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O'DIAH v. NEW YORK CITY

United States District Court, Southern District of New York


September 10, 2003

AROR ARK O'DIAH, PLAINTIFF,
v.
NEW YORK CITY, THE PURO WATER GROUP, RICHARD EHLERS, NEW YORK STATE, NASSAU COUNTY, TSUNIS & GASPERIS, SEARS ROEBUCK AND COMPANY, VILLAGE OF FLOWERHILL, NEW YORK STATE DEPARTMENT OF MOTOR VEHICLES, PA TRANSIT PORT AUTHORITY OF ALLEGHENY COUNTY IN PITTSBURGH, EQUIFAX CREDIT INFORMATION, EXPERIAN, IPC INTERNATIONAL CORP., TRANS UNION, ALLIED SPECTAGUARD, COLLECTECH, INC., CREDIT MANAGEMENT COMPANY, MERCY HOSPITAL OF PITTSBURGH, SOUTH HILLS ENT., I.C. SYSTEMS, INC., JAE CHIL KIM REHAB., FORD MOTOR CREDIT CORPORATION, MICHIGAN STATE UNIVERSITY, PIERCE HAMILTON AND STERN, NORTHERN GLEN APARTMENT HOMES, VOLKSWAGEN CREDITINC., VOLKSWAGEN OF AMERICA INC., NASSAU COUNTY ATTORNEY, NASSAU DISTRICT ATTORNEY, THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT, NCO FINANCIAL SYSTEMS, MERCY PROVIDENCE, NEW YORK STATE WORKERS COMPENSATION BOARD, BRAUNSTEIN AND CHASE, L.L.P., CITY OF BOSTON, U.S. FILTER INC., PIPING ROCK NATURAL WATER, AND LEONARDWEXLER, DEFENDANTS

The opinion of the court was delivered by: Denise Cote, District Judge Page 2

OPINION AND ORDER

Plaintiff pro se Aror Ark O'Diah ("O'Diah") brought this action on January 11, 2002, against thirty-eight defendants alleging, inter alia, violations of 42 U.S.C. § 1983, the Civil Rights Act of 1964, and the Fair Credit Reporting Act. The claims against most of the defendants were dismissed in an Opinion and Order of August 21, 2002 ("2002 Opinion"). Claims against four additional defendants were dismissed in an Opinion and Order of August 22, 2003. Three defendants, Northern Glen Apartment Homes, Braunstein and Chase, L.L.P., and Piping Rock Natural Water ("Piping Rock"), remain. Piping Rock now moves to vacate a default entered against it and to dismiss the complaint on the ground of res judicata. Because of the assertion of res judicata, it is appropriate to describe litigation between these parties that preceded the filing of this action.

Prior to filing a complaint before this Court, O'Diah made nearly identical allegations against Piping Rock in a 1999 action filed in the United States District Court for the Eastern District of New York ("1999 Eastern District Action"). In the 1999 Eastern District Action, O'Diah alleged that he had been Page 3 fired from his job with U.S. Filter*fn1 as a result of a complaint by Piping Rock. Specifically, he alleged that:

Piping Rock Natural Water had inform [sic] them that plaintiff encouraged Betty Donovan [a U.S. Filter customer to whom O'Diah made a water delivery] to sue Piping Rock Natural Water. . . . Peter Nicolas and Piping Rock Natural Water told the plaintiff that they will quit from United States Filter, Inc., and take with them their customers if United States Filter, Inc., did not fire the plaintiff.
Plaintiff alleged that he was subsequently told by U.S. Filter's Regional Manager that the company's "corporate office" had instructed him to fire O'Diah. For Piping Rock's allegedly malicious conduct in influencing his employer to fire him, O'Diah sought "judgment in equitable [sic] or in the alternative, in the amount of $100,000 against Piping Rock Natural Water for influencing plaintiff [sic] employer to terminate the plaintiff in retaliation because plaintiff opposed discriminatory practices." Through an order entered in the 1999 Eastern District Action on May 17, 2001 ("May 17 Order"), the claims against U.S. Filter, Piping Rock, and related entities and individuals were dismissed with prejudice for failure to prosecute, based on the plaintiff's refusal to submit to a deposition, his failure to respond properly to defendants' discovery requests, and his failure to Page 4 attend court-ordered conferences. In adopting the Magistrate Judge's Report and Recommendation to dismiss plaintiff's claims, the court noted, "Magistrate Orenstein . . . attempted to strike an appropriate balance by providing the plaintiff with numerous opportunities to litigate his claims in spite of his contemptuous behavior [of repeatedly missing court conferences]." Judgment was entered in the 1999 Eastern District Action in favor of all defendants on May 30, 2001.

Less than eight months later, O'Diah filed this action against Piping Rock and others. On January 27, 2003, based on Piping Rock's failure to file an answer to O'Diah's complaint, an Order directed Piping Rock to show cause no later than March 7 why a default judgment should not be entered against it. On April 1, having received no submissions from Piping Rock, an Order of default was entered against it. The matter was referred to Magistrate Judge James C. Francis for an inquest. On April 23, Piping Rock wrote the Court stating that it had just recently become aware of the lawsuit. On April 25, an Order was issued permitting Piping Rock to enter a motion to vacate the default. On May 14, Piping Rock filed a motion to vacate the default and to dismiss. On June 6, O'Diah opposed the motion.

Allegations Against Piping Rock Natural Water

As discussed in the 2002 Opinion, plaintiff's complaint Page 5 asserts many unrelated claims arising from alleged physical injuries, injuries to his reputation, and numerous instances of discrimination. O'Diah also generally alleges a conspiracy among the various defendants to deprive him of his rights. See O'Diah v. New York City, et. al., 2002 WL 1941179 (S.D.N.Y. Aug. 21, 2002).

In his complaint, O'Diah states that he was employed as a water salesman by U.S. Filter. While working for U.S. Filter, O'Diah alleges:

On July 11, 1999, and 12, 1999, plaintiff received a phone call from his Regional Manager [at U.S. Filter], Mr. Scott Levy, that he has been directed by the Corporate Headquarter [sic] to fire the plaintiff on the ground [sic] that Piping Rock Natural Water, City of Boston and Police Department, State of New York, and Nassau County informed them that plaintiff has been bad mouthing his employer [sic] products, owe child supports [sic], and also spoke against the Democrat Party [sic], and they wanted him fired.
This is the only allegation against Piping Rock contained in the complaint filed in the present action. In his opposition to the pending motion, O'Diah elaborates:

"The Defendants [sic] Piping Rock Natural Spring Water has been involved in the evil promotion and practices of racially motivated hatred, slander, defamation, libel and reckless disregard based upon the identification of the plaintiff [sic] national origin resulting from the filing of the previous and present civil actions."
(Emphasis in original.) Page 6

Discussion

Res Judicata

Under the doctrine of res judicata, or claim preclusion, a final judgment on the merits of an action bars a plaintiff "from relitigating claims that were or could have been raised in [the] prior action against the same defendant." L-Tec Elec. Corp. v. Cougar Elec. Org., Inc., 198 F.3d 85, 87-88 (2d Cir. 1999) (per curiam). See also Flaherty v. Lang, 199 F.3d 607, 612 (2d Cir. 1999). A claim will be precluded "if the second cause of action requires the same evidence to support it and is based on facts that were also present in the first." Maharaj v. BankAmerican Corp., 128 F.3d 94, 97 (2d Cir. 1997).

In the present case, O'Diah's allegations arise from the same facts as those at issue in the 1999 Eastern District Action. In both actions, O'Diah alleges that Piping Rock influenced U.S. Filter to terminate his employment because O'Diah had maligned its products, and that Piping Rock threatened to withdraw its business from U.S. Filter if it did not fire O'Diah.

As discussed supra, the Eastern District's May 17 Order dismissed all claims against Piping Rock with prejudice due to O'Diah's failure to prosecute. A dismissal for failure to prosecute constitutes a final adjudication on the merits. See Rule 41(b), Fed.R. Civ. P. Thus, the 1999 Eastern District Action requires dismissal of O'Diah's present claims against Piping Rock on the ground of res judicata. Page 7

Plaintiff's New Claim

In his opposition to Piping Rock's motion, O'Diah appears to raise a new allegation that Piping Rock engaged in a pattern of retaliation against him for naming it as a defendant in his lawsuits. To the extent that this new claim against Piping Rock arises from a separate set of events from those litigated in the 1999 Eastern District Action, it would not be subject to dismissal under the doctrine of res judicata.

Were plaintiff's opposition construed as an application to amend his complaint, however, the application would be denied. Plaintiff's generalized assertion of retaliation is insufficient to state a cause of action. Plaintiff gives no explanation as to when or how Piping Rock engaged in retaliation. In support of the new allegation, O'Diah attaches the affidavit of Betty Donovan, dated July 10, 2000, which solely addresses his claim against Piping Rock arising from its alleged influence over U.S. Filter's decision to fire him. The affidavit contains no evidence regarding any retaliation against O'Diah for his decision to sue Piping Rock. Therefore, insofar as plaintiff's opposition papers are an attempt to amend the original complaint, the request is denied.

Defendant's Motion to Vacate Default

In his opposition to Piping Rock's motion, O'Diah argues that Piping Rock failed to file a timely answer, and that the April 1 Order entering default against Piping Rock should be Page 8 upheld. An entry of default may be set aside for "good cause shown." Rule 55(c), Fed.R.Civ.P. Good cause depends upon such factors as prejudice to the plaintiff, the willfulness of the default, and the merits of the defense. In re Chalasani, 92 F.3d 1300, 1307 (2d Cir. 1996). O'Diah's opposition, even if construed liberally, does not allege that vacating the default will prejudice him. As to the willfulness of defendant's default, there is some dispute between the parties. O'Diah asserts proper service of his complaint, but defendant claims that it only became aware of the lawsuit when it received a copy of communications between Magistrate Judge Francis and O'Diah indicating that the matter was being scheduled for an inquest.

Whatever the reason for delay in the defendant's response, Piping Rock has articulated meritorious defenses to plaintiff's claims against it. The Second Circuit has stated repeatedly that default judgments are disfavored, and there is a clear preference for cases to be decided on the merits. See, e.g., Pecarsky v. Galaxiworld.com Ltd., 249 F.3d 167, 174 (2d Cir. 2001). Page 9

Conclusion

Defendant's motion to vacate the default and to dismiss is granted. All claims against Piping Rock Natural Water are dismissed with prejudice.

SO ORDERED.


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