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Amadasu v. Ngati

March 27, 2006

DARLINGTON AMADASU, PLAINTIFF,
v.
SEMA FELIX NGATI; LAW OFFICES OF S. FELIX NGATI; ERIC ABAKPORO A/K/A I. ERIC ABAKPORO; LAW OFFICES OF ERIC ABAKPORO; MAURICE GARBER; GARBER & COMPANY, P.C., DEFENDANTS.



The opinion of the court was delivered by: Joseph F. Bianco, District Judge

MEMORANDUM AND ORDER

On May 20, 2005, plaintiff filed this action pro se alleging various federal and state law claims primarily concerning state court litigation subsequent to the termination of his employment at Bronx Lebanon Hospital in 1993. By Order dated October 6, 2005, plaintiff was directed to file an amended complaint.*fn1 After an extension of time was afforded, plaintiff timely filed an amended complaint on November 21, 2005.*fn2 The Court grants plaintiff's request to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. The Court dismisses the 42 U.S.C. §§ 1981, 1985, 1986 and constitutional claims against all defendants. With the exception of a malpractice claim against defendant Ngati and his firm and a malpractice claim against defendant Abakporo and his firm, all of the state law claims are dismissed as redundant of plaintiff's legal malpractice claim or barred by the relevant statute of limitations. The Court directs service upon the remaining defendants as detailed below.

I. STANDARD OF REVIEW

In reviewing plaintiff's complaint, the Court is mindful that because plaintiff is proceeding pro se, his submission should be held "to less stringent standards than formal pleadings drafted by lawyers." Hughes v. Rowe, 449 U.S. 5, 9 (1980). Under 28 U.S.C. § 1915 (e)(2)(B), a district court shall dismiss an in forma pauperis action where it is satisfied that the action is "(i) frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief." An action is "frivolous" when either: (1) "the factual contentions are clearly baseless, such as when allegations are the product of delusion of fantasy," or (2) "the claim is `based on an indisputably meritless legal theory.'" Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998) (internal citations and quotations omitted). A claim is based on an "indisputably meritless legal theory" when either the claim lacks an arguable basis in law, Benitez v. Wolff, 907 F.2d 1293, 1295 (2d Cir. 1990) (per curiam), or a dispositive defense clearly exists on the face of the complaint. See Pino v. Ryan, 49 F.3d 51, 53 (2d Cir. 1995).

II. BACKGROUND

A. Plaintiff's Allegations

Plaintiff was terminated from his position as a medical resident at Bronx Lebanon Hospital ("the Hospital") on September 21, 1993 by Dr. Margaret Rosenberg ("Rosenberg"), director of the Family Practice Residency Program, for the "inappropriate and unprofessional treatment of a 13-yr-old female patient [who was brought to the hospital by her grandmother, Mabel Brevett ("Brevett")] in violation of established medical procedures and legal requirements." (Compl. ¶ 15.) The termination "subsequently gave rise to a chain of lawsuits." (Id. ¶ 10.)

The first action related to the termination was filed on or about March 21, 1994 in the New York Supreme Court, Bronx County, by plaintiff against the hospital and Rosenberg for "inter alia breach of contract, wrongful termination, defamation, etc." (Id. ¶ 16.) Plaintiff hired two different attorneys to represent him in this action, both of whom "disappeared with the monies [paid into escrow] without a trace." (Id. ¶¶ 18-19.) Neither of these attorneys is named in the instant action.

In or about December 1994, the minor and Brevett filed a medical malpractice action against plaintiff in New York Supreme Court, Bronx County. (Id. ¶ 20.) In July or August 1995, plaintiff hired attorney defendant Maurice Garber ("Garber") to represent him in both actions in state court: plaintiff's wrongful termination case and defense of the medical malpractice action." (Id. ¶ 23.) In 1997, plaintiff's wrongful termination action was dismissed by the state court for failure to prosecute the action, but Garber concealed this information from plaintiff. (Id.¶ 27.) In or about May 1998, "within the Brevett/[minor]-suit[] evolved a third-party lawsuit" by the Hospital against the Institute for Urban Family Health, Inc. ("IFUH") which was a co-sponsor of the "family practice residency program from which plaintiff was discharged." (Id. ¶¶ 28, 35.) Plaintiff maintains that within this lawsuit, IFUH's position exculpated plaintiff. (Id. ¶ 29.)

On or about May 24, 1999, Garber informed plaintiff that he would no longer represent him. (Id. ¶ 30.) Plaintiff hired a new lawyer, defendant Felix Ngati ("Ngati") who, on or about June 1, 1999, re-filed the previously dismissed wrongful termination action, adding some additional personal injury claims. In July 1999, plaintiff left New York for "a program" in Ohio. (Id. ¶ 80.)

1. Claims against Garber

Plaintiff alleges that, on September 9, 1995, he entered into two agreements with Garber. In order to represent plaintiff in the wrongful termination action, plaintiff entered into "a contingent-fee agreement" whereby Garber would recover one-third of any monies awarded plaintiff. (Id. ¶ 42.) Plaintiff was obligated to deposit a total of $2000 into escrow for necessary fees, but only paid $500 of this money. (Id. ¶ 43.) Plaintiff maintains that Garber belatedly filed a notice of appearance in Spring 1996, but thereafter utterly failed to prosecute the case and, after the trial court dismissed the action "in or about 1997," broke his promise to appeal the dismissal. (Id. ¶¶ 44-8; 53-55.) Plaintiff also seeks to recover the $500 he deposited in escrow with Garber. (Id. ¶ 56.)

For his representation of plaintiff in the medical malpractice action, Garber was to be paid by the FOJP Service Corporation, a malpractice liability insurance company. (Id. ¶ 57.) "Garber and FOJP finalized the third party payment agreement and plaintiff was the beneficiary of the agreement. Garber collected payment f[rom] the FOJP for none or negligent services." (Id.) Plaintiff alleges that Garber's performance was inadequate as he failed to file a notice of appearance until Spring 1996, failed to appear at a deposition of Gustave and Bennett scheduled for October 2, 1996, despite the court's warning that if he failed to appear on that date his right to depose those witnesses would be waived, (id. ¶ 62), and ultimately "abandoned" the case on May 24, 1999.

2. Claims against Ngati

Plaintiff alleges that, on May 28, 1999, he entered into a contingent-fee agreement whereby Ngati would assume representation of plaintiff in the two actions and recover onethird of any monies awarded to plaintiff. (Id. ¶ 71.) On May 31, 1999, plaintiff paid $2000 toward Ngati's requested $5000 escrow account to pay the costs and fees of re-filing the "dismissed but still viable claims and other claims" in state court. (Id. ¶¶ 72-76.) Plaintiff alleges that, despite Ngati's stated displeasure with plaintiff's previous lawyers and his representation that he was qualified for the job, he also failed to prosecute plaintiff's wrongful termination action. (Id. ¶¶ 69,77-154.) Plaintiff alleges that Ngati failed him in many ways including relinquishing his responsibility to prepare pleadings to plaintiff, failing to appear at a deposition, extorting money from him, failing to keep him apprised of developments in the case, verbally abusing him on the telephone and ultimately misrepresenting their relationship and fee arrangement when seeking permission of the court to withdraw from representing plaintiff. (Id.) Their relationship ended on September 27, 2002. (Id. ¶ 131; Amend. Compl.¶ 4.)

3. Claims against Abakporo

Plaintiff's claims against Eric Abakporo ("Abakporo") involve older and different state court litigation. In March 1991, plaintiff filed two actions pro se: the first against Integrity Medicals regarding medical equipment; and the second against two physicians for "breach of independent of contractor agreement." (Compl. ¶ 155.) On July 22, 1991, plaintiff hired Abakporo to represent him in both actions.

The action filed in New York State Court, Queens County, against Integrity Medicals sought to recover money for equipment for which plaintiff paid, but never received. Plaintiff entered into an attorney-client contingent-fee agreement whereby Abakporo would recover one-third of any monies awarded to plaintiff in the action. (Id. ¶ 157.) Plaintiff maintains that the action was settled and Abakporo recovered his fee, but plaintiff has not received a portion of the equipment or monies to which he was entitled. (Id. ¶ 158.)

As to the action against the physicians, plaintiff maintains that he agreed to pay a onetime fee to Abakporo of $1500 for legal representation. (Id. ¶¶ 159-60.) In or about October 1992, judgment by default was entered against the defendant doctors in the amount of $20,132.00, but a dispute over fees precluded its collection. (Id. ¶¶ 164-65.) Thereafter, the default judgment was vacated, and from 1993 through at least 1998, the case was repeatedly restored and removed from the trial calendar and Apakporo repeatedly misplaced plaintiff's case file. (Id. ¶¶ 166-203.)

Plaintiff left New York for Utah in the fall of 1998 and his efforts to contact Abakporo from out of state thereafter were unsuccessful. (Id. ¶¶ 206, 208.) Upon plaintiff's return visits to New York in 2000, 2003 and 2004, he was assured that "settlement negotiation and stay of trial were still ongoing and that he would send a status report to plaintiff." (Id. ¶ 209.) Plaintiff did not receive the promised updates on the case and had his last contact with Abakporo on March 25, 2005, when Abakporo informed plaintiff that the "case was dead and buried." (Id. ¶ 210.)

Additionally, plaintiff seeks to hold Abakporo responsible for a real estate transaction that went awry. Plaintiff alleges that Abakporo drafted and was a "guarantor and witness" to a one-year lease contract between plaintiff and Ms. Ivy Cooper ("Cooper") which was breached in 1992. (Id. ¶ 215.) Plaintiff obtained a judgment against Cooper in housing court, but he has been unable to collect. (Id. ¶ 221.) Plaintiff maintains that Abakporo is responsible for recovering these funds. (Id. ¶¶ 222-23.)

B. Plaintiff's Federal Litigation History

The Court relates plaintiff's state court litigation history not only because it is relevant to plaintiff's claims, but also because it illustrates a pattern of obfuscation repeated in the submissions to this Court. Although unclear from plaintiff's complaint, his wrongful termination action against the hospital and Dr. Rosenberg was ultimately decided in 2004. See Amadasu v. Bronx Lebanon Hosp. Ctr. Inc., 10 A.D.3d 571, 782 N.Y.S.2d 82 (1st Dep't 2004) (plaintiff's "termination, based on his inappropriate and unprofessional treatment of a 13-year-old female patient during an unauthorized pelvic examination, was neither arbitrary nor capricious, and was clearly in accordance with the residency contract pursuant to which termination of a resident was authorized for behavior deleterious to the Hospital or the Hospital's patients.") (citations omitted).

In addition to the state court actions referenced in his complaint and an action filed in this court,*fn3 plaintiff has also litigated two pro se cases in federal court, both of which did not proceed smoothly and were dismissed. In one, he inundated the district court with lengthy and meritless motions and objections in violation of individual rules, Amadasu v. Rosenberg, M.D. et al., No. 03-CV-6450, 2005 WL 954916, at *1 (S.D.N.Y. Apr. 26, 2005) and, in another, frustrated the court with his inability or refusal to comply with the court's rules regarding discovery. Amadasu v. University of Utah, No. 02-CV-4236, 92 Fed. Appx. 766, 769 (10th Cir. Mar. 25, 2004) (the Tenth Circuit affirmed the district court's dismissal of Amadasu's complaint).

1. S.D.N.Y. Action

On August 25, 2003, while the state action was still pending, plaintiff filed a pro se complaint in the United States District Court, Southern District of New York ("Southern District") alleging discrimination, retaliation, fraud and conspiracy against, among others, the Hospital, the residency program, five employees of those entities, various law firms and lawyers who represented the Hospital in plaintiff's state court action, the patient who sued the Hospital for malpractice because of plaintiff's alleged misconduct, and others connected to her. See Amadasu v. Bronx Lebanon Hospital, No. 03-CV-6450, 2005 WL 121746, at *1-*2 (S.D.N.Y. Jan. 21, 2005) (Report and Recommendation). In an Order dated January 23, 2004, and thereafter in a conference held on February 23, 2004, Magistrate Judge Peck noted that the complaint was lengthy and that it was not clear which defendants were being sued on which claims and "`strongly advised' Amadasu to prepare an amended complaint, making clear which defendants are named as to each cause of action and when the events relating to that claim occurred, so the court could determine whether the claim is barred by the statu[]e of limitations." Id.; see also Amadasu v. Rosenberg M.D. et al., No. 03-CV-6450, 2004 WL 925811, at *1 (S.D.N.Y. Apr. 30, 2004) (affirming Magistrate Peck's orders denying default judgment motions and order to amend complaint) (quoting February 23, 2004 Transcript at 6-7). Plaintiff's motions for judgment on the pleadings and judgment by default were repeatedly denied by the Magistrate Judge and affirmed by the district court. Plaintiff filed an amended complaint as directed by the court, but defendants' motion to dismiss the action was granted on statute of limitations and former adjudication grounds and the action dismissed. Amadasu, 2005 WL 954916, at *1-*2.

2. Utah Action

Plaintiff's pro se action in the United States District Court for the District of Utah, a multi-claim employment-related action involving different parties and claims, was dismissed by the District Court with prejudice pursuant to Fed. R. Civ. P. 37 (b)(2) for willful and repeated discovery abuse. In affirming the dismissal, the Tenth Circuit summarized the missteps that culminated in the dismissal of plaintiff's action:

Proceedings in district court did not go smoothly. Mr. Amadasu served discovery requests in excess of the number established by the scheduling order, attempted to add eleven new parties and eleven new claims after the deadline for amending the complaint, and filed numerous motions alleging conspiracy on the part of the magistrate judge, defense counsel, the court reporter, and the court reporting service. Additionally, Mr. Amadasu failed to timely respond to defendants' motions and failed to appear for two noticed hearings. Moreover, he did not fully respond to defendants' requests for discovery even after being warned that the court would consider dismissing the complaint unless he answered the interrogatories and produced all the documents responsive to defendants' discovery requests. Amadasu v. University of Utah, 92 Fed. Appx. at 769.

3. Instant Complaint

In the instant action, plaintiff's initial complaint possessed the same infirmity that plagued the Southern District action: it was difficult to ascertain which defendants were named as to each cause of action and when the events relating to that claim occurred, so that the Court could determine whether the claims are barred by the statute of limitations and whether plaintiff has stated a claim under the multifarious causes of action. The original complaint suffered a further infirmity in that it seemed the Court lacked subject matter jurisdiction because the amount in ...


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