alteration omitted). If these
conditions are met, “issue preclusion is applicable even if the two suits are not
based on the same cause of action.” Proctor, 715 F.3d at 414.
The Court is mindful in evaluating these elements that the collateral
estoppel doctrine is based on “general notions of fairness involving a practical
inquiry into the realities of the litigation,” Matter of Halyalkar v. Bd. of Regents
of State of N.Y., 72 N.Y.2d 261, 268 (1988), and “should not be rigidly or
mechanically applied,” D’Arata v. N.Y. Cent. Mut. Fire Ins. Co., 76 N.Y.2d 659,
664 (1990); see also Remington Rand Corp. v. Amsterdam-Rotterdam Bank,
N.V., 68 F.3d 1478, 1486 (2d Cir. 1995).
The allocation of the burden of proof is divided. The burden of
demonstrating that the factual issues are identical, previously decided, and
decisive of the present action rests with the party seeking to apply collateral
estoppel, here Defendant; the burden of demonstrating that the prior
An additional point of internal inconsistency within the Second Circuit involves the
requirement that the identical, decided issue be “material in the first action.” LaFleur,
300 F.3d at 271. Industrial Risk Insurers and Curry recite the elements of New York
collateral estoppel law with no mention of this requirement, while the precedent on
which they are predicated, LaFleur, expressly requires it.
Out of an abundance of caution, this Opinion addresses both the materiality
requirement, in analyzing element one below, as well as the decisiveness requirement,
in analyzing element three below.
37
proceeding did not afford a full and fair opportunity to litigate the issues rests
with the party opposing preclusion, here Plaintiff. See Kaufman, 65 N.Y.2d at
456; see also Proctor, 715 F.3d at 414.
3.
Analysis
Plaintiff’s principal argument against the application of collateral
estoppel is that he was denied “a full and fair opportunity to litigate th[e]
factual determinations by [Defendant].” (Pl. Opp. 16-17). He also appears to
argue that the relevant factual issues were not actually decided by the First
Department (id. at 18), and relatedly argues in a footnote that the contested
factual findings by the Sanctions Decision were “not necessary or essential to
the imposition of sanctions” (id. at 16 n.8).
The Court finds Plaintiff’s arguments unavailing and the conditions for
collateral estoppel met. As a preliminary matter, the Court notes that while it
generally accepts as true all well-pleaded allegations in the FAC and draws all
reasonable inferences in Plaintiff’s favor, collateral estoppel “will nonetheless
bar a plaintiff’s claim when [a] plaintiff’s factual allegations have been decided
otherwise in a previous litigation.” Lefkowitz v. McGraw-Hill Glob. Educ.
Holdings, LLC, 23 F. Supp. 3d 344, 360 (S.D.N.Y. 2014) (quoting Poindexter v.
Cash Money Records, No. 13 Civ. 1155 (RWS), 2014 WL 818955, at *3 (S.D.N.Y.
Mar. 3, 2014)) (internal quotation marks omitted); cf. Linden Airport Mgmt.
Corp. v. N.Y.C. Econ. Dev. Corp., No. 08 Civ. 3810 (RJS), 2011 WL 2226625, at
*3 (S.D.N.Y. June 1, 2011) (“[I]t is well settled that a court may dismiss a claim
on res judicata or collateral estoppel grounds on a Rule 12(b)(6) motion.”). In
38
such circumstances, dismissal is appropriate when “it is clear from the face of
the complaint, and consideration of matters which the court may take judicial
notice of, that the plaintiff’s claims are barred as a matter of law.” Lefkowitz,
23 F. Supp. 3d at 360; see also Conopco, 231 F.3d at 86.
a.
The Factual Issues in This Action Are Identical to
Material Factual Issues Previously Decided in the
Sanctions Decision and the Affirmance
The material factual issues decided in the Sanctions Decision and
affirmed on appeal are identical to the factual issues underlying each of
Plaintiff’s five claims (and, as will be discussed later, are decisive of those
claims). The identical nature of the two sets of factual issues is not in serious
doubt; after all, Plaintiff’s claims are predicated on the dissemination of those
very factual determinations and their falsity. It is perhaps for this reason that
Plaintiff nowhere contests the identity of issues. (See generally Pl. Opp. 16-18).
Instead, Plaintiff argues in a footnote that the factual determinations in the
Sanctions Decision were merely background and unessential to the Decision,
and also argues that those determinations were not actually decided on appeal.
(Pl. Opp. 16 n.8). Plaintiff is mistaken on both counts.
The factual findings that Plaintiff alleges were false, defamatory, or
malicious are principally those concerning: (i) Plaintiff’s filing of the OPMC
complaint (FAC ¶¶ 52-57); (ii) Plaintiff’s conduct towards the AFC (id. at ¶¶ 5861); (iii) Plaintiff’s child’s medical evaluation (id. at ¶¶62-64); (iv) the treatment
of Plaintiff’s child (id. at ¶¶ 65-68); (v) the effect of Plaintiff’s litigation
misconduct on his child (id. at ¶¶ 69-70); (vi) Plaintiff’s efforts to delay the
39
Divorce Action trial (id. at ¶¶ 71-76); (vii) Plaintiff’s handwritten note to the
District of Columbia judge (id. at ¶¶ 77-79); (viii) Plaintiff’s conduct towards
opposing counsel in the Divorce Action (id. at ¶¶ 80-81); and (ix) Plaintiff’s nonpayment of child support (id. at ¶¶ 82-83). These factual determinations were
integral to the Sanctions Decision. As detailed earlier, the Trial Court resolved
multiple motions, only one of which was for sanctions, after meticulously
reviewing the record and making factual findings in support of its analysis.
See In re Cox, 931 N.Y.S.2d 568, 569 (1st Dep’t 2011) (giving preclusive effect
to sanctions order’s professional misconduct findings in subsequent
disciplinary proceedings); In re Neroni, 20 N.Y.S.3d 496, 498 (4th Dep’t 2015)
(same); cf. 5A Charles Alan Wright & Arthur R. Miller, FEDERAL PRACTICE AND
PROCEDURE § 1336.3 (3d ed.) (recognizing that collateral estoppel may be
available for factual determinations made in connection with Rule 11 sanctions
provided that other preclusion requirements met); cf. Ball v. A.O. Smith Corp.,
451 F.3d 66, 69-70 (2d Cir. 2006) (holding that factual determinations in
sanctions decision collaterally estopped debtor from contesting factual
predicate for bankruptcy court’s determination that sanctions debt was nondischargeable because it arose from debtor’s “willful and malicious injury” to
another).
The Sanctions Decision shows no indication that those factual
determinations were merely dicta. Just the opposite. The Decision’s structure
and analysis demonstrates that its findings were designed to serve as the
necessary foundation for the Trial Court’s disposition of the motions and
40
sanctioning of Plaintiff — after repeated warnings (see Sanctions Decision 19
n.8) — for his pattern of misconduct throughout the Divorce Action, including
his filing of the OPMC complaint. For this reason, the Sanctions Decision:
notes that the that the AFC was forced to bring two
motions at issue “[a]s a direct result of [P]laintiff’s
conduct in this case,” including his efforts “to
undermine the legal process and use his law license as
a tool to threaten, bully, and intimidate,” “ill-advised
behavior [that] seriously calls into question his fitness
to practice law” (id. at 3);
describes the AFC’s request for financial sanctions “as
a result of [Plaintiff’s] actions with respect to her expert
and his overall misconduct throughout the pendency of
the divorce action” (id.);
transitions from factual findings to legal analysis by
observing that “[i]t is in the midst of this maelstrom of
misconduct that the AFC has been forced to bring the
two motions that are now before the court” (id. at 9);
pursuant to the relevant judicial sanctions provision,
see 22 NYCRR § 130-1.1, expressly considers “the
circumstances under which the [OPMC conduct] took
place” (id. at 21);
and based on an evaluation of those circumstances
concluded that, “[a]s should be obvious from the
recitation of the history of this case, [P]laintiff’s
misconduct exhibited with regard to the OPMC
complaint is not an isolated incident. Regrettably, it is
but one instance in a pattern of improper behavior.
Although the hope was that [P]laintiff would heed the
[Trial] [C]ourt’s admonitions and represent himself
according to the dictates of his profession, that has not
happened. [ ] Under these circumstances, where
warnings have had no effect on [P]laintiff’s conduct, it is
incumbent — for the integrity of the judicial process, as
well as for the protection of the other litigants and the
child — that penalties be imposed. ” (id. at 21 (emphasis
added)).
41
Plaintiff also criticizes the First Department’s Affirmance as “conclusory”
and “lack[ing] any analysis or detail” and so maintains that the Affirmance
cannot be considered to have actually passed judgment on the Sanctions
Decision’s factual findings. (Pl. Opp. 18). This criticism, too, is misplaced.
The First Department emphatically affirmed the entirety of the Sanctions
Decision; that more than suffices here. See Ball, 451 F.3d at 70-71 (finding it
appropriate to “infer that the [Fifth Circuit’s] affirmance constitutes a ruling
that [the district court’s] opinion sufficed as findings that [attorney’s conduct]
was unreasonable and for an improper purpose,” despite the fact that the
affirmance did not opine on precise issue); cf. DiSorbo v. Hoy, 343 F.3d 172,
183 (2d Cir. 2003) (“Under New York law, the mere pendency of an appeal does
not prevent the use of the challenged judgment as the basis of collaterally
estopping a party to that judgment in a second proceeding.” (internal quotation
marks and citation omitted)).
But in addition to that, the Affirmance expressly highlights the Sanctions
Decision’s factual determinations in the course of upholding the Trial Court’s
analysis. The First Department need not have restated each upheld fact in
order to command preclusive effect. Cf. LaFleur, 300 F.3d at 273 (finding
factual issues “necessarily decided” for collateral estoppel purposes where state
court found agency’s determination to be “supported in the record” and
“rejected [plaintiff’s] central contention” to the contrary, even if “the state court
did not rule explicitly” on certain specific factual issues involved). Labeling the
Sanctions Decision “detailed” and “amply supported by the record,” the First
42
Department held in its Affirmance that the pattern of bad-faith conduct,
coupled with repeated warnings, justified the sanctions. See Zappin State I, 49
N.Y.S.3d at 6-7.
In short, the Court finds that Defendant has carried his burden of
establishing that the factual issues raised in this action are identical to the
material factual issues that were actually decided in the Sanctions Decision
and the Affirmance both individually and most certainly in tandem. (See Def.
Br. 17-18).
b.
Plaintiff Had a Full and Fair Opportunity to Litigate the
Relevant Factual Determinations in the Divorce Action
Plaintiff’s main argument against collateral estoppel is that he was
denied a full and fair opportunity to litigate the Sanctions Decision’s factual
determinations because “they were not raised in the briefing papers and never
previously litigated before the [Trial] [C]ourt.” (Pl. Opp. 16). Moreover, he
argues, “because [those factual determinations] were not litigated in the motion
papers, Plaintiff was denied a full and fair opportunity to dispute them on
appeal in the First Department where the record was constrained to only the
motion papers underlying the interlocutory order, i.e., [the Sanctions]
Decision.” (Id. at 16-17). Finally, even as to “the few instances” that factual
findings were discussed in the underlying papers, Plaintiff was still deprived of
a full and fair opportunity “because [Defendant] deliberately and intentionally
misrepresented the alleged facts in the ultimate Sanctions Decision.”
(Id. at 17).
43
In determining whether a party has had a “full and fair opportunity” to
litigate an issue, “the New York Court of Appeals has instructed that the
various elements which make up the realities of litigation, should be
explored[.]” Curry, 316 F.3d at 332 (internal quotation marks omitted). These
elements include “‘the size of the claim, the forum of the prior litigation, the
use of initiative, the extent of the litigation, the competence and experience of
counsel, the availability of new evidence, indications of a compromise verdict,
differences in the applicable law and foreseeability of future litigation.’”
Kosakow v. New Rochelle Radiology Assocs., P.C., 274 F.3d 706, 734 (2d Cir.
2001) (quoting Schwartz v. Public Adm’r, 24 N.Y.2d 65, 72 (1969)).
Plaintiff’s lack-of-opportunity arguments go nowhere. The “realities of
[the] litigation,” including the various applicable elements, weigh in Defendant’s
favor. The forum of the prior litigation was the New York County Supreme
Court; Defendant was the presiding judge over the Divorce Action and thus
intimately familiar with the extensive record of the case, including Plaintiff’s
pattern of “misconduct throughout the pendency of the [D]ivorce [A]ction”
(Sanctions Decision 3); the instant action and the potential for preclusive effect
was foreseeable at least as of Plaintiff’s appeal, given that he specifically
protested Defendant’s dissemination of the Sanctions Decision to the First
Department (see Zappin Appellant Br. 11-12, 26); and there is no new evidence
or difference in applicable law that would make it unfair to hold Plaintiff to the
44
Sanctions Decision and its Affirmance. Plaintiff had a full and fair opportunity
to contest these factual issues. 12
What is more, the Sanctions Decision itself anticipated the question
whether Plaintiff was afforded a full opportunity to contest the factual and legal
grounds for his sanctioning. The Decision held that “[a]lthough the AFC’s
request for sanctions was initially made in her reply affirmation, [P]laintiff had
ample opportunity to respond, and thus be heard on the issue of sanctions, in
his sur-reply … [but] offers no defense for his actions.” (Sanctions
Decision 19).
Plaintiff’s failure to respond to the AFC’s call for sanctions was of his own
doing. The “full and fair opportunity” element is satisfied under New York law
“where the party against whom collateral estoppel is sought to be invoked has
appeared in the prior action or proceeding and has, by deliberate action,
refused to defend or litigate the charge or allegation that is the subject of the
preclusion request.” In re Abady, 800 N.Y.S.2d 651, 660 (1st Dep’t 2005);
accord Kanat v. Ochsner, 755 N.Y.S.2d 371, 374 (1st Dep’t 2003) (same).
Plaintiff all but admits this in his appellate filing, saying that “[he] did not
12
That the Trial Court may not have held an evidentiary hearing before making these
adverse factual findings in the course of resolving multiple motions and imposing
sanctions does not alter this conclusion. See Wolff v. City of New York Fin. Servs.
Agency (FISA), 939 F. Supp. 258, 266 (S.D.N.Y. 1996) (rejecting argument that the lack
of a hearing or opportunity to present witnesses deprived party of a full and fair
opportunity to litigate for collateral estoppel purposes); cf. Bartel Dental Books Co. Inc. v.
Schultz, 786 F.2d 486, 489 (2d Cir. 1986) (“New York courts look to whether a claim has
been ‘brought to a final conclusion,’ not to whether a full evidentiary hearing has been
held on the claim … In light of this reasoning, we apply the doctrine of res judicata to
the facts of this case without regard to whether a hearing was actually granted in state
court.” (citations omitted)).
45
respond to the AFC’s sanction request in his [three-]page [reply] affidavit,
instead choosing to solely reply to several [points] raised in [the AFC’s]
opposition” to Plaintiff’s disqualification motion. (Zappin Appellant Br. 20
(emphasis added)).
Moreover, Defendant’s imposition of sanctions was in the context of a
pattern of misconduct throughout the Divorce Action in the face of repeated
warnings:
Both the AFC and [Plaintiff’s ex-spouse] have made
numerous requests in prior motions for sanctions to be
imposed against [P]laintiff for transgressions alleged to
be in violation of the Rules of Professional Conduct and
other acts of attorney misconduct. Both [a previous
judge] and [the Trial Court], in the decisions rendered
on those motions, chose not to sanction [P]laintiff.
Instead, each of us opted to caution plaintiff about his
behavior and remind him of his ethical obligations as
an attorney at law.
(Sanctions Decision 19 n.8). On top of everything else, then, the Sanctions
Decision could not have been a surprise to Plaintiff, who had been afforded
multiple opportunities to correct his conduct under the threat of sanctions.
Turning to the appellate proceedings, one of Plaintiff’s principal grounds
for appeal of the Sanctions Decision was the supposed lack of a full and fair
opportunity to litigate this issue before the Trial Court. Over the course of
nearly a dozen pages, Plaintiff argued to the First Department that he had had
no opportunity to respond to the AFC’s request for sanction nor any
opportunity to be heard on the numerous factual conclusions in the Sanctions
Decision, which Plaintiff argued were erroneous and unsupported by the
record. This is a sample of Plaintiff’s lack-of-opportunity arguments on appeal:
46
[Plaintiff] was not given a full and fair opportunity to
respond to the AFC’s purported request for sanctions
prior to the imposition of sanctions.
***
The lack of notice and an opportunity to be heard is of
even more consequence given the character of the
[Sanctions] Decision. The [Trial] [C]ourt chose to recite
as fact and factual background a litany of contested
issues and claims pointedly against. [Plaintiff] that
were never previously adjudicated or even noticed in the
motion papers.
***
Furthermore, in some instances, the [Trial] [C]ourt
improperly reached apparent factual conclusions about
the litigation and [Plaintiff] in general without [Plaintiff]
uttering a single word in the courtroom and having
presiding over the case for less than two (2) months.
***
Much more troubling, however, is that the [Trial] [C]ourt
used misapprehended and undeveloped facts to
publicly accuse [Plaintiff] of attorney misconduct and
question his fitness to practice law.
***
Here, there is no question that [Plaintiff] was
significantly harmed by the lower court’s erroneous
factual conclusions and the lack of notice or a full and
fair opportunity to be heard.
***
Given the tenor and stakes of the [Sanctions] Decision,
it simply cannot be said that [Plaintiff] had notice or a
full and fair opportunity to be heard on the issues raised
and addressed in that decision. This is particularly so
with respect to the [Trial] [C]ourt’s harsh reproaches of
[Plaintiff], its recitation and findings of undeveloped
facts not at issue in the motion papers, its
misapprehension of the record before it and its decision
47
to publish and disseminate the [Sanctions] Decision
publicly to the media.
(Zappin Appellant Br. 19, 21, 25, 27-28). 13
The First Department considered Plaintiff’s appeal “as limited by the
briefs” — which, as illustrated above, included Plaintiff’s clear arguments that
the Sanctions Decision’s factual findings and sanctions imposition were
without record support, erroneous, and unfair — and nonetheless
unanimously affirmed the Sanctions Decision. Zappin State I, 49 N.Y.S.3d at 6.
Labeling the Decision “detailed” and “amply supported by the record,” the First
Department rejected Plaintiff’s appeal and found instead that:
[t]he record establishe[d] that [Plaintiff] engaged in
unprofessional, outrageous and malicious conduct on
multiple occasions, most recently by filing the bad faith
disciplinary complaint against the [AFC’s expert] …
Under the circumstances, particularly where the
[Plaintiff] has exhibited a pattern of bad faith conduct
throughout the proceedings despite repeated warnings
not to do so, the sanctions imposed by Supreme Court
were entirely proper.
***
[Plaintiff] was also warned repeatedly throughout the
proceedings that he must adhere to the Rules of
Professional Conduct.
Id. at 6-7 (emphases added). The First Department concluded that it had
“considered each of [Plaintiff’s] procedural arguments, including that he was
entitled to a hearing because he did not have fair notice that sanctions were
13
Plaintiff expressly challenged on appeal, and the First Department decided, the issue of
whether Plaintiff had a full and fair opportunity to litigate these factual findings before
the Trial Court. There is a colorable argument, then, that Plaintiff is precluded from
relitigating that legal issue in the instant action — an “estoppel squared” of sorts.
However, that argument is nowhere raised so the Court does not pass judgment on it.
48
being considered against him, and f[ound] them unavailing.” Id. at 7. As
illustrated by the excerpts of Plaintiff’s appellate brief and the First
Department’s Affirmance, Plaintiff had a full and fair opportunity to challenge
on appeal, and actually did challenge on appeal, the factual predicates of the
Sanctions Decision.
In sum, Plaintiff has failed to carry his burden of demonstrating that he
lacked a full and fair opportunity to contest the Sanctions Decision’s factual
determinations.
c.
The Factual Issues Are Decisive of the Present Claims
A factual issue is decisive of the present action “if it would prove or
disprove, without more, an essential element of any of the claims set forth in
the complaint.” Curry, 316 F.3d at 332. Each of Plaintiff’s claims, as pleaded,
is necessarily predicated on the false, defamatory, or malicious nature of the
contested portions of the Sanctions Decision. (See, e.g., FAC ¶ 51 (defamation
claim); id. at ¶ 85 (tortious interference); id. at ¶ 92 (intentional infliction of
emotional distress); id. at ¶ 158 (prima facie tort); id. at ¶ 166 (§ 1983 denial of
fair trial)).
But, as established, those statements constitute adjudicated factual
findings deemed accurate by the Trial Court in the Sanctions Decision and
confirmed by the First Department in the Affirmance. Because dissemination
of these accurate, adjudicated facts cannot serve as the basis for the
aforementioned causes of action, none of Plaintiff’s five claims as pleaded can
49
ultimately prevail. 14 See, e.g., Sullivan v. American Airlines, Inc., 613 F. Supp.
226, 230 (S.D.N.Y. 1985) (dismissing defamation claim on collateral estoppel
grounds because unfavorable, allegedly defamatory characterization of plaintiff
had been deemed factually correct by panel of arbitrators); Sandler v. Simoes,
609 F. Supp. 2d 293, 301 (E.D.N.Y. 2009) (dismissing defamation claim against
certain defendants on collateral estoppel grounds where state court had
determined that allegedly libelous statements were non-actionable). For these
reasons, the previously decided facts are decisive of the present claims, and all
of Plaintiff’s claims must be dismissed as collaterally estopped.
E.
The FAC Is Dismissed with Prejudice
Plaintiff has not sought leave to amend the FAC for a second time and,
accordingly, the Court affords him no such opportunity. See Shields v.
Citytrust Bancorp, Inc., 25 F.3d 1124, 1132 (2d Cir. 1994) (“Although federal
courts are inclined to grant leave to amend following a dismissal order, we do
not deem it an abuse of the district court’s discretion to order a case closed
when leave to amend has not been sought. … It is not clear that the failure of
pleading could be remedied by further amendment, nor has [the plaintiff]
suggested how that could be done.”); Komlossy v. Faruqi & Faruqi, LLP, No. 17834-cv, — F. App’x —, 2017 WL 4679579, at *2 (2d Cir. Oct. 18, 2017)
(summary order) (same).
14
The Court need not reach Defendant’s merits arguments that the FAC fails to state
claims for defamation, intentional infliction of emotional distress, tortious interference
with economic advantage, prima facie tort, and § 1983, which arguments are predicated
in significant measure on the same issue addressed in the collateral estoppel analysis
above; namely, that the contents of the Sanctions Decision were adjudicated to be not
false or erroneous. (See Def. Br. 20-24).
50
CONCLUSION
For the foregoing reasons, Defendant’s motion to dismiss is GRANTED.
The Clerk of Court is directed to terminate all pending motions, adjourn all
remaining dates, and close this case.
SO ORDERED.
Dated:
February 2, 2018
New York, New York
__________________________________
KATHERINE POLK FAILLA
United States District Judge
51
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