Opinion
07 Civ. 1745.
January 28, 2008
Pro se, Manuel J. Funcia, Jersey City, NJ.
Attorneys for Defendant, MILBANK, TWEED, HADLEY McCLOY LLP, New York, NY, By: Douglas W Henkin, Esq., Manuel Yanez, Esq.
WHITE CASE, New York, NY, By: Sharon A. Parella, Tal Marnin, Alison R. Kirshner.
MEMORANDUM OPINION
Petitioner Manuel J. Funcia ("Funcia") has made an application for leave to appeal in forma pauperis this Court's dismissal of his complaint pursuant to Rule 12(b)(6), Fed.R.Civ.P. For the reasons set forth below, the application is denied.
I. Facts
On or about June 9, 2005, Plaintiff commenced an action against Defendants William Billy Hackett, Mark Hill and "ING Furman Selz successor in interest ABN AMRO, Inc." (the "First Action"). His complaint alleged "`fraudulent inducement, fraudulent concealment, unjust enrichment, egregious misconduct, malice and reckless indifference, failure to supervise reasonably, abuse of power and out right Discrimination[,]' arising out of what appear[ed] to be an employment agreement between Plaintiff and the Defendants." Funcia v. Hackett, No. 05 Civ. 8805 (MBM), Order at 1 (S.D.N.Y. Oct. 17, 2005). Plaintiff also submitted a "motion" to vacate an arbitration award dated April 4, 2005 (the "Arbitration"), which was the result of Plaintiff's unsuccessful arbitration action against Defendants Hackett and ING Furman Selz in the New York Stock Exchange. Id.
On October 17, 2005, the Honorable Michael B. Mukasey directed Plaintiff to submit an amended complaint, as his initial complaint failed to convey his claims in compliance with the pleading requirements of Rule 8, Fed.R.Civ.P., did not adequately set forth the court's subject matter jurisdiction, and did not establish the Plaintiff's right to sue under Title VII of the Civil Rights Act of 1964 ("Title VII"). Id. The amended complaint was submitted on December 16, 2005.
On February 7, 2005, Judge Mukasey dismissed the First Action, concluding that the only cognizable claims raised under the court's federal question subject matter jurisdiction, those based on alleged racial discrimination in a contractual relationship under 42 U.S.C. § 1981, were barred by the statute of limitations, and that the state law claims were necessarily dismissed for failure to demonstrate diversity subject matter jurisdiction. Having concluded that Plaintiff's claims "lack[ed] an arguable basis in either law or in fact," Funcia v. Hackett, No. 05 Civ. 8805 (MBM), Order of Dismissal at 6 (S.D.N.Y. Feb. 7, 2005) (citation and footnote omitted), Judge Mukasey certified, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal would not be taken in good faith. Plaintiff appealed to the Second Circuit and on October 18, 2006, the court dismissed the appeal. Funcia v. Hackett, No. 06-2266, Mandate (2d Cir. Aug. 31, 2006).
On November 14, 2006, Plaintiff filed a motion seeking "summary [judgment] or full legal proceedings v. William James Hackett. . . . Punishment by the court not to exceed 5 years and [Plaintiff's] compensation not to exceed 15,000.00. [sic] Dollars," and asking the court to "move it's [sic] gavel" and "[p]unish Mr. Hackett." On December 21, 2006, the court denied the motion and certified, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from that denial would not be taken in good faith. Funcia v. Hackett, No. 05 Civ. 8805 (KMW), Order at 3 (S.D.N.Y. Dec. 21, 2006).
On February 28, 2007, Plaintiff commenced the action underlying this motion, bringing claims against the defendants included in the First Action, as well as against the NYSE Group and the individual arbitrators involved in the Arbitration, in connection with their handling of the Arbitration. The Complaint alleged, in non-specific terms, "violations of the Federal Arbitration Acts, failure of due process, [and] tainting if not out right [sic] poison of the arbitration process." Funcia alleged that as a member of the Arbitration panel, Defendant Miller was "prejudicial towards the defendant" and asserted that "the NYSE should be held responsible for [Defendant Miller] and the failure to prosecute [Defendant Hackett]." In addition to $30 million in damages, Plaintiff sought to vacate the Arbitration award.
In Funcia v. NYSE Group, et al., 2007 U.S. Dist. LEXIS 88581, No. 07 Civ. 1745 (RWS) (S.D.N.Y. Dec. 3, 2007), this Court granted a motion by Defendants NYSE Group, Jerome Levy, Jeanne Miller and David Carey (collectively, the "NYSE Defendants"), as well as a similar motion by Defendant ABN AMRO, to dismiss, with prejudice, the claims against them under Rule 12(b)(6), Fed.R.Civ.P. The Court found that: the NYSE Defendants have absolute immunity from Funcia's claims; Funcia's vacatur claims are time-barred; Funcia's claims against Defendants Hackett, Hill, and ABN AMRO are barred by res judicata; and the complaint did not adequately allege claims against ABN AMRO. Furthermore, the Court advised Funcia that the filing of a new, duplicative, and frivolous action arising out of the same underlying events may lead to the imposition of an injunction barring him from filing future actions in this district without permission.
II. Standard for in forma pauperis Determination
"The decision of whether to grant a request to proceed in forma pauperis is left to the District Court's discretion under 28 U.S.C. § 1915. The Court's discretion is limited in that: `An appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith.'"Fridman v. City of New York, 195 F. Supp. 2d 534, 536 (S.D.N.Y. 2002) (quoting 28 U.S.C. § 1915(a)(3)) (internal citations omitted); see also Fed.R.App.P. 24(a)(3)(A) ("A party . . . may proceed on appeal in forma pauperis . . . unless the district court . . . certifies that the appeal is not taken in good faith. . . ."). The standard for "good faith" in pursuing an appeal is an objective one. See Coppedge v. United States, 369 U.S. 438, 445, 82 S. Ct. 917, 8 L. Ed. 2d 21 (1962) ("We consider a defendant's good faith . . . demonstrated when he seeks appellate review of any issue not frivolous."); see also Linden v. Harper and Row Publishers, 490 F. Supp. 297, 300 (applying objective "good faith" standard to civil case).
In his petition, Funcia lists as the issue he intends to present on appeal "[t]he unequivocal guilt and responsibility of the NYSE." Viewing Funcia's petition objectively, in light of both this Court's opinion dismissing this case, as well as the two previous dismissals in the two-and-a-half year history of Funcia's litigation of this matter, this Court determines that Funcia's appeal does not pose any non-frivolous issue for review. Therefore, pursuant to 28 U.S.C. § 1915(a)(3), the Court finds that Funcia's appeal cannot be taken in good faith and his motion to proceed on appeal in forma pauperis is denied.
So ordered.