Opinion
01 Civ. 8616 (KMW) (DF)
May 10, 2004
REPORT AND RECOMMENDATION
TO THE HONORABLE KIMBA WOOD, U.S.D.J.:
INTRODUCTION
On August 10, 2003, following my Report and Recommendation of May 16, 2003, the Court dismissed, with prejudice, most of the claims asserted by pro se plaintiff Steven Bemben ("Bemben"). The Court, however, dismissed three of Bemben's claims — for tortious interference with employment and/or prospective business relations, defamation, and civil conspiracy — without prejudice, and Bemben has since repleaded those three claims against defendants Fuji Photo Film U.S.A., Inc. ("Fuji") and William Homer ("Homer"). Raising essentially the same arguments as they raised in their original motion to dismiss, Fuji and Homer now move to dismiss the repleaded claims under Rule 12(b)(6) of the Federal Rules of Civil Procedure.The Court also has before it a separate motion made by Sandi Cooper ("Cooper"), who was originally named as a defendant in this case, although she is not named as a defendant on Bemben's repleaded claims. To the extent any of Bemben's claims against her were previously dismissed without prejudice, Cooper moves to convert the Court's ruling to a dismissal with prejudice. Cooper argues that, because Bemben did not object to the Court's dismissal as against her and did not name her in his amended pleading, the Court should now make clear that Bemben no longer has the right to re-assert any of his claims against her.
For his part, Bemben now seeks preliminary injunctive relief, framed as a proposed "Protective Order," to enjoin defendants from engaging in the type of allegedly tortious conduct that forms the basis of his claims.
See Plaintiff Response to Fuji Film Counsel Letter to Court Dated April 29, 2004 and Request For Order of Protection — Submitted to Magistrate Judge Debra Freeman ("Bemben Req. for Prot. Order") dated May 4, 2004. Homer and Fuji have also sought a protective order from the Court (see infra at 5), which is being addressed by this Court in a separate Memorandum and Order.
For the reasons set forth below, I respectfully recommend that Fuji's and Homer's motion to dismiss Bemben's amended pleading be granted in its entirety and that Bemben's request for injunctive relief be denied. I further recommend that Cooper's motion be denied as moot, for the very reason that Bemben did not choose to replead his claims against Cooper within the time allowed by the Court, and thus has voluntarily forgone the right to pursue those claims.
BACKGROUND
A. Procedural Background
Bemben originally brought this action in August 2001 against Fuji, Homer and Cooper, as well as Sol and Ida Bemben ("the Bembens"), Larry and Meryl Leon (the "Leons"), Martin Beilis ("Beilis"), and Jeffrey Goldfarb ("Goldfarb"). All of the appearing defendants subsequently made motions to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(2) and/or 12(b)(6). (See Dkt.3,5, 10,28.)
Bemben's original Complaint was filed in the Supreme Court of the State of New York, County of New York, on August 6, 2001. (See Fuji and Homer's Motion to Dismiss, dated September 25, 2001 (Dkt. 3), Ex. A.) An Amended Complaint was filed on August 21, 2001 ("Am. Compl."). (Id., Ex. B.) The case was removed to this Court on September 18, 2001, on federal question grounds, as Bemben had pleaded that the defendants' conduct violated his federal civil rights. (Dkt. No. 1; see Am. Compl. ¶ 30.)
On May 16, 2003,1 issued a Report and Recommendation, recommending, inter alia, that Cooper's and the Bembens' motions to dismiss, which were based on an asserted lack of personal jurisdiction, be granted with prejudice, and that the motions of defendants Fuji, Homer, Beilis, and the Leons be granted on the basis of Bemben's failure to state a claim, with leave to replead the claims for tortious interference with employment and/or prospective business relations, defamation, and civil conspiracy. (See Report and Recommendation ("5/16/03 R R") (Dkt. 43).) On August 10, 2003, the Court adopted my Report and Recommendation, except that, based on new evidence submitted by Bemben in objecting to my recommendation, the Court dismissed the claims against Cooper for failure to state a claim, rather than for lack of jurisdiction. (See Dkt. 47 ("8/10/03 Order of Dismissal").) With respect to the three claims that it dismissed without prejudice, the Court permitted Bemben to replead those claims within 30 days. (Id. at 8-9.)
On September 2, 2003, Bemben filed an amended pleading, entitled "Amended Complaint [#2] in Accord to Judge Wood August 10, 2003 Order" ("Second Am. Compl"), rep leading the three claims solely against defendants Fuji and Homer. (Dkt. 48.) On September 17, 2003, Fuji and Homer moved to dismiss Bemben's new pleading pursuant to Federal Rule of Civil Procedure 12(b)(6). Bemben opposed this motion, arguing that he has now sufficiently stated the elements of these claims.
See Memorandum of Law in Support of Motion by Defendants Fuji Photo Film U.S.A., Inc. and William Homer to Dismiss With Prejudice Plaintiff's "Amended Complaint [#2] in Accord to Judge Wood August 10, 2003 Order" ("Defs.' Mem.") filed September 18, 2003 (Dkt. 50).
See Plaintifff['s] Response to Fuji Photo Film USA, Inc.-Wm. Homer Counsel — Thelen Reid Priest (David Weisenfeld) "Memorandum of Law in Support of Motion by Defendants Fuji Photo Film U.S.A., Inc. Wm. Homer to Dismiss With Prejudice Plaintiff's Amended Complaint [#2] in Accord to Judge Wood August 10, 2003 Order" Dated September 17, 2003 ("Bemben Opp. Mem.") filed October 8, 2003 (Dkt. 53).
On September 24, 2003, Cooper wrote to the Court, requesting informally that the August 10, 2003 ruling in her favor be converted to a dismissal of all claims with prejudice. Bemben responded by conceding that he would "not further argue the matter of keeping defendant . . . Cooper . . . in the case." At the Court's direction, Cooper, on October 20, 2003, resubmitted her request in the form of a motion. Bemben submitted a response to this motion in which he "reiterate[d] that there will be no argument to the court[']s decision to dismiss with prejudice civil liabilities against . . . Sandi Cooper." The Court also has before it two motions for "protective orders." The first, made by defendants Fuji and Homer in conjunction with their motion to dismiss the repleaded claims against them, initially sought to "shield Defendants . . . from further litigation." (See Notice of Motion filed September 18, 2003 (Dkt. 49).) By letter dated April 29, 2004, however, Fuji and Homer have now sought to expand the relief they originally requested, so as not only to prevent Bemben from filing papers or further actions without prior Court permission, but also from communicating in any way with Fuji's and Homer's customers or business contacts regarding this action or allegations made by Bemben in the course of the action. (See Letter to the Court from David Weisenfeld, Esq., dated April 29, 2004.) This broadening of defendants' request for a protective order came as a result of Bemben's recent posting of information about this suit on the Internet and his purported distribution of such information directly to defendants' industry contacts. (Id.) As defendants' request for a protective order is in the nature of a non-dispositive motion, it falls within the scope of my reference, and it is addressed in a separate Memorandum and Order of this date.
See Letter to the Court from Richard Fish, dated September 24, 2003 ("Cooper 9/24/03 Ltr.").
See Plaintiff['s] Response to Richard E. Fish Esq. for Sol and Ida Bemben, Sandi Cooper — Counselor Fish Letter to Judge Wood Dated September 24, 2003 filed September 30, 2003 (Dkt. 51) at 3.
See Notice of Motion to Dismiss the Complaint Against Cooper With Prejudice ("Cooper Mot.") filed October 29, 2003 (Dkt. 55).
See Plaintiff['s] Response to Counselor Richard Fish "Notice of Motion to Dismiss the Complaint Against Cooper With Prejudice" Dated October 20, 2003 filed October 31, 2003 (Dkt. 56) at 1.
In addition to opposing defendants' request for a protective order, Bemben has now himself requested such an order granting him certain protections. (See Bemben Req. for Prot. Order.) Essentially, what Bemben seeks by his request is injunctive relief on his claims. In simple terms, he is requesting an order enjoining defendants from engaging in the type of allegedly tortious conduct that forms the basis of his repleaded claims. (See id.) B. Factual Background
As set forth in greater detail in this Court's previous Report and Recommendation, familiarity with which is assumed, the allegations giving rise to Bemben's claims originated from Bemben's employment by Fuji as a salesman from December 1, 1986 to June 19, 1999. (See Am. Compl. ¶ 1.) During that time period, defendant Homer worked as a manager at Fuji. (Id. ¶ 2.) Bemben alleges that he was subjected to a hosfile work environment by Homer, forcing Bemben to resign. (Id.) Focusing further on his employment with Fuji, Bemben now adds to his allegations a charge that Homer used his "influence" within the company to keep Bemben from being promoted. (Second Am. Compl. at 2.) Bemben also alleges that certain accolades and awards that he received from Fuji were part of a "facade" created by Homer to cover his harassing practices. (Id.) Bemben even alleges that, in constructing a "facade" at Fuji, "Homer went as far as inviting the plaintiff to his wedding." (Id.)
Bemben apparently attempts to implicate Fuji in many of his allegations about Homer, under the theory that the "Fuji management structure" has somehow "control[led]" Homer (Second Am. Compl. at 6), that the Fuji District Managers have sat "idly by" and "tolerat[ed] this behavior pattern by William Homer" (id. at 8), and/or that Homer and Fuji "conspired" against him (id. at 1-2). In that vein, Bemben alleges that he continued to be harassed by both Homer and Fuji, even after he left Fuji's employ. Among other things, Bemben claims that Homer and Fuji interfered with his subsequent employability by disclosing "sensitive" information about him to potential employers. (Id. at 9.) Bemben alleges that Homer's actions in this regard "effectively blacklist[ed]" Bemben and prevented him from obtaining other employment, in any area of the Fuji organization, as well as in industries that were "far removed" from Fuji. (Id. at 2-3.) Bemben claims that his search for employment was hindered by being "blacklisted" from "Headhunters, Monster.com and Hotjobs.com." (Id. at 3.) Despite his claims that Homer and Fuji conspired to prevent him from gaining employment, Bemben did secure a number of jobs after leaving Fuji. Bemben alleges, however, that Homer and Fuji interfered with his employment, once it was secured, at LoJack Corporation, Empire Safe Company, AI Technology, and Jennifer Convertables. (Id. at 3.) Bemben further alleges that Homer has performed "employment reference check[s]" to find out where Bemben has been working and then to interfere with that work. (Id. at 5-6.)
In July 2002, Bemben apparently started his own janitorial services business (id. at 3), through which he provides cleaning services to individuals at their homes (see, e.g., id. at 3-5). Bemben now describes a series of incidents, which occurred in 2002 and 2003 in connection with this cleaning business, in which he claims that certain of his customers acted "oddly," or in a "suspect" or "bizarre" fashion. (Id. at 3-8.) Bemben alleges that the purportedly strange activity of his clients resulted from Homer's and Fuji's contacting these people and disclosing to them information about Bemben, thereby interfering with Bemben's business. (Id. at 5-6.) Further, Bemben asserts that Homer has gone "to bizarre extremes" to make payments to Bemben's family and friends to enlist their assistance in a large-scale campaign of harassment. (Id. at 6.) As part of an alleged conspiracy supposedly orchestrated by Homer, Bemben asserts that, in October 1999, he received a package from the Leons containing sweaters and two pillows. (Id. at 1.) Bemben alleges that this package was intended as a message that he would need to be "comfortable on the street of some city" because Homer would drive him to homelessness (id.), that Homer had paid the Leons to send Bemben this message (id.), and that, overall, the sweaters and pillows were part of a "perverse harassment-interference in the plaintiff's life leading to bankruptcy and homelessness" (id.). Bemben also alleges that he was "poisoned" by a former childhood friend who apparently cooperated with Homer to serve Bemben tainted soup, thereby "harm[ing] the employment of the plaintiff, and defaming the plaintiff." (Bemben Opp. Mem. at 1.)
The incidents include: customers asking Bemben how he would like to be paid and, in one case, a customer preferring to pay in cash (Second Am. Comp. at 3, 4); a customer purportedly putting on a religious necklace after Bemben's arrival at her home (id. at 3); customers knowing some of the same people as Bemben (id. at 4); customers claiming that they were not sure how they learned of Bemben's janitorial business (id. at 3, 4); customers "stay[ing] suspiciously close" to Bemben while he worked (id. at 3, 5); customers having offensive or strange photographs in their home (id. at 5); and customers generally acting "oddly" or in a "bizarre" manner, while Bemben was working in their homes (id. at 3-5). Bemben also alleges that, in one case, a customer said, "You really are paranoid" (id. at 3), and, at another time, a customer asked him, "How is your court case doing?" (id. at 5). Most recently, Bemben alleges that one customer, an elderly Irish woman, used a voice modulation device when leaving him a telephone message and also showed him the "services" section of a local newspaper, in which he had been unsuccessful in obtaining free advertising for his business. (See Bemben Req. for Prot. Order at 1.)
Finally, Bemben asserts that defendants have been in contact with his girlfriend, Cindy Jiano ("Jiano"). (Second Am. Compl. at 5.) He now maintains that Homer, Fuji, and Jiano have conspired together to persuade individuals known by Homer to become customers of Bemben's, and that this activity has somehow interfered with Bemben's business. (Id. at 6.) Bemben also asserts that Homer, Fuji, and Jiano conspired to have him involuntarily committed to a mental institution in 2000 and again in 2002. (Id. at 1-2, 8-9.)
DISCUSSION
I. LEGAL STANDARDS UNDER RULE 12(b)(6)
In deciding a motion under Rule 12(b)(6), the Court must accept all factual allegations in the complaint as true and "draw inferences from those allegations in the light most favorable to the plaintiff." Jaghory v. New York State Dep't of Ed., 131 F.3d 326, 329 (2d Cir. 1997) (citing Albright v. Oliver, 510 U.S. 266, 268 (1994)); see Alien v. West Point-Pepperell, Inc., 945 F.2d 40, 44 (2d Cir. 1991); Johnson v. Wright, 234 F. Supp.2d 352, 356 (S.D.N.Y. 2002). The issue is not whether the plaintiff will ultimately prevail, but whether the claim, as pleaded, is sufficient to afford the plaintiff the opportunity to proceed on the evidence. See Chance v. Armstrong, 143 F.3d 698, 701 (2d Cir. 1998). A claim may not be dismissed under Rule 12(b)(6) unless "it appears beyond doubt that plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Valmonte v. Bane, 18 F.3d 992, 998 (2d Cir. 1994) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). Further, where, as here, a plaintiff is proceeding pro se, the Court must construe the pleadings liberally. See Hughes v. Rowe, 449 U.S. 5,10 (1980) (a pro se party's pleadings must be liberally construed in his favor and are held to a less stringent standard than the pleadings drafted by lawyers); Simmons v. Abruzzo, 49 F.3d 83, 87 (2d Cir. 1995) ("[t]he complaint of a pro se litigant is to be liberally construed in his favor") (citing Haines v. Kerner, 404 U.S. 519, 520(1972)).
II. BEMBEN'S REPLEADED CLAIMS AGAINST HOMER AND FUJI A. Tortious Interference
In his Second Amended Complaint, Bemben continues to maintain his allegations that Homer and Fuji interfered with Bemben's search for employment and also "interfer[ed] in the plaintiff's employment (when secured)." (Second Am. Compl. at 3.) He has added little to his prior allegations in this regard, however, except to name certain of his employers since he left Fuji (id.), and, as noted above (see n. 9, supra), to list a series of incidents in which customers of his new janitorial business have purportedly acted strangely (id. at 3-6). Bemben alleges that the only reason why his customers would act in such a "suspect" manner is that Homer must have contacted them in an effort to interfere with Bemben's employment. (Id. at 5.) Bemben further maintains that, on the basis of the incidents he describes, the Court should conclude that Homer is "currently interfering in the plaintiff[']s life" and "torting the employment of the plaintiff while the plaintiff is self-employed." (Id. at 6.)
1. Tortious Interference With an Employment Contract
As set out in my original recommendation, which addressed Bemben's prior pleading, a plaintiff alleging tortious interference with an employment contract must plead, under New York law, that: (1) a valid contract existed between the plaintiff and a third party; (2) the defendant knew of the contract; (3) the defendant intentionally interfered with the contract such that it was breached; and (4) the plaintiff suffered damages. See World Wide Communications, Inc. v. Rozar, No. 96 Civ. 1056 (MBM)(NRB), 1997 WL 795750, at *6 (S.D.N.Y. Dec. 30, 1997); Foster v. Churchill, 87 N.Y.2d 744, 748-50, 642 N.Y.S.2d 583, 586 (1996).
Bemben's prior pleading was found insufficient to state such a claim because he had failed to allege either that an employment contract existed with another party, or that any of the defendants had knowledge of such a contract (see 8/10/03 Order of Dismissal at 8; 5/16/03 R R at 25), and his new pleading remains insufficient for the same reasons. Although Bemben does now attach to his opposition papers a "Service Proposal," this merely appears to be a form used by Bemben in his janitorial business to provide his prospective clients with price quotes. (See Bemben Opp. Mem. at 4 and Ex. B.) Even assuming that this document could be considered a form of contract, Bemben has still failed to allege that any of his customers actually signed it or agreed to its specific terms. Further, Bemben has still failed to allege that Homer and/or Fuji was aware of any existing contract between Bemben and any customer or employer.
The "Service Proposal" is a blank form which provides spaces for the Customer Name, Address, Cost, New Jersey Sales Tax, and Total. It also includes a statement of liability. (See Bemben Opp. Mem., Ex. B.)
Bemben has also failed to allege that Homer and/or Fuji intentionally interfered with the performance of any employment contract, such that it was breached. He has also failed to alleged that he has been damaged by any alleged interference with any contract. Indeed, with respect to his janitorial business, it appears from Bemben's papers that, with only one exception, he has actually been paid by his customers for the services he performed for them. (Second Am. Comp. at 3, 4.)
Bemben alleges that only one customer has not paid him. (See Second Am. Compl. at 5.) As to that customer, however, Bemben makes no allegations that his work for that customer was performed pursuant to a contract, that defendants knew of the contract, and that defendants intentionally interfered with that contract, causing its breach.
For all these reasons, Bemben's new allegations do not cure the pleading deficiencies previously identified by the Court and cannot state a claim for tortious interference with any employment contract. I therefore recommend that any such claim, as amended, be dismissed, and I further recommend that any such claim be dismissed with prejudice, as Bemben has already been afforded an opportunity to replead this claim to satisfy the necessary pleading requirements.
2.___ Tortious Interference With Prospective Business Relations
To the extent Bemben has attempted to replead a claim that Homer and/or Fuji tortiously interfered with his prospective business relations, his amendment is again insufficient. As stated in my earlier recommendation, to plead such a claim adequately, a plaintiff must allege: "(1) business relations with a third party; (2) the defendant's interference with those business relations; (3) [that] the defendant acted with the sole purpose of harming the plaintiff or used dishonest, unfair, or improper means; and (4) injury to the business relationship." Sound City Electronics Corp. v. R.B.C. Radio, Inc., No. 99 Civ. 9309 (DC), 2002 WL 15639, at *9 (S.D.N.Y. Jan. 7, 2002) (quoting Nadel v. Play-By-Play Toys Novelties, Inc., 208 F.3d 368, 382 (2d Cir. 2000)); see also Snyder v. Sony Music Entertainment, Inc., 252 A.D.2d 294, 300, 684 N.Y.S.2d 235, 239 (1st Dep't 1999). These elements are difficult to satisfy, under the high threshold set by the New York courts. See Sound City Electronics, 2002 WL 15639, at * 10; see generally 5/16/03 R R at 25-26.
'"[Improper] means' includes physical violence, fraud, misrepresentation, civil suits, criminal prosecutions and some degree of economic pressure, but more than simple persuasion is required." Snyder, 252 A.D.2d at 300, 684 N.Y.S.2d at 239; see also Guard-Life v. S. Parker Hardware Mfg. Corp., 50 N.Y.2d 183, 191, 428 N.Y.S.2d 628, 632 (1980).
Previously, Bemben had based his claim on allegations that defendants had spoken with his prospective employers during reference checks, and had provided them with either negative evaluations or "private" or other confidential information, which resulted in his not being hired, or being harassed. (See, e.g., Am. Compl. ¶¶ 7, 13, 26.) Yet, in his prior pleading, Bemben failed to identify the prospective employers involved and further failed to allege that, in speaking with these potential employers, defendants acted with the sole purpose of harming Bemben or used "dishonest, unfair or improper means" within the meaning of the law. (5/16/03 R R at 27-28; 8/10/03 Order of Dismissal at 8.)
In his recent amendment, Bemben does not sufficiently expand on his prior allegations, so as to fill in the gaps in his pleading and articulate even a potentially sustainable claim for tortious interference with prospective business relations. Although he names additional employers tor which he presumably worked after leaving Fuji (see Second Am. Compl. at 3), he still fails to plead specific facts capable of showing that Homer and/or Fuji actually and wrongfully interfered with his relations with those particular employers.
Further, although Bemben apparently seeks to claim that defendants interfered with his business relations with certain customers of his janitorial business, he fails to plead any specific communications or other conduct by defendants that would indicate that defendants — either for the sole purpose of harming him or by using improper means — specifically prevented any of those customers from entering into, or pursuing, a business relationship with him. Rather, in his amended pleading, Bemben relies on the allegation that he has observed conduct by his customers that he finds coincidental and bizarre, and which leads him to suspect that Homer must have communicated with them. (Second Am. Compl. at 3-5.) Bemben's stated suspicions, however, are insufficient to satisfy the requirement that a plaintiff plead the specific conduct constituting the alleged interference. See Nadel, 208 F.3d at 382 (finding that mere suspicions are inadequate to support a claim for tortious interference with business relations).
For these reasons, any claim that Bemben is now attempting to assert for tortious interference with prospective business relations should be dismissed. See Schoettle v. Taylor, 282 A.D.2d 411, 411, 723 N.Y.S.2d 665, 666 (1st Dep't 2001) ("[t]he cause of action for tortious interference with prospective business opportunities was also properly dismissed, since plaintiffs failed to allege any specific business relationship they were prevented from entering into by reason of the purported tortious interference. . . .") (internal citation omitted); Korn v. Princz, 226 A.D.2d 278, 278-79, 641 N.Y.S.2d 283 (1st Dep't 1996) ("complaint did not state a cause of action for tortious interference with prospective business relations . . . since there is no allegation that plaintiff was actually and wrongfully prevented from entering into or continuing in a specific business relationship") (internal citation omitted); Business Networks of New York, Inc. v. Complete Network Solutions Inc., 265 A.D.2d 194, 194, 696 N.Y.S.2d 433, 435 (1st Dep't 1999) (same). Further, at this point, any such claim should be dismissed with prejudice, as Bemben has already been afforded an opportunity to replead this claim to satisfy the necessary pleading requirements.
In his opposition papers, under a section entitled "Defamation," Bemben asserts, inter alia, that Homer has violated his rights under Sections 291 and 296 of the New York State Human Rights Law. (Bemben Opp. Mem. at 7; see N.Y. Exec. §§ 291, 296 (McKinney's 2004).) These sections protect an individual's right to be free from employment discrimination based on age, race, creed, color, disability, national origin, or sexual orientation. The Court, however, previously dismissed, with prejudice, any claim by Bemben based on discrimination in the workplace. (See 8/10/03 Order of Dismissal at 7; 5/16/03 R R at 12-18.)
In his newly amended pleading, Bemben appears to reiterate his earlier charge that Homer and/or Fuji defamed him by inappropriately contacting his subsequent employers and disclosing to them private information about his admitted history of substance abuse. (See Second Am. Compl. at 9.) To support his conclusion that defendants must have disclosed information about his history, Bemben again asserts that, at some unspecified point in time, apparently after he had left Fuji, he had "to endure having his head grabbed and tilted upward by a co-worker in an effort to search for cocaine residue," when he had given no impression that there was a "current substance abuse problem." (Id.) Bemben also repeats his prior allegation that, on some occasion, a "total stranger" called him a "crackhead," which apparently suggested to Bemben that Homer and/or Fuji must have said something to this stranger on the subject of Bemben's past substance abuse. (See Bemben Opp. Mem. at 6.)
The Court originally dismissed Bemben's defamation claim because, even if Bemben had reason to suspect that defendants had communicated orally with his new employers or others on a sensitive subject, he had not set forth any specific statements allegedly made by any of the defendants, a requirement for pleading slander (i.e., oral defamation). See 8/10/03 Order of Dismissal at 8; 5/16/03 R R at 29; see also Horowitz v. Aetna Life Ins., 148 A.D.2d 584, 586, 539 N.Y.S.2d 50, 52 (2d Dep't 1989) (citing Monsanto v. Electronic Data Sys. Corp., 141 A.D.2d 514, 529 N.Y.S.2d 512 (2d Dep't 1988)); N.Y. C.P.L.R. § 3016(a) ("In an action for libel or slander, the particular words complained of shall be set forth in the complaint, but their application to the plaintiff may be stated generally."). As Bemben has again failed to set forth any specific statements allegedly made by any of the defendants, his defamation claim remains subject to dismissal. See, e.g., Dobies v. Brefka, 273 A.D.2d 776, 777, 710 N.Y.S.2d 438, 440-41 (3d Dep't 2000).
Accordingly, I recommend that, to the extent Bemben is now asserting a defamation claim, the claim be dismissed, and I further recommend that any such claim be dismissed with prejudice, as Bemben was given the opportunity to plead the details of any alleged slander and has nonetheless failed to do so.
D. Conspiracy
As with his original pleadings, the theme of Bemben's amended pleading is that, in various ways, the defendants have conspired with others to cause him harm. In fact, Bemben has now added a number of new allegations that, he contends, demonstrate the existence of a "conspiracy" against him. Specifically, he alleges that he received a box containing sweaters and two pillows, suggesting a conspiracy to render him homeless (Second Am. Compl. at 1); that the accolades he received at Fuji, and his invitation to Homer's wedding, were a part of a "facade"constructed to cover up a conspiracy (id. at 2); that defendants, together with his girlfriend, had him committed involuntarily to a mental institution in 2000, and again in 2002 (id. at 2, 8-9); that, as discussed above, customers of his janitorial business have acted strangely, suggesting the influence of Homer (id. at 3-5); and that, in cooperation with Homer, a former childhood friend tried to poison him (see Bemben Opp. Mem. at 1).
What is lacking in any of these allegations, however, is the sufficient pleading of an underlying tort. As this Court previously noted, New York "does not recognize an independent tort of conspiracy." Alexander Alexander of N.Y. Inc. v. Fritzen, 68 N.Y.2d 968, 969, 510 N.Y.S.2d 546, 546 (1986); Dobies, 710 N.Y.S.2d at 440 (quoting prior opinion, 263 A.D.2d 721, 694 N.Y.S.2d 499 (3d Dep't 1999)); Quinn v. Thomas H. Lee Co., 61 F. Supp.2d 13, 19-20 (S.D.N.Y. 1999), aff'd 234 F.2d 1262 (Table) (2d Cir. 2000); see also 5/16/03 R R at 34-35 (discussing additional cases). Thus, unless Bemben can allege that an actionable tort was committed by the defendants, acting in concert with each other or with some other person, he cannot successfully plead a conspiracy claim. To meet this requirement, Bemben would have to be able to allege the elements of the underlying tort, but it appears that he is unable to do so, as every independent tort claim he has attempted to assert has been deficient.
I therefore recommend that, to the extent Bemben is attempting to replead a conspiracy claim, that claim be dismissed, and that, at this point, the dismissal be with prejudice. E. Bemben's Request for Injunctive Relief
Because, as discussed above, Bemben's repleaded claims for tortious interference, defamation, and conspiracy should be dismissed, his most recent request that the Court enjoin defendants Homer and Fuji from interfering with his prospective or current employment or from contacting his "family, friends, associates or medical doctors" should similarly be denied. See, e.g, Bronx Legal Servs. v. Legal Servs. for New York City, No. 02 Civ. 6199 (GBD), 2003 WL 145558, at *9 n. 1 1 (S.D.N.Y. Jan. 17, 2003), cert. denied, _ U.S. _, 72 U.S.L.W. 3506 (May 3, 2004) (denying a request for a preliminary injunction which was based solely on the underlying claim of tortious interference, which the court found subject to dismissal); see also Mongelli II v. Chicago Ins. Co., No. 99 Civ. 8149 (SJ), 2002 WL 32096578, at *1 (E.D.N.Y. Jan 15, 2002) (where underlying claim was subject to dismissal, the requirement of showing a likelihood of success on the merits for a preliminary injunction could not be met).
III. THE MOTION BY COOPER TO CONVERT THE DISMISSAL OF BEMBEN'S PRIOR CLAIMS AGAINST HER TO A DISMISSAL WITH PREJUDICE
Cooper's current motion appears to be more of an objection to the Court's modification of my prior recommendation than a motion with an independent basis. (See Cooper 9/24/03 Ltr.; Cooper Mot.) I had previously recommended that Bemben's claims against Cooper, as stated in Bemben's prior pleading, be dismissed with prejudice, on jurisdictional grounds. (5/16/03 R R at 38.) When the Court determined that the claims against Cooper should be dismissed for failure to state a claim, rather than on jurisdictional grounds, it further ruled that, as to the three claims discussed above, Bemben should be granted leave to replead. (8/10/03 Order at 7.) Unhappy with this result, Cooper has now sought to convert the Court's prior decision into one that dismisses any and all claims against Cooper with prejudice. (See Cooper Mot.)
The Court need not revisit its earlier ruling as to Cooper, however, because Bemben was given a limited time to replead his claims, and he chose to do so only against defendants Homer and Fuji. By making the deliberate decision to drop all other defendants from the caption of his amended pleading, Bemben's prior claims for tortious interference, defamation and conspiracy as against all other defendants — including Cooper — are, in any event, forfeit. Cooper is no longer a named defendant in this case and has no reason to seek further relief. Thus, I recommend that Cooper's motion be denied as moot. See, e.g., O'Diah v. New York City, No. 02 Civ. 274 (DLC), 2002 WL 1941179, at *5 (S.D.N.Y. Aug. 4, 2002) (where claims were dismissed without prejudice with 30 days to replead, and plaintiff failed to replead, those claims were then barred even though the court had not officially entered an order dismissing those claims with prejudice following the 30 day period).
CONCLUSION
For the reasons set forth above, I respectfully recommend that the motion of defendants Fuji and Homer to dismiss Bemben's "Amended Complaint [#2]" be granted in its entirety, that all claims therein be dismissed with prejudice, that Bemben's motion for a "protective order" seeking injunctive relief be denied, and that this case be closed.
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Kimba M. Wood, Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, Room 1610, New York, New York 10007-1312. Any requests for an extension of time for filing objections must be directed to Judge Wood. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Am, 474 U.S. 140, 155 (1985); IUE AFL-CIO Pension Fund v. Hermann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 58 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).
Respectfully submitted,