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 party under Rule 19, operates as an adjudication upon the merits.
Judge Wood's dismissal does not fall under any of the exceptions listed in Federal Rule 41(b), therefore, her order of dismissal operates as an adjudication upon the merits. See PRC Harris, Inc. v. Boeing Co., 700 F.2d 894, 896 (2d Cir.), cert. denied, 464 U.S. 936, 78 L. Ed. 2d 311, 104 S. Ct. 344 (1983).
Defendant Morgenthau is not named in counts I and II. Since the Complaint was filed in 1992, more than three years after the alleged false arrest in count III occurred, count III is time-barred as to Defendant Morgenthau. See Owens v. Okure, 488 U.S. 235, 102 L. Ed. 2d 594, 109 S. Ct. 573 (1989); Day v. Morgenthau, 909 F.2d 75, 79 (2d Cir. 1990) (on rehearing). Further, to the extent that counts III and IV allege any wrongful personal conduct against Defendant Morgenthau, the doctrine of prosecutorial immunity for the initiation and prosecution of charges against Plaintiff protects Morgenthau from a suit for money damages. Imbler v. Pachtman, 424 U.S. 409, 431, 47 L. Ed. 2d 128, 96 S. Ct. 984, 995 (1976).
Therefore, as to Defendant Morgenthau the first four counts are dismissed.
Counts V and VI are an attempt to relitigate the case previously dismissed by Judge Wood (Wiesner v. Willkie Farr & Gallagher, No. 88 Civ 8753), by claiming the outcome was obtained by fraud. Under Rule 9(b) of the Federal Rules of Civil Procedure, Plaintiff is required to plead fraud with specificity by indicating: (1) precisely what statements or omissions were made, and in what documents or through what oral representations these statements were made, (2) the time and place of each such statement and the persons responsible for making (or, in the case of omissions, for not making) each such statement, (3) the content of such statements and the manner in which the statements misled the plaintiff, and (4) what the defendants obtained as a consequence of the fraud. Lasky v. Shearson Lehman Brothers, Inc. 1991 U.S. Dist. LEXIS 17602 (S.D.N.Y. November 25, 1991), citing Todd v. Oppenheimer & Co., 78 F.R.D. 415, 420-1 (S.D.N.Y. 1978). See also Cosmas v. Hassett, 886 F.2d 8, 11 (2d Cir. 1989); Moran v. Kidder Peabody & Co., 609 F. Supp. 661 (S.D.N.Y. 1985), aff'd 788 F.2d 3 (2d Cir. 1986). Furthermore, when fraud is alleged against multiple defendants, a plaintiff must plead with particularity by setting forth separately the acts complained of by each defendant. Zerman v. Ball, 735 F.2d 15, 22 (2d Cir. 1984).
In counts V and VI Plaintiff has failed to comply with the strict pleading requirements of Rule 9(b). The allegations in both these counts implicate multiple defendants, yet fail to distinguish what action was taken by whom and the specific time and place of each fraudulent action or statement. Accordingly, counts V and VI as against all Defendants are dismissed for failure to comply with Rule 9(b).
Plaintiff's Complaint against all Defendants is dismissed with prejudice. Plaintiff's willingness to refile counts I through IV despite the determinations of Judge Wood and the Second Circuit compel this Court to order sanctions against Plaintiff. Accordingly, the Court directs that judgment be entered for Defendants and against Plaintiff together with sanctions of $ 10,000 payable to the Clerk of this Court. Plaintiff is to take no further action in this Court on these charges or seek to relitigate the matters decided by Judge Wood and the Court of Appeals recited in this opinion. Such action would subject the Plaintiff to the imposition of further sanctions.
IT IS SO ORDERED.
Dated: New York, New York
February 21, 1992
Robert P. Patterson, Jr.