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. ¶¶ 13-14.)
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 Aff.")).
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 complaint
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
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)
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), affd, 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 350.