process rights based upon the same incidents that formed the basis of the 1993 complaint in the Eastern District. The present complaint alleges eight separate causes of action, three of which (numbers one, two and four) allege violations of plaintiffs' Fourteenth Amendment rights to due process resulting from the defendants' alleged "ex parte" communications to the Appellate Division.
Claim one alleges that plaintiffs rights to due process were violated as a result of three separate "ex parte" communications by defendants to the Appellate Division. The first alleged communication is a 1990 letter which they now claim not to have received and which they characterize as an improper request to "calendar" Thaler's and Falow's motions together. This action is the first time plaintiffs' have brought allegations regarding this letter.
In addition to violating plaintiffs' due process rights, defendants' sending of the letter allegedly violated plaintiffs' "right to a separate adjudication on the separate and individual merits of their causes," Compl. P 17, as well at N.Y. Jud. L. § 90(6), since formal charges had not yet been filed. The second communication relied upon by plaintiffs is the May 23rd letter, discussed supra. The third alleged communication from defendants to the Appellate Division was "a 'sealed' file on plaintiff Falow which contained material from a 1979 complaint made against Falow to the Grievance Committee wherein Falow had been exonerated after a hearing." Compl. P 31. Plaintiffs allege this transmission was in violation of N.Y. JUD. L. § 90(10) regarding the treatment of sealed files. They also allege that defendants were engaged in an ongoing conspiracy to conceal the fact of their "ex parte" communications and a pattern of making and/or receiving "ex parte" communications in violation of various rules of ethics.
Claim two merely repeats and realleges the first claim, except that it recites that these actions were taken "in excess and outside the scope of [defendants'] lawful authority." Compl. PP 58-60. Claim four recites the same alleged "ex parte" communications, and alleges that they violated Due Process and N.Y. CODE PROF. RESP. DR 1-104A and DR 7-110B as well as EC 7-35. The other five claims allege that defendants' "ex parte" communications violated N.Y. JUD. L. § 90(10) and various provisions of N.Y. Prof. Rules and Ethical Code, and further constituted tortious conduct.
On January 23, 1996, defendants moved this court to dismiss this action, or in the alternative, for a summary judgment, on the basis that: (1) we lack jurisdiction over this matter under the Rooker-Feldman doctrine; or (2) we are compelled to abstain from deciding the action for reasons of comity; or (3) we are bound by the doctrines of res judicata or collateral estoppel to follow the Eastern District's 1994 Memorandum and Order; or (4) defendants are entitled to immunity from damages.
Summary Judgment Standard
Although defendants have styled this motion, in the alternative, as a motion to dismiss plaintiffs' claims for failure to state a claim under FED. R. CIV. P. 12(b)(6), because both sides have submitted affidavits and exhibits supplementing the pleadings, this Court will treat this motion as one seeking summary judgment pursuant to FED. R. CIV. P. 56. In re G. & A. Books, Inc., 770 F.2d 288, 295 (2d Cir. 1985), cert. denied, sub nom, M.J.M. Exhibitors, Inc., 475 U.S. 1015, 89 L. Ed. 2d 310, 106 S. Ct. 1195 (1986).
Summary judgment is appropriate "only if the evidence, viewed in the light most favorable to the party opposing the motion, presents no genuine issue of material fact." Cable Science Corp. v. Rochdale Village, Inc., 920 F.2d 147, 151 (2d Cir. 1990). A fact is material if, on the basis of that fact, "a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).
In this motion, plaintiffs initially urge that we should not consider defendants' motion because they failed to file a Rule 3(g) statement as required by our local rules. While we are entitled to deny the motion on this ground, we are not compelled to do so but may overlook the "technical deficiency" of a party's submission. Zeno v. Cropper, 650 F. Supp. 138, 139 (S.D.N.Y. 1986), (citing Reisner v. General Motors Corp., 511 F. Supp. 1167, 1174-75 n.14-15 (S.D.N.Y.), aff'd, 671 F.2d 91 (2d Cir.), cert. denied, 459 U.S. 858, 74 L. Ed. 2d 112, 103 S. Ct. 130 (1982)). Though it appears that defendants indeed failed to submit a timely Rule 3(g) statement with their initial moving papers, they subsequently served one with their reply. Plaintiffs requested and were granted permission to file a sur-reply, which they declined to do. Moreover, defendants' affidavits set forth clearly the few issues of fact which are disputed. Thus, since plaintiffs were not prejudiced by defendants' failure to file a 3(g) statement, we decline to use this procedural error as a means to deny defendants' otherwise meritorious motion.
In their motion papers, defendants argue, based upon several different legal theories, that since plaintiffs have raised almost identical issues in their motions in state court and before the Eastern District, we should not give them a third bite at the apple. We consider these various theories in turn.
The 1993 Complaint and Preclusion
Defendants argue that the Eastern District's 1993 Memorandum and Order prevents us from hearing this case under the doctrines of either res judicata or collateral estoppel. However, the 1993 decision dismissing the complaint for lack of jurisdiction, or alternatively, abstention, does not support res judicata because it is not a final judgment on the merits. Nilsen v. City of Moss Point Mississippi, 701 F.2d 556, 563 (5th Cir. 1983) (dismissals for want of jurisdiction are not decisions on the merits); American Trial Lawyers Ass'n v. New Jersey Supreme Court, 409 U.S. 467, 469, 34 L. Ed. 2d 651, 93 S. Ct. 627 (1973) (abstention does not involve the abdication of federal jurisdiction but the postponement of its exercise and the trial court should retain jurisdiction pending the state court proceedings). For the same reasons, the 1993 decision cannot support collateral estoppel or issue preclusion, since the constitutional issues were not actually decided. Moccio v. N.Y. State Office of Court. Admin., 95 F.3d 195, 200 (2d Cir. 1996).
Defendants have also requested that we abstain from deciding this case under the Younger doctrine. See Younger v. Harris, 401 U.S. 37, 27 L. Ed. 2d 669, 91 S. Ct. 746 (1971). That doctrine applies to prevent a federal court from enjoining an ongoing state civil or criminal proceeding. Williams v. Lambert, 46 F.3d 1275, 1282 (2d Cir. 1995) (emphasis added). Since plaintiffs are not asking this court to enjoin the disciplinary proceedings, Younger abstention is not applicable.
The State Court Action and the Rooker-Feldman Doctrine
Defendants next urge us that based upon the Appellate Division's denial of Thaler's December 1992 and Falow's January 1993 motions to dismiss the disciplinary proceedings as violating due process, and the subsequent denial of their request to appeal these rulings, we should dismiss plaintiff's current complaint for lack of subject matter jurisdiction under the Rooker-Feldman doctrine. That doctrine holds that a district court lacks subject matter jurisdiction to entertain a federal suit attacking a state court judgment against a particular individual. D.C. Court of Appeals v. Feldman, 460 U.S. 462, 482, 75 L. Ed. 2d 206, 103 S. Ct. 1303 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413, 416, 68 L. Ed. 362, 44 S. Ct. 149 (1923). It requires that an aggrieved state court litigant must pursue his claims directly in the state appellate courts and ultimately to the United States Supreme Court. Feldman, 460 U.S. at 476; Rooker, 263 U.S. at 415. However, a plaintiff can still bring in federal district court a general challenge to a state rule, Feldman at 483-86, unless the issues are "inextricably intertwined" with those resolved in the state judgment against the individual. Id. at 482, n.16.
The Eastern District of New York dismissed plaintiffs' 1993 § 1983 complaint alleging due process violations arising out of these same facts on Rooker-Feldman grounds, concluding that it had no jurisdiction since plaintiffs had raised their constitutional claims in motions before the Appellate Division. Defendants urge that since this complaint and the 1993 complaint allege essentially the same violations, we should dismiss this one on the same grounds relied upon by the Eastern District. However, in this complaint, plaintiffs have requested monetary damages, whereas in 1993 the complaint sought an injunction of the disciplinary proceedings, in addition to monetary damages. This request for monetary damages alters our Rooker-Feldman analysis.
The Second Circuit has stated that the Rooker-Feldman doctrine "at a minimum" is coextensive with preclusion principles. Moccio, 95 F.3d at 198 (2d Cir. 1996). However, it has also stated, with regard to claim preclusion or res judicata, that:
A New York plaintiff is not barred from seeking damages in federal court, on civil rights claims by reason of a prior judgment on the same underlying facts in an Article 78 proceeding requesting injunctive or affirmative relief. The reason is that damages are not available in these circumstances in an Article 78 proceeding and therefore that action cannot give the damages relief demanded in a civil rights [suit] . . .
Davis v. Halpern, 813 F.2d 37, 39 (2d Cir. 1987); Moccio, 95 F.3d at 200. Under these principles, since plaintiffs were not able to seek damages in their motion to dismiss the disciplinary proceedings, nor its appeal, their federal claim for damages for violations of their civil rights would not be precluded by res judicata.
Their claims might be barred by collateral estoppel, or issue preclusion, however, since collateral estoppel applies to § 1983 actions. Id., ( citing Giakoumelos v. Coughlin, 88 F.3d 56, 58 (2d Cir. 1996)). Under New York law, "collateral estoppel will apply only if (1) the issue in question was actually and necessarily decided in a prior proceeding, and (2) the party against whom the doctrine is asserted had a full and fair opportunity to litigate the issue in the first proceeding." Moccio, 95 F.3d at 200.
Defendants argue that we cannot know whether the issues were fully and necessarily decided, since the Appellate Division issued an opinion simply denying their motion, without stating its grounds, and the New York Court of Appeals denied leave to appeal because the Appellate Division's denial was interlocutory. We are entitled to rely upon this opinion, however, should we choose, since the requirement that an issue be necessarily decided for collateral estoppel purposes "does not require that the prior judgment contain the precise words 'on the merits' in order to be given res judicata effect; it suffices that it appears from the judgment that the dismissal was on the merits." Strange v. Montefiore Hospital & Medical Center, 59 N.Y.2d 737, 463 N.Y.S.2d 429, 430, 450 N.E.2d 235 (1983); Barrett v. Kasco Constr. Co., 56 N.Y.2d 830, 452 N.Y.S.2d 566, 438 N.E.2d 99 (1982).
The fact that the decision was rendered upon an order does not preclude it from serving as the basis for preclusion. "The modern rule is that an order made upon a motion has the same effect as a judgment, and that although technical and historical distinctions might be drawn between final orders and final judgments, the doctrine of res judicata applies to both." 73 N.Y.JUR.2D "Judgments" § 354 (1996), (citing Vavolizza v. Krieger, 33 N.Y.2d 351, 352 N.Y.S.2d 919, 923, 308 N.E.2d 439 (1974) (denial of motion to vacate guilty plea); Litz Enter., Inc. v. Standard Steel Indus., Inc., 57 A.D.2d 34, 394 N.Y.S.2d 765, 768-69 (4th Dep't 1977) (A party will not be denied the benefits of res judicata where a final order on the merits has not been reduced to a formal judgment, it is on the merits and the time to appeal has expired. The burden of proving that the prior judgment was on the merits is on the party seeking to rely upon the judgment.)) Since the disciplinary proceedings are still underway, the Appellate Divisions' rulings on plaintiffs' motions are not yet a final orders, however. This fact should not work to the plaintiffs' advantage either. While an interlocutory order is not usually res judicata, In re Levine, 177 Misc. 412, 32 N.Y.S.2d 218 (1941), aff'd, 263 A.D. 1013, 34 N.Y.S.2d 414 (1942), the Second Circuit has also stated that "it cannot be the meaning of Rooker-Feldman that, while the inferior federal courts are barred from reviewing final decisions of state courts, they are free to review interlocutory orders." Doctor's Assoc., Inc. v. Distajo, 107 F.3d 126, 1997 U.S. App. LEXIS 3243, 1997 WL 74123, at *14 (2d Cir. 1997).
An examination of the parties' moving papers and the decision issued by the Appellate Division shows that plaintiffs raised their due process claims, as they were entitled to, in the motions before the state court. (See 1995 Yanarella Aff. Exh B, including, inter alia,: (1) Statement in Opposition to Motion for Leave to Appeal (filed in the New York Court of Appeals, June 2, 1993), (2) Affirmations in Opposition (filed in the Appellate Division, Second Department, December 16, 1992)). Moreover, attorneys, such as plaintiffs, are entitled as of right to appeal the outcome of a disciplinary proceeding, subject to the limitations prescribed in the New York State Constitution dealing with the jurisdiction of the Court of Appeals. 6 N.Y.JUR.2D "Attorneys" § 33 (1996), (citing Javits v. Stevens, 382 F. Supp. 131, 141 (S.D.N.Y. 1974) ("Under New York law, an appeal may be taken as of right only if there is a dissent in the appellant's favor, or a reversal of the court below, or a substantial constitutional question is directly involved.")). Thus, if the plaintiffs are given a full and fair opportunity to litigate that claim in the state courts, this action is barred.
We are guided in this situation by the Second Circuit's decision in Temple of the Lost Sheep, Inc. v. Abrams, 930 F.2d 178 (2d Cir.), cert. denied, 502 U.S. 866, 116 L. Ed. 2d 153, 112 S. Ct. 193 (1991). There, the New York Attorney General had instigated a criminal investigation of the Temple to determine whether it was engaging in fraud and had obtained subpoenas against several Temple members including its "founder and 'titular head,'" Henry Mackey. Id. at 180. Without complying with the subpoenas, Mackey and the Temple brought a § 1983 suit against the Attorney General, amongst others, alleging a conspiracy to violate their constitutional rights and seeking injunctive relief from the subpoena as well as compensatory and punitive damages. Id. Meanwhile, the Attorney General moved in state court for an order to compel compliance with the subpoena; Mackey and the Temple cross-moved to quash the subpoenas on the grounds that they were issued pursuant to a conspiracy to violate their civil rights. The Attorney General then moved in federal court for abstention pending the outcome of the motions in state court, which was granted. (The court abstained under the Younger doctrine and then stayed the remainder of the claims.) Id. at 181.
The state court then denied the motion to quash "thereby rejecting appellants' conspiracy claim." Id. The federal action was then allowed to proceed, and the district court found that the § 1983 claims were barred under the doctrine of collateral estoppel. The Second Circuit upheld the bar, explaining that since in New York a subpoena will be quashed if compliance will interfere with fundamental rights such as those guaranteed by the First Amendment, the state court had reached the constitutional claims. Id. at 183. Further, the district court had properly found that Mackey and the Temple could "adequately raise their constitutional challenges to the Attorney general's conduct in the pending state proceedings." Id. The Second Circuit noted that it was proper for the district court to stay, rather than dismiss, the complaint, since if appellants had been successful in the state court, their only recourse would be to quash the subpoenas -- they were entitled to no damages. It concluded:
Thus, by staying the federal action, [the district judge] provided appellants with the opportunity for returning to federal court to receive monetary or injunctive relief for any constitutional violations found by the state court. Conversely, the judge also recognized in the order that if appellants were not successful in the state court, then those state court findings could have preclusive effect against appellants upon their return to federal court.