shortly after he learned of the bid rigging scheme, he told one
Alan Macklowe ("Macklowe") the Director of Purchasing for Boces
Nassau of his suspicions that Moskowitz and J & L Information
engaged in a fraudulent bid rigging scheme.
The plaintiff next alleges that after he told Macklowe of his
suspicions, Macklowe initiated a claim against WNI Sales for
non-responsive bids involving Boces Nassau contracts. Shortly
thereafter, the plaintiff appeared at a hearing on this claim
before the Treasurer of Boces Nassau one William Rafter
("Rafter"). The plaintiff alleges that he advised Rafter of his
suspicion that Boces Nassau was involved in the rigging of bids
with respect to computer equipment. After the hearing, Macklowe
allegedly told the plaintiff that he will get every entity doing
business with WNI Sales to cancel their contracts with WNI
The plaintiff further alleges that in May of 1993, one Luis
Andujar ("Andujar"), the Director of Contract Compliance for the
Board of Education, telephoned the plaintiff concerning the
status of certain undelivered purchase orders which were thirty
days overdue. The plaintiff alleges that Andujar, intending to
eliminate him from the pool of potential bidders with the Board
of Education, held on to the above-mentioned purchase orders for
thirty days and then mailed them to him. Shortly thereafter, the
Board of Education did not award any more contracts to the
The plaintiff next alleges that Microsoft modified the
academic program in New York City to restrict choice and
competition in violation of the antitrust laws. In support of
this statement, the plaintiff states that in or about 1994,
Microsoft, WNI Sales and Meizner submitted bids to the Board of
Education with respect to the sale of certain computer equipment
and that Meizner was awarded the contract.
The plaintiff then alleges that in or about 1993, WNI Sales
submitted information outlining purchase order fraud on the part
of Meizner to an unidentified special investigator. The special
investigator allegedly referred the matter to the Investigations
Unit of the Board of Education (the "Investigations Unit").
Unidentified individuals then allegedly instructed the
Investigations Unit to destroy this information.
The plaintiff next alleges that in or about 1995, Boces
Eastern Suffolk held a hearing to determine whether the
plaintiff was a non-responsive bidder for purposes of contracts
with Boces Eastern Suffolk. After the hearing, Boces Eastern
Suffolk adjudicated the plaintiff a non-responsive bidder
thereby precluding him from bidding on future contracts. Boces
Eastern Suffolk allegedly used perjury to reach this
The plaintiff further alleges that in or about 1998, the Board
of Education initiated non-responsive bidder proceedings against
WNI Sales for failure to timely provide certain products
pursuant to contracts that were awarded to WNI Sales. The
plaintiff alleges that the proceedings were initiated in
retaliation for "whistleblowing".
The plaintiff also alleges that he was "locked out" of his
former place of business located at 620 Johnson Avenue in
Bohemia, New York by one Paul Fortunato ("Fortunato") and one
Robert Bente ("Bente") and that the plaintiff was ultimately
evicted wrongfully from the premises on November 17, 1996. The
plaintiff also alleges that one Kevin Greene, an employee of
Fortunato, assaulted him during the eviction. Finally, the
plaintiff alleges that his wife, a social worker employed with
Boces Western Suffolk, was wrongfully terminated.
On April 21, 2000, the plaintiff filed a complaint in this
action. On July 17, 2000, at a hearing before United States
Magistrate Judge E. Thomas Boyle, the plaintiff asked for
permission to amend his complaint. Judge Boyle gave the
plaintiff until September 30, 2000 to file an amended complaint.
On October 2, 2000, the plaintiff filed the amended complaint in
In the amended complaint, the plaintiff appears to assert
twenty-four causes of action. In particular, the plaintiff
claims violations of RICO (four counts), the Sherman Act, the
Clayton Act, the Fair Claims Act, the Telecommunications Act,
the Federal Torts Act, breach of contract, unlawful eviction,
abuse of process (two counts), negligent infliction of assault,
battery and personal injury, breach of warranty, maintenance and
cure, negligent personal injury, breach of duty of habitability,
42 U.S.C. § 1983, defamation, conversion, violation of real
property laws and threats to public policy. Presently before the
Court are motions by the Board of Education, the Boces
defendants, Meizner and Microsoft to dismiss the amended
complaint pursuant to Rules 8(a) and 12(b)(6) of the Federal
Rules of Civil Procedure.
A. Rule 8(a)
Rule 8(a) of the Federal Rules of Civil Procedure requires
that a complaint contain "a short and plain statement of the
claim showing that the pleader is entitled to relief. . . ."
Fed.R.Civ.P. 8(a)(2). Each averment in the complaint must be
"simple, concise, and direct." Fed.R.Civ.P. 8(e)(1). The Second
Circuit has stated that:
The function of pleadings under the Federal Rules is
to give fair notice of the claim asserted. Fair
notice is that which will enable the adverse party to
answer and prepare for trial, allow the application
of res judicata, and identify the nature of the
case so it may be assigned the proper form of trial.
Simmons v. Abruzzo, 49 F.3d 83, 86 (2d Cir. 1995) (internal
quotations & citations omitted). See also Salahuddin v. Cuomo,
861 F.2d 40, 42 (2d Cir. 1988) (stating that "the principal
function of pleadings under the Federal Rules is to give the
adverse party fair notice of the claim asserted so as to enable
him to answer and prepare for trial.") (citations omitted).
A district court has the authority to dismiss a complaint,
when it fails to comply with Rule 8. Salahuddin, 861 F.2d at
42. However, dismissal "is usually reserved for those cases in
which the complaint is so confused, ambiguous, vague, or
otherwise unintelligible that its true substance, if any, is
well disguised." Id. If a district court "dismisses the
complaint for failure to comply with Rule 8, it should generally
give the plaintiff leave to amend." Simmons, 49 F.3d at 86-87.
"The complaint of a pro se litigant is to be liberally
construed in his favor." Id. at 87 (citation omitted).
Although the amended complaint is not a model of clarity, the
Court finds that it gives notice to the defendants of
essentially five factual events that give rise to the plaintiffs
claims: (1) the alleged bid rigging between Moskowitz and J & L
Information which eliminated the plaintiff as a successful
bidder of equipment and services for a Boces Nassau contract in
or about 1990; (2) the initiation of nonresponsive bidder
proceedings in 1990 or 1991 by Boces Nassau against the
plaintiff after he told Macklowe of his suspicions of the
above-mentioned bid rigging; (3) the use of alleged perjury at a
non-responsive bidder proceeding by Boces Eastern Suffolk
against the plaintiff in 1995; (4) the initiation of
non-responsive bidder proceedings
by the Board of Education against the plaintiff in 1998 in
retaliation for "whistleblowing"; and (5) the wrongful eviction
of the plaintiff from his business on November 17, 1996.
Accordingly, the motions to dismiss the amended complaint under
Rule 8(a) are denied.
B. Rule 12(b)(6)
On a motion to dismiss for failure to state a claim under
Rule 12(b)(6), the court should dismiss the complaint only if it
appears beyond doubt that the plaintiff can prove no set of
facts in support of her or his complaint which would entitle her
or him to relief. King v. Simpson, 189 F.3d 284, 286 (2d Cir.
1999); Bernheim v. Litt, 79 F.3d 318, 321 (2d Cir. 1996). The
court must accept all well-pled factual allegations in the
complaint as true and draw all reasonable inferences in favor of
the plaintiff. Koppel v. 4987 Corp., 167 F.3d 125, 127 (2d
Cir. 1999); Jaghory v. N.Y. State Dep't of Educ.,
131 F.3d 326, 329 (2d Cir. 1997). The issue is not whether the plaintiff
will ultimately prevail but whether the plaintiff is entitled to
offer evidence to support the claims. Villager Pond, Inc. v.
Town of Darien, 56 F.3d 375, 378 (2d Cir. 1995).
As to materials presented outside the pleadings, the Second
Circuit has stated that:
Rule 12(b) gives district courts two options when
matters outside the pleadings are presented in
response to a 12(b)(6) motion: the court may exclude
the additional material and decide the motion on the
complaint alone or it may convert the motion to one
for summary judgment under Fed.R.Civ.P. 56 and afford
all parties the opportunity to present supporting
material. See Fed.R.Civ.P. 12(b).
Fonte v. Bd. of Managers of Cont'l Towers Condo., 848 F.2d 24,
25 (2d Cir. 1988). The Second Circuit has strictly enforced "the
conversion requirement of Rule 12(b)(6) where there is a
legitimate possibility that the district court relied on
inappropriate material in granting the motion." Amaker v.
Weiner, 179 F.3d 48, 50 (2d Cir. 1999). The purpose is to
ensure that "courts will refrain from engaging in fact-finding
when considering a motion to dismiss, and also that plaintiffs
are given a fair chance to contest defendants' evidentiary
assertions. . . ." Id.
So that, in a motion to dismiss under Rule 12(b)(6), the court
must confine its consideration "to facts stated on the face of
the complaint, in documents appended to the complaint or
incorporated in the complaint by reference, and to matters of
which judicial notice may be taken." Leonard F. v. Israel Disc.
Bank of N.Y., 199 F.3d 99, 107 (2d Cir. 1999); Hayden v.
County of Nassau, 180 F.3d 42, 54 (2d Cir. 1999).
The parties to the present motions have provided the Court
with transcripts of various hearings, letters and decisions from
the plaintiffs state court action in support of their respective
positions. The Court will not convert the motion to dismiss to
one for summary judgment but will rather decide the motion on
the amended complaint and the matters of which judicial notice
may be taken.
2. Review of the Pleadings of a Pro Se Plaintiff
In addressing the present motions, the Court is mindful that
the plaintiff is proceeding pro se and that his submissions
should be held "`to less stringent standards than formal
pleadings drafted by lawyers. . . .'" Hughes v. Rowe,
449 U.S. 5, 9, 101 S.Ct. 173, 176, 66 L.Ed.2d 163 (1980) (per curiam)
(quoting Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594,
595, 30 L.Ed.2d 652 (1972)); see also Ferran v.
Town of Nassau, 11 F.3d 21, 22 (2d Cir. 1993). The Court
recognizes that it must make reasonable allowances so that a
pro se plaintiff does not forfeit rights by virtue of her or
his lack of legal training. See Traguth v. Zuck, 710 F.2d 90,
94 (2d Cir. 1983).
Indeed, district courts should "read the pleadings of a pro
se plaintiff liberally and interpret them `to raise the
strongest arguments that they suggest.'" McPherson v. Coombe,
174 F.3d 276, 280 (2d Cir. 1999) (quoting Burgos v. Hopkins,
14 F.3d 787, 790 (2d Cir. 1994)). Nevertheless, the Court is
also aware that pro se status "`does not exempt a party from
compliance with relevant rules of procedural and substantive
law.'" Traguth, 710 F.2d at 95 (quotations omitted).
3. Res Judicata
"Under the doctrine of res judicata, or claim preclusion, `a
final judgment on the merits of an action precludes the parties
or their privies from relitigating issues that were or could
have been raised in that action.'" Flaherty v. Lang,
199 F.3d 607, 612 (2d Cir. 1999) (quoting Rivet v. Regions Bank of La.,
522 U.S. 470, 476, 118 S.Ct. 921, 925, 139 L.Ed.2d 912 (1998)).
The Supreme Court has stated that:
[P]ublic policy dictates that there be an end of
litigation; that those who have contested an issue
shall be bound by the result of the contest, and that
matters once tried shall be considered forever
settled as between the parties. We have stressed that
the doctrine of res judicata is not a mere matter
of practice or procedure inherited from a more
technical time than ours. It is a rule of fundamental
and substantial justice, of public policy and of
private peace, which should be cordially regarded and
enforced by the courts. . . .
Federated Dep't Stores, Inc. v. Moitie,