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March 29, 2004.

HELEN A. SALICHS, Plaintiff, -against- MICHELE D. TORTORELLI, Defendant

The opinion of the court was delivered by: DEBORAH BATTS, District Judge


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). Page 2

  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 Court.

  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"). Page 3 I. Plaintiff's Factual Objections

  Salichs raises numerous objections to the facts as found by the Magistrate Judge in the Report.*fn1 Page 4

  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 copy Page 5 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 be Page 6 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 dismiss).

  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. Page 7

  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 requiring Page 8 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 ...

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