United States District Court, S.D. New York
August 17, 2004.
ABRAHAM FRIEDMAN, Plaintiff,
EVAN J. WALLACH, GREGORY W. CARMAN, COURT OF INTERNATIONAL TRADE, ROBERT MAYER, PAULINE NEWMAN, RANDALL RADAR, PAUL R. MICHEL, VELTA MELBRENCIS, KEITH LOKEN, DANNA DRORI, THOMAS P. GRIESA, ARTHUR ARONOFF, U.S. DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK, LAURA TAYLOR SWAIN, RONALD E. ELLIS, and U.S. COURT OF APPEALS FOR THE FEDERAL DISTRICT, Defendants.
The opinion of the court was delivered by: ANDREW PECK, Magistrate Judge
REPORT AND RECOMMENDATION
Plaintiff Abraham Friedman brought this action against, inter
alia, various judges of this Court and the Court of
International Trade, and against current or former government
attorneys. (Dkt. No. 6: Am. Compl.) The amended complaint arises
from Friedman's loss of his business in Mexico and the failure of
the judicial system to help him. (See generally Am. Compl.)
This Court previously sua sponte dismissed the action against
the judicial defendants on the basis of absolute immunity. (Dkt.
Nos. 9-10, 12: 1/28/04 2/20/04 & 7/15/04 Orders.) Presently before the Court is defendants' motion to dismiss
plaintiff's case as against the remaining, government-counsel
defendants, on various grounds. (Dkt. Nos. 22, 24-25.) The Court
need reach only one of those grounds Friedman's current suit is
barred by an injunction entered by Judge Swain in a related case,
enjoining Friedman from bringing further lawsuits relating to his
failed business endeavors in Mexico.
On December 1, 2003, Judge Swain dismissed plaintiff Abraham
Friedman's complaint in 01 Civ. 7518, which asserted claims
similar or identical to his current amended complaint (Dkt. No.
6). See Friedman v. United States, 01 Civ. 7518, 2003 WL
22846039 (S.D.N.Y. Dec. 1, 2003) (Swain, D.J.). As part of her
decision, Judge Swain ordered that Friedman "is permanently
enjoined from litigating further any claims relating to the
alleged slip-and-fall incident and his failed business endeavors
in Mexico, as well as any claims concerning any alleged attempts
unlawfully to prevent [Friedman] from litigating such claims."
Friedman v. United States, 2003 WL 22846039 at *5. Judge
Swain further certified that "any appeal from this order would
not be taken in good faith." Id. at *6. Friedman appealed to
the Second Circuit. (01 Civ. 7518, Dkt. No. 35: Friedman 1/7/04
Notice of Appeal.) Friedman did not appeal the filing injunction
to the Second Circuit; the claims that he did raise on appeal
were denied and the appeal was dismissed "because it lacks an
arguable basis in fact or in law." (04-0532-CV: 8/3/04 2d Cir.
Order.) Friedman filed his amended complaint in this action
January 7, 2004, the same day that he appealed Judge Swain's
decision to the Second Circuit. It is not, of course, this Court's function to sit in review of
Judge Swain's anti-filing injunction. This Report and
Recommendation could end here. Nevertheless, for the benefit of
pro se plaintiff Friedman, the Court notes that Judge Swain was
well within her authority to enjoin Friedman from further
litigating any claims relating to his Mexico business endeavors
or any claims concerning alleged attempts to prevent him from
litigating these claims. See Safir v. United States Lines,
Inc., 792 F.2d 19, 23 (2d Cir. 1986) ("That the district court
possessed the authority to enjoin [Plaintiff] from further
vexatious litigation is beyond peradventure.), cert. denied,
479 U.S. 1099, 102 S.Ct. 1323 (1987); see also Vasile v.
Dean Witter Reynolds, Inc., No. 99-7297, 205 F.3d 1327 (table),
2000 WL 236473 at *2 (2d Cir. Feb. 14, 2000) ("Vasile has
commenced numerous proceedings in the state courts, district
court, and this Court in an attempt to locate assets that he
claims were embezzled. He has now expanded his campaign to
include a number of other government a non-government agencies.
Vasile has been sanctioned in this Court and ordered to pay
attorney's fees and costs in many of his actions. Vasile also has
been enjoined from filing further actions and even incarcerated
for contempt, yet he continues to file frivolous actions in
various courts and other forums. The amended injunction became
essential to preserve the status quo in light of Vasile's
continued harassment. The district court's amendment and
expansion of the original injunction was fully justified and is
hereby affirmed."); Malley v. New York City Bd. of Educ.,
112 F.3d 69, 69 (2d Cir. 1997) ("Malley has amply demonstrated that
neither the lack of success of his actions nor the warnings of
the district court will cause him to cease his abuse of the
judicial process. We therefore affirm the injunction [from filing
future complaints] as granted."); Manwani v. Brunelle, No. 95-6080, 99 F.3d 400 (table), 1995 WL 732686 at
*2 (2d Cir. Dec. 8, 1995) ("[P]laintiff has provided no
reasonable explanation of how his present claims against the
private parties differ from those he has previously asserted. The
instant action simply seeks to avoid the district court's
previous orders by filing a fresh complaint. The district court
awarded Rule 11 sanctions only as to attorneys' fees and costs
that occurred after Manwani threatened to relitigate his old
claims. Despite Manwani's pro se status, given his history of
frivolous and vexatious litigation, we cannot say that the
district court abused its discretion in dismissing the lawsuit
and awarding these sanctions. The district court also did not
abuse its discretion in restricting Manwani's future access to
the courts regarding this matter."), cert. denied,
521 U.S. 1108, 117 S.Ct. 2488 (1997); Lacy v. Principi, 317 F. Supp.2d 444,
449 (S.D.N.Y. 2004) ("When a plaintiff files repeated
lawsuits involving the same nucleus of operative facts, a
district court has the inherent power to enjoin him from filing
vexatious lawsuits in the future."); Fitzgerald v. Field, 99
Civ. 3406, 1999 WL 1021568 at *5 (S.D.N.Y. Nov. 9, 1999) ("A
district court has the authority to enjoin a plaintiff who
engages in a pattern of vexatious litigation from continuing to
do so."), aff'd, 216 F.3d 1072 (2d Cir. 2000) (table).
Friedman filed an appeal in the Second Circuit, and it was
inappropriate for him to file yet another suit in this District
while that appeal was pending. See, e.g, Lacy v.
Principi, 317 F. Supp.2d at 449 ("[P]laintiff has had his day
in court and the issues he seeks to litigate were decided against
him. Rather than appealing the dismissal he suffered in Lacy I,
plaintiff has commenced three separate lawsuits in federal
district court essentially seeking a reversal of Judge Batts's
initial dismissal. Although he appealed Judge McKenna's grant of summary
judgment, he filed this lawsuit while that appeal was pending.
The tenor of plaintiff's submissions to this Court also indicates
that he has no intention of abandoning his crusade against his
former employer; it appears that he feels that he has been
grievously wronged and will not stop filing lawsuits until he
either finds a judge who agrees with him or is otherwise
restrained from doing so.").
In fact, by filing the current action, Friedman has violated a
court order and could be held in contempt. See, e.g.,
Sassower v. Sheriff of Westchester County, 824 F.2d 184, 186
(2d Cir. 1987) (Plaintiff "had been held in criminal contempt
four times and in civil contempt twice for violating state and
federal orders enjoining him from filing actions related to the
judicial dissolution of Puccini . . ."); Klapper v. Verizon
Communications, Inc., 02 Civ. 3262, 2002 WL 1580019 at *1
(S.D.N.Y. July 16, 2002) (Granting defendants' motions to hold
plaintiffs in contempt for repeated violations of court order
enjoining plaintiff from instituting any further actions.),
aff'd in part, appeal dismissed in part, No. 02-9071, 70 Fed.
Appx. 44, 2003 WL 21728980 (2d Cir. July 24, 2003); Page v.
Shubert Org., 93 Civ. 6366, 1993 WL 541660 at *1 (S.D.N.Y. Dec.
23, 1993) ("[T]he plaintiff and plaintiff's counsel are enjoined
from conducting any further litigation of the issues determined
by Judge Stanton . . . Any violation of this order will lead to
sanctions for contempt of court."); Sharma v. Duracell, Inc.,
776 F. Supp. 168, 170 (Plaintiff is "enjoined from filing any
further action or actions in this court against defendants
arising from or having their genesis in the basic fact situation
litigated and determined in this court. . . . Should a showing be
made that [plaintiff] has violated this order, a defendant or defendants may apply to this
court for a finding of criminal contempt against him.").
Accordingly, I recommend that the Court dismiss Friedman's
complaint in its entirety. I also recommend to Judge Lynch that
the Clerk's Office be instructed about the non-filing injunction
against Friedman and reminded not to accept any future lawsuits
by Friedman arising out of the same subject matter as his prior
FILING OF 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 shall have ten (10) days
from service of this Report to file written objections. See
also Fed.R.Civ.P. 6. Such objections (and any responses to
objections) shall be filed with the Clerk of the Court, with
courtesy copies delivered to the chambers of the Honorable Gerard
E. Lynch, 500 Pearl Street, Room 803, and to my chambers, 500
Pearl Street, Room 1370. Any requests for an extension of time
for filing objections must be directed to Judge Lynch. Failure to
file objections will result in a waiver of those objections for
purposes of appeal. Thomas v. Arn, 474 U.S. 140,
106 S.Ct. 466 (1985); IUE AFL-CIO Pension Fund v. Herrmann,
9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822, 115 So.
Ct. 86 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir.
1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert.
denied, 506 U.S. 1038, 113 S.Ct. 825 (1992); Small v.
Secretary of Health & Human Servs., 892 F.2d 15, 16 (2d Cir.
1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy
v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983);
28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).
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