Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

SHMUEL SHMUELI, BASHE, INC. v. LOWENFELD

September 17, 1999

SHMUEL SHMUELI, BASHE, INC. D/B/A ISRAEL SHELANU, AND D/B/A AL HAMAKOM, PLAINTIFFS,
v.
JULIAN LOWENFELD, SMADAR NIMRODI, OFER NIMRODI, AMOS CARMELI, NATI ELDAR A/K/A EITAN ELDAR, HAARETZ DAILY NEWSPAPERS, LTD., AMOS SHOCKEN, PUBLICATION GROUP, INC. D/B/A SHALOM L.A., ISAAC SHEFER, CHAGAI CARMON, MAARIV MODIIN PUBLISHING CO., LTD., HACHSHARAT HAYISHUV, SHMUEL SEGAL, MAARIV PROMOTION, LTD., AND YAAKOV NIMRODI, DEFENDANTS.



The opinion of the court was delivered by: Glasser, District Judge.

MEMORANDUM and ORDER

Plaintiffs (hereinafter, the "ED-Plaintiffs"*fn1) bring this action for monetary damages in excess of 158 million dollars, alleging abuse of process, malicious prosecution, tortious interference with contract, fraud, conversion, breach of contract, civil racketeering under 18 U.S.C. § 1361 et seq., and antitrust violations. Defendants Lowenfeld and Carmon move to dismiss the Complaint as against them under Fed. R.Civ.P. 12(b)(2) and 12(b)(6). ED-Plaintiffs cross-move for an order entering judgment by default against non-appearing defendants Haaretz Daily Newspapers, Ltd., Publication Group, Inc., and Maariv Modiin Publishing Co., Ltd. (collectively, the "Corporate ED-Defendants").*fn2 For the reasons discussed below, the Complaint is dismissed in its entirety, without consideration of the merits of these motions.*fn3

BACKGROUND

These facts have been gleaned from the Complaint, and from the parties' submissions in support of the motions before the Court. Shmueli was the editor and owner of Israel Shelanu, a Hebrew-language newspaper published in the U.S. between 1979 and 1998. Shmueli was also the principal of Bashe Inc., and Chani, Inc., during that period. ED-Defendants Maariv and Haaretz own and operate two of the largest daily newspapers published in Israel. ED-Defendant Publication Group publishes Shalom L.A., a Los Angles-based newspaper.

More than a year ago, in April 1998, the Corporate ED-Defendants commenced an action in United States District Court for the Southern District of New York, against Shmueli and Israel Shelanu, and several others (referred to in that action, and hereafter, as the "Chani SD-Defendants"*fn4), alleging copyright infringement under 17 U.S.C. § 101 et seq., and related state law claims.*fn5 The Corporate ED-Defendants here, who are plaintiffs in the Southern District action, are represented in that action by Julian Lowenfeld, who is also one of the ED-Defendants here, as is Corporate ED-Defendants' Israeli counsel, Chagai Carmon. The posture of that case is relevant to this action, and so will be treated in some detail.

A. Procedural History of the Southern District Action*fn6

On May 18, 1998, Judge John G. Koeltl issued a preliminary injunction prohibiting the copying or reprinting of materials protected by copyright in the name of the Corporate ED-Defendants. Haaretz Daily News, et al. v. Chani, Inc., et al., 98 CV 2878 at Docket # 14-15. This injunction was apparently granted upon the consent of the defendants in that action, including Shmueli, and the Chani SD-Defendants. (Lowenfeld Affirmation, Exh. 5, Letter from counsel to Shmueli to Lowenfeld, dated May 14, 1998.) At the same time, Judge Koeltl ordered the Corporate ED-Defendants (the plaintiffs, in that action) to post a $70,000 bond, and referred the matter to Magistrate Judge James C. Francis, IV, for further proceedings, including discovery. Haaretz Daily News, 98 CV 2878 at Docket # 15.

About a month later, counsel to Shmueli applied for, and was granted, leave to withdraw as attorney for Shmueli and the Chani SD-Defendants. Id. at Docket # 23. Two weeks after that, Shmueli and others served an answer to the complaint, by their new attorney Andrew Cooper. Id. at Docket # 25. With issue joined, all parties in the action consented to proceed before Magistrate Judge Francis.*fn7 Id. at Docket # 29.

On November 16, 1998, the Corporate ED-Defendants (acting, of course, as SD-Plaintiffs) amended their complaint, adding Bashe Inc., and Al Hamakom as SD-Defendants. Id. at Docket # 35. In January 1999, Andrew Cooper applied for and was granted leave to withdraw as attorney for Shmueli and the Chani SD-Defendants. Id. at Docket # 38.

On March 22, 1999, Magistrate Judge Francis, having received no answer from Shmueli to the amended complaint, issued an order deeming that he had denied all material allegations in the amended complaint. Id. at Docket # 43.*fn8 Finding that no party had filed a timely jury demand, Magistrate Judge Francis also ordered that the action would be tried as a bench trial. Id.

This ruling provoked a response from Shmueli, proceeding pro se at the time, in the form of a letter to the Magistrate Judge Francis. In that letter, which is before the Court here as Exhibit G in support of the ED-Plaintiffs' motion, Shmueli sought leave to answer the amended complaint, and to assert counterclaims, notwithstanding the March 22 order. In response to Shmueli's letter-application, Magistrate Judge Francis issued an order granting Shmueli leave to serve and file a motion seeking leave to file an answer to the amended complaint, attaching the proposed pleading. Id. at Docket # 44. Magistrate Judge Francis ordered briefing on that motion to be complete by April 21, 1999, and then added this monitory note:

  Defendant Shmueli is cautioned that if his motion is
  not well-founded in fact and law as required by Rule
  11 of the Federal Rules of Civil Procedure, costs,
  including attorneys' fees, will be assessed.

Shmueli Affirmation, Exh. G.

On April 5, 1999, Magistrate Judge Francis denied Shmueli leave to file an amended answer and counterclaims. Haaretz Daily News, 98 CV 2878 at Docket # 46 (copy attached as Exhibit 6 to Lowenfeld Reply Mem. of Law).*fn9 Thereafter Shmueli, having engaged new counsel (namely his attorney here, Jon Lefkowitz), made several attempts to undo the consequences of that order. First, he sought interlocutory review in the Second Circuit.*fn10 Then, he moved Magistrate Judge Francis for reconsideration of the order. Id. at Docket # 47, 49-50. Subsequently, according to docket entries for June 9, 1999, he ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.