Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Burgess v. Harris Beach PLLC

March 28, 2008


The opinion of the court was delivered by: Charles J. Siragusa United States District Judge


Plaintiff has alleged that Defendants engaged in "a calculated scheme . . . to frame plaintiff before this Court and before an attorney grievance committee and to conceal their actions from plaintiff and the Court." (Compl. ¶ 1.) Her complaint raises ten causes of action under State and Federal law. Now before the Court are Defendants' motions (Docket Nos. 9, 13 & 14) to dismiss the complaint. For the reasons stated below, Defendants' motions are granted in part, the federal question claims are dismissed, and the Court declines to exercise jurisdiction over the remaining state law claims.


This lawsuit is before the Court on Federal Question, 28 U.S.C. § 1331, and Civil Rights, 28 U.S.C. § 1343, jurisdiction. The complaint also contains causes of action plead under New York law, for which the Court has supplemental jurisdiction. 28 U.S.C. § 1367. W ith regard to the municipal defendants, Plaintiff alleges that she "timely served Notices of Claim upon the District and the Board." (Compl. ¶ 23.) She also states that she was "deposed pursuant to New York General Municipal Law § 50-h on November 13, 2006, and this action is timely pursuant to New York General Municipal Law § 50-i (1) (c)." (Id.) Paragraphs 24 through 73 allege the facts underlying all the causes of action and are reproduced here for convenience:

24. Plaintiff commenced in U.S. District Court, Western District of New York, on behalf of a client, 03-cv-6541 in 2003. At all times relevant to this complaint, Judge Michael A. Telesca was the federal judge assigned to 03-CV-6541.

25. Upon information and belief, prior to going to work for Harris Beach in 2003, defendant Benz worked as a law clerk to Judge Telesca.

26. During discovery in 03-cv-6541 it was necessary for plaintiff to file three motions to compel relevant District employment records because of Benz's and the District's failure to produce such records voluntarily or completely.

27. After obtaining some employment records following these motions, and in the course of investigating her case, on February 22, 2006, plaintiff showed a female teacher at the District (hereafter "Doe"*fn1 ), her employment files, which plaintiff had obtained in discovery and which she had permission to show Doe. Doe was flabbergasted by memoranda and e-mails in an "investigation" file on her of which she was unaware. The memos and e-mails were by and between her building principal and defendant Schiess.

28. Doe was unaware that the District had any problems with her performance and expressed to plaintiff that, based on what she saw in her files, she believed the District was fabricating a disciplinary case against her.

29. Thus, Doe was a particularly relevant witness for plaintiff in 03-cv-6541 because of similarities between her employment and the claims plaintiff's client was asserting in 03-cv-6541, including the client's claim that the District and Schiess had fabricated the reason for her termination.

30. Doe was distraught and asked plaintiff for legal advice. Plaintiff advised her briefly that she could do nothing and see what happened, go to the union, or hire an attorney. Plaintiff stated that, if she were the attorney, she would not sue the District because no employment action had been taken but, rather, she would write a letter to the District about the contents of Doe's employment files. After a brief discussion with her boyfriend, Doe decided to wait and see what happened.

31. On March 2, 2006, Doe's union president, defendant Shapiro, called Doe and told her she was required to meet with her building principal the following Monday and was to bring a union representative with her. Doe construed this directive to mean that she was going to be disciplined in some way. She told Shapiro that plaintiff had shown her her employment records, that there were things in them that were not true, and that if the District continued trying to discipline her she was going to get a lawyer.

32. Upon information and belief, that same day, Shapiro, acting as an agent for the District rather than as an advocate for members of the teachers union, disclosed the substance of her call to Doe with Schiess and/or Benz. Upon information and belief, Schiess instructed Shapiro to call Doe back and cancel the directive that Doe meet with her principal.

33. Upon information and belief, thereafter, still on March 2, 2006, Schiess and/or Shapiro disclosed to Benz that Doe learned from Burgess the contents of the investigatory file and thus the disciplinary charges the District was building against Doe and that Doe was upset by what she had seen.

34. Soon after, that same day, Benz accused plaintiff of improperly soliciting multiple District employees, without mentioning Doe. Benz accused plaintiff of using District records obtained in discovery for her "own personal rainmaking efforts." Benz alleged that plaintiff was trying to convince District employees to retain her and sue the District. Benz claimed she learned of the alleged solicitation of multiple employees from a "confidential source" whom she did not name. Benz made these allegations with knowledge that plaintiff had a right and obligation to interview District employees who might be witnesses in 03-cv-6541, and with knowledge that she had given plaintiff written permission to show employment files obtained in discovery to the District employees to whom they pertained.

35. Plaintiff denied these unsupported and outrageous allegations. To prevent plaintiff from speaking to Doe again or from speaking to any other District employee, and to interfere with plaintiff's ability to investigate and pursue her client's case in 03-cv-6541, on March 3, 2006 Benz faxed a letter to Judge Feldman making the same vague and unsubstantiated accusations, again based on a "confidential" phone call from a District employee on March 2, 2006. Judge Feldman gave Benz until March 10, 2006 to file a motion for injunctive relief establishing her claims, and plaintiff challenged Benz emphatically to include affidavits from allegedly solicited employees.

36. Knowing Benz could not substantiate her accusations of solicitation and abuse of discovery, defendants or some of them, specifically Benz, Schiess, and Shapiro, devised a plan to frame plaintiff with the court and to interfere with her ability to investigate her case further. Defendants' plan was designed not only to prevent plaintiff from having further contact with Doe, who was upset with the District and had expressed that she might sue the District, but to prevent plaintiff from speaking to any other District employee who might either have information that would further plaintiff's case in 03-cv-6541 or who might have claims of their own against the District.

37. To further this scheme, Shapiro, Benz, and Schiess acted in concert to convince Doe that plaintiff had upset her wrongfully by misrepresenting to her that she had a problem with her employment, that plaintiff deliberately had misinterpreted to Doe the contents of her employment files for the purpose of soliciting Doe to sue the District, that plaintiff was not allowed to show Doe her files or even talk to her and was wrong to have done so, and that plaintiff had wrongfully and unlawfully misused Doe's employment records and wrongfully and unlawfully tried to solicit business from Doe.

38. To carry out their scheme, Shapiro and Benz engaged in five conversations with Doe in which they disparaged plaintiff to Doe and, at the same time, assured Doe that she had nothing to fear with respect to the status of her employment, blaming plaintiff for having misrepresented her employment status to Doe. The contents of Doe's files showed, however, that Schiess and Doe's building principal were compiling evidence against Doe for the purpose of bringing disciplinary charges against her under Education Law § 3020-a.

39. Shapiro, Benz, and Schiess knew that Doe trusted Shapiro not only as Doe's union representative but as a personal friend.

40. Specifically, on March 7, 2006, Shapiro said to Doe, among other things, that plaintiff "really has overstepped her bounds;" that Shapiro was "very angry" because plaintiff "implied things" and "the things she said were very inflammatory, very upsetting to you, and certainly in my view was inappropriate;" that plaintiff "should never even have had access to, to any of your information;" that Shapiro had "had registered a complaint with the bar association" about plaintiff; that Shapiro had received "tons" of "calls from other [union] members" who were "very upset;" that the District (Doe's employer) felt that plaintiff had "really overstepped her bounds by actually calling people" and that plaintiff 'was never supposed to contact" employees or show them their employment records; and that the District was "trying to ascertain whether or not they have legal grounds against" plaintiff because "she's overstepped her bounds."

41. Shapiro told Doe that Schiess had "implied to me how grateful he would be if you would cooperate" and that if Doe cooperated with the District it might be a way to "turn around" how the District had been treating her.

42. Shapiro said again that plaintiff "really did overstep her bounds and she really did say some things to you that caused you a lot [of] unnecessary upset." Shapiro told Doe that what plaintiff had shown her was not her personnel file but some "private notes" and that those notes either were not in Doe's files or would be removed.

43. When Doe expressed hesitancy about assisting the District after the way the District had treated her, Shapiro continued to ensure her that if she cooperated with the District her negative employment situation would improve and the District might "view [Doe] in an entirely different light."

44. When Doe asked Shapiro whether she really believed that her speaking to Benz to assist the District really would "make a difference," Shapiro responded, "I do, I really do, otherwise I wouldn't have called you. There's somebody else I could call - You're not the only one she's [plaintiff] done this to," thereby continuing to assert to Doe that plaintiff had done something wrong by interviewing Doe and showing Doe her employment records.

45. When Doe asked Shapiro whether the District would be willing to "do any negotiations," Shapiro responded, "Well I think his [Schiess's] words were he'd be very, very grateful. I think you just have to leave it at that. I mean, I'm not, listen, I can't promise you a castle."

46. Still hesitant, Doe said she would get back to Shapiro by Friday (March 10) or Monday (March 13), and Shapiro responded, "Maybe by Thursday (March 9)." Shapiro thus knew that Benz was required to file a motion by March 10, 2006.

47. When Doe had not called Shapiro back by March 10, 2006, Shapiro called Doe on that day and told her that if she was going to speak to Benz, it was "today or never." She told Doe that she had spoken to Schiess again the night before and that Schiess said "for the first time" that he agreed with Shapiro about how difficult Doe's employment circumstances had been. Thus Shapiro sought to intensify the connection between Doe's employment situation improving and her speaking to Benz to assist the District in legal action against Burgess. Shapiro tied Doe's ability to look at and correct inaccurate information in her employment records to Doe's cooperation with the District in regard to an action against Burgess.

48. Shapiro then promised Doe that, after she spoke to Benz, she and Doe would meet with Schiess, review Doe's files, and "I think, you know, I think things might get better if we handle this thing right." Shapiro told Doe that if it were her (Shapiro), she would "do it" too, because it could only help Doe and not hurt her. When Doe responded that that was what she was hoping, Shapiro said, "It will. Trust me."

49. Having been set up by Shapiro to believe that plaintiff had somehow wronged her, and believing that her employment would improve if she met with Benz, Doe met with Benz the afternoon of March 10, 2006. Benz, too, tried valiantly to influence Doe to believe that plaintiff had lied to her and had solicited her.

50. At the outset of this meeting, Benz told Doe that a confidentiality order in place in 03-cv-6541 prevented plaintiff from talking about certain documents or sharing them. Benz did not disclose to Doe that she (Benz) already had agreed to [sic] plaintiff that the confidentiality order was not implicated by plaintiff's interviewing District employees or showing them their employment files. She told Doe that she and the District had been "concerned from the beginning" based on "some prior history with" plaintiff that plaintiff would be "sharing information that she shouldn't and misrepresenting that information to people." She told Doe that it was her "understanding that some of the things that [plaintiff] may have told you and that's why I'm what I'm ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.