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BISHOP v. PORTER

United States District Court, Southern District of New York


May 8, 2003

SAMAAD-SAQQARA BISHOP, ALLAN JAMAL HATCHER, JABARI BISHOP, AND SONALI BISHOP, PLAINTIFFS,
v.
JAMES E. PORTER, JR., AND XYZ INSURANCE INC, DEFENDANTS.

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.

I. BACKGROUND

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.

II. LAW GOVERNING MOTIONS TO DISMISS

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)).

III. DISCUSSION

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 of the complaint must be dismissed for failure to state a claim.

A. Res Judicata

The doctrine of res judicata or claim preclusion provides that "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." Kremer v. Chem. Constr. Corp., 456 U.S. 461, 466 n. 6 (1982) (citing Allen v. McCurry, 449 U.S. 90, 94 (1980); Cromwell v. County of Sac, 94 U.S. 351, 352 (1877)). As was recently noted by the Second Circuit:

[u]nder the doctrine of res judicata, "once a final judgment has been entered on the merits of a case, that judgment will bar any subsequent litigation by the same parties or those in privity with them concerning the transaction, or series of connected transactions, out of which the [first] action arose." Maharaj v. Bankamerica Corp., 128 F.3d 94, 97 (2d Cir. 1997) (internal quotation marks omitted) (alterative in original). This principle prevents a plaintiff from litigating claims that were or could have been raised in a prior action against the same defendant. L-Tec Elecs. Corp. v. Cougar Elec. Org., Inc., 198 F.3d 85, 87-88 (2d Cir. 1999) (per curiam). "Even claims based upon different legal theories are barred provided they arise from the same transaction or occurrence." Id. at 88.
Cieszkowska v. Gray Line New York, 295 F.3d 204, 205 (2d Cir. 2002) (per curiam). Under 28 U.S.C. § 1738, a district court must give to a State court judgment the same preclusive effect that it would have in a court of that State. See, e.g., Green v. Montgomery, 219 F.3d 52, 55 (2d Cir. 2000).

Here, Porter has asserted that the claims in the instant action are barred because of a judgment entered in a lawsuit Bishop filed in the County Court of the State of Florida. See Def. Motion, ¶ 4. Bishop's complaint in the Florida matter stated:

[Bishop] sustained a substantial loss of income . . . and incurred costs, expenses and disbursements . . . and suffered unwarranted stress and undue mental anguish, as a result of answering, defending and defeating [Porter's] frivolous Temporary Injunction for Protection Against Repeat Violence against your Plaintiff (dated May 14, 2002). Defendant's bogus Temporary Injunction was dismissed by this Court on the 28th day May 2002
Statement of Claim (undated) (reproduced in Plaintiff's Affirmation if [sic] Opposition to Defendant's Motion to Dismiss under Rule 12(B)(1) and Rule 12(b)(6) of the Federal Rules of Civil Procedure, dated December 31, 2002 ("Pl. Aff."), Ex. C). A trial on the matter was held and a directed verdict was entered against Bishop because of Bishop's "failure to produce evidence sufficient to create an issue of fact to be tried by the Court." Final Judgment, dated December 19, 2002 (reproduced in Def. Motion, Ex. A). Judgment was entered in Porter's favor. Id.

Florida law governing claim preclusion is as follows:

The general principle behind the doctrine of res judicata is that a final judgment by a court of competent jurisdiction is absolute and puts to rest every justiciable, as well as every actually litigated, issue. Gordon v. Gordon, 59 So.2d 40 (Fla.), cert. denied, 344 U.S. 878, 73 S.Ct. 165, 97 L.Ed. 680 (1952); Lake v. Hancock, 38 Fla. 53, 20 So. 811 (1896). However, this principle only applies when the elements of res judicata are present and the doctrine is properly applied. Gordon, 59 So.2d at 43. Where the second suit is upon the same cause of action and between the same parties as the first, res judicata applies. The first judgment is conclusive as to all matters which were or could have been determined. Id. at 44; Prall v. Prall, 58 Fla. 496, 50 So. 867, 870 (1909). It has been well settled by this Court that several conditions must occur simultaneously if a matter is to be made res judicata: identity of the thing sued for; identity of the cause of action; identity of parties; identity of the quality in the person for or against whom the claim is made. Donahue v. Davis, 68 So.2d 163, 169 (Fla. 1953) (cases cited). . . . The determining factor in deciding whether the cause of action is the same is whether the facts or evidence necessary to maintain the suit are the same in both actions. Gordon; Prall; Lake.
Albrecht v. State, 444 So.2d 8, 11-12 (Fla. 1984), superseded by statute on other grounds as stated in Bowen v. Fla. Dep't of Envtl. Regulation, 448 So.2d 566 (Fla.Dist.Ct.App. 1984).

Here the four prerequisites have been met. The first prerequisite — the identity of the thing sued for — is established when the same evidence and same alleged facts are involved in both cases. See Inter-Active Servs., Inc. v. Heathrow Master Ass'n, Inc., 809 So.2d 900, 902-03 (Fla.Dist.Ct.App. 2002). The second prerequisite requires "the court [to] evaluate the substance of the two actions." Puff'N Stuff of Winter Park, Inc. v. Federal Trust Bank, F.S.B., 945 F. Supp. 1523, 1529 (M.D.Fla. 1996), aff'd, 129 F.3d 616 (11th Cir. 1997). If the same operative facts are alleged in both cases, this requirement is met. See Cole v. First Dev. Corp. of Am., 339 So.2d 1130, 1131 (Fla.Dist.Ct.App. 1976) ("Identity of the causes of action is established where the facts which are required to maintain both actions are identical.") (citation omitted). In essence, "if a case arises out of the same nucleus of operative fact, or is based upon the same factual predicate, as a former action, [then] the two cases are really the same `claim' or `cause of action' for purposes of [claim preclusion]." Citibank, N.A. v. Data Lease Fin. Corp., 904 F.2d 1498, 1503 (11th Cir. 1990) (quoting Ruple v. City of Vermillion, S.D., 714 F.2d 860, 861 (8th Cir. 1983), cert. denied, 465 U.S. 1029 (1984)).

The claims in the Florida action and the claims in Count I and II of the instant complaint arise out of the identical "factual predicate" or "transaction": Porter's alleged improper actions in submitting the Petition, requiring Bishop to defend it and thereby causing Bishop a "substantial loss of income." It is of no moment that Bishop did not include in his Florida complaint the particular contract mentioned in the federal complaint. This is because the operative facts are the same for both suits: the alleged improper action by Porter in drafting and seeking the Petition and the fact that this action caused economic harm. Moreover, the termination of the contract mentioned in the federal complaint predated the filing of the Florida action. Compare Letter of Termination, dated May 24, 2002 (reproduced in Pl. Aff. Ex. B), with Statement of Claim, (undated) (reproduced in Pl. Aff. Ex. C). Thus, the consequences of the alleged improper filing of the Petition "could have been" raised in the Florida action and are consequently barred in this litigation. See Florida Dep't of Transp. v. Juliano, 801 So.2d 101, 105 (Fla. 2001) ("the doctrine of res judicata not only bars issues that were raised, but it also precludes consideration of issues that could have been raised but were not raised in the first case") (citing Youngblood v. Taylor, 89 So.2d 503, 505 (Fla. 1956)).

The third element is met because the parties are identical (with the exception of the addition of Porter's children who have no standing to pursue the tortious interference claim and who may not appear on any claim without an attorney, see Section III.C.3 below). The fourth element — described as "identity of the quality in the person for or against whom the claim is made" — is met because Porter and Bishop are both acting in their same capacities and with the same incentives in both actions. See McDonald v. Hillsborough County School Bd., 821 F.2d 1563, 1566 (11th Cir. 1987) ("[t]he test is whether the parties in the state action had the incentive to adequately litigate the claims in the same character or capacity as would the parties to the federal action") (citing Ford & Dania Lbr. and Supply Co., 7 So.2d 594 (Fla. 1942)).

Bishop argues that he could not have raised his constitutional claim in the Florida Court. Pl. Aff., ¶ 8. He provides no citation for this argument, however, and it appears to be contrary to Florida law. Small claims jurisdiction in Florida extends to "all actions at law of a civil nature in the county courts in which the demand or value of property involved does not exceed $5,000 exclusive of costs, interest, and attorneys' fees." Fla. Sm. Cl. R. 7.010(b); see Fla. Stat. § 34.01(2) (giving county courts small claims jurisdiction generally). Thus, there is no reason the constitutional claim could not have been raised in the Florida action. Bishop also argues that the Florida judgment should not be given preclusive effect because he is appealing it. Pl. Aff., ¶ 8. But res judicata applies once final judgment is entered in a case, even if an appeal from that judgment is pending. See, e.g., Capital Assur. Co., Inc. v. Margolis, 726 So.2d 376, 377 (Fla. Dist. Ct. App. 1999); accord Petrella v. Siegel, 843 F.2d 87, 90 (2d Cir. 1988) (citing Huron Holding Co. v. Lincoln Mine Operating Co., 312 U.S. 183, 189 (1941)) (citation omitted).

Thus, Counts I and II must be dismissed as precluded by the Florida judgment.

B. Failure to State a Claim

In any event, even if Counts I and II were not barred by res judicata, both would have to be dismissed for failure to state a claim. In addition, Count III must be dismissed for the same reason. Each claim for relief raised by Bishop is discussed separately.

1. Interference with Contractual Relations

To state a claim for tortious interference with contractual relations under New York law a plaintiff must allege: "(1) the existence of a contract between plaintiff and a third party; (2) defendant's knowledge of the contract; (3) defendant's intentional inducement of the third party to breach or otherwise render performance impossible; and (4) damages to the plaintiff." Kronos, Inc. v. AVX Corp., 81 N.Y.2d 90, 94 (1993); accord G.K.A. Beverage Corp. v. Honickman, 55 F.3d 762, 767 (2d Cir. 1995), cert. denied, 516 U.S. 944 (1995). Assuming Bishop has adequately pled the first and fourth elements, the complaint fails to state a claim for this tort.

Bishop has not alleged that Porter had any knowledge of the existence of the contract. "To establish a claim of tortious interference with contract, a plaintiff must demonstrate the `defendant's knowledge of that contract.'" Don King Prods., Inc. v. Douglas, 742 F. Supp. 741, 775 (S.D.N.Y. 1990) (quoting Israel v. Wood Dolson Co., 1 N.Y.2d 116, 120 (1956)) (citations omitted). While plaintiff need not allege that "the defendant had perfect or precise knowledge of the [contract's] terms and conditions," at a minimum the complaint must allege that defendant had "`[k]nowledge of the existence of the contract.'" Don King, 742 F. Supp. at 775 (quoting American Cyanamid Co. v. Elizabeth Arden Sales Corp., 331 F. Supp. 597 (S.D.N.Y. 1971) (emphasis in original) (citations omitted); see also Sovereign Bus. Forms, Inc. v. Stenrite Indus., Inc., 2000 WL 1772599, at *9 (S.D.N.Y. Nov. 28, 2000) ("`Although a defendant need not be aware of all the details of a contract . . . it must have actual knowledge of a specific contract.'") (quoting Int'l Minerals v. Pappas, 1992 WL 354504, at *3 (S.D.N.Y. Nov. 17, 1992)) (citation omitted). Because there is no allegation that Porter knew of the specific contract at issue, Bishop has failed to state a claim.

The complaint must be dismissed also because it fails to allege that Porter induced the third party to breach the contract. First, to claim that a defendant induced a third party to breach a contract, "New York law requires . . . that the alleged inducer have knowledge at the time of inducement of the contract in issue." 800America, Inc. v. Control Commerce, Inc., 202 F. Supp.2d 288, 289 (S.D.N.Y. 2002) (citation omitted). Because there is no such allegation in this case, Bishop cannot state a claim for interference with contractual relations. See Randa Corp. v. Mulberry Thai Silk, Inc., 2000 WL 1741680, at *4 (S.D.N.Y. Nov. 27, 2000) ("In order to sustain a cause of action for tortious interference with contract, a plaintiff is required to demonstrate that the defendant induced a third party to breach the contract.") (citing cases).

Second, even if Bishop had included an allegation that Porter knew of the contract, the complaint still fails to claim that Porter "induced" any breach. While Bishop's claim alleges his contract was terminated because the third party learned of the allegations of the Petition, see Complaint at 3, this does not show that Porter played a direct role in inducing the third party to breach the contract. Moreover, Bishop's own opposition to Porter's motion attaches a letter from the third party. The letter shows that Bishop, not Porter, notified the third party of the allegations in the Petition. See Letter of Termination, dated May 24, 2002 (reproduced in Pl. Aff. Ex. B) (thanking Bishop for disclosing the existence of the Petition). Therefore, by his own admission, Bishop has shown that he — not Porter — undertook the communication that caused the third party to breach the contract.

Accordingly, Bishop has failed to allege the elements of this claim.

2. Alleged Constitutional Violations

Bishop claims that his rights were violated by the filing of the Petition because Porter used his military status to act under the color of state law and obtain special treatment. See Complaint at 3-4. Because the only authority Porter is alleged to have is as an officer in the United States Army, however, any actions Porter took under color of law would have been under federal not state law. Accordingly, the Court will examine whether Bishop can state a claim under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).

In order for Bishop to assert a cause of action under Bivens he must allege that Porter acted under color of federal law to deprive him of his constitutional rights. See, e.g., Langella v. United States, 2002 WL 1218524, at *3 (S.D.N.Y. June 5, 2002); see also Vondette v. McDonald, 2001 WL 1551152, at *3 (S.D.N.Y. Dec. 5, 2001) ("To state a Bivens claim, a plaintiff must allege a `deprivation of constitutional rights by defendants acting under color of federal law.'") (quoting Smith v. Chief Executive Officer, 2001 WL 1035136, at *3 (S.D.N.Y. Sept. 7, 2001)). Courts have looked to case law under 42 U.S.C. § 1983 to evaluate claims arising under Bivens. See, e.g., Tavarez v. Reno, 54 F.3d 109, 110 (2d Cir. 1995); Chin v. Bowen, 833 F.2d 21, 24 (2d Cir. 1987).

Bishop's claim fails first because he does not allege any facts that would support the conclusion that Porter acted under the color of law in filing the petition. Individuals act under color of law if they "have exercised power `possessed by virtue of [federal] law and made possible only because the wrongdoer is clothed with the authority of [federal] law.'" West v. Atkins, 487 U.S. 42, 49 (1988) (quoting United States v. Classic, 313 U.S. 299, 326 (1941)) (citations omitted). Bishop's allegations are based on an assertion that Porter's status as a major in the United States Army allowed him to obtain an advantageous return date on the Petition from the clerk's office in the Florida court. See Complaint at 3-4; Pl. Aff., ¶ 13. In filing the petition, however, Porter merely acted as a private citizen exercising his First Amendment right to bring suit. See Colombo v. O'Connell, 310 F.3d 115, 118 (2d Cir. 2002) ("the right of a private individual to sue and defend in the courts is itself protected by the First Amendment because it is the right conservative of all other rights which lies at the foundation of orderly government") (citations, quotation marks and bracketing omitted), cert. denied, ___ S.Ct. ___, 71 U.S.L.W. 3523 (Apr. 7, 2003). Porter "had no obligation to refrain from suing [Bishop] privately merely because he currently serves" as a major in the United States Army. Id. Case law makes clear that "[p]rivate acts . . . are `not considered to be done `under color of' . . . law merely because the actor is a public official.'" Manax v. McNamara, 842 F.2d 808, 812 (5th Cir. 1988) (quoting Smith v. Winter, 782 F.2d 508, 512 (5th Cir. 1986)); see also Gibson v. City of Chicago, 910 F.2d 1510, 1517 (7th Cir. 1990) (defendant's "mere status as a policeman does not render all of his acts under color of state law."). That the state court Clerk may have given Porter his preferred date because of Porter's status in the military did not convert this private act into one taken under authority of federal law.

In any event, Porter alleges no constitutional violation resulting from Bishop's ability to obtain a favorable return date from the Florida clerk. There is no federal constitutional right to have a state court issue a favorable or even a random return date in a state proceeding rather than one selected by the filing party. Moreover, Bishop does not even suggest that he attempted to adjourn the return date and was not permitted to do so.

Accordingly, this claim should be dismissed.

3. Familial Rights Claims

Bishop claims that Porter is violating his parental rights and right to associate with his children. See Complaint at 6-7. Specifically, he asserts that Porter's actions interfered with Bishop's

fundamental Constitutional right to familial association as father and son and as brothers and sister, a natural legal right guaranteed under Article I, §§ 8, 9 and 11 of the New York State Constitution, and the First, Fifth and Fourteenth Amendments of the United States Constitution.
Complaint at 6.

These constitutional claims must fail. Bishop's right to federal constitutional protection of his familial relationships can be violated only by governmental actors. See, e.g., Patel v. Searles, 305 F.3d 130, 135 (2d Cir. 2002), cert. denied, 123 S.Ct. 1486 (2003). The interference in this case, however, is alleged to be by Bishop in his personal capacity. With respect to the New York State constitution, Section 8 of Article I relates in relevant part to freedom of speech and places restrictions on governmental — not private — actors. See SHAD Alliance v. Smith Haven Mall, 66 N.Y.2d 496, 502 (1985) ("it is firmly established that the State and Federal constitutional guarantees of freedom of speech protect the individual against action by governmental authorities, not by private persons") (citing cases). Section 9 governs principally the right to peaceably assemble and petition — again placing restrictions only on governmental actors. With respect to Section 11, Bishop presumably means to reference the portion of the New York Constitution providing that "[n]o person shall be denied the equal protection of the laws." Nothing in Bishop's complaint, however, suggests that he was denied such equal protection.

C. Bishop's Motions

Bishop has also filed a motion to strike Porter's motion to dismiss (Docket #5), to amend his complaint (Docket #12), and for the appointment of counsel for his children (Docket #7). Each is discussed below.

1. Motion to Strike

Bishop wishes to strike Porter's motion to dismiss. Rule 12(f) of the Federal Rules of Civil Procedure allows a court to strike "from any pleading . . . any redundant, immaterial, impertinent, or scandalous matter." Bishop has two bases for his motion. First, he claims that an attorney must have helped Porter draft his motion to dismiss — thereby engaging in the unauthorized practice of law. This would not make the motion "redundant, immaterial, impertinent, or scandalous," however, and thus the motion must be denied as to this ground. The second ground for Bishop's motion is that Porter's papers make reference to Bishop having a criminal conviction. Given the lack of relevance of this fact on a motion to dismiss, the motion to strike this particular reference should be granted.

2. Motion to Amend

Bishop has moved to amend his complaint to add claims of tortious interference with economic advantage, tortious interference with prospective contractual relations, negligent interference with contractual relationship and negligent interference with economic advantage. See Amend Aff. at 1. In addition, Bishop seeks to add a factual allegation that Porter has continued to interfere with Bishop's parental rights. See id. ¶ 8. In response, Porter filed another copy of his motion to dismiss, see Motion to Dismiss and Memorandum in Support, filed February 10, 2003 ("Def. Motion II") (Docket #14), which the Court construes as opposing the motion to amend on the grounds of futility.

Ordinarily, leave to amend a complaint "shall be freely given when justice so requires." Fed.R.Civ.P. 15(a); Foman v. Davis, 371 U.S. 178, 182 (1962). If allowing an amendment would be futile, however, a court may deny the application. See, e.g., Foman, 371 U.S. at 182. "An amendment to a pleading will be futile if a proposed claim could not withstand a motion to dismiss pursuant to Rule 12(b)(6)." Dougherty v. Town of North Hempstead Bd. of Zoning Appeals, 282 F.3d 83, 88 (2d Cir. 2002) (citation omitted); see also Ricciuti v. N.Y.C. Transit Auth., 941 F.2d 119, 123 (2d Cir. 1991) (a "district judge may review [a proposed amended] pleading for adequacy and need not allow its filing if it does not state a claim upon which relief can be granted").

Bishop's proposed amended complaint alleges the same facts as discussed above regarding his claim of tortious interference with contract. The only difference between the allegations in the complaint and the proposed amended complaint is Bishop's naming of the third party with whom he allegedly contracted. See Proposed Amended Complaint, dated January 21, 2003 (annexed to Motion to Amend), at 5, 7.

For the reasons stated below, the motion to amend should be denied because the proposed amended complaint could not survive a motion to dismiss.

a. Res Judicata.

Because all the new contractual claims are simply variations on Bishop's claim — made in the Florida action — that the filing of the Petition was improper and caused him economic harm, they are all barred by the doctrine of res judicata. See Section III.A above. Thus, it would be futile to allow an amendment of the complaint to include such claims and the motion should be denied for this reason alone.

b. Merits of the Claims.

The new claims would each also fail on their merits.

i. Tortious Interference with Economic Advantage.

A claim for tortious interference with economic advantage requires four elements: "(1) a prospective contractual relation or business with a third party; (2) defendants' interference with that relation; (3) defendant acted with the sole purpose of harming plaintiff or used dishonest, unfair or improper means; and (4) injury to the plaintiff." G-I Holdings, Inc. v. Baron & Budd, 179 F. Supp.2d 233, 253-54 (S.D.N.Y. 2001). This tort is not applicable to the facts alleged by Bishop because no "prospective" contractual relation is at issue; instead, Bishop alleges that there was an actual contract.

In any event, "a higher degree of interference is required" for this tort than a claim for tortious interference with contract. Id. at 254 (citing Lane's Floor Coverings, Inc. v. Ardex, Inc., 1996 WL 19181, at *3 (E.D.N.Y. Jan. 4, 1996); see also NBT Bancorp Inc. v. Fleet/Norstar Fin. Group, Inc., 87 N.Y.2d 614, 621 (1996) ("[w]here there has been no breach of an existing contract, but only interference with prospective contract rights . . . plaintiff must show more culpable conduct on the part of the defendant") (citation omitted). As already discussed, see Section III.B.1 above, Bishop has not alleged facts to show that Porter knew of the contract or that Porter intentionally induced the third party to breach the contract. Thus, Bishop has certainly not shown the higher degree of interference required for a claim of tortious interference with economic advantage and his proposed addition of this claim is futile.

ii. Tortious Interference with Prospective Business Relations.

Bishop's proposed addition of a claim for tortious interference with prospective business relations similarly fails. Again, this tort is inapplicable to the instant case because it deals with "prospective" business relations — not existing contracts as has been alleged here (and for which the tort of tortious interference with contracts is available.). See, e.g., NBT Bancorp, 87 N.Y.2d at 621 (tort applies where there is "no breach of an existing contract"); American Preferred Prescription, Inc. v. Health Mgmt., Inc., 252 A.D.2d 414, 418 (1st Dep't 1998) (plaintiff must show a contract "would have been" entered into).

In any event, case law reflects that no claim for this tort is available where the defendant did not have contact with the third party or induce that party to break its relationship with plaintiff. See, e.g., G.K.A. Beverage, 55 F.3d at 768. Here, the allegations are simply that Porter's filing of the allegedly improper Petition had the effect of causing Bishop to suffer a breach of contract because of Bishop's need to "answer[], appear[], defend[] and defeat[]" Porter's "insufficient [Petition]." Complaint at 2-3. As discussed above, Bishop has not alleged that Porter ever contacted or induced the third party to breach the contract. In fact, he has demonstrated just the opposite. See Complaint at 3; Letter of Termination, dated May 24, 2002 (reproduced in Pl. Aff. Ex. B). Accordingly, Bishop's allegations do not state a claim for this tort either.

iii. "Negligent Interference".

Finally, Bishop's attempts to add claims for negligent interference with contractual relations or negligent interference with economic advantage fail because neither cause of action exists. See Alvord and Swift v. Stewart M. Muller Const. Co., Inc., 46 N.Y.2d 276, 281 (1978) ("Intentional interference with contractual relations is . . . recognized as a tort . . . [b]ut the interference must be intentional, not merely negligent.") (citations omitted); see also Gruntal & Co., Inc. v. San Diego Bancorp, 1996 WL 343079, at *3 (S.D.N.Y. June 21, 1996) (dismissing counterclaim for interference with economic advantage for lack of allegations of intentional interference); Costanza Const. Corp. v. City of Rochester, 135 A.D.2d 1111, 1112 (4th Dep't 1987) ("A claim for tortious interference with contractual relations requires intentional interference, not merely intrusion that is negligent.").

Because the addition of the proposed claims would be futile, the Court should deny Bishop's motion to file an amended complaint.

3. Appointment of Counsel

Bishop seeks appointment of a guardian ad litem for his children under Fed.R.Civ.P. 17(c). The Second Circuit has made clear that a non-attorney parent may not file suit on behalf of his or her children. See Wenger v. Canastota Cent. School Dist., 146 F.3d 123, 124-25 (2d Cir. 1998) (per curiam), cert. denied, 526 U.S. 1025 (1999). Instead, the district court has the obligation to consider whether either counsel or a guardian ad litem should be appointed for such children. Id. at 125. In the case of an indigent litigant, the Court should look first to whether the claim is "likely to be of substance." Id. (quoting Hodge v. Police Officers, 802 F.2d 58. 61-62 (2d Cir. 1986)). If this factor cannot be met, counsel will not be appointed and any claims brought on behalf of minors will be dismissed. Id.

For the reasons already stated, the children's claim is not likely to be of substance. Accordingly, counsel should not be appointed and the children's claims should be dismissed.

Conclusion

For the foregoing reasons, Porter's motion to dismiss the complaint should be granted and Bishop's motions should be denied (with the exception of his motion to strike the allegation that he has a prior criminal conviction). Because the sole remaining defendant, "XYZ Insurance Co.," has never been served; the time for service has expired under Fed.R.Civ.P. 4(m); and the complaint states no claim against such a company anyway, the case should be dismissed in its entirety.*fn1

PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have ten (10) days from service of this Report to file any objections. See also Fed.R.Civ.P. 6(a), (e). Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with copies sent to the Honorable Jed S. Rakoff, 500 Pearl Street, New York, New York 10007, and to the undersigned at 40 Centre Street, New York, New York 10007. Any request for an extension of time to file objections must be directed to Judge Rakoff. If a party fails to file timely objections, that party will not be permitted to raise any objections to this Report and Recommendation on appeal. See Thomas v. Arn, 474 U.S. 140 (1985).


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