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May 10, 2004.

STEVEN BEMBEN, Plaintiff, -against- FUJI PHOTO FILM U.S.A., INC., WILLIAM HOMER Defendants

The opinion of the court was delivered by: DEBRA FREEMAN, Magistrate Judge


By letter dated April 29, 2004, defendants Fuji Photo Film U.S.A., Inc. ("Fuji") and William Homer ("Homer") move pursuant to the All Writs Act, 28 U.S.C. § 1651, for a protective order shielding them from a variety of claimed abuses of the litigation process and other purportedly unlawful activity by plaintiff Steven Bemben ("Bemben"). According to defendants, Bemben's repeated personal attacks on defendants — made both through frequent, "vexatious" filings and correspondence in this case, and in widely-dispersed communications made outside the Court (including in postings on the Internet) — are harassing and should be curtailed by the Court. For the reasons discussed below, defendants' motion is denied.

A. Claimed Litigation Abuses

  Defendants' principal complaints regarding Bemben's litigation conduct are that he has "inundated the Court and defendants with repetitive filings and correspondence seeking to relitigate claims which are either frivolous or identical to those previously dismissed with prejudice" (Letter to the Court from David J. Weisenfeld, Esq., dated April 29, 2004 ("Weisenfeld Ltr.")), and that he has now "enlisted the assistance of his girlfriend in sending yet more letters to the Court and defendants so as to engage in further scurrilous attacks against [defendants], and to waste judicial resources" (id.). To curb these abuses, defendants seek an order denying Bemben the right to make any further filings — whether formal or informal submissions in this case, or the initiation of any new case against the same defendants — without prior, written Court approval. Defendants argue that the Court has inherent power to fashion the requested order, so as to protect them from vexatious proceedings. (See id. at 2.)

  The Court certainly has the authority to fashion reasonable remedies to deal with truly abusive litigants. See, e.g., Safir v. U.S. Lines, Inc., 792 F.2d 19, 24 (2d Cir. 1986). Before restricting a litigant's future access to the courts, however, the Court should take into account the following factors: (1) the litigant's history of litigation; (2) the litigant's motive; (3) whether the litigant is represented by counsel; (4) whether the litigant has caused needless expense or burden to the Court and other parties; and (5) whether other sanctions or remedies would suffice to protect the Court and other parties. Id.

  Considering these factors in this case, the Court does not agree with defendants that, at this point, the requested restriction on future filings is necessary or appropriate. Bemben has no history of repeatedly filing lawsuits against these defendants or others — in fact, this appears to be the first and only case to be litigated by him in this Court. Moreover, the Court does not have reason to believe that Bemben's past submissions to this Court were made for the purpose of harassing defendants. Rather, it appears that Bemben has merely been trying to assert and preserve his rights as a pro se litigant, and to explain his claims as best as he is able. While some of his many submissions have indeed been repetitive, these submissions have not driven up defendants' litigation costs, as defendants have, in reality, rarely perceived the need to respond. Finally, by separate Report and Recommendation, this Court is now recommending to the Honorable Kimba M. Wood that all claims pending in this action be dismissed with prejudice, and that the case be closed. If this recommendation is adopted by Judge Wood, this matter will be concluded, and there will be no need to restrict future filings in the action. If Judge Wood determines that the case should proceed, and if Bemben should then engage in conduct that the Court perceives as abusive, the Court will consider that conduct at the relevant time.

  Bemben is, however, instructed that, as long as he is proceeding pro se, only he can present his arguments to the Court. If he obtains counsel, then, of course, his counsel should communicate with the Court on his behalf. It is not permitted, however, for a person other than an attorney to act in this Court on behalf of se party. See, e.g., Iannaccone v. Law, 142 F.3d 553, 558 (2d Cir. 1998) ("[A] person may not appear on another person's behalf in the other's cause. A person must be litigating an interest personal to him.") The Court notes that, within the last four weeks, it has received at least seven letters from Bemben's girlfriend, Cindy Jiano, all attempting to lend support to Bemben's position in this case. To the extent Bemben has requested that these letters be sent, he is directed to refrain from making such requests, as the Court cannot, in any event, consider letters from Ms. Jiano as valid submissions on his behalf.

 B. Other Purportedly Unlawful Activity

  Defendants also request that Bemben be prohibited from communicating in any manner about this case with defendants' clients, customers or business contacts. (See Weisenfeld Ltr. at 3, and Proposed Order, attached thereto.) Defendants further request that Bemben be ordered to refrain from making any "false oral or written statements" to "any other person or entity" about this action or the defendants. (See Proposed Order.) The impetus for these requests was apparently an April 14, 2004 "Press Release" about this case, authored by Bemben and widely distributed by him — both by an Internet posting and by being sent directly to Fuji's and Homer's customers and business contacts. (See Weisenfeld Ltr. at 1.) This "Press Release," a copy of which has been provided to the Court, states that both civil and criminal charges are pending against defendants for the "intentional, malicious actions of blacklisting [Bemben's] employment since exiting Fuji in 1999." The document goes on to state that, "The federal case cites William Homer with criminal charges of stalking and violating the civil rights of Mr. Bemben including a laundry list of anti-semitic activity." This characterization of the claims remaining in this civil lawsuit is not accurate. (See Order of Dismissal dated August 10, 2003 (Dkt. 47); Report and Recommendation, dated May 16, 2004.)

  Although the Court acknowledges the defendants' legitimate concerns regarding the so-called "Press Release," the Court is unwilling — on a motion for a protective order — to issue an order that would effectively constitute a prior restraint on speech, against a party that has not even been sued for defamation. Defendants have submitted no authority to demonstrate that such an extreme measure would be a proper exercise of this Court's power, under either the All Writs Act or the Court's inherent authority to manage litigation before it. Indeed, the case law cited to the Court by defendants on this point all arises in the context of asserted legal claims for tortious interference and/or defamation, where the moving parties are seeking injunctive relief on their already pleaded claims. See, e.g., Peregrine Myanmar Ltd. v. Segal, 89 F.3d 41, 52 (2d Cir. 1996) (where it was demonstrated, as claimed, that defendant had interfered in plaintiff's business by making false and misleading statements to plaintiffs customers, some aspects of an injunction were appropriate); Bihari v. Gross, 119 F. Supp.2d 309 (S.D.N.Y. 2000) (ruling on request for an injunction to bar alleged defamation); Bingham v. Struve, 184 A.D.2d 85, 591 N.Y.S.2d 156 (1st Dep't 1992) (where all the elements for preliminary injunctive relief were demonstrated, such relief based on a claim of libel was appropriate). Here, defendants are seeking to short-cut any proper legal process, by asserting no formal claim for defamation or any other violation of law, and yet asking this Court to find, based on an informal motion for a protective order, that Bemben has been making defamatory statements to the point where an injunction against his future speech is appropriate. The Court cannot accept this approach, and defendants' motion for a protective order is accordingly denied.



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