Summary
affirming order enjoining the filing of further, duplicative actions by plaintiff because it is within the Court's discretion under the All Writs Act "to effectuate and protect its judgment and to prevent vexatious litigation."
Summary of this case from McClinton v. HendersonOpinion
No. 05-2971-cv (L), 05-6863-cv (Con).
March 20, 2008.
UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED AND DECREED that the judgment and order of the district court are AFFIRMED.
For Plaintiff-Appellant: Richard Smith, pro se, Camden, Maine.
For Defendants-Appellees: Kenneth W. Africano, Harter, Secrest Emery LLP, Buffalo, New York.
Plaintiff-counter-defendant-appellant Richard Smith, proceeding pro se, appeals from: (1) an April 18, 2005 judgment of the United States District Court for the Southern District of New York (Owen, J.) granting partial summary judgment in favor of defendants-counterclaimants-appellees The Education People, Inc. and Gary Zweig (collectively "defendants"), and dismissing certain of Smith's copyright infringement claims and a claim for rescission of a prior settlement agreement; and (2) an order of the district court, entered on December 19, 2006, issuing a filing injunction against Smith. We assume the parties' familiarity with the procedural history and facts on appeal.
This Court reviews orders granting summary judgment de novo. See Miller v. Wolpoff Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir. 2003). "Summary judgment is appropriate only if the moving party shows that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law." Id. After reviewing the record, we conclude that the district court properly granted defendants' motion for partial summary judgment with respect to Smith's claims related to the reaching hands artwork, the apple lapel pins, the schoolhouse design, and the colored circle of children's pin. The district court correctly found that no genuine issue of material fact existed that the reaching hands artwork was derived from defendants' own previous work and not Smith's work, and that there was no unlawful appropriation of protectable expression in the defendants' other three products. See Laureyssens v. Idea Group, Inc., 964 F.2d 131, 140 (2d Cir. 1992).
The district court also properly denied Smith's claim that the settlement agreement should be rescinded based on a material breach of the agreement and fraudulent inducement into contract. Defendants' sales of two out of three hundred items were not so significant as to constitute a material breach of the settlement agreement. See Frank Felix Assocs., Ltd. v. Austin Drugs, Inc. 111 F.3d 284, 289 (2d Cir. 1997) ("A party's obligation to perform under a contract is only excused where the other party's breach of the contract is so substantial that it defeats the object of the parties in making the contract."); see also id. (explaining that the issue of whether a breach is material is a question of law). Smith's argument that he was entitled to rescission due to the defendants' alleged fraud is also without merit. See Fed.R.Civ.P. 9(b) (mandating that "a party must state with particularity the circumstances constituting fraud" in the complaint). The first time Smith asserted fraud as a basis for rescission was in opposition to the defendants' motion for partial summary judgment seeking to dismiss his rescission claim, and Smith's arguments remain wholly conclusory.
Smith also challenges the district court's order enjoining him from further duplicative actions, motion, petitions or proceedings in any court "arising from or relating to the copyright and contract claims that were adjudicated by this court . . . without first obtaining leave of this court." After hearing testimony from Smith and reviewing the record, the district court concluded that Smith's claims in two lawsuits filed after judgment was entered in this action pertained to the same claims adjudicated here, and thus were barred by collateral estoppel. The district court further found that these lawsuits could be viewed "only as attempts . . . to harass the defendants, its vendors and customers." We conclude that the district court acted within its discretion under the All Writs Acts, 28 U.S.C. § 1651(a), to effectuate and protect its judgment and to prevent vexatious litigation. See In re Hartford Textile Corp., 681 F.2d 895, 897 (2d Cir. 1982) ("The equity power of a court to give injunctive relief against vexatious litigation is an ancient one which has been codified in the All Writs Statute. . . ."). Further, Smith was provided with adequate notice and an opportunity to be heard before the injunction issued. See Moates v. Barkley, 147 F.3d 207, 208 (2d Cir. 1998) (per curiam).
We have reviewed Smith's remaining arguments and find them to be without merit. For the foregoing reasons, the judgment and the order of the district court are AFFIRMED. The pending motion to file a previously submitted reply brief, to submit an errata sheet, and to file an amended exhibit are GRANTED. The pending motion to strike defendants' supplemental brief is DENIED.