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.
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
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:
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.
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
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.
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 ...