Opinion
01 Civ. 5605 (LAK)
December 6, 2002
ORDER
In a report and recommendation dated November 12, 2002 (the "RR"), Magistrate Judge Frank Maas recommended the dismissal of this action, reasoning that any claim against defendant Armstrong in his official capacity is barred by the Eleventh Amendment and that the claim against him in his individual capacity is barred by res judicata in consequence of the judgment entered in Tarka v. Greenfield Stein Senior, LLP, No. 00 Civ. 1262 (SAS) ("Action No. 1"), which dismissed that action. Plaintiff objects to the RR.
1. Plaintiff denies that she is suing Armstrong in his official capacity. While the complaint perhaps is not as unambiguous as she says, the point is neither here nor there. If she were suing him in his official capacity, that aspect of the claim, as Judge Maas concluded, would be foreclosed by the Eleventh Amendment.
2. The res judicata claim requires somewhat more detailed consideration.
At the heart of plaintiff's grievance is a claim of legal malpractice against the law firm of Greenfield Stein Senior in connection with their representation of her in litigation in the Surrogate's Court, New York County. See generally Tarka v. Greenfield Stein Senior, LLP, No. 00 Civ. 1262 (SAS), 2000 WL 1121557 (S.D.N.Y. Aug. 8, 2000). The first amended complaint in Action No. 1 contained thirteen claims for relief, only one of which, the first, is pertinent here. That claim alleged, broadly speaking, that Barbara Levitan, Esq. of the Greenfield firm conspired with defendant Armstrong, then a clerk of the Surrogate's Court, and unnamed employees of that court to obstruct plaintiff's action by removing selected documents from the court file and thus deprived plaintiff of federal constitutional rights in violation of 42 U.S.C. § 1983. That in substance is the same claim asserted here against defendant Armstrong and unnamed Surrogate's Court employees, although Ms. Levitan, the Greenfield firm, and other Greenfield-related defendants who were joined in Action No. 1 are not parties to this case. The heart of the present dispute is whether the judgment in Action No. 1 forecloses plaintiff's individual capacity claim against Armstrong in this action.
The other twelve claims for relief asserted state law-based claims against the Greenfield defendants only.
After service of the first amended complaint in Action No. 1, Armstrong filed an answer but the Greenfield defendants moved to dismiss the complaint for lack of subject matter jurisdiction and failure to state a claim upon which relief may be granted. In an opinion and order dated August 8, 2000, Judge Scheindlin concluded that plaintiff had "offered no facts suggesting the existence of a conspiracy of any sort," Tarka, supra, 2000 WL 1121557, at *3, and granted the Greenfield defendants' motion to dismiss. In a footnote, however, she noted that the dismissal as to the Greenfield defendants — Armstrong's alleged co-conspirators — was dispositive as to Armstrong as well:
"Defendant Armstrong, who is only mentioned in the first cause of action, has not moved to dismiss. Because defendants' motion to dismiss that cause of action is granted, however, the action against Armstrong is moot." Id. at *3 n. 4.
The decretal paragraph of the opinion and order granted the motion to dismiss and directed the Clerk to close the case. Id. at *6. Three days later, the Clerk did as directed, entering a judgment that provided "[t]hat for the reasons stated in the Court's Opinion (84335) and Order dated August 8, 2000, defendants' motion to dismiss is granted; accordingly, the case is closed." Plaintiff first moved to vacate the Opinion and Order, but the motion was denied. She then appealed from the judgment, but her appeal was dismissed by the Second Circuit for failure to comply with its scheduling order.
A final judgment on the merits precludes all further claims between the parties that (1) are based on the same cause of action and (2) were or could have been litigated in the first case. E.g., N.L.R.B. v. United Technologies Corp., 706 F.2d 1254 (2d Cir. 1983); RESTATEMENT (SECOND) JUDGMENTS §§ 17-19 (1982). "Cause of action" for this purpose means a "transaction, or series of connected transactions, out of which the action arose." See RESTATEMENT (SECOND) JUDGMENTS § 24(1). All of these requirements are satisfied here. There was a final judgment on the merits in Action No. 1. Plaintiff's claim against Armstrong here is based on the same transaction or series of connected transactions out of which Action No. 1 arose, and it was or, at any rate, could have been litigated in that case. Plaintiff nonetheless resists this conclusion on several grounds.
First, she claims that the only claim adjudicated in Action No. 1 was the claim of conspiracy between the law firm defendants and Armstrong and contends that she here asserts First Amendment claims against him that are independent of the existence of a conspiracy. (Obj. at 7) While she certainly is correct in saying that Judge Scheindlin evidently did not construe the first amended complaint in Action No. 1 as asserting any First Amendment claim against Armstrong independent of the alleged conspiracy with the law firm, the fact remains that her claim or claims against Armstrong — whether conspiracy-based or resting on his unilateral conduct — all are based on his alleged extraction of documents from the court file in plaintiff's Surrogate's Court litigation. All of those claims therefore are barred by the final judgment in Action No. 1, irrespective of whether they were actually asserted or decided there.
Second, plaintiff argues that the judgment in Action No. 1 was not final because it did not dispose of all of the claims against all of the parties. (Obj. at 7-8) In this, however, she is mistaken. Judge Scheindlin's footnote, quoted above, and her direction to the Clerk to close the case made clear her determination that the entire action was to be dismissed, and the judgment did precisely that.
Plaintiff argues next that Judge Scheindlin's opinion defined the term "defendants" to refer to the law firm defendants in consequence of which, she maintains, Armstrong was not a party to the judgment. (Obj. at 9) The problem with this contention, however, is that the quoted footnote made clear that Judge Scheindlin dismissed the entire action, including the claim against Armstrong. There is no doubt whatever that he is a party to the judgment.
Fourth, plaintiff contends that the bar of the prior judgment extends only to issues actually litigated and decided in Action No. 1 and that the free-standing First Amendment claim was neither. (Obj. at 11-12) In this respect, however, she confuses the doctrines of collateral estoppel (issue preclusion) and res judicata (claim preclusion). While the determination of a particular issue in a prior action is conclusive only where that issue was actually litigated and necessarily decided, there is no comparable requirement with respect to claim preclusion.
Finally, plaintiff contends that she did not have a full and fair opportunity to litigate her free standing First Amendment claim against Armstrong in Action No. 1. (Obj. at 12-13) In essence she contends only that Judge Scheindlin erred in dismissing her entire claim against Armstrong on the basis of her conclusion that the conspiracy allegation was deficient and thus ignoring the free-standing First Amendment claim. An assertion of legal error underlying a prior judgment, however, is insufficient to justify a conclusion that plaintiff lacked a full and fair opportunity to litigate. Plaintiff in fact made a motion for reconsideration before Judge Scheindlin, one in which she could have contended that the conclusion that the conspiracy allegation was deficient was inadequate to justify dismissal of the entire action as to Armstrong. But she made no such contention. She could have made the same contention on appeal, but she failed to comply with the Court of Appeals' scheduling order, which resulted in the dismissal of her appeal. In short, she had every opportunity to raise the point upon which she now relies both before Judge Scheindlin and the Court of Appeals but failed to do so. Her failures cannot be transformed into a deprivation of an opportunity to litigate the issue.
Plaintiff's Memorandum in Support of her Motion for Reconsideration, Tarka v. Greenfield Stern Senior LLP, No. 00 Civ. 1262 (SAS) [Docket item 22].
3. The complaint in this action names four "Doe" defendants. Almost a year and a half has elapsed since the commencement of this action. So far as the record reveals, none of the Does has been identified. And although there is a return of service in the file that purports to show service on a "Jane Doe" by leaving process on a door step [docket item 3], it is perfectly plain that there is no proof of due service on any of the Doe defendants.
Accordingly, this action is dismissed on the merits and with prejudice as to defendant Bernard Armstrong on the ground that it is barred by res judicata insofar as it is brought against him in his individual capacity and by the Eleventh Amendment if and to the extent it is brought against him in his official capacity. It is dismissed pursuant to Fed.R.Civ.P. 4(m) as to the Doe defendants for failure to make service. As this disposes of all of the claims against all of the parties, the Clerk shall enter final judgment in accordance herewith and close the case.
SO ORDERED.