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United States District Court, Southern District of New York

March 12, 1999


The opinion of the court was delivered by: Barrington D. Parker, Jr., District Judge.

Village resident brought § 1983 suit against village and its officials, housing authority and its director, and religious association and its leader, asserting, inter alia, that the existence and operation of the village as a theocracy violated the Establishment Clause of the First Amendment and the New York State Constitution, and seeking the dissolution of the village and damages. On defendants' motion to dismiss, the District Court, Barrington D. Parker, Jr., J., held that: (1) res judicata barred resident's claim against village and its officials, and (2) resident lacked standing to assert claim against village officials in their individual capacities, housing authority, its director, religious association, or its leader.

Ordered accordingly.

Plaintiff Joseph Waldman has asserted claims pursuant to 42 U.S.C. § 1983 against the Village of Kiryas Joel, its officials in their individual and official capacities, Vaad Hakiryah of Kiryas Joel, an association of the members of the Congregation Yetev Lev, and a former trustee and leader of the Vand Hakiryah, Meyer Hirsch. He also asserts claims against the Town of Monroe, the Orange County Board of Elections, and the Village of Kiryas Joel Housing Authority and its director, Moses Neuman ("Waldman II").

Waldman's first claim asserts, in essence, that the existence and operation of the Village as a theocracy violates the Establishment Clause of the First Amendment to the United States Constitution as well as the New York State Constitution. His second claim, which is not involved in this motion, asserts that the defendants have infringed his right to vote in violation of the Fourteenth Amendment to the United States Constitution and the New York Constitution. As relief, Waldman seeks, the dissolution of the Village and damages. The Village, its officials, the Housing Authority and Moses Neuman, and Vaad Hakiryah and Meyer Hirsch move pursuant to Fed.R.Civ.P.Rule 12(c) to dismiss Waldman's first claim based on res judicata and a lack of standing. For the reasons stated below, the motion is granted.


In deciding this motion brought under Fed.R.Civ.P.Rule 12(c), the same standards applicable to a motion under Rule 12(b)(6) apply. Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir. 1994). Thus, the Court must accept the allegations in Waldman's complaint and construe them in his favor. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); Gant v. Wallingford Bd of Educ., 69 F.3d 669, 673 (2d Cir. 1995). A defense of res judicata may be tested by a motion pursuant to Rule 12(q). See Yaba v. Roosevelt 961 F. Supp. 611, 615 n. 2 (S.D.N.Y. 1997). The Court may take notice of the submissions in prior actions that form the basis for the defense of res judi- cata. See Day v. Moscow, 955 F.2d 807, 811 (2d Cir. 1992) (when all relevant facts are shown by the court's own records, of which the court may take notice, res judi- cata may be tested on a Rule 12 motion); see also Shuttlesworth v. Birmingham, 394 U.S. 147, 157, 89 S.Ct. 935, 22 L.Ed.2d 62 (1969) (taking judicial notice of related case between same parties).

The following facts have been construed with these principles in mind. The Village of Kiryas Joel, in Orange County, New York is a religious enclave of Satmar Hasidim who are practitioners of a strict form of Judaism. The residents of Kiryas Joel are extremely religious people who make few concessions to the modern world and go to great lengths to avoid assimilation into it. They interpret the Torah strictly, segregate the sexes outside the home, speak Yiddish as their primary language, eschew television, radio and English language publications, and dress in distinctive ways. See Bd. of Educ. of Kiryas Joel v. Grumet et at., 512 U.S. 687, 690— 691, 114 S.Ct. 2481, 129 L.Ed.2d 546 (1994).

Plaintiff Joseph Waldman is a resident of the Village and a member of the Committee for the Well—Being of Kiryas Joel, a voluntary association concerned with the affairs of the Village. Waldman was a member of the main synagogue in the Village, Congregation Yetev Lev ("Congregation"), until he was expelled by the Congregation in 1989, and labeled a dissident. This action, as well as related litigation, discussed below, arise from what Waldman claims to be an on-going campaign of intimidation and religious-based harassment imposed on the Village and its dissidents by the theocracy that controls the congregation and dominates life in the village. Waldman's various complaints have challenged what he claims to be the pervasive and unconstitutional entwinement between secular and religious affairs in Kiryas Joel.

In October 1997, following earlier proceedings in this case, this Court granted Waldman a preliminary injunction requiring the movement of the polling place in the Village from the Congregation's synagogue to a neutral site after Waldman demonstrated that voting arrangements impermissibly burdened the right of Waldman and his fellow dissidents to vote in local elections. See Waldman v. Village of Kiryas Joel et at., 97 Civ 7506 (S.D.N Y Oct. 27, 1997).

The complaint in this action—Waldman II  — alleges that in
May 1989, Grand Rabbi Teitelbaum, Abraham Wieder, who at that point was
the deputy mayor of the Village, and Meyer Hirsch met with building
contractors doing business in the Village. The Grand Rabbi allegedly told
the contractors that in order to secure building permits from the
Village, contractors had to donate $10,000 to the Congregation for each
housing unit to be built. Village officials required residents to make
donations to the Congregation to obtain Village approval for any
improvements or additions to their property. Further, Village officials
also required donations to the Congregation from dissidents when their
contractors applied for building permits. At the same May 1989 meeting,
the Grand Rabbi also allegedly ordered that no one would be permitted to
reside in the Village without the prior written permission of the
Congregation. Further, Abraham Weider, has allegedly announced that the
Village will not enforce the laws of the State of New York when they
conflict with Jewish law.

Since 1989, Village officials allegedly have denied dissidents apartments in both public and private housing. On or about July 1996, the Director of the Kiryas Joel Housing Authority, Moses Neuman, allegedly told Alter Goldberger that because he had been expelled from the Congregation, he would never obtain housing in the Village. Goldberger nonetheless applied for
an apartment in a public housing apartment, and learned in January 1997, that he had been eliminated from the lottery for public housing. In October 1996, Neuman allegedly refused to give a housing application to Natan Hecht, again, because of his association with religious dissidents.

In June 1997, members of the Committee for the Well-being of Kiryas Joel allegedly notified the Village Board of its intention to hold a peaceful demonstration in Sanz Court where the Rabbi lives. Sanz Court is a public street in the Village. In response, the Village Board passed an ordinance prohibiting anyone who did not live on Sanz Court from walking on that street. These allegations form the basis of Waldman II.

Waldman II  follows on the heels of prior litigation arising from
religious and political differences within the Village. In 1995,
Waldman's brother Zalman Waldman along with Meyer Deutsch, A.H. Weinstock
and Khal Charidim Kiryas Joel, a religious corporation which operates as
a congregation, brought suit in the Southern District of New York,
against the Village, the mayor of the Village, Leopold Lefkowitz and the
deputy mayor of the Village, Abraham Weider. Joseph Waldman was the party
representative of Khal Charidim. See Khal Charidim Kiryas Joel, Zalman
Waldman, Meyer Deutsch & A.H. Weinstock v. Village of Kiryas Joel,
Leopold Lefkowitz Mayor, and Abraham Weider, Deputy Mayor, Village of
Kiryas Joel, 95 Civ. 8378 (Rakoff, J.) ("Khal Charidim").

In Khal Charidim,  the plaintiffs alleged that the defendants wrongly
deprived them of a place to assemble and to pray. Allegedly, when the
plaintiffs announced their intention to use a building on 3 Van Buren
Drive for religious services, the defendants cited the owners of the
building for numerous violations of building, zoning and sewer laws and
imposed heavy fines on them.

The plaintiffs in Khal Charidim  also claimed they had been deprived of
equal protection and that the defendants had violated their rights to the
free exercise of religion and to freedom of assembly. For relief, the
plaintiffs requested the Court to strike, as unconstitutional, the
provision in the Village's zoning ordinance that required any building
functioning as a synagogue to be located on a minimum of two acres,
compensatory and punitive damages and attorneys' fees.

In early 1997, Joseph Waldman, along with the Committee for the Well-being for Kiryas Joel, Nathan Hecht and Atler Goldberger sued the Village of Kiryas Joel, and Moses Neuman as the Housing Director of Kiryas Joel in this Court. See Waldman, et al. v. Village of Kiryas Joel, Housing Director of the Village of Kiryas Joel, Henry Cisneros, Secretary of the United States Department of Housing and Urban Development, and Joseph B. Lynch, Commissioner of the New York State Division of Housing and Community Renewal, 97 Civ. 74 (S.D.N.Y. Jones, J.) ("Waldman I").

In Waldman I,  the plaintiffs described the Village's residents as
deeply religious individuals and contended that the plaintiffs' open
pursuit of their religious beliefs had resulted in their expulsion from
the Congregation and in the expulsion of their children from the
Congregation's religious school. The plaintiffs alleged that the Village
had a policy of requiring religious approval prior to the sale or rental
of dwelling units and that a $10,000 contribution to the Congregation was
required to build or sell housing units in the Village. The plaintiffs
also alleged that Neuman told Hecht and Goldberger that neither they, nor
any other dissident, would be allowed to enter the Village's housing
projects or secure an apartment in them.

Waldman I  alleged that the conduct described constituted an ongoing
governmental policy to advance religion and amounted to an excessive
entanglement of the government with religion. Specifically, the complaint
in Waldman I alleged:

  By virtue of the conduct herein alleged, the
  defendants deprived, and are continuing to
  deprive, plaintiff Waldman, individually, and
  plaintiff Committee, collectively, of the
  rights, privileges and immunities secured by
  the Constitution of the United States,
  specifically: he right of plaintiffs under
  the First Amendment, as taxpayers, to be free
  from government funded religious practice, from
  governmental advancement of religion, and from
  governmental entanglement with religion.

For relief, the plaintiffs sought an order declaring that the defendants' conduct violated the Establishment and Free Exercise Clauses, the Equal Protection Clause, and the Fair Housing Act. The plaintiffs also sought a preliminary and permanent injunction barring the United States and New York State from delegating to the Village discretionary authority in the distribution of government subsidized dwelling units.

  Khal Charidim  went to trial beforere Judge Jed Rakoff in March 1997.
  Plaintiffs pre-trial brief stated: plaintiffs allege and shall prove
  that theocratic considerations underlie their mistreatment; they will
  show that the "majority' has established a state religion in Kiryas
  Joel, one impermissibly permeating all forms of secular an political
  life and that the oppression experienced by plaintiffs and those
  associated with them derives from their refusal to accept the
  dictates—in the secular sphere—imposed by this religious
  majority. Allowing such a regime to dominate political life is
  tantamount to allowing the domination by one religious sect of the
  political life of the community, the establishment of a state
  religion. Such an actuality violates the First Amendment's ban on
  establishment as inhibits the insular minority's right to freely
  exercise its own religious freedom.

According to the defendants in Waldman II,  these allegations are the
prelude to res judicata  since they reflect the close similarity of the
issues litigated in Khal Charidim  and those asserted in Waldman II.
Waldman, on the other hand, maintains that this language, in pre-trial
brief, did not purport to amend the complaint or to assert religious
fusion issues as claims. He also maintains that any trial evidence in
Khal Charidim addressing the fusion of religious and secular authority
was meant as background to discrimination claims and does not mean that
the fusion issues were litigated.

In the parties' joint pre-trial order in Khal Charidim,  however, the
plaintiffs listed, as issues of ultimate fact to be tried, their
contentions that: (1) there is a strong interlocking leadership in the
Village of Kiryas Joel between secular and religious institutions, (2)
the Village of Kiryas Joel government is an extension of the Congregation
Yetev. Lev and the rule of Grand Rabbi Moses Teitelbaum and his
appointee, Rabbi Aron Teitelbaum, and (3) the Village government is not
independent of religious control, but acts to maintain the religious
hegemony of the dominant congregation.

On the fifth day of trial in Khal Charidim the parties agreed to a
settlement. The Village agreed: (1) not to discriminate against any
person with regard to any service or benefit offered by the Village, (2)
to issue a permit for the facility on 3 Van Buren road, (3) to establish
with the plaintiffs a community relations board that would resolve any
grievances with respect to the distribution of services, (4) that members
of the Village school board would serve on no more than one board within
the Village, and (5) to pay $300,000 to Khal Charidim. The Court retained
jurisdiction to enforce the settlement. Finally, as part of the
settlement, the parties agreed to the dismissal, with prejudice, not only
of Khal Charidim, but also  Waldman I. The stipu lation of discontiuance
of Waldman I was filed on April 15, 1997.

Subsequent to the settlement agreement, the plaintiff brought a motion for contempt, alleging that the defendants had failed to abide by certain provisions of the settlement agreement, and the defendants cross-moved alleging certain various misconduct by the plaintiffs. The defendants also claimed that the Housing Authority was not an agency of the Village and that it had never been named or served in Khal Charidim or Waldman I.

Judge Rakoff, in a Memorandum and Order dated September 4, 1997, concluded that the Housing Authority was not bound by the settlement agreement since it was neither a party to Khal Charidim nor to the agreement. He found that, while as part of the bargained-for settlement, the plaintiffs agreed to dismiss, with prejudice, another action then pending against the Village, the Housing Authority was not a defendant in that action (Waldman I). On October 9, 1997, Waldman filed the complaint now before this Court (Waldman II).

Waldman I and Waldman II  have the following issues in common:

  (1) Expulsion of dissidents (Waldman II Complaint, I, ¶ 24, 25; Waldman
  I Complaint, ¶ 19);

  (2) Expulsion of dissidents' children from parochial schools (Waldman
  II Complaint, ¶ 48; Waldman I Complaint, ¶ 20);

  (3) Denial of public housing to dissidents Hecht and Goldberger
  (Waldman II Complaint, ¶¶ 72— 78; Waldman I Complaint, ¶¶
  26— 27);

  (4) Prior approval by the Congregation of new residents (Waldman 11
  Coinplaint, ¶¶ 68, 73; Waldman I Complaint, ¶¶ 53— 60);

  (5) Requirement of a contribution to the Congregation for a building
  permit (Waldman II Complaint, ¶¶ 59— 67; Waldman I Complaint ¶¶
  56, 61);

  (6) Village incorporated solely for the benefit of Satmar Hasidic
  (Waldman II) Complaint, ¶¶ 15— 20, Waldman I Complaint, ¶¶
  11— 13; and

  (7) Overlap between Village leadership and membership to Congregation
  (Waldman II Complaint, ¶ 21— 22, 45; Waldman I Complaint, ¶ 19).

Khal Charidim and Waldman II  have the following issues in common:

  (1) Expulsion of dissidents (Waldman II Complaint, ¶¶ 24, 25; Khal
  Charidim Complaint, ¶¶ 28— 29);

  (2) Expulsion of dissidents' children from parochial schools (Waldman
  II Complaint, ¶ 48; Khal Charidim Trial Transcript, pages 134—

  (3) Interference with Waidman's candidacy for school board (Waldman II
  Complaint, ¶¶ 45— 53; Khal Charidim Trial Transcript, pages
  134— 137);

  (4) Termination of dissident Hecht from Village employment (Waldman II
  Complaint, ¶ 26; Khal Charidim Trini Transcript, page 715);

  (5) Location of polling place in the Congregation (Waldman II
  Complaint, ¶¶ 29, 38; Khal Charidim Trial Transcript, pages 137—

  (6) Prior approval by the Congregation of new residents (Waidman II
  Complaint, ¶¶ 68, 73; Khal Charidim Complaint, ¶ 29(d));

  (7) Creation of special school district (Waldman II Complaint, ¶ 23;
  Khal Charidim Trial Transcript, pages 115— 117);

  (8) Requirement of contribution to the Congregation for a building
  permit (Waldman II Complaint, ¶¶ 59— 67; Khal Charidim Brief in
  Opposition to Summary Judgment, pages 6— 8);

  (9) Non-enforcement of New York law that conflicts with Village
  officials' adherence to Jewish law (Waldman II Complaint, ¶¶ 69—
  70; Khal Charidim Trial Transcript, pages 568— 572); and

  (10) Overlap between Village leadership and membership of Congregation
  (Waldman II Complaint, ¶¶ 21— 22, 45; Khal

Charidim Joint Pre—Trial Order, page 12, ¶ 1).

New facts alleged in Waldman II  are:

  (1) The members of the Committee for the Well—Being of Kiryas
  Joel's attempt to have a demonstration at Sanz Court;

  (2) The interference with Waldman's 1997 candidacy for public office;

(3) The location of the polling place for the 1997 election.

The principle issue on this motion is whether these similarities in the matters raised and Waldman's participation in the prior suits give rise to res judicata.


1. Res Judicata

" 'The doctrine of res judicata provides that when a final judgment has
been entered on the merits of a case, [i]t is a finality as to the claim
or demand in controversy, concluding parties and those in privity with
them, not only as to very matter which was offered and received to
sustain or defeat the claim or demand, but as to any other admissible
matter which might have been offered for that purpose.'" Interoceanica
Corp. v. Sound Pilots, Inc.,  107 F.3d 86, 90 (2d Cir 1997) (citation
omitted). Thus, res judicata "prevents a party from litigating any issue
or defense that could have been raised or decided in a previous suit,
even if the issue or defense was not actually raised or decided. Woods
v. Dunlop Tire Corp., 972 F.2d 36, 38 (2d Cir. 1992) (quoting Clarke v.
Frank, 960 F.2d 1146, 1150 (2d Cir. 1992)). "Whether or not the first
judgment will have preclusive effect depends in art on whether the same
transaction or connected series of transactions is at issue, whether the
same evidence is needed to support both claims, and whether the facts
essential to the second were present in the first." Id. (citing NLRB v.
Unite Technologies, 706 F.2d 1254, 1260 (2d Cir. 1983)).

The case law requires that the concept of "transaction" receive "a
flexible, common-sense construction" that recognizes the practical
realities presented. Interceanica, 107 F.3d at 90 (citing Restatement
(Second) of Judgments § 24(2)). of primary importance is the
identity of facts surrounding the occurrence which constitutes the cause
of action, as opposed to the legal theory within which a complaint is
framed. Woods 972 F.2d at 39 (citing Berlitz Schools of Languages of
America, Inc. v. Everest House,  619 F.2d 211, 215 (2d Cir. 1980)
("[W]hatever legal theory is advanced, when the factual predicate upon
which claims are based are substantially identical, the claims are deemed
to be duplicative for purposes of res judicata.")). In sum, new legal
theories do not amount to a new cause of action as to defeat res
judicata. In re Teltronics Services, Inc., 762 F.2d 185, 193 (2d Cir.
1985). Further, a stipulation of dismissal with prejudice is considered a
final judgment on the merits for purposes of res judicata, Chase
Manhattan, N.A v. Celotex Corp.,  56 F.3d 343, 345 (2d Cir. 1995), as is
a settlement agreement, unless the parties provide otherwise. Greenberg
v. Bd. of Governors of Federal Reserve System,  968 F.2d 164, 169 (2d
Cir. 1992); see also Cahill v. Arthur Andersen & Co.,  659 F. Supp. 1115,
1120 (S.D.N.Y. 1986).

The pleading of additional incidents in a second complaint will not
necessarily bar the application of res judicata. See Yaba v. Roosevelt,
961 F. Supp. 611, 622 (S.D.N.Y. 1997) (plaintiffs additional incidences
of harassment were insufficient to defeat res judicata  because
allegation of a hostile work environment, by its nature, included any
claims of an on-going pattern of conduct, and regardless of pleadings the
plaintiffs claims involved a single transaction). Further, the fact that
additional incidents alleged in a subsequent action would, by
themselves, be insufficient to state a claim, can demonstrate that the
claim in the second is part of the same transaction as the first action.

The defendants claim res judicata applies here because the fundamental
basis of all three lawsuits has remained the same—namely that the
Congregation's alleged dominance of the Village, its politics and
municipal services violates the Establishment Clause. The defendants
posit that while the prior two lawsuits addressed different manifestations
of the Establishment Clause violation (Khal Charidim involved
discriminatory zoning enforcement and Waldman I involved discrimination
in public and private housing), the fundamental premise has remained
constant. The defendants also contend that the differences in relief
requested in the prior actions do not preclude the operation of res
judicata because "a party cannot split [a] claim by first seeking one
type of remedy in one action and later asking for another type of relief
in a second action Bloomquist v. Brady,  894 F. Supp. 108, 115 (W.D.N.Y.
1995); see Sure—Snap Corp. v. State Street Bank & Trust Co.,
948 F.2d 869, 875 (2d Cir. 1991); Hirschfeld v. Spanakos, 871 F. Supp. 190,
194 (S.D.N Y 1994).

Waldman claims res judicata  does not preclude this action because: (1)
evidence of government entanglement with religion was relevant, but not
necessary, to prevail in the prior litigations, (2) conduct offending the
Establishment Clause is on-going in the sense that it does not stem from
a business transaction or from a series of events that can be
extinguished by operation of law, (3) this case relies upon facts that
postdate the prior lawsuits, (4) Waldman was not in privity with the
plaintiffs in the Khal Charidim suit, (5) Waldman proceeded in a different
capacity in Waldman I, and (6) the Khal Charidim settlement does not bind
Waldman because the Housing Authority disavowed it. The Court will
consider each of these contentions in turn.

Waldman contends that while the facts necessary to prevail on his dissolution claim may have constituted relevant evidence in Khal Charidim and Waldman I, they were not "necessary" or essential to the adjudication of those prior actions because they each ultimately turned on whether the Village and its agents singled out religious dissidents in the distribution of Village services, not on whether religion was inherently entangled in the Village's operation, the critical inquiry in this case.

This argument is unpersuasive. An essential objective of res judicata is to "relieve parties of the cost and vexation of multiple lawsuits, [and to] conserve judicial resources." Allen v. McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980). The incentive of res judicata is to litigate all available claims in one action. Under the rather unusual constellation of facts presented here, Waldman's argument that the evidence was relevant, but not necessary, is at variance with the principal that res judicata attaches even if the claims are based upon different legal theories or the complaint seeks different remedies. See Brooks v. Giuliani, 84 F.3d 1454, 1463 (2d Cir. 1996).

The evidence Waldman points to is "not necessary" only because he chose to moderate his pursuit of particular legal theories and particular remedies. These differences should not be permitted to obscure the fact that the same substantial body of evidence and the same core grievance was relevant to all these actions. In other words, Waldman was aware, during the prior actions, of the essential issues and facts asserted in the present case. The importance of, or the weight given to, the evidence in the disposition of prior actions is not controlling as to whether res judicata attaches. Were those factors dispositive, res judicata, a principle of repose, could easily be frustrated. The case law makes clear that the relevant inquiry is not what evidence was introduced or how aggressively its significance was argued, but whether a particular claim could have been raised in a prior suit. In any event, since the Waldman I complaint presented Establishment Clause contentions, it is difficult to see why evidence supporting this claim in Waldman I could properly be denominated as not "necessary" to the action.

The plaintiff also asserts that res judic ta does not apply because his Establi ment Clause claim does not stem from a business agreement or from similar series of events in respect of which the claim may be extinguished by operation of law. Waldman relies on our Circuit's decision Interoceanica Corp. v. Sound Pilots, Inc., 107 F.3d 86 (2d Cir. 1997) which noted:

  [t]o ascertain whether two actions spring from the same 'transaction'
  or 'claim,' we look to whether the underlying facts are "related in
  time, space, origin, or motivation, whether they form a convenient
  trial unit, and whether their treatment as a unit conforms to the
  parties' expectations or business understanding or usage.'

Interoceanica,  107 F.3d at 90— 91 (citing Restatement (Second) of
Judgments § 24(b)). Interoceanica also stated that "transaction"
"must be given a flexible, common-sense construction that recognizes the
reality of the situation." Id. a 91. Essentially, Waldman contends that
because his broad-based dissolution claim Waldman II stems from incidents
that span two decades, it is not sufficiently connected in time or space
to the prior two cases and traditional res judicata principles are

Waldman's assertion is not convincing since courts have consistently
applied res judicata to claims extending over time or involving seriatim
transactions and events so long as they are sufficiently related. Norman
v. Niagara Mohawk Power Corp., 873 F.2d 634, 638 (2d Cir. 1989);
Bloomquist, 894 F. Supp. at 115; Yaba  961 F. Supp. at 622 (holding
plaintiff's second complaint barred because an allegation of hostile, work
environment includes claims of an ongoing pattern); see also Woods, 972
F.2d at 38— 39 (holding civil rights act claim barred by res
judicata  because both suits were based on the same factual predicate
regardless of any new legal theory). Khal Charidim, Waldman I and Waldman
II  which involved discrimination in zoning, discrimination in the
provision of housing, and the existence of a theocracy, respectively,
were, if the Court's understanding of Interoceanica  is correct, a
convenient trial unit, and indeed, the facts of the actions are related
in time, origin and motivation. Although the three suits have different
embellishments of fact, they all originate from the same type of
challenged conduct—government sponsored religious discrimination.
Also, while the legal theories differ, the motivation by the
plaintiffs—the cessation of discrimination in the Village—is
the same. The chief participants in the relevant events are the same: the
Village, the Congregation, the Village officials and the Housing
Authority. Since at a minimum, all three suits would require proof that
the Village acts in a discriminatory manner in the provision of
services, the claims arise out of the same nucleus of operative facts.

Waldman's contention that res judicata does not, apply because he
relies on facts that post-date the prior lawsuits also is not
convincing. As previously noted, the pleading of subsequent acts will not
defeat res judicata when these additional facts arise from the same core
of operative facts. See Niagara Mohawk Power Corp., 873 F.2d at 638;
Yaba,  961 F. Supp. at 622. Further, Waldman's contention that the action
relies on facts that have persisted following the settlement of Khal
Charidim and Waldman I does not hinder the application of res judicata
because "this overwhelming bulk of the evidence remains the same, and the
additional facts pertain to the same pattern and practice of
unconstitutional discrimination. That these additional facts might be
insufficient by themselves to prove an Establishment "Clause aim further
demonstrates that the claims in the current complaint are interdepen dent
with "those of the prior actions. See Yaba, 961 F. Supp. at 622.

Waldman also claims that res judicata does not attach because he was not in privity with the plaintiffs in Khal Charidim and he exercised no control over the suit. Res judicata, of course, is limited to actions involving the same parties or their privies. Chase, 56 F.3d at 346. A privity analysis for res judicata purposes is broader than a traditional privity analysis. So whether privity exists is a functional inquiry and not merely a static examination of legal status. Id.; Alpert's Newspaper Delivery v. New York Times, 876 F.2d 266, 270 (2d Cir. 1989) (Privity is an issue of substance rather than the names in the caption of the case).

Our Circuit has found privity when: (1) a non-party consented to be
bound by a settlement agreement, Tourangeau v. Uniroyal,  101 F.3d 300,
306 (2d Cir. 1996), or (2) a non-party's interests in the prior
litigation are virtually identical—i.e. virtual representation,
Chase, 56 F.3d at 346, or (3) a non-party controlled and financed both
suits. Alpert's Newspaper,  876 F.2d at 270.

Here, Waldman consented to a dismissal with prejudice of Waldman I pursuant to the settlement of Khal Charidim and plaintiffs received, inter alia, $300,000. Waldman wrote to his counsel in Waldman I stating, "I am satisfied with the terms of the settlement reached in Khal Charidim Kiryas Joel v. Village of Kiryas Joel and understand that one term of that settlement includes dismissal of this action." The Court takes Waldman's statement to his counsel and his counsel's subsequent filing of a stipulation of discontinuance to mean that Waldman consented to be bound by the settlement agreement. This consent allows res judicata to apply since a voluntary dismissal with prejudice is an adjudication on the merits. Chase, 56 F.3d at 345 (citation omitted).

Waldman also argues that he is not in privity with the plaintiffs in Waldman I because he proceeded in a different capacity. Waldman claims that he acted there in his capacity as leader of a group of dissidents who supported the individual claims, and that he was neither injured nor seeking relief under the Fair Housing Act. The Waldman I amended complaint, however, makes no such distinction:

  [D]efendants deprived, and are continuing to deprive, plaintiff
  Waldman, individually, and plaintiff Committee, collectively, of the
  rights, privileges and immunities secured by the Constitution of the
  United States, specifically: the right of plaintiffs under the First
  Amendment, as taxpayers,  to be free from government funded religious
  practice, from governmental advancement of religion, and from
  governmental entanglement with religion.

Waldman I Complaint ¶ 36, 63 (emphasis added). Considering the representations in the amended complaint which delineated Waldman as both an individual and collective litigant, his claim that he was solely a representative is unsupported by the record.

Although Waldman was not a named plaintiff in Khal Charidim, the record reflects that he participated in the suit in various capacities. During a deposition for Khal Charidim, counsel for Khal Charidim stated that Waldman was a member of the congregation and the representative for the congregation. Indeed, Waldman also represented to this Court at a hearing on October 27, 1997*fn1, that he was a party representative of Khal Charidim and he sat at the counsel table during proceedings. Further, the plaintiffs in Khal Charidim were banished from the founding synagogue. Consequently, Waldman and the plaintiffs in Khal Charidim shared very closely aligned, if not identical, interests as dissidents within the Village. These factors lead the Court to conclude that Waldman participated in a representative capacity in Khal Charidim and that Khal Charidim had the same interests in litigating the case as did Waidman. Accordingly, res judicata applies because "[res] judicata may bar non-parties to a earlier litigation not only when there was a formal arrangement for representation in, or actual control of, the earlier action but also when the interests involved in the prior litigation are virtually identical to those in the later litigation." Chase, 56 F.3d at 345. In any event, Waldman's participation in Waldman I, and its subsequent voluntary dismissal with prejudice is sufficient for res judicata. Id.

Waldman claims, however, the interests of the plaintiffs in Khal
Charidim and Waldman I are not the same as his in this case because in
the prior suits a dissolution of the Village would have hindered their
specific objectives of obtaining a place to worship and subsidized
housing. All plaintiffs, however, had the incentive to end discrimination
and harassment by the Village. Certainly this includes the objective of
halting continuing acts of discrimination. Specifically, the settlement
agreement in Khal Charidim which authorized a payment to the plaintiffs
of $300,000, also provided that the Village would no longer discriminate
in the provision of services, and that a community relations board would
be established to negotiate any future disputes regarding the provision
of services. Thus, all parties had the incentive to litigate the actions
with the goal of ending religious discrimination in the Village, and to
further this goal, create the dispute resolution mechanism. The fact that
Waldman now seeks relief that is somewhat different than the relief
previously sought does not bar the application of res judicata. See
Sure—Snap,  948 F.2d at 875 ("A party may not avoid the preclusive
effect of res judicata by asserting a new theory or a different remedy.")
(citation omitted); see also Restatement (Second) of Judgments,  §
24, 25.

Finally, Waldman argues that the Khal Charidim settlement does not bind him because the Housing Authority, claiming that it had been improperly named, disavowed it. Apparently, because of a pleading error, the Housing Authority was not properly named in Waldman I because Neuman was mistakenly identified and sued as a Village official—the Housing Director of the Village of Kiryas Joel—instead of as the Director of the Housing Authority, an autonomous entity created by state statute. Judge Rakoff held that the Housing Authority was a party niether to Waldman I nor to its settlement agreement.

The defendants claim that notwithstanding the absence of a binding
final judgment against the Housing Authority, Moses Neuman, Vaad
Hakiryah, and its leader Meyer Hirsch, res judicata  bars litigation
against them, not on the theory that these parties were actual named
defendants in the prior action, but that res judicata is triggered by
their "close and significant relationship", to the prior named

Res judicata  is available to a newly named defendant with a close or
significant relationship to a defendant previously sued, when the claims
in the new action are essentially the same as those in the prior action
and the defendant's existence and participation in the relevant events
was known to the plaintiff. See Gambocz v. Yelencsics,  468 F.2d 837,
840— 842 (3d Cir. 1972) (subsequent action barred against
co-conspiritor when essential allegations of second complaint paralleled
those in the first, and sole material change was the addition of certain
defendants, some of whom had been named in the original complaint as
participants in a conspiracy); &)Somerville House Management, Ltd. v. Arts
& Entertainment Television Network,  92 cv 4705, 1993 WL 138736, at *3
(S.D.N.Y. April 28, 1993); Cahill v. Arthur Andersen & Co.,
659 F. Supp. 1115, 1121— 1123 (S.D.N.Y. 1986), affd, 822 F.2d 14(2d
Cir. 1987);Ruskay v. Jensen, III, 342 F. Supp. 264, 2 (S.D.N.Y. 1 p. 72),
aff'd sub nom, Ruskay v. Waddell,  552 F.2d 392 (2d Cir.), cert. denied,
434 U.S. 911, 98 S.Ct. 312, 54 L. Ed2d 197 (1977) (finding that
sufficient relationship existed between

alleged co-conspirators to permit newly named co-conspirators to assert
res judicata when plaintiffs settled first action fully aware of the
newly named defendants' role).

These cases penalize a plaintiff for asserting in a subsequent action
the same claim against a co-conspirator whose participation in the
plaintiff's prior action was clear, but whom the plaintiff chose not to
sue earlier. The courts have reasoned that because co-conspirators were
"in privity" with prior defendants they were etititled to res judicata.
See Somerville House Management, Ltd.,  1993 WL 138736, at *2. As a
general rule, privity exists when the interests of a nonparty were
adequately represented in the initial action. Expert Elec., Inc. v.
Levine, 554 F.2d 1227, 1233 (2d Cir. 1977). The record does not
demonstrate that the interests of the Housing Authority or Vaad Hakiryah
were represented by the Village in Waldman I such that they can be deemed
to have had a sufficiently close relationship so that privity existed.
Accordingly, res judicata does not apply in the absence of a final
judgment touching the Housing Authority, Neuman, Vaad Hakiryab and
Hirsch. See Interoceanica,  107 F.3d at 90 (citation omitted).

The Village's current trustees, Mittelman, Wertzberger, Kahan and
Schwimmer, and the Village Clerk, Szegedin, were not parties in the two
prior lawsuits, but are newly added defendants in Waldman II. These
Village officials are entitled to res judicata because government
officials sued in their official capacities are generally considered to
be in privity with the governmental entity that they serve. See Micklus
v. Greer,  705 F.2d 314, 317 (8th Cir. 1983); Bloomquist v. Brady,
894 F. Supp. 108, 114 (W.D.N.Y. 1995). Moreover, res judicata also bars
litigation of Waldman's first claim against the Village officials in
their individual capacities. See Hirschfeld v. Spanakos,  871 F. Supp. 190,
193 a. 3 (S.D.N.Y. 1994). In sum, the Village, and its officials,
Weider, Mittelman, Wertzberger, Kahan, Schwimmer and Szegedin, in their
official as well as individual capacities, are entitled to res judicata
on Waldman's first claim.

2. Standing

Alternatively, the defendants claim that Waldman lacks standing to
pursue his Establishment Clause claim against the Vaad Hakiryah, Meyer
Hirsch, the Housing Authority, Moses Neuman, and the Village officials in
their individual capacities, because he has not alleged any injury in
fact and does not allege in his complaint that he is a taxpayer bringing
a taxpayer suit. In his brief, however, Waldman now claims that he has
municipal and federal taxpayer standing, but as defendants correctly
note, "[I]t is axiomatic that the Complaint cannot be amended by the
briefs in opposition to a motion to dismiss." O'Brien v. National
Property Analysts Partners,  719 F. Supp. 222, 229 (S.D.N.Y. 1989).

Since the jurisdiction of federal courts is limited to cases or
controversies, standing to sue is essential. See Valley Forge Christian
College v. Americans United for Separation of Church and State, Inc.,
454 U.S. 464, 471, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982); United States
v. City of New York,  972 F.2d 464, 470 (2d Cir. 1992) (citing ASARCO,
Inc. v. Kadish, 490 U.S. 605, 613, 109 S.Ct. 2037, 104 L.Ed.2d 696
(1989)). In order to have standing, a plaintiff must establish: (1) that
he personally has suffered some actual or threatened injury as a result
of the illegal conduct of the defendant, (2) that the injury fairly can
be traced to the challenged action, and (3) that the injury is likely to
be redressed by a favorable decision. Id. (citations omitted).

Waldman does not allege an injury in fact against the Housing Authority, Vaad Hakiryah, or the Village officials in their individual capacities. For example, there is no contention by Waldman that he applied for or was denied housing in the Village. In his complaint, in reference to Vaad Hakiryah, Waldman only states that it is "the vehicle by which impermissible entanglement between government and religion is effected." With respect to Hirsch, the leader of Vaad Hakiryah, and the Village trustees and clerk the only specific allegation in the complaint regarding their conduct pertains to extortion in the provision of building and sewer permits. But Waldman does not allege that he was torted or forced to make donations to the Congregation.

Waldman states in his brief, however, that he need not allege that the
defendants personally injured him because he has municipal and federal
taxpayer standing. See Flast v. Cohen,  392 U.S. 83, 102— 103, 88
S.Ct. 1942, 20 L.Ed.2d 947 (1968); Board of Educ. of Mt. Sinai Union Free
School Dist. v. New York State Teachers Retirement System,  60 F.3d 106,
110 (2d Cir. 1995); see also Frothingham v. Mellon, 262 U.S. 447, 486, 43
S.Ct. 597, 67 L Ed. 1078 (1923) (resident taxpayers may state to enjoin
an illegal use of the moneys of a municipal corporation). This contention
will not now be resolved in the absence of properly plead allegations in
the complaint of taxpayer standing. Leave is given to amend with respect
to this omission in the complaint within 14 days. See Fed. R.Civ.P. Rule
15. The Village officials in their individual capacities, the Housing
Authority and Neuman, and Vaad Hakiryah and Hirsch, are, however,
otherwise entitled to dismissal of Waldman's first claim for lack of
standing because the complaint fails to allege the requisite injury.


For the reasons stated above, the motion to dismiss Waldman's first claim based on res judicata is granted as to the Village, and its officials, in their official and individual capacities. The Housing Authority, Neuman Vaad Hakiryah and Hirsch are entitled to the dismissal of the first claim due to lack of standing. The parties shall appear for a conference pursuant to Fed.R.Civ.P. Rule 16 on March 19, 1999, at 9:30 a.m.

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