Opinion
20-CV-1371 (PAE) (BCM)
12-27-2022
FREDERICK D. PINA, Plaintiff, v. THE UNITED STATES OF AMERICA, Defendant.
REPORT AND RECOMMENDATION TO THE HON. PAUL A. ENGELMAYER
BARBARA MOSES, UNITED STATES MAGISTRATE JUDGE
On April 1, 2022, plaintiff Frederick D. Pina, proceeding pro se, filed a letter-motion (April 1 Letter-Motion) (Dkt. 64), asking the Court, for the fifth time, to reinstate his claim for $146 million in lost business opportunity damages. For the reasons that follow, the motion should be denied, and plaintiff should be enjoined from filing any further motions in this Court to reinstate that lost business opportunity claim without advance permission.
Background
In this action, brought under the Federal Tort Claims Act (FTCA), plaintiff initially sought $146,450,000 in compensation for a 2018 automobile accident in which a United States Postal Service (USPS) truck collided with his 2017 Cadillac sedan, allegedly damaging the vehicle, causing him to suffer causing him to suffer neck pain and a pinched nerve in his back, and causing his company, Japanese Juices, LLC, to lose a "highly lucrative beverage contract," valued (by plaintiff) at $146 million, that he hoped to negotiate with Delta Airlines. Compl. (Dkt. 2) ¶¶ 1-2, 8-10. In an Opinion and Order dated May 12, 2021 (Op.) (Dkt. No. 31), Your Honor dismissed the lost business opportunity claim pursuant to Fed.R.Civ.P. 12(b)(1) because plaintiff failed to present it to the USPS as required by the FTCA, 28 U.S.C. §§ 2675(a)-(b). Op. at 3-4. Plaintiff's surviving claims, "for personal injuries and property damage up to $450,000," Op. at 5, proceeded to discovery.
During fact discovery, which is now completed, plaintiff confirmed that he seeks $400,000 for his personal injuries and $50,000 in property damage - the same sums he presented administratively to the USPS. See Def. Ltr. dated Nov. 15, 2022, Exs. A-B (Dkts. 94-1, 94-2). In recent correspondence with the Court, however, plaintiff advised that he intends to seek "the now newly amended sum of $1,000,000" for his personal injuries and property damage, because of the Government's "ongoing civil fraud" and "judicial corruption." Pl. Ltr. dated Nov. 23, 2022 (Pl. Nov. 23 Ltr.) (Dkt. 96), at ECF p. 4. Expert discovery, which was delayed due to plaintiff's refusal to submit to a physical examination by defendant's expert physician pursuant to Fed.R.Civ.P. 35, is now scheduled to conclude by March 10, 2022. See Order dated Dec. 6, 2022 (Dec. 6 Order) (Dkt. 103) ¶¶ 1-2.
Meanwhile, between May 12, 2021 and April 1, 2022, plaintiff made at least four attempts, under various labels, to vacate Your Honor's decision and reinstate his lost business opportunity claim. See Dkt. 32 ("Motion to Oppose," filed on May 18, 2021); Dkt. 37 ("Motion to Oppose and Reinstate," filed on June 21, 2021); Dkt. 49 (untitled submission, filed on Jan. 12, 2022, asking the Court to "fully reinstate Plaintiff's previous (and improperly dismissed) claims for $146,000,000 dollars in commercial business losses for tortious interference"); Dkt. 59 ("Motion to Vacate," filed March 21, 2022). After I recommended that the second such attempt be denied (Dkt. 41), plaintiff objected to my recommendation on the ground, among others, that he adequately presented the $146 million lost business opportunity claim to the USPS in an August 27, 2019 email to USPS Tort Claims Adjudicator Supervisor Kimberly A. Herbst. (Dkt. 43 at ECF pp. 3-4 & Ex. "Z.") By Order dated March 15, 2022 (March 15 Order) (Dkt. 58), Your Honor overruled plaintiff's objections and denied the Motion to Oppose and Reinstate, explaining that the email-based argument was not timely raised; that the email did not satisfy the FTCA's presentment requirement, which is jurisdictional; and that even if plaintiff had met the presentment requirement, his claim for lost business opportunity damages would be barred because "the Government has not waived sovereign immunity for claims of interference with contract rights." March 15 Order at 1013 (citing 28 U.S.C. § 2680(h)).
In that email (sent after the USPS processed plaintiff's administrative claim, offered a settlement with respect to his property losses, but denied his personal injury claim), plaintiff wrote: "My company lost a business opportunity with Delta Airlines that was being valued at $146 Million dollars," and added, "I will be filing a lawsuit!!!" (Dkt. 43 at ECF p. 10.) No further detail regarding the lost business opportunity claim was provided.
Plaintiff's third and fourth attempts (Dkts. 49, 59) were made on the ground that he adequately presented the $146 million lost business opportunity claim to the USPS in a March 16, 2019 letter from his former counsel Thomas Hochberg to Ms. Herbst.Your Honor rejected that claim in an Order dated March 31, 2022 (March 31 Order) (Dkt. 62), which noted that plaintiff's arguments for vacatur "have been repeatedly and thoroughly addressed," observed that his latest motion "raises no new or meritorious grounds," and concluded that "his claims have no basis." March 31 Order at 1.
In that letter, Hochberg enclosed various items of evidence relevant to plaintiff's personal injury and property damage claims and added, "Mr. Pina runs a small beverage business under the name Japanese Juices, LLC. He was not paid any lost wages by his insurance carrier since he could not provide paycheck stubs, but he has estimated a significant loss to his business because of the physical pain he suffered after the accident and because his business was unusable." (Dkt. 49 at ECF p. 10.) No further detail was provided. Plaintiff addressed his failure to present the Hochberg letter earlier by explaining that he had recently "discovered" it upon reviewing the "long-forgotten contents" of his rented storage space at Manhattan Mini-Storage. (Dkt. 49 at ECF p. 1.)
The next day, plaintiff filed the April 1 Letter-Motion now before the Court, again seeking "re-consideration for Plaintiff's lost business claims," April 1 Ltr.-Mot. at ECF p.1, and enclosing yet another copy of the Hochberg letter, this one produced in discovery by the United States and bearing a Bates number. Id. at ECF p. 3. At a conference on April 14, 2022, memorialized in a written order issued the next day, I explained to Pina that since his lost business opportunity claim would be barred by sovereign immunity even if it had been adequately presented to the USPS, and since Your Honor's March 31 Order did not question the authenticity or timely delivery of the Hochberg letter, the fact that plaintiff received another copy of the same document in discovery, from the Government, did not alter the analysis or provide a new ground for argument. See Order dated April 15, 2022 (April 15 Order) (Dkt. 71) ¶ 3(b) & n.2. I further advised plaintiff that he risked sanctions if he continued to inundate the Court with duplicative motions; gave him an opportunity to withdraw his latest such effort without penalty; and directed him to advise the Court by letter, no later than April 21, 2022, whether he wished to do so:
Additionally, on April 12, 2022, plaintiff filed a Notice of Appeal from Your Honor's March 31 Order. (Dkt. 68.) The United States Court of Appeals for the Second Circuit dismissed that appeal, sua sponte, on September 12, 2022. (Dkt. 87.)
Plaintiff Pina's April 1, 2022 letter, if not withdrawn, would constitute his fifth challenge to this Court's dismissal of his lost business profits claim and his third such challenge made pursuant to Rule 60(b) on the basis of Hochberg's letter. Because the motion improperly reploughs old and meritless ground - and because plaintiff has been warned of the consequences and given an opportunity to withdraw the motion - significant sanctions could be assessed should plaintiff once again seek vacatur on the basis of Hochberg's letter.
Plaintiff is encouraged to seek legal advice concerning the issues discussed above prior to his April 21 deadline, and is advised that his letter may not include new argument regarding the relief he seeks.April 15 Order ¶¶ 3(d)-(e) (emphases in the original).
The next day, plaintiff filed a letter to "confirm my appeal of my improperly dismissed business losses claims." Pl. Ltr. dated April 16, 2022 (Dkt. 73) at 1. In direct violation of ¶ 3(e) of my April 15 Order, plaintiff then presented two pages of additional argument, in which he asserted, among other things, that Your Honor "erroneously misapplied and misinterpreted" 28 U.S.C. § 2680(h), rendering your previous rulings "outright illegal." Id. at 1-2. On April 25, 2022, I assessed a $100 sanction against plaintiff, pursuant to Fed.R.Civ.P. 16(f), for his violation of "this Court's express order that no additional argument be included in his notification letter." (Dkt. 74.) Payment was due by May 6, 2022, id., but has not been made.
On May 4, 2022, plaintiff filed a Notice of Appeal from my April 25, 2022 Order. (Dkt. 78.) The Second Circuit dismissed that appeal, sua sponte, on September 12, 2022. (Dkt. 87.)
On April 28, 2022, the United States filed a letter-brief in opposition to plaintiff's April 1 Letter-Motion (Dkt. 75), and on April 30, 2022, plaintiff filed a reply letter in which, among other things, he accuses the Government of having procured the dismissal of his lost business opportunity claim "through its own willful malice and/or through corrupt means." (Dkt. 77 at 1.) This appears to be a reference to the Government's failure to volunteer its copy of the Hochberg letter when it initially moved to dismiss that claim.
On November 23, 2022, as part of his letter-brief in opposition to the Government's Rule 35 discovery motion, plaintiff returned to the same theme, asking the Court for an order, pursuant to Fed.R.Civ.P. 60(d)(3), "vacating the judgement [sic] entered against [sic] for the unlawful granting of that Partial Motion to Dismiss; on the grounds that said judgment was procured through a fraud on the Court[.]" Pl. Nov. 23 Ltr. at ECF p. 4. On December 2, 2022, in an unauthorized sur-reply letter-brief filed in connection with the same discovery motion, plaintiff noted that the Court has yet to rule on his April 1 Letter-Motion, which "directly challenges the District Court's improper dismissal of my business losses claims, which were lawfully brought under the Federal Tort Claims Act." Pl. Ltr. dated Dec. 2, 2022 (Dkt. 101) at ECF p. 3.
On December 6, 2022, I struck that unauthorized sur-reply from the docket. Dec. 6 Order ¶ 4.
On December 6, 2022, I conducted a discovery conference at which I granted the Government's Rule 35 motion, reset discovery and summary judgment deadlines, and - in light of the intemperate tone and inflammatory content of many of his recent filings - reminded plaintiff that "disagreements with opposing counsel and adverse rulings by the Court are to be expected in any litigation and do not furnish evidence of - nor justify accusations of - dishonesty, corruption, or other bad faith conduct." Dec. 6 Order ¶¶ 1-3, 6. This was the fourth time that plaintiff was judicially cautioned against making baseless accusations of dishonesty and corruption. See Dkt. 35 (at 2); Dkt. 52 (at 2); Dkt. 58 (at 13).
Earlier today, plaintiff filed a letter characterizing the December 6 Order as "the height of legal hypocrisy," accusing the Court of dishonesty and corruption, and accusing the Government of fraud. (Dkt. 104 at ECF pp. 1-3.) He attaches, as "irrefutable legal evidence of this criminal felony perjury and Fraud Upon the Court," another copy of Hochberg's March 16, 2019 letter. (Id. at ECF pp. 3, 5-6.)
Discussion
Plaintiff's April 1 Letter-Motion is his fifth attempt to vacate your Honor's May 12, 2021 Opinion dismissing his $146 million lost business opportunity claim, and the third such effort based upon the March 16, 2019 Hochberg letter. (Plaintiff's November 23, 2022 letter, if construed as yet another such motion, would be his sixth overall, and his fourth based upon the Hochberg letter.) Like his earlier efforts, the motion or motions now before the Court raise "no new or meritorious grounds." March 31 Order at 1. Consequently, I recommend that the April 1 LetterMotion be denied. To the extent plaintiff's November 23, 2022 discovery letter-brief is construed as yet another motion to vacate the May 12, 2021 Opinion, it should also be denied.
Since this Court's efforts to explain the impropriety of making repetitive motions based on previously-rejected arguments have fallen on deaf ears, I further recommend that the Court issue a tailored filing injunction, enforceable by monetary sanctions, prohibiting plaintiff from filing any further motions in this Court to reinstate his lost business opportunity claim on grounds already considered and rejected.
A court may, in its discretion, impose a filing injunction (sometimes called "leave-to-file sanctions") when confronted with "a demonstrated history of frivolous and vexatious litigation." George v. New York State Div. of Parole, 685 Fed.Appx. 30, 30 (2d Cir. 2017) (summary order) (quoting Milltex Indus. Corp. v. Jacquard Lace Co., Ltd., 55 F.3d 34, 39 (2d Cir. 1995)). In George, after the petitioner filed "five essentially duplicative motions for reconsideration of the 1996 judgment denying his habeas challenge to two New York State convictions," id. at 31, the District Court enjoined him "from filing future motions in this habeas action or any other actions challenging his 1988 and 1991 state convictions without first obtaining leave from the district court." Id. at 30. On appeal, the Second Circuit affirmed, explaining that petitioner's conduct (including the fact that he filed his fourth and fifth motions after being warned that doing so could result in sanctions including a filing injunction) supported "the conclusion that, absent a filing injunction, George was 'likely to continue to abuse the judicial process.'" Id. at 31 (quoting Safir v. U.S. Lines, Inc., 792 F.2d 19, 24 (2d Cir. 1986)).
Similarly, in Klein v. United States, 2019 WL 316524 (S.D.N.Y. Jan. 24, 2019) (Klein II), the court issued a filing injunction, id. at *2, after warning the petitioner that he could not hope to "obtain relief by repeating the same argument in successive court filings," all of them seeking to vacate his 2005 criminal conviction. Klein v. United States, 2018 WL 4382381, at *2 (S.D.N.Y. Sept. 4, 2018) (Klein I). The warning continued:
Klein may disagree with the results the justice system rendered in his case, but that is no excuse for harassing the Court with letters and filings, repeating the same arguments ad nauseum, and slowing the administration of justice for other litigants by forcing the Court to address each of his frivolous motions.Id. When Klein responded to that warning "by filing three new motions," each on grounds previously considered and rejected, he confirmed "the Court's earlier prediction that absent the imposition of a leave-to-file sanction, Klein will only continue his 'incessant war of attrition with the Court system.'" Klein II, 2019 WL 316524, at *2 (quoting Klein I, 2018 WL 4382381, at *2). Consequently, the court ended that "war of attrition" by instructing the Clerk of Court to "refuse to accept for filing any future submissions from Klein relating to his 2005 criminal judgment or his attorney's performance during the course of the underlying criminal proceedings unless he first obtains leave of the Court." Id.
"A district court may not impose a filing injunction without first providing the litigant with notice and an opportunity to be heard." George, 685 Fed.Appx. at 30-31 (citing Iwachiw v. N.Y.S. Dep't of Motor Vehicles, 396 F.3d 525, 529 (2d Cir. 2005)). That notice may take the form of a magistrate judge's report and recommendation. See, e.g., Castellaw v. Excelsior Coll., 2021 WL 3518277, at *7 (E.D.N.Y. June 21, 2021) (Castellaw I) (recommending "that the District Court impose a filing injunction, the violation of which will be punishable by monetary sanctions"), report and recommendation adopted in part sub nom. Castellaw v. Excelsior College, 2021 WL 3046748 (E.D.N.Y. July 20, 2021) (Castellaw II). In Castellaw I, the magistrate judge outlined the plaintiff's history of "repetitive filings . . . recycling the same rejected arguments," and recommended that the district judge (i) deny her most recent set of motions; (ii) impose a filing injunction; and (iii) warn the plaintiff that violations of the filing injunction "will be punishable by monetary sanctions." 2021 WL 3518277, at *8. The magistrate judge further advised the plaintiff, pursuant to 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72, that "[f]ailure to file objections in a timely manner may waive a right to appeal[.]" Id. Although plaintiff objected to the report and recommendation, she "failed to make any specific objections to the recommended filing injunction - and instead, filed a response simply rehashing similar arguments and grievances." Castellaw II, 2021 WL 3046748, at *4. On this record, the district judge agreed that plaintiff had been "placed on notice of the possibility of a filing injunction" and that an injunction was warranted, but that it should be "limited to this particular case." Id. Consequently, the court (i) denied plaintiff's most recent motion to reopen the case; (ii) required her, before making "any submission" in the case, to "obtain permission from the Court by filing a one-page letter showing cause why the submission should be accepted"; and (iii) warned her that "continuing to file frivolous complaints or other documents may result in additional sanctions, including monetary sanctions and/or a broader filing injunction." Id.
Here too, the filing injunction should be limited to this case. Moreover, because no final judgment has been entered - indeed, plaintiff is continuing to pursue his claims for personal injury and property damage - the injunction should be narrowly tailored to the specific abuse at issue: plaintiff's repetitive attempts to reinstate his dismissed claim for $146 million in lost business profits. Plaintiff may, of course, raise that issue on appeal, once a final, appealable judgment has been issued by this Court. See 28 U.S.C. § 1291 ("The courts of appeals . . . shall have jurisdiction of appeals from all final decisions of the district courts of the United States[.]"). But until then, he should not be permitted to recycle his previously-rejected arguments in a seventh, eighth, or ninth motion to vacate the May 12, 2021 Opinion and revive his lost business profits claim.
Conclusion
For the foregoing reasons, I recommend, respectfully: (i) that plaintiff's April 1, 2022 lettermotion (Dkt. 64) be DENIED; (ii) that his November 23, 2022 letter (Dkt. 96), construed as a motion to vacate the May 12, 2021 Opinion pursuant to Rule 60(d)(3), be DENIED; (iii) that plaintiff be prohibited from filing further motions in this Court to vacate the May 12, 2021 Opinion or reinstate his lost business profits claims without first obtaining Court approval by submitting a one-page letter showing cause why the submission should be accepted; and (iv) that plaintiff be expressly warned that violation of the filing injunction may result in additional sanctions, including but not limited to per-filing monetary sanctions and/or dismissal of his remaining claims.
NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have 14 days from this date to file written objections to this Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b). See also Fed.R.Civ.P. 6(a) and (d). Any such objections shall be filed with the Clerk of the Court, addressed to the Hon. Paul A. Engelmayer. No courtesy copies are required. Any request for an extension of time to file objections must be directed to Judge Engelmayer. Failure to file timely objections will result in a waiver of such objections and will preclude appellate review. See Thomas v. Arn, 474 U.S. 140, 155 (1985); Frydman v. Experian Info. Sols., Inc., 743 F. App'x, 486, 487 (2d Cir. 2018) (summary order); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).