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IWACHIW v. NYC BRD OF EDUC.

March 29, 2002

WALTER N. IWACHIW, PLAINTIFF,
V.
NYC BRD OF EDUCATION, BRD OF COOPERATIVE SERVICES NASSAU, BRD OF COOPERATIVE SERVICES EASTERN SUFFOLK, BRD OF COOPERATIVE SERVICES WESTERN SUFFOLK, BRD OF COOPERATIVE SERVICES WESTCHESTER, MEIZNER BUSINESS MACHINES, MICROSOFT CORPORATION, J & L INFORMATION — SERVICES (CHATCOM, INC.), DEFENDANTS.



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

  MEMORANDUM OF DECISION AND ORDER

This action arises out of a claim by Pro Se plaintiff Walter N. Iwachiw ("Iwachiw" or the "plaintiff") against the defendants the New York City Board of Education (the "Board of Education"), the Board of Cooperative Services Nassau ("Boces Nassau"), the Board of Cooperative Services Eastern Suffolk ("Boces Eastern Suffolk"), the Board of Cooperative Services Western Suffolk ("Boces Western Suffolk"), the Board of Cooperative Services Westchester ("Boces Westchester") (collectively, the "Boces defendants"), Meizner Business Machines ("Meizner"), Microsoft Corporation ("Microsoft") and J & L Information Services ("J & L Information"). The plaintiff alleges that the defendants engaged in a conspiracy to fix bid prices for the sale of computer-related equipment and services to schools and governmental agencies in New York and New Jersey thereby violating, among other things, the plaintiffs constitutional and civil rights. 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.

I. BACKGROUND

A. The State Action

On or about March 28, 1999, the plaintiff Pro Se commenced an action in the New York Supreme Court, Suffolk County against, among others, the Board of Education, the Boces defendants, Meizner, Microsoft and J & L Information. In particular, the plaintiff alleged that the defendants engaged in a conspiracy to fix bid prices for the sale of computer-related equipment and services to schools and governmental agencies in New York and New Jersey thereby violating, among other things, the plaintiffs constitutional and civil rights under state and federal law.

In this complaint, the plaintiff alleged further that as a result of his discovery of the alleged bid rigging, the defendants eliminated him as a potential bidder for the sale of equipment and services. The plaintiff also alleges that the bid rigging by the defendants constituted a monopoly. The Boces defendants, Meizner and Microsoft each moved to dismiss the complaint.

On September 8, 1999, the Honorable John J. Dunn of the Supreme Court, Suffolk County granted the motion of the Boces defendants based on the plaintiffs failure to serve a timely complaint, failure to comply with the General Municipal Law and failure to state a cause of action. Iwachiw v. Doe, No. 98-25990 (N.Y.Sup.Ct. Sept. 8, 1999). In particular, Justice Dunn stated that:

The complaint consists of seven paragraphs, all of which contain vague and incomprehensible allegations related to plaintiffs purported claims against the various defendants. The complaint contains a laundry list of actions or grievances against these defendants, ranging from defamation to interference with a public utility to extortion to crimes against children to common law negligence, all allegedly related in some way to `bid rigging' and the elimination of plaintiff as a bidder for computers and other supplies. The complaint is bereft, however, of any factual support whatsoever for these claims.

Id. at 5. On the same date, Justice Dunn also granted the motion of Meizner to dismiss the complaint for failure to state a cause of action and insufficient service of process. Iwachiw v. Doe, No. 98-25990, at 3 (N.Y.Sup.Ct. Sept. 8, 1999).

On September 10, 1999, Justice Dunn granted the motion of Microsoft to dismiss the complaint for failure to state a cause of action. Iwachiw v. Doe, No. 98-25990 (N.Y.Sup.Ct. Sept. 10, 1999). In particular, he stated that "the complaint is incoherent and contains no factual allegations regarding Microsoft. It consists instead of nothing more than conclusory assertions. As a result, the complaint utterly fails to provide Microsoft with the required notice of plaintiffs claims and must be dismissed." Id. at 3.

On October 14, 1999, the plaintiff filed a notice of appeal with the New York State Appellate Division, Second Department (the "Appellate Division"). Thereafter, the Appellate Division granted the plaintiff an enlargement of time to perfect his appeal until June 30, 2000. Iwachiw v. Doe, No. 99-09641-44 (N.Y.App.Div. May 22, 2000). The plaintiff failed to perfect his appeal by this time and moved for another enlargement of time. On September 5, 2000, the Appellate Division denied the plaintiffs request for an enlargement of time and dismissed the appeal from, among other things, the above-mentioned orders of Judge Dunn for failure to timely perfect. Iwachiw v. Doe, No. 99-09641-44, 0001215, 00-01217, 00-01218, 00-02394 & 0004024 (N.Y.App.Div. Sept. 5, 2000).

On December 8, 2000, the Appellate Division denied the plaintiffs motion to reargue the dismissal his appeal for failure to timely perfect. Iwachiw v. Doe, No. 9909641-44, 00-01215, 00-01217, 00-01218, 00-02394 & 00-04024 (N.Y.App.Div. Dec. 8, 2000). On or about January 9, 2001, the plaintiff filed a motion for leave to appeal, the order of the Appellate Division, to the New York Court of Appeals (the "Court of Appeals"). On March 27, 2001, the Court of Appeals dismissed the appeal on the grounds that "the remainder of the Appellate Division order [i.e., the orders of the Supreme Court with respect to, among others, the Boces defendants, Meizner and Microsoft] sought to be appealed from does not finally determine the action within the meaning of the Constitution." Iwachiw v. Doe, 96 N.Y.2d 774, 725 N.Y.S.2d 632, 749 N.E.2d 201 (N.Y. 2001).

B. The Instant Action

The following facts are taken from the amended complaint in this action. At the outset, the Court notes that the amended complaint contains one hundred and sixty-seven paragraphs which are largely unintelligible.

In or about 1982, the plaintiff incorporated WNI Sales, a supplier of computer equipment and services. At this time, WNI Sales began submitting bids on contracts to supply computer-related equipment and services to the Boces defendants and the Board of Education. Shortly after its incorporation, WNI Sales entered into various contracts with the Boces defendants and the Board of Education to supply computer-related equipment and services.

In or about 1990, the plaintiff alleges that he determined that one Steven Moskowitz ("Moskowitz") of Boces Nassau participated with J & L Information in a bid rigging scheme which fraudulently eliminated the plaintiff as a successful bidder of equipment and services on an unidentified contract. The plaintiff further alleges that 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 Sales.

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 plaintiff.

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 determination.

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 this matter.

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.

II. DISCUSSION

A. Rule 8(a)

1. Standard

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 ...


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