The opinion of the court was delivered by: ROBERT P. PATTERSON, JR.
ROBERT P. PATTERSON, JR., U.S.D.J.
This case is before the Court on Defendants' applications to dismiss the Complaint filed by Plaintiff on January 2, 1992.
The first four counts alleged in the Complaint are essentially identical as those brought by Plaintiff in a prior action (Wiesner v. Willkie Farr & Gallagher, No. 88 Civ 8753). That action was dismissed by Judge Wood in two decisions, Wiesner v. Willkie Farr & Gallagher, 1989 U.S. Dist. LEXIS 5149 (S.D.N.Y. May 12, 1989), and Wiesner v. Willkie Farr & Gallagher, 1989 U.S. Dist. LEXIS (S.D.N.Y. October 18, 1989). Judge Wood's orders of dismissal were affirmed by the Court of Appeals, Wiesner v. Willkie Farr & Gallagher, et. al., 907 F.2d 145 (2d Cir. May 18, 1990), and final judgment was entered in the District Court on June 1, 1990.
The last two counts of the instant complaint charge the Defendants with procuring by fraud the decisions by Judge Wood (count V) and the decision of the Court of Appeals (count VI).
In 1981, Plaintiff instigated suits in this Court against certain lawyers and law firms. As a result of those suits, the Court of Appeals entered an order which permanently enjoined "Charles Wiesner and others acting at his direction . . . from instituting further actions in any court of the United States against all defendant-appellees in connection with any matter set forth in the complaints and amended complaints herein, or relating to events connected with that litigation." Wiesner v. Rogers Hoge & Hill, et. al., No. 81 Civ. 1575 (2d Cir. filed March 10, 1983).
Thereafter, in November 1984 Plaintiff brought a lawsuit in New York State Supreme Court against the following Defendants: Willkie Farr & Gallagher ("Willkie Farr"), a law-firm; Stephen W. Greiner, a partner at Willkie Farr; and Jack Altbush, a court reporter. Defendant Louis A. Craco appeared as attorney of record for the Defendants. In orders dated May 10, 1985 and June 24, 1985, Justice Ira Gammerman dismissed that action as time-barred. Count I or instant Complaint charges that the defendants in that suit and Craco obtained that dismissal by fraud for which Plaintiff seeks five million dollars in damages.
In count II of the Complaint, Plaintiff states that in July 1985 he brought another action in New York County Supreme Court against the same defendants. In that action Plaintiff complained of the same acts as in the prior state action, but pled his claims in terms of breach of contract and breach of fiduciary duty. By order of February 20, 1986, Justice Robert E. White dismissed the action, and the dismissal was affirmed by the Appellate Division, and the New York Court of Appeals. Plaintiff claims that this dismissal was obtained by virtue of the fraudulent acts of the Defendants in that action, and by Defendant Craco. On this count Plaintiff seeks damages in the amount of ten million dollars.
In count III of the Complaint, Plaintiff alleges that on March 4, 1986, twelve days after Justice White's February 20, 1986 order, he was arrested by Defendant Thomas Jackson for harassing and threatening Defendant Kenneth J. Bialkin (a partner at Willkie Farr), Bialkin's wife, and two of his secretaries. Although Plaintiff maintains his innocence, he was convicted of aggravated harassment, and his conviction was affirmed by the Appellate Division, without opinion. Plaintiff alleges in the instant Complaint that Defendants Willkie Farr, Greiner, Bialkin, and Craco obtained this conviction by fraud in collaboration with Defendants Robert M. Morgenthau and Jackson. His prayer for relief is for a judgment that expunges from his record the false arrest and conviction, and for money damages in the amount of fifty million dollars.
In count IV of the Complaint, Plaintiff alleges that he was arrested on November 22, 1988 by three detectives acting under the supervision of Defendant Jackson, and falsely charged with, and prosecuted for, Attempted Grand Larceny by Extortion in the fourth degree and that, after a five week trial, such charges were dismissed. He prays to this Court for a judgment expunging from his record the false arrest as well as money damages of fifty million dollars against Defendants.
In count V of the Complaint, Plaintiff claims that on December 12, 1988 he brought an action in this Court requesting relief for the claims in counts I through IV, with the exception of those charges in count IV which had not yet taken place. Plaintiff alleges that this action was dismissed by Judge Wood's orders of May 11, 1989 and October 18, 1989 due to fraud on the part of the Defendants. Plaintiff's prayer for relief seeks an order setting aside Judge Wood's judgment dismissing the complaint, and fifty-five million dollars in money damages.
Count VI states that Plaintiff, by notice of appeal dated November 26, 1989, appealed Judge Wood's order dismissing his claims, that the appeal was dismissed, and that the Court of Appeals order of dismissal was fraudulently obtained since it was a forgery by Defendants. He seeks fifty-five million dollars in money damages.
Counts I through IV of the Complaint charge all Defendants, with the exception of Morgenthau, with identical claims as those dismissed on the defendants' motion by Judge Wood on May 12, 1989 and October 18, 1989.
Accordingly, this Court dismisses counts I through IV against all Defendants other than Morgenthau under principles of res judicata. Rule 41(b) of the Federal Rules of Civil Procedure provides:
Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than dismissal for lack of jurisdiction, for improper venue, or for failure to join a ...