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May 8, 2003


The opinion of the court was delivered by: Gabriel W. Gorenstein, United States Magistrate Judge

REPORT AND RECOMMENDATION To the Honorable Jed S. Rakoff United States District Judge
Plaintiff Samaad-Saqqara Bishop ("Bishop"), proceeding pro se on behalf of himself and his minor children, Allan Hatcher, Jabari Bishop, and Sonali Bishop, filed this action on November 27, 2002 against James E. Porter, Jr., and XYZ Insurance, Inc., which Bishop identifies as a "fictitious" company that insures Porter. Porter, also proceeding pro se, has moved to dismiss the complaint pursuant to Rule 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. In response, Bishop has moved to strike Porter's motion to dismiss pursuant to Fed.R.Civ.P. 12(f), for appointment of counsel, and to amend his complaint. For the reasons stated below, Porter's motion to dismiss should be granted and Bishop's motions, with one exception, should be denied.


A. Factual History

The following facts are alleged by Bishop in his complaint and are accepted as true for the purposes of the current motion.

Bishop and his children reside in Bronx County. Complaint, filed November 27, 2002 ("Complaint"), at 1 (Docket #1). Allan Hatcher is fifteen years old, Jabari Bishop is twelve years old and Sonali Bishop is five years old. Id. at 1-2. Porter is a member of the United States Military and a resident of Winter Park, Florida. Id. at 2. He is apparently married to the mother of Bishop's children. See id. at 4. XYZ Insurance, Inc. is an unknown insurance company that Bishop believes insures and indemnifies Porter. Id. at 2.

In August 2000, Porter caused Allan to be taken from Bishop by hiring an individual to find Allan and take him to Florida. Id. at 6-7. In response, Bishop filed an Order to Show Cause to modify an apparently already existing order of custody and visitation issued by a New York State court in Nassau County. Id. On November 9, 2000, the Nassau court modified the order to allow Bishop to communicate with Allan by being provided with a telephone number and home address. Id. Bishop was also granted visitation with Allan during winter break from school, six weeks during the summer, and any other agreed upon time. Id. These periods are the only time that Bishop and all of his children spend together. Id.

Subsequently, Bishop filed a report of child abuse and neglect against Porter with the Florida Department of Children and Families. Id. at 2. Porter, allegedly in response to Bishop's report of child abuse and various discovery requests in the Nassau court action, filed a "Petition for Temporary Injunction for Protection Against Repeat Violence" (the "Petition") against Bishop in Florida state court. Id. On May 28, 2002, Judge Walter Komanski of the Circuit Court of the Ninth Judicial District of Orange County, Florida, conducted a hearing on the Petition. Id. Bishop appeared in person at the hearing, successfully refuted Porter's claims, and the Petition was dismissed for insufficient evidence. Id. Bishop alleges that Porter willfully filed the Petition with false allegations. Id.

Bishop alleges that Porter, in filing the Petition, obtained preferential treatment by the clerk of the Florida state court because Porter is an officer in the military. Id. at 3-4. He also alleges that the return date on the Petition was the same date as a previously scheduled hearing in the action in Nassau County. Id. at 4. This placed Bishop with the choice of either losing some of his parental rights by failing to appear in Nassau County or facing criminal penalties by not appearing in Florida. Id. Had he not appeared in the Florida court, Bishop allegedly would have been convicted of committing acts of violence and his non-appearance would have harmed his ability to pursue custody of his children against their mother. Id. Due to his appearance in the Florida court, the Nassau county court dismissed Bishop's motion for failure to appear. Id. The dismissal of the motion allegedly caused Bishop to suffer a violation of his rights to due process and equal protection. Id. at 5. In addition, Bishop allegedly suffered a violation of his First Amendment rights to petition the Nassau county court. Id.

Because he had to go to Florida to defend against the Petition, Bishop lost a business opportunity. Id. at 2. Bishop alleges that he suffered the loss of $100,000 because a contract to serve as an independent contractor was terminated. Id. at 3. Apparently, the person who entered into the contract with Bishop heard of the allegations in the Petition and therefore terminated the contract. Id. In addition, Bishop suffered "mental anguish, stress, costs, [and] disbursements" in responding to the Petition. Id.

Bishop also alleges that Porter intentionally blocked Bishop's attempts to contact Allan by telephone and mail in violation of the custody order. Id. at 7-8. Porter also willfully delayed and interfered with Allan's summer visitation with Bishop. Id. at 7. The filing of the Petition was allegedly an attempt to block Bishop's correspondence with his son. Id. Bishop has been able to contact Allan only by calling an office at Allan's school. Id.

B. Procedural History and Allegations

Bishop filed his complaint on November 27, 2002. The complaint purports to state three claims for relief: tortious interference with contract, see id. at 2-3; violations of Bishop's constitutional rights, see id. at 3-6; and violations of Bishop's parental and familial rights. Id. at 6-8. Bishop seeks damages as well as an injunction prohibiting Porter from violating his constitutional rights. Id. at 8.

Porter responded on December 26, 2002 by filing a motion to dismiss for failure to state a claim under Fed.R.Civ.P. 12(b)(6) and for lack of jurisdiction under Fed.R.Civ.P. 12(b)(1). See Motion to Dismiss and Memorandum in Support, filed December 26, 2002 ("Def. Motion") (Docket #3). Porter also appended an answer to his motion that denied the complaint's allegations. See Answer, dated December 24, 2002 (reproduced in Def. Motion Ex. C).

Bishop responded by opposing the motion to dismiss and filing a motion to strike Porter's motion to dismiss and answer under Fed.R.Civ.P. 12(f). The motion to strike is based on Bishop's contention that Porter must have had an attorney help him prepare the motion to dismiss and Porter's inclusion of the fact that Bishop is a convicted felon. See Memorandum of Law in Support of Plaintiff's Motion to Strike Defendant's Motion to Dismiss under Rulw [sic] 12(b)(1) and Rule 12(b)(6) and Defendant's Answer under Rule 12(f) of the Federal Rules of Civil Procedure, filed January 21, 2003 (Docket #6), at 1.

In addition, Bishop filed for the appointment of a guardian ad litem for his children pursuant to Fed.R.Civ.P. 17(c). See Notice of Motion, filed January 21, 2003 (Docket #7). Finally, Bishop filed a motion for leave to amend his complaint. The proposed amended complaint would add counts of tortious interference with economic advantage, tortious interference with prospective contractual relations, negligent interference with contractual relationship, and negligent interference with economic advantage. See Affirmation in Support of Motion for Leave to file a First Amended Complaint, dated January 21, 2003 ("Amend Aff.") (reproduced in Notice of Motion to File a First Amended Complaint, filed January 29, 2003 (Docket #12) ("Motion to Amend")), at 1. The amended complaint would also add the factual allegation that Porter has alienated Allan from Bishop by use of subliminal messages. See id. at 2.


Porter's motions to dismiss for failure to state a claim under Fed.R.Civ.P. 12(b)(6) and for lack of jurisdiction under Fed.R.Civ.P. 12(b)(1) have essentially the same standard of review. See Lerner v. Fleet Bank, N.A., 318 F.3d 113, 128 (2d Cir. 2003). The only substantive difference is "that the party invoking the jurisdiction of the court has the burden of proof in a 12(b)(1) motion, in contrast to a 12(b)(6) motion, in which the defendant has the burden of proof." Id. (citing Thompson v. County of Franklin, 15 F.3d 245, 249 (2d Cir. 1994)).

A claim may be dismissed pursuant to Fed.R.Civ.P. 12(b) "only if `it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle [him] to relief.'" Ganino v. Citizens Utils. Co., 228 F.3d 154, 161 (2d Cir. 2000) (quoting Friedl v. City of New York, 210 F.3d 79, 83 (2d Cir. 2000)). All allegations contained in the complaint are accepted as true and all reasonable inferences are drawn in plaintiff's favor. See Scutti Enters., LLC. v. Park Place Entm't Corp., 322 F.3d 211, 214 (2d Cir. 2003). A court may consider documents referred to in a complaint, explicitly or by reference, on a motion to dismiss. See Gregory v. Daly, 243 F.3d 687, 691 (2d Cir. 2001); Stuto v. Fleishman, 164 F.3d 820, 826 n. 1 (2d Cir. 1999); Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir. 1991), cert. denied, 503 U.S. 960 (1992).

On a motion to dismiss, "`[t]he issue is not whether a plaintiff is likely to prevail ultimately, but whether the claimant is entitled to offer evidence to support the claims. Indeed it may appear on the face of the pleading that a recovery is very remote and unlikely but that is not the test.'" Chance v. Armstrong, 143 F.3d 698, 701 (2d Cir. 1998) (quoting Branham v. Meachum, 77 F.3d 626, 628 (2d Cir. 1996)). Nonetheless, the Court is not required to accept as true plaintiff's "`conclusions of law or unwarranted deductions.'" First Nationwide Bank v. Gelt Funding Corp., 27 F.3d 763, 771 (2d Cir. 1994) (quoting 2A Moore & Lucas, Moore's Federal Practice, ¶ 12.08, at 2266-69 (2d ed. 1984)) (citation omitted), cert. denied, 513 U.S. 1079 (1995).

When a party appears pro se, the party's pleadings are viewed under "less stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam); accord Hughes v. Rowe, 449 U.S. 5, 9-10 (1980) (per curiam). The Court "must construe pro se complaints liberally, applying a more flexible standard to evaluate their sufficiency." Lerman v. Bd. of Elections, 232 F.3d 135, 140 (2d Cir. 2000) (citations and footnote omitted), cert. denied, 533 U.S. 915 (2001). "When considering motions to dismiss a pro se complaint such as this, `courts must construe [the complaint] broadly, and interpret [it] to raise the strongest arguments that [it] suggest[s].'" Weixel v. Bd. of Educ. of City of New York, 287 F.3d 138, 145-46 (2d Cir. 2002) (quoting Cruz v. Gomez, 202 F.3d 593, 597 (2d Cir. 2000)). Nonetheless, proceeding pro se "`does not exempt a party from compliance with relevant rules of procedural and substantive law.'" Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983) (quoting Birl v. Estelle, 660 F.2d 592, 593 (5th Cir. 1981)).


It appears that subject matter jurisdiction exists under 28 U.S.C. § 1332 as the parties are alleged to be citizens of different states and the amount in controversy is alleged to be over $75,000. See Complaint at 1-3, 5-7. Because the parties have assumed that New York law applies to Bishop's claims, the Court will analyze each state law based claim for relief under New York law. See Krumme v. WestPoint Stevens, Inc., 238 F.3d 133, 138 (2d Cir. 2000).

Porter has asserted that Bishop's claims are barred both under the doctrine of res judicata and because they fail to state a claim on the merits. As noted below, Counts I and II of the complaint are barred by res judicata. In addition, all counts ...

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