The opinion of the court was delivered by: DEBORAH BATTS, District Judge
PARTIAL ADOPTION OF REPORT AND RECOMMENDATION
On October 8, 2002, Magistrate Judge Theodore H. Katz issued a Report
and Recommendation (the "Report") recommending that the Defendant's
motion to dismiss the Complaint be granted. See 28 U.S.C. § 636(b)(1)(C);
Local Civil Rule 72.1(d). Plaintiff filed timely written Objections
("Objections"), to which Defendant has responded.
28 U.S.C. § 636 (b)(1)(C) requires the Court to make a "de novo
determination of those portions of the report or specified proposed
findings or recommendations to which objection is made." However, where
no timely objection has been made, "a district court need only satisfy
itself that there is no clear error on the face of the record." Nelson
v. Smith, 618 F. Supp. 1186, 1189 (S.D.N.Y. 1985). After conducting a de
novo review, the Court may accept, reject, or modify, in whole or in
part, the findings or recommendations made by the Magistrate.
28 U.S.C. § 636 (b)(1)(C); see also Local Civil Rule 72.1(d).
The Report contained findings of fact by the Magistrate Judge and also
laid out the procedural background of the case. The Court does not adopt
the Report's factual recitation in toto. Indeed, the Plaintiff in her
Objections takes issue with a number of the Report's factual
determinations. As addressed below, the Court adopts the facts as set
forth by the Magistrate Judge in the Report except those few instances,
which upon examination by this Court were made erroneously. Any of the
Report's factual findings, therefore, not specifically contradicted in
the ensuing discussion, should be construed as the findings of this
Lastly, while pro se are normally accorded more leniency in the
drafting of their papers, see Tapia-Ortiz v. Doe, 171 F.3d 150, 151 (2d
Cir. 1999)(citations omitted), the Court need not do so when the pro se
plaintiff is a licensed attorney. See Harbulak v. Suffolk County,
654 F.2d 194, 198 (2d Cir. 1981)(holding that plaintiff "is a practicing
attorney and, therefore, cannot claim the special consideration which
courts customarily grant to pro se parties").
I. Plaintiff's Factual Objections
Salichs raises numerous objections to the facts as found by the
Magistrate Judge in the Report.*fn1
Plaintiff argues that the Report improperly relied on and considered
various documents in his factual recitation. Rule 12(b)(6) of the Federal
Rules of Civil Procedure requires that where "matters outside the
pleading are presented to and not excluded by the court, the motion shall
be treated as one for summary judgment and disposed of as provided in
Rule 56, and all parties shall be given reasonable opportunity to present
all material made pertinent to such a motion by Rule 56." Generally, mere
attachment of affidavits or exhibits to a defendant's papers is not
sufficient to require conversion to a motion for summary judgment. Amaker
v. Weiner, 179 F.3d 48, 50 (2d Cir. 1999) ("[R]eversal for lack of
conversion is not required unless there is reason to believe that the
extrinsic evidence actually affected the district court's decision and
thus was not at least implicitly excluded.").
Plaintiff claims that the Magistrate Judge examined and utilized
documents extrinsic to her Complaint, thereby converting Defendant's
motion into one for summary judgment without providing Plaintiff notice
or a reasonable opportunity to present pertinent evidence, as required by
Rule 12(b)(6). (Pl. Obj. at 10.) Specifically, Plaintiff points to 1) a
of the signed Settlement Agreement between Plaintiff and her ex-husband
submitted in Defendant's moving papers; 2) Defendant's Affidavit, also
attached thereto; and 3) decisions of the First Department in subsequent
proceedings between Plaintiff and her ex-husband in state court.*fn2
(Id. at 11.)
The Second Circuit, however, has allowed courts to review documents
extraneous to the complaint on a motion to dismiss. Chambers v. Time
Warner, 282 F.3d 147 (2d Cir. 2002). Courts should look to "a plaintiff's
reliance on the terms and effect of a document in drafting the complaint"
as "a necessary prerequisite to the court's consideration of the document
on a dismissal motion." Id. at 153. Where a plaintiff relies upon a
document of undisputed authenticity, "a court may consider `documents
attached to the complaint as an exhibit or incorporated in it by
reference . . . matters of which judicial notice may be taken, or . . .
documents either in plaintiffs' possession or of which plaintiff's had
knowledge and relied on in bringing suit.'" Id. (quoting Brass v.
American Film Technologies, Inc., 987 F.2d 142, 150 (2d Cir. 1993)). "To
incorporated by reference, the Complaint must make a clear, definite and
substantial reference to the documents." Thomas v. Westchester County
Health Care Corp., 232 F. Supp.2d 273, 275 (S.D.N.Y. 2002). Even where
documents are not explicitly incorporated, a court may consider them if
they are integral to the complaint. Id.; Int'l Audiotext Network, Inc. v.
American Tel, and Tel. Co. 62 F.3d 69, 72 (2d Cir. 1995) (Court may
consider commercial agreement not incorporated by reference because it is
"integral" to complaint relying on its terms and effect); Cortec
Industries, Inc. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir. 1991)
(holding that a plaintiff may not avoid consideration of document
integral to his complaint by failing to attach or incorporate it by
reference and that a defendant may produce the document when moving to
In his Report, Judge Katz concluded that the Settlement Agreement is
appropriate for consideration in rendering his recommendation to this
Court. Plaintiff objects to any consideration of the Settlement
Agreement. She urges that review of the Settlement Agreement is
unnecessary because its terms are not in dispute. (Pl. Obj. at 12-13.)
The argument misses the mark. That the terms of the Agreement are not in
dispute is simply not material to whether this Court may consider a
document when ruling on a motion to dismiss.
Plaintiff also argues that her references to the Settlement Agreement
constitute "mere discussion," and do not rise to the level of
incorporation by reference. (Id.) In her Complaint, after asserting that
Defendant recommended she settle the divorce action (Compl. ¶ 23),
Plaintiff states that she "decided to follow her advice and reach an
agreement" with her husband based on Defendant's then-unknown purported
misrepresentations. (Id. ¶ 25.) The Complaint then specifies the
relevant provisions of the Agreement:
On or about April 15, 1998 plaintiff and Mr. James
entered into a settlement agreement which provided,
among other things, that plaintiff would have physical
custody of their child Alexandra and that plaintiff
and Mr. James would share legal custody of Alexandra
with respect to education, religion, and medical
treatment. Mr. James would have visitation every other
weekend, one afternoon a week and certain holidays.
(Id. ¶ 26.)
In the Court's view, Plaintiff's averments constitute a clear, definite
and substantial reference to the Agreement.
More importantly, Plaintiff's allegations rely on the "terms and
effects" of the Settlement Agreement in framing the Complaint. Plaintiff
is, after all, alleging that Defendant's misrepresentations caused her to
enter into a Settlement Agreement, which awarded her less than sole
physical and legal custody of her daughter, thereby injuring her by
subsequent litigation with her ex-husband. Accordingly, this Court
finds the Settlement Agreement may be examined and utilized in deciding a
motion to dismiss under Rule 12(b)(6).*fn3
As to Defendant's Affidavit, the Report does not expressly address the
propriety of considering such a document. On a Rule 12(b)(6) motion to
dismiss, a defendant's affidavit cannot be considered, and the Court
specifically excludes it. Kopec v. Coughlin, 922 F.2d 152, 155 (2d Cir.
1991). The Court has thoroughly scrutinized the Report and finds the only
one passing reference to Defendant's Affidavit on page 3 of the Report.
Nevertheless, the Court does not adopt the Report's ...