Cowan after obtaining her address, through an agent, from the DMV.
(Compl. ¶¶ 26, 38; Answer ¶¶ 1, 9.) The envelope sent to Ms. Cowan
carried Tauber's return address but not his name. See In the Matter of
William Tauber, Esq., RP No. 7006/99, Report of Referee, at 3 (N.Y.App.
Div. July 12, 1999).
Ms. Cowan allegedly immediately called Tauber to determine whether he
had mailed the empty envelope, and if so, why. (Compl. ¶ 27.) The
plaintiffs allege that, at that time, Tauber advised Ms. Cowan that he
wanted to determine if Ms. Cowan really lived in New York City and that
Tauber also indicated he had done so to "pay her back" for having
vigorously cross-examined Tauber when he testified at the suppression
hearing in the Lopez case. (Compl. ¶¶ 28-29.) Although the defendants
do not dispute that Tauber caused a search to be made of the DMV
records, they contend that Tauber caused the search to be made to confirm
whether or not Robin Cowan was a bona fide resident of the City of New
York. (Defs.' 56.1 St. ¶ 18.) The defendants argue that N.Y. Public
Officers Law § 3 requires that Bronx ADAs reside within the City of
New York and that, in the absence of compliance with that law, an ADA is
not qualified to serve and may be removed. (Defs.' 56.1 St. ¶¶
Ms. Cowan notified her supervisor, Edward Friedenthal, and he in turn
reported the incident to Justice Bamberger, who was presiding over the
Lopez case. (Compl. ¶ 31; Defs.' 56.1 St. ¶ 20.) A disciplinary
proceeding before the New York State Supreme Court, Appellate Division,
First Department Departmental Disciplinary Committee ("Departmental
Disciplinary Committee") was initiated against Tauber on the basis of the
incident. (Defs.' 56.1 St. ¶ 20; Pls.' 56.1 Counter-St. ¶ 20.)
After holding a series of hearings on the matter, the referee appointed
to review the allegations credited Tauber's account and recommended that
the charges be dismissed. See In the Matter of William Tauber, Esq., RP
No. 7006/99, Report of Referee (N.Y.App.Div. July 12, 1999). A hearing
panel of the Departmental Disciplinary Committee concurred in the
referee's determination that the charges should be dismissed. See In the
Matter of William Tauber, Esq., RP No. 3006/99,*fn1 Determination of
Hearing Panel (N.Y.App.Div. Aug. 11, 1999) (Both decisions are attached
as Ex. D of Affirmation of Roberto Lebron dated October 4, 2000 ("Lebron
The plaintiffs filed this action on August 5, 1998 asserting two causes
of action. In the plaintiffs' first cause of action, the Cowans allege
that the defendants violated the DPPA. (Compl. ¶¶ 12-44.) In the
second cause of action, plaintiff Robin Cowan alleged that the defendants
engaged in outrageous conduct causing emotional distress. (Compl. ¶¶
45-54). On March 16, 1999, plaintiff Robin Cowan filed an action in New
York State Supreme Court, New York County, against the same defendants
also alleging outrageous conduct causing emotional distress ("State Court
Action"). (Defs.' 56.1 St. ¶ 3 & Ex. B.) The State Court Action
was dismissed by orders dated June 30 and July 31, 2000, and judgment was
entered on September 1, 2000. (Defs.' 56.1 St. ¶ 3 & Ex. C.)
Thereafter, on September 18, 2000, Ms. Cowan withdrew her second cause of
action in this case. (Defs.' 56.1 St. ¶ 3 & Ex. D.)
The defendants first move pursuant to Fed.R.Civ.P. 12(c) to dismiss the
on the ground that the plaintiffs' DPPA claims are barred by res judicata
or claim preclusion because Ms. Cowan could have raised the DPPA claim in
the State Court Action. Res judicata bars "subsequent litigation of any
ground of recovery that was available in the prior action, whether or not
it was actually litigated or determined." Balderman v. United States
Veterans Admin., 870 F.2d 57, 62 (2d Cir. 1989); accord Burgos v.
Hopkins, 14 F.3d 787, 789 (2d Cir. 1994); Greenberg v. Board of Governors
of the Fed. Reserve Sys., 968 F.2d 164, 168 (2d Cir. 1992). It acts to
protect "litigants from the burden of relitigating an identical issue with
the same party or his privy and [to promote] judicial economy by
preventing needless litigation." Parklane Hosiery Co. v. Shore, Inc.,
439 U.S. 322, 326, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979). Res judicata
ensures the conclusiveness of judgments and thus "secure[s] the peace and
repose of society by the settlement of matters capable of judicial
determination." Nevada v. United States, 463 U.S. 110, 129, 103 S.Ct.
2906, 77 L.Ed.2d 509 (1983) (internal quotation omitted).
A federal court must give the same preclusive effect to a state court
decision as a state court would give it. See 28 U.S.C. § 1738; Brooks
v. Giuliani, 84 F.3d 1454, 1463 (2d Cir. 1996); Schulz v. Williams,
44 F.3d 48, 53 (2d Cir. 1994) (citing Migra v. Warren City Sch. Dist.
Bd. of Educ., 465 U.S. 75, 81, 104 S.Ct. 892, 79 L.Ed.2d 56 (1984));
Hennessy v. Cement and Concrete Worker's Union Local 18A, 963 F. Supp. 334,
337-38 (S.D.N.Y. 1997). Thus, the binding effect on this Court of the
proceedings in the plaintiffs prior New York State Court Action proceeding
is governed by New York res judicata doctrine.
Under New York law, the transactional approach to res judicata prevents
parties to the prior action or those in privity with them "from raising in
a subsequent proceeding any claim they could have raised in the prior
one, where all of the claims arise from the same underlying transaction."
Schulz, 44 F.3d at 53 (citing Reilly v. Reid, 45 N.Y.2d 24,
407 N.Y.S.2d 645, 379 N.E.2d 172 (N.Y. 1978)); accord Maharaj v.
Bankamerica Corp., 128 F.3d 94, 97 (2d Cir. 1997); Ferris v. Cuevas,
118 F.3d 122, 126 (2d Cir. 1997) (collecting New York cases); Brooks, 84
F.3d at 1463 (citing O'Brien v. City of Syracuse, 54 N.Y.2d 353,
445 N.Y.S.2d 687, 429 N.E.2d 1158, 1159 (N.Y. 1981)); Hennessy, 963 F.
Supp. at 338; Parker v. Blauvelt Volunteer Fire Co., Inc., 93 N.Y.2d 343,
690 N.Y.S.2d 478, 712 N.E.2d 647, 649-50 (N.Y. 1999); Smith v. Russell
Sage College, 54 N.Y.2d 185, 445 N.Y.S.2d 68, 429 N.E.2d 746, 749 (N.Y.
1981). New York courts have held that res judicata principles are not to
be applied "mechanically;" rather "the analysis requires consideration of
the `realities of the litigation.'" Nat'l Fuel Gas Distribution Corp. v.
TGX Corp., 950 F.2d 829, 839 (2d Cir. 1991) (quoting Staatsburg Water
Co. v. Staatsburg Fire Dist., 72 N.Y.2d 147, 531 N.Y.S.2d 876,
527 N.E.2d 754, 756 (N.Y. 1988) (quotations omitted)).
The plaintiffs first argue that the defendants waived a res judicata
argument because res judicata is an affirmative defense and the
defendants failed to raise it in their answer. In general, a party that
does not raise an affirmative defense of res judicata in responsive
pleadings waives the right to assert the defense. See Fed. R.Civ.P. 8(c);
Morrison v. Blitz, No. 88 Civ. 5607, 1995 WL 679259, at *3 (S.D.N.Y.
Nov. 15, 1995); Allen v. Men's World Outlet, Inc., 679 F. Supp. 360, 365
(S.D.N.Y. 1988). A district court, however, "has the discretion to
entertain the defense when it
is raised in a motion for summary judgment, by construing the motion as
one to amend the [defendants'] answer." Monahan v. New York City
Department of Corrections, 214 F.3d 275, 283 (2d Cir.) (citing Block v.
First Blood Assocs., 988 F.2d 344, 350 (2d Cir. 1993)), cert. denied. ___
U.S. ___, 121 S.Ct. 623, 148 L.Ed.2d 533 (2000); see also Morrison, 1995
WL 679259, at *3; Carino v. Town of Deerfield, 750 F. Supp. 1156, 1162
n. 9 (N.D.N.Y. 1990), aff'd, 940 F.2d 649 (2d Cir. 1991). Courts have
been especially flexible where the defense of res judicata was not
available at the pleading stage because the other action had not yet been
concluded. See Morrison, 1995 WL 679259, at *3 (collecting cases);
Kendall v. Avon Prod., Inc., 711 F. Supp. 1178, 1179 n. 2 (1989). In this
case the defendants have explicitly relied on Fed.R.Civ.P. 12(c) in
raising the res judicata defense. The fact that the defendants bring this
motion under Rule 12(c), however, does not affect the Court's ability to
entertain the res judicata defense in this case where the facts of the
State Court Action are undisputed.
Fed.R.Civ.P. 15 provides that leave to amend "shall be freely given
when justice so requires." Fed.R.Civ.P. 15. The Court of Appeals for the
Second Circuit recently stated that Rule 15:
reflects two of the most important principles behind
the Federal Rules [of Civil Procedure]: pleadings
are to serve the limited role of providing the
opposing party with notice of the claim or defense
to be litigated, and "mere technicalities" should
not prevent cases from being decided on the merits.
. . . Thus, absent evidence of undue delay, bad
faith or dilatory motive on the part of the movant,
undue prejudice to the opposing party, or futility,
Rule 15's mandate must be obeyed.
Monahan, 214 F.3d at 283 (citations omitted); see also Block, 988 F.2d at