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July 17, 1985

THE LAW FIRM OF DANIEL P. FOSTER, P.C., Plaintiff, against RAYMOND DEARIE, in his Administrative capacity as United States Attorney for the Eastern District of New York; LEE LASTER, in his Administrative capacity as Director of the New York Field Division of the Federal Bureau of Investigation; BENJAMIN WARD, in his Administrative capacity as Commissioner of the New York Police Department; ROBERT MORGENTHAU, in his Administrative capacity as District Attorney of the County of New York; and JOHN DOES 1-20, Defendants

The opinion of the court was delivered by: NICKERSON


NICKERSON, District Judge.

Plaintiff, a law firm, brought this action for declaratory and injunctive relief pursuant to 42 U.S.C. § 1983 alleging a conspiracy between state and federal officials to deprive it of its civil rights. Plaintiff now moves by order to show cause for a preliminary injunction.

 The complaint alleges the following. In February 1984 agents of the Federal Bureau of Investigation, New York Police Department (NYPD), and United States Attorney started an investigation of plaintiff in bad faith and for purposes of harassment, without reasonable expectation of obtaining a valid conviction. The agents, pursuant to an unlawfully obtained warrant, conducted an unlawful search of plaintiff's offices and seizure of its property (February search), By November 1984 agents of the District Attorney (DA) and NYPD began a criminal prosecution of two of plaintiff's clients in order to continue the bad faith harassment of the law firm. On May 30, 1985 the DA issued a grand jury subpoena duces tecum (subpoena) to plaintiff to produce numerous documents and records, many concerning Mia J. Prior, before a state grand jury.

 Plaintiff seeks a declaration that defendants have acted unconstitutionally and an injunction enjoining them from (a) using any materials seized in, or fruits of, the February search against it or its clients, (b) pursuing any investigation based upon those materials, (c) issuing civil or criminal process to obtain material from plaintiff without first permitting it to adjudicate its rights, (d) pursuing any acts against plaintiff until the federal defendants comply with all previous court orders and (e) engaging in any acts declared unconstitutional. Plaintiff seeks a preliminary injunction granting the identical relief.

 This is not plaintiff's first action before this court. Plaintiff recently moved for an order directing the return of the property seized in the February search and ruling that the material would not be admissible as evidence at any hearing or trial. See Fed. R. Crim. P. 41(e). On the government's representation that it would return all the property, the court declined to exercise jurisdiction stating that plaintiff would reserve all rights to "make a suppression motion in any district court where a trial is pending." Ex Parte Decious, 622 F. Supp. 40, 41 (E.D.N.Y. 1985). Familiarity with that order is assumed. Plaintiff's application for a stay pending appeal was denied by Judge Sifton on June 10, 1985, the same date on which plaintiff filed a notice of appeal. The Court of Appeals for the Second Circuit also denied the stay pending appeal but granted plaintiff's application for an expedited appeal, which is pending.

 The history of this action is roughly as follows. After being served with the subpoena, plaintiff moved to quash in Supreme Court, New York County. On about June 7, 1985, Justice Berkman conducted a sealed hearing pursuant to N.Y. Crim. Proc. Law § 190.50(7), after which she denied the motion and directed plaintiff to comply. It is unclear whether she modified the subpoena before ordering compliance. She denied an application to stay her order. Judge Sandler of the Appellate Division granted an interim stay which a unanimous panel of the Appellate Division subsequently denied on about June 21, 1985. The appeal to the Supreme Court, Appellate Division, is still pending.

 Plaintiff then sought relief in the District Court for the Eastern District of New York. Plaintiff appeared before Judge Sifton on June 21, 1985 seeking an order temporarily restraining defendants from executing any process or seeking to enforce any order against it. That motion was denied, as was a motion for a stay pending appeal. A hearing on the motion for a preliminary injunction was set for June 26, 1985 before this court, provided that plaintiff file a complaint on June 24 showing federal jurisdiction. On June 25 plaintiff again appeared before Judge Sifton seeking a temporary restraining order which Judge Sifton treated as an application for reconsideration and denied. Plaintiff immediately filed a notice of appeal from that order. This court heard oral argument on the motion for a preliminary injunction on June 26, 1985.

 To prevail in a motion for a preliminary injunction plaintiff must establish (1) irreparable harm and (2) either (a) probable success on the merits or (b) sufficiently serious ground for litigation and a balance of hardships tipping decidedly in its favor. See, e.g., Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir. 1979). The court need not consider the first requirement since plaintiff fails to satisfy the second.

 The immediate harm plaintiff alleges is that complying with the subpoena severely impairs its ability to function as a law firm. This allegation a@d many others in plaintiff's papers, and the fact that plaintiff started this action as soon as it became apparent that the state court would neither quash the subpoena nor grant a stay pending appeal, indicate that this action is essentially a collateral attack in federal court on the subpoena issued in connection with a state grand jury investigation.

 Plaintiff contends that the February search was unconstitutional. Daniel P. Foster, President of plaintiff, is of the belief that the state grand jury investigation is @directly derivative" of that search. Thus, were the court to grant the relief sought, the immediate and direct effect would be to enjoin the state court from enforcing its order to comply with the subpoena and the state from pursuing a grand jury investigation, which is a criminal proceeding. See United States v. Monia, 317 U.S. 424, 427, 87 L. Ed. 376, 63 S. Ct. 409 (1943); Notey v. Hynes, 418 F. Supp. 1320, 1326 (E.D.N.Y. 1976).

 The court has the power to enjoin state criminal proceedings pursuant to section 1983 of Title 42. See Mitchum v. Foster, 407 U.S. 225, 32 L. Ed. 2d 705, 92 S. Ct. 2151 (1972). Nonetheless, Younger v. Harris, 401 U.S. 37, 27 L. Ed. 2d 669, 91 S. Ct. 746 (1971), and the many cases which follow it hold that principles of equity, comity and federalism require federal courts generally to abstain from interfering with such proceedings. This doctrine plainly applies to actions in which plaintiffs ask federal courts to enjoin the use of materials, and information derived from those materials, in state criminal proceedings on the ground that they were unconstitutionally obtained. See Kugler v. Helfant, 421 U.S. 117, 44 L. Ed. 2d 15, 95 S. Ct. 1524 (1975)(when plaintiff claimed that state indictment was fruit of unconstitutionally coerced testimony before a grand jury, federal court should not have intervened either to enjoin the criminal prosecution or give declaratory relief as to the admissibility of the testimony); Perez v. Ledesma, 401 U.S. 82, 84, 27 L. Ed. 2d 701, 91 S. Ct. 674 (1971) (the admissibility of evidence in state criminal prosecutions should ordinarily be resolved by state tribunals) (citing Stefanelli v. Minard, 342 U.S. 117, 96 L. Ed. 138, 72 S. Ct. 118 (1951)). Indeed, in Dombrowski v. Pfister, 380 U.S. 479, 14 L. Ed. 2d 22, 85 S. Ct. 1116 (1965), a case pre-dating the Younger case and upon which plaintiff relies, the Supreme Court stated that it "is difficult to think of a case in which an accused could properly bring a state prosecution to a halt while a federal court decides his claim that certain evidence is rendered inadmissible by the Fourteenth Amendment." Id. at 485 n.3.

 The court may intervene, however, where a plaintiff shows that the harm threatened is not merely irreparable but also "great and immediate." Younger, 401 U.S. at 46. This might be shown by proving "harassment or prosecutions undertaken by state officials in bad faith without hope of obtaining a valid conviction." Perez, 401 U.S. at 85. While not directly addressing the issue of abstention, plaintiff apparently contends that this action fits within this exception to the Younger doctrine.

 The complaint alleges that state and federal defendants are acting jointly for purposes of harassing plaintiff, in bad faith and without reasonable hope of obtaining valid convictions. Although plaintiff complains of a "pattern" of harassment by defendants, the only events cited to illustrate this pattern are the February search and its aftermath and the state investigation commenced by November of 1984. Even if plaintiff were the subject of several searches and investigations, such circumstances, standing alone, do not necessitate a finding of bad faith or harassment. Cf. Hicks v. Miranda, 422 U.S. 332, 351, 45 L. Ed. 2d 223, 95 S. Ct. 2281 (1975) (where "each step in the pattern of seizures" was authorized by judicial warrant or order, finding of bad faith harassment not necessitated, even ...

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