The claim that damages were not apparent before the judgment was entered is without merit. Mr. Hirschfeld certainly knew by September 30 that he had incurred legal fees; he had been litigating for some weeks by that point. Hence, while some damages may have been sustained as a result of post-judgment events, the fact that defendants' actions gave rise to a claim for monetary recovery was apparent at the time Mr. Hirschfeld consented to the entry of a final judgment affording him only equitable relief.
Plaintiffs' argument that a trial on damages could not have been held prior to the election is equally misguided. Mr. Hirschfeld's initial action was filed along with a motion for a preliminary injunction, which was granted. Nothing prevented him from continuing at a more measured pace with an action for damages after he had obtained the preliminary injunction except his agreement to the entry of a final judgment. In consequence, plaintiffs' claim, insofar as it seeks recovery with respect to events that took place prior to the entry of judgment on September 30, 1992, is barred. Moreover, the judgment in Hirschfeld I has one further consequence.
In Count 4 of the current complaint, plaintiffs allege that they are entitled to recover attorneys' fees expended in the prior action. Legal fees and expenses proximately caused by tortious conduct of course may be a compensable element of damages.
Plaintiffs, however, could have sought recovery of all of the fees incurred in Hirschfeld I, including those incurred after the entry of judgment, pursuant to Section 1988 and S.D.N.Y. Civil Rule 11(a).
That was not done. Accordingly, the judgment in the prior action precludes not only the claims for actions taken by defendants prior to the entry of judgment on September 30, 1992, but also the entire claim for legal fees and expenses incurred in Hirschfeld I.
Abuse of Process
Defendants move also to dismiss the complaint insofar as it alleges that the Board's appeal from Judge Knapp's order was an unconstitutional abuse of process. Under Spear v. Town of West Hartford, 954 F.2d 63, 68 (2d Cir. 1992), malicious abuse of civil process alone does not give rise to a Section 1983 cause of action. See also Freeman v. Rideout, 808 F.2d 949 (2d Cir. 1986). Plaintiffs, however, allege more than malicious abuse of process. They allege that the filing of defendants' appeal and motion for a stay pending appeal, as well as their timing, was specifically calculated to undercut the exercise of Mr. Hirschfeld's First Amendment right to conduct his campaign. They assert also that the appeal and the motion were frivolous. In consequence, they say, defendants' actions infringed their rights under the First and Fourteenth Amendments. (Cpt PP 37-38)
This claim presents interesting issues. Defendants no doubt had a constitutionally protected right to seek appellate review of Judge Knapp's ruling in Hirschfeld I. Plaintiffs in effect argue, however, that the appeal and the motion in the Second Circuit actions abused whatever rights defendants had.
An analogous issue arises with some frequency in cases in which a plaintiff claims that a defendant's action in pursuing litigation or other governmental redress is anticompetitive in purpose or effect and therefore violates the antitrust laws. See generally II ABA Antitrust Section, Antitrust Law Developments 989-1012 (3d ed. 1992); II ABA Antitrust Section, Annual Review of 1993 Antitrust Law Developments 229-233 (1994). In its most recent decision dealing with the issue, the Supreme Court held that "those who petition the government for redress are generally immune from antitrust liability" under the so-called Noerr doctrine. Professional Real Estate Investors, Inc. v. Columbia Pictures, Inc., 123 L. Ed. 2d 611, 113 S. Ct. 1920, 1926 (1993). Nevertheless, the immunity is lost where the recourse to governmental authority, including the courts, is a "sham." Id. Recourse to the courts is regarded as a sham, and therefore subject to antitrust regulation free of constitutional restraint, where the lawsuit is (1) "objectively baseless in the sense that no reasonable litigant could realistically expect success on the merits" and, if so, (2) subjectively intended "'to interfere directly with the business relationships of a competitor.'" Id. at 1928, quoting Eastern R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 144, 5 L. Ed. 2d 464, 81 S. Ct. 523 (1961) (emphasis in original).
The Court believes that the sham exception to the Noerr rule of antitrust immunity is applicable here by analogy, as the same First Amendment interests animate the treatment both of the actions of the Board of Elections in invoking the appellate process and of businesses accused of abusing governmental process for anticompetitive reasons. Here plaintiffs have alleged that the Board abused the judicial processes and that its actions following the entry of judgment in Hirschfeld I were taken for improper reasons. Given both these allegations and the Court of Appeals' prior ruling, we conclude that the complaint states a claim upon which relief may be granted with respect to the post-judgment actions of the Board.
Defendants next argue that the action should be dismissed because plaintiffs cannot establish that Mr. Hirschfeld lost the election by virtue of the defendants' allegedly unconstitutional actions. Assuming that the defendants are right as to Mr. Hirschfeld's political attractiveness, they still would not be entitled to dismissal on this basis. Mr. Hirschfeld here seeks damages not only for loss of the election, but for attorneys' fees and unspecified campaign expenses. While the attorneys' fee claim is barred by claim preclusion, the fact that Mr. Hirschfeld would have lost the election in any case, assuming that were so, would be no obstacle to recovery of other damages if plaintiffs can establish any. Since a complaint may not be dismissed unless the plaintiff can prove no facts under which the plaintiff would be entitled to any relief,
the defendants' assumption as to his political prospects, even if correct, would not warrant dismissal. Furthermore, Carey v. Piphus, 435 U.S. 247, 55 L. Ed. 2d 252, 98 S. Ct. 1042, forecloses dismissal because it permits recovery of nominal damages in Section 1983 actions based solely on a showing of liability, even without any proof of actual damages proximately caused by the constitutional violation. Thus, for purposes of this motion to dismiss, any lack of causation is irrelevant to the continued validity of the claim.
New Board Members
As noted defendants Meijas, Kellman [sic ], Carey and Sheldon evidently were not members of the Board of Elections when the events in question took place. Plaintiffs should consider whether the action should be discontinued as to these in any event. Fed. R. Civ. P. 11. If they did not participate in the actions complained of, they should not be subject to this lawsuit.
For the foregoing reasons, the motion to dismiss is granted and the complaint dismissed with respect to (a) all claims arising from the Board of Elections' actions prior to the entry of judgment on September 30, 1992 and (b) all claims for attorneys' fees incurred in connection with Hirschfeld I. The motion is denied in all other respects.
Dated: December 20, 1994.
Lewis A. Kaplan
United States District Judge