The opinion of the court was delivered by: The Honorable VICTOR Marrero, U.S.D.J.
This action arises out of the long-running administration of the estates of Nicholas Marsh (deceased March 15, 1988) and Irene Marsh (deceased May 13, 1990) in New York and Westchester counties and in Hong Kong. Pro se plaintiff Adrienne Marsh Lefkowitz, a lawyer, is one of three daughters of the deceased, and beneficiary of a thirty-percent interest in both estates. In this federal action, she has sued the sole executor of the two estates, the Bank of New York ("BNY" or "the bank"); the law firm representing BNY in the estate proceedings, McCarthy, Fingar, Donovan, Drazen & Smith, L.L.P. ("MFDDS" or "the law firm"); and the MFDDS partner in charge of the Marsh estate proceedings, Frank Streng, Esq. In her amended complaint, Ms. Lefkowitz alleged that defendants' actions in administering the Marsh estates amounted to criminal activity in violation the Racketeering Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1961 et seq., and also triggered other forms of civil liability to her. Thus she claimed that defendants had breached their fiduciary duties to her, and had engaged in conversion, fraud and other similar violations of state law. In all, Ms. Lefkowitz asserted two RICO claims (Counts I and II), a claim for relief for deceptive practices under the consumer protection law New York General Business Law § 349 (Count III), claims for fiduciary breach and aiding and abetting fiduciary breach (Counts IV and V), conversion (Count VI), fraudulent misrepresentation and fraudulent concealment (Counts VII and VIII), unjust enrichment (Count IX), and a congeries of claims (Counts X to XII) that seek, respectively, payment of money allegedly owed to her, specific performance of certain Hong Kong consent orders, and declaratory relief confirming her entitlement to certain estate assets. In seeking this relief in federal court despite the pendency of the two estate proceedings and other related state-court suits brought by plaintiff, she says that she is attempting "to resolve claims and damages and determination of her rights for which no comprehensive and effective relief is available in Surrogate's Court." (Pl.'s Am. Compl. dated Aug. 27, 2001, 1).
As for the factual allegations, to summarize briefly, Ms. Lefkowitz presents the bases for her complaint under seven subheadings. In the order presented, these allegations are: (1) that BNY improperly paid MFDDS inflated and/or fraudulent legal bills for services rendered from August 1990 through 1999 (id. at ¶¶ 25-44); (2) that signatures of Irene Marsh appearing on various documents affecting Ms. Lefkowitz's interest in the personal property and estate assets of her mother are forgeries (id. at ¶¶ 45-51); (3) that BNY has refused to marshal or distribute to her certain items of personal property from her parents' estates, and that BNY "diverted" from her approximately $1 million in distributions from the two estates and placed them in two bank accounts, which she cannot access (id. at ¶¶ 52-84); (4) that BNY violated the terms of five Hong Kong consent orders settling costs levied against her by the Hong Kong courts (id. at ¶¶ 85-94); (5) that BNY improperly indemnified and failed to marshal assets from a Hong Kong citizen who had held assets as a trustee for Nicholas Marsh, that BNY concealed from plaintiff information regarding salaries owed to her from several family-owned Hong Kong companies, and that BNY improperly paid inflated legal bills to the Hong Kong solicitors representing the estates (id. at ¶¶ 95-113); (6) that the New York County Surrogate, Eve Preminger, had incorrectly surcharged plaintiff for loans that she had made while managing her father's assets during her tenure as executrix (id. at ¶¶ 114-40); and (7) that BNY has refused to pay her legal fees and repay her expenditures for her work on behalf of the Nicholas Marsh and Irene Marsh estates. (Id. at ¶¶ 141-52).
Prior Proceedings in This Case
Some years ago defendants moved to dismiss or stay the action. In doing so, they asserted four general grounds in support of their motion: (1) that this court lacks subject-matter jurisdiction over the action; (2) that Ms. Lefkowitz's complaint fails to state a cause of action under RICO, the New York General Business Law § 349 and the common law; (3) that the action is barred by the doctrines of res judicata and collateral estoppel; and (4) that this court should abstain from hearing the action while the Marsh estates remain in probate. (Affidavit in Supp. of Mot. To Dismiss of Robert M. Redis, Esq., sworn to Apr. 10, 2008, 3). Upon our recommendation (Report and Recommendation dated Sept. 2, 2003), the District Court granted the motion based on (1) plaintiff's failure to plead viable RICO claims or a claim under the General Business Law and (2) the application of the probate exception to diversity jurisdiction to the balance of her claims. Lefkowitz v. Bank of New York, 2003 WL 22480049 (S.D.N.Y. Oct. 31, 2003).
Plaintiff pursued an appeal from that decision, although she abandoned the two RICO claims and the General Business Law claim, and therefore ended up seeking reversal with respect to only the nine common-law claims. After an extended pause, in 2007 the Second Circuit affirmed in part and reversed in part, based on the Supreme Court's issuance in 2006 of a decision clarifying and limiting the scope of the probate exception. Lefkowitz v. Bank of New York, 528 F.3d 102, 105-08 (2d Cir. 2007) (discussing and applying Marshall v. Marshall, 547 U.S. 293 (2006)). Specifically, the Circuit Court affirmed the dismissal of Counts VI and IX through XII of Lefkowitz's Amended Complaint, while reversing and remanding for further proceedings Counts IV, V, VII and VIII -- the fiduciary-breach and fraud counts. Id. at 105.
On remand, defendants have noted that in their prior motion they had pressed other theories for dismissal that this court had not found it necessary to address, and they have renewed their motion to dismiss on a host of grounds. In both pursuing and opposing this motion, the parties have freshly briefed the issues. Moreover, plaintiff has moved (1) for judgment on the pleadings on at least one count (Count VII) and possibly two others (Counts IV and V), (2) for leave to amend the complaint, and (3) for an order striking portions of defendants' papers in support of their dismissal motion.
For the reasons that follow, we deny plaintiff's motion to strike and to amend, and recommend that the District Court grant defendants' motion to dismiss and deny plaintiff's motion for judgment on the pleadings. Finally, we recommend that if the complaint is dismissed, the court should sua sponte enter an injunction precluding plaintiff from filing additional federal lawsuits concerning her parents' estates without prior court permission.
In defendants' current dismissal motion, they first argue, pursuant to Rules 12(b)(6), 12(c) and 9(b), that plaintiff fails to plead adequately claims for breach of fiduciary duty, aiding and abetting a fiduciary breach, fraudulent misrepresentation and fraudulent concealment. Moreover, they suggest that some of her fiduciary-breach claims are time-barred. (Defs.' Mem. of Law in Supp. of Mot. to Dismiss, 4-17). Second, they assert that some or all of plaintiff's surviving claims should be barred by the principles of res judicata or collateral estoppel, since those claims or their underlying facts were previously and fully litigated in the various Surrogate's Court proceedings and possibly in other state-court cases filed by plaintiff. (Id. at 18-20). Third, they argue that this court should abstain from addressing any otherwise surviving claims under the Younger and Colorado River versions of the abstention doctrine. (Id. at 20-24). Fourth, they assert that this court should abstain from deciding the fraudulent-misrepresentation claim (Count VII) as a matter of comity since that claim concerns orders entered by the Hong Kong courts in a related estate proceeding over which those courts have continuing jurisdiction. (Id. at 24-25).
In plaintiff's response, she characterizes defendants' motion as, in substance, one for summary judgment. So treated, she first argues, the motion should be denied since motions for judgment on the pleadings under Rule 12(c) -- which is how defendants label their motion -- are limited to inadequacies on the face of the targeted complaint, whereas defendants rely on evidence proffered in their attorneys' affidavits. (Pl.'s Mem. of Law in Opp'n to Def.'s 2008 Mot. to Dismiss, 1-2). She also argues that this motion is a repeat of the original dismissal motion from 2002 and should be rejected on that basis alone. (Id. at 3-4). She then proceeds to argue that the surviving claims are, as found by the Second Circuit, within this court's jurisdiction. and that this court should therefore adjudicate their merits. (Id. at 4-6). She next argues that neither abstention nor the principle of comity bars adjudication of her four remaining claims. (Id. at 6-11). In the following sections of her memorandum, she addresses the remaining arguments of the defendants on their motion, contending that her claims are not barred by res judicata or collateral estoppel, that the Rule 9(b) requirement of particularized pleading does not apply to fiduciary-breach claims not based on fraud, that her claims are not untimely, and that they are properly pleaded. (Id. at 11-22). Finally, in brief and conclusory terms she argues that dismissal would be inappropriate because discovery was not completed before it was stayed in 2002. (Id. at 22). She also seeks leave to amend her complaint in unspecified respects (apparently including the attachment to her current complaint of certain documents that she appends to her memorandum of law), and judgment on the pleadings as to liability on the fraudulent misrepresentation claim (Count VII) and possibly also on her fiduciary-breach claims (Counts IV and V). (Id. at 23).
Following defendants' filing of reply papers in support of their dismissal motion, plaintiff filed a motion to strike portions of those papers. She premises this demand principally on her contention that the reply papers -- notably an affidavit by Robert M. Redis, Esq. and parts of the defendants' reply memorandum of law -- proffer information that is not properly considered on a motion that is addressed to the face of the complaint. She also argues that defendants' reply is improper because it raises new issues rather than simply addressing the substance of plaintiff's opposition papers, and objects to the submission of a previously filed affidavit by defendant Frank Streng, Esq., because he is not admitted to the federal bar. (Pl.'s Mem. in Supp. of Mot. to Strike, 1-3; Affidavit of Adrienne M. Lefkowitz in Supp. of Mot. To Strike, sworn to Sept. 21, 2008, ¶¶ 2-19). Not surprisingly, defendants have opposed this motion as totally meritless.
Proceedings in the Various Estate Cases
In our prior Report and Recommendation, we summarized the highlights of the tortuous history of the three estate proceedings in which Ms. Marsh, her siblings and the defendants here have been embroiled since 1988. We reiterate and update that history here, since it is pertinent to various of defendants' asserted grounds for their current motion.*fn1 Although our account may not be exhaustive, it captures the highlights of this extended history of litigative conflict.
In undertaking this summary, we note that much of that history is reflected in the exhibits annexed to the 2002 affidavit of Mr. Streng submitted by defendants in support of their original motion to dismiss and resubmitted in connection with the current application, as well as in a more recent affidavit by trial counsel Robert M. Redis, Esq. Those affidavits are a target of plaintiff's motion to strike, an application that we deny. To the extent that the affidavits provide documentation of other court proceedings, they are properly considered, since we may take judicial notice of those proceedings. See, e.g., Anderson v. Rochester-Genesee Reg'l Transp. Auth., 337 F.3d 201, 205 n.4 (2d Cir. 2003); Conopco, Inc. v. Roll Int'l, 231 F.3d 82, 86-87 (2d Cir. 2000). In any event we rely upon those affidavits only to the extent that they offer such information.*fn2
1. Surrogate's Court Litigation over the Nicholas Marsh Estate
Nicholas Marsh died on March 15, 1988. Ms. Lefkowitz was named as the sole executor of his estate in his will, and was granted preliminary letters testamentary to administer the estate in April 1988. (Streng Aff., Ex. 6 -- Report of Referee David Rudenstine, dated Dec. 1, 1995 ("Rudenstine Rep. I"), 2). However, plaintiff's temporary letters were suspended in March 1990 and, following a hearing, revoked in April 1990. Plaintiff was also barred from serving as permanent executrix of the estate, a decision later upheld on appeal. In re Estate of Marsh, 173 A.D.2d 336, 336, 575 N.Y.S.2d 284, 284 (1st Dep't 1991), appeal dismissed 78 N.Y.2d 990, 575 N.Y.S.2d 272, mot. for lv. to appeal denied, 79 N.Y.2d 751, 579 N.Y.S.2d 561 (1991). Plaintiff's removal was the result of her improvidence while acting as preliminary executor, including extending unsecured loans of $1.5 million to two unfunded family companies; ignoring court orders to pay her mother specified sums from a trust in the father's estate to cover medical bills; her failure to timely file estate tax returns; her failure to file certain income tax returns; her failure to marshal and administer estate assets insofar as she refused to submit paperwork necessary to commence an ancillary probate proceeding in Hong Kong; her failure to report on those proceedings; her refusal to sign a document that she herself had drafted that resolved a variety of estate issues with the beneficiaries; and her efforts to appropriate to herself certain pension plan funds, which Surrogate Marie Lambert labeled as "the most serious evidence of self-interested dealing and conflict of interest." See id. at 336-37, 575 N.Y.S.2d at 284-85; In re Estate of Marsh, 202 A.D.2d 367, 368, 610 N.Y.S.2d 6, 7 (1st Dep't 1994); Rudenstine Rep. I at 113.*fn3 As summarized by Surrogate Lambert, Ms. Lekowitz's "hostility, acts of improvidence and clear conflict of interest with the beneficiaries of the estate" made her ineligible to serve as a fiduciary." (Rudenstine Rep. I at 113). In her decision prohibiting plaintiff from serving as executor, the Surrogate directed plaintiff to file an accounting for the time she served as preliminary executrix. In re Estate of Marsh, 173 A.D. at 336, 575 N.Y.S.2d at 284. The Surrogate also appointed BNY -- which was listed as an alternate executor in Nicholas Marsh's will --- as permanent executor and trustee, a move similarly upheld on appeal. Id.
In August 1990 BNY moved for appointment as executor of the estate and to admit the will to probate, but plaintiff objected and sought to disqualify BNY from serving as executor. Plaintiff also objected to BNY's hiring of MFDDS as counsel to the bank in its administration of the estate. Will of Marsh, 179 A.D.2d 578, 579, 578 N.Y.S.2d 911, 912-13 (1st Dep't 1992). The Surrogate granted BNY preliminary letters testamentary and scheduled a hearing on plaintiff's objections to the appointment of BNY and MFDDS. Id. at 579, 578 N.Y.S.2d at 912. However, the Appellate Division later determined that no hearing was required, as plaintiff's objections to the appointments of BNY and MFDDS were baseless, and the Appellate Division had already affirmed the Surrogate's prior order designating BNY as executor of the estate. Id. at 579-81, 578 N.Y.S.2d at 913-14. Therefore, BNY became permanent executor of plaintiff's father's estate in February 1992 and his will was admitted to probate. (Streng Aff. ¶ 14 n. 4 at p. 9). The Appellate Division also affirmed the Surrogate's denial of plaintiff's motion to disqualify MFDDS. Will of Marsh, 179 A.D.2d 581, 582, 579 N.Y.S.2d 64, 65 (1st Dep't 1992).
Meanwhile, in December 1990 Ms. Lefkowitz filed the accounting for the brief period that she served as preliminary executrix of her father's estate, as ordered by the Surrogate. (See Rudenstine Rep. I at 2). BNY objected to Ms. Lefkowitz's accounting, and, following extensive discovery, the parties proceeded to a trial before Referee David Rudenstine on May 11, 1994. (Id. at 2-3). After 48 days of testimony, the trial ended on January 3, 1995. (Id. at 3-4). Referee Rudenstine issued a 145-page recommendation on December 1, 1995, which Surrogate Preminger confirmed in large part and rejected in smaller part by decision dated July 29, 1997. (See Streng Aff., Exs. 6 & 7). Both decisions were highly critical of Ms. Lefkowitz's conduct in the management of the estate and in subsequent litigation. The courts surcharged her personally more than $1.6 million (inclusive of interest), directed her to pay $250,000.00 in attorneys' fees out of her share of the estate, and denied most of her requests for compensation. (See id. ¶ 17 & Ex. 7 at 1-10; Am. Compl. at ¶¶ 136-37). Ms. Lefkowitz's appeals of the disposition of her accounting have been uniformly rejected. See In re Estate of Marsh, 265 A.D.2d 253, 254, 697 N.Y.S.2d 25, 26 (1st Dep't 1999), mot. for leave to appeal denied, 95 N.Y.2d 755, 712 N.Y.S.2d 447 (2000), appeal dismissed, 95 N.Y.2d 956, 722 N.Y.S.2d 469 (2000), cert. denied, 532 U.S. 1038 (2001).
In April 1992, Ms. Lefkowitz filed another application to revoke BNY's letters in the Nicholas Marsh proceeding. (See Am. Compl. at ¶ 16; Streng Aff. at ¶¶ 15-16 & Ex. 5). That petition, which repeated Ms. Lefkowitz's previous attack on the appointment of the bank, was denied by Surrogate Eve Preminger, who thereafter imposed sanctions on plaintiff for the frivolous nature of her application, an award that Ms. Lefkowitz appealed and that the Appellate Division affirmed. See In re Estate of Marsh, 207 A.D.2d 749, 616 N.Y.S.2d 962 (1st Dep't 1994). See also In re Estate of Nicholas Marsh, File No. 1980/88, Order dated Aug. 14, 2002, 2.*fn4
In April 1995, while awaiting Referee Rudenstine's decision regarding Ms. Lefkowitz's accounting, BNY made an interim distribution of $4 million to various beneficiaries of Nicholas Marsh's estate. (See Streng Aff., Ex. 10 -- Order dated Oct. 5, 1995, 1). In doing so, the bank withheld a $1.2 million distribution to Ms. Lefkowitz as a set-off for any surcharges that may have resulted from the then-pending proceedings. (Id.). Ms. Lefkowitz moved to compel distribution to her of the $1.2 million, and Surrogate Preminger granted her application. (Id. at 1-2). In so doing, however, the Surrogate acknowledged that BNY may have been entitled to an offset, but noted that Ms. Lefkowitz's share in the balance of the estate, including assets being dealt with in an ancillary probate proceeding in Hong Kong, was enough to cover any possible surcharge. (Id. at 2).
By order dated February 21, 1995, Surrogate Preminger ordered BNY to file its final accounting by June 1, 1995. (See Streng Aff., Ex. 8 -- Report of Referee David Rudenstine, dated Nov. 22, 1998 ("Rudenstine Rep. II") at 3). Because of outstanding matters in the ancillary estate proceedings, however, BNY was not able to submit a final accounting to the Surrogate's Court by the appointed deadline. (Id. at 3-4).
However, BNY did file an interim accounting for the Nicholas Marsh estate for the period ending May 26, 1995. (Id. at 4). Ms. Lefkowitz submitted extensive objections to BNY's accounting, and once again the accounting of the estate was tried before Referee Rudenstine. (Id.). Before the trial began on June 12, 1997, BNY submitted a supplemental accounting for the period from May 26, 1995 until July 31, 1996. (Id. at 4-5). After hearing 30 days of testimony and reviewing the extensive documentation submitted by the parties, Referee Rudenstine issued a 160-page recommendation on November 22, 1998, largely rejecting plaintiff's objections to the bank's accounting. (Id. at 1-160). The recommendation did accept plaintiff's objection to Nicholas Marsh's estate having been charged attorneys' fees related to the ancillary Hong Kong proceeding, and directed MFDDS to re-submit its attorney fee request with the Hong Kong-related expenses segregated, except for its request for fees in connection with the sale of one of the family-owned businesses, which the referee determined the estate should pay. (Id. at 155). Following this submission, on September 15, 1999, Referee Rudenstine issued another recommendation regarding MFDDS's application for fees charged apart from those connected with the Hong Kong proceeding -- an application to which plaintiff had also objected. (Streng Aff., Ex. 9 -- Report of Referee David Rudenstine, dated Sept. 15, 1999 ("Rudenstine Rep. III")). Again, the Referee rejected virtually all of plaintiff's objections. (See id. at 23).
On August 14, 2002, Surrogate Preminger confirmed both of Referee Rudenstine's reports regarding BNY's accounting and attorney's fees with minor modifications. In re Estate of Nicholas Marsh, Aug. 14, 2002 Order at 2-3. The result was that BNY's interim accounting was almost entirely vindicated, as was its payment of legal fees to MFDDS for matters other than the ancillary Hong Kong proceeding. In the same decision, the Surrogate also denied yet another motion by Ms. Lefkowitz to remove BNY as the executor of Nicholas Marsh's estate -- a motion that Ms. Lefkowitz had filed during the pendency of BNY's accounting proceedings, grounded in the same objections as she had raised to BNY's accounting. (Id. at 2).
On January 22, 1998, Ms. Lefkowitz moved to compel the distribution to her of approximately $1.1 million from the Nicholas Marsh estate. (See Streng Aff., Ex. 11 -- Report and Affidavit of Referee David Rudenstine, dated April 8, 1998 ("Rudenstine Rep. IV") at 2). The Referee recommended that Ms. Lefkowitz's application be denied in light of the very substantial surcharges that she still owed the estate from her accounting. (Id. at 9-10) (noting Ms. Lefkowitz's liability to the estate "may range between $1,242,582 to $3.1 million"). Surrogate Preminger confirmed the report with minor modifications on June 8, 1999. (Streng Aff., Ex. 11).
In 2002 BNY distributed to plaintiff the remaining funds in the estate sub-accounts. (Pl.'s Post Appeal Status Report at p. 4). In 2006 BNY filed its final accounting for the Nicholas Marsh estate. (Id.). Plaintiff has contested that accounting, including, once again, fees payable to MFDDS. The decision whether to approve that accounting is still awaited, with a conference before the Surrogate having been held on November 18, 2009 and further proceedings anticipated to resolve the matter. (See Pl.'s Sept. 15, 2009 letter to the Court).
2. Surrogate's Court Litigation over the Irene Marsh Estate
Irene Marsh died on May 13, 1990. By the terms of a codicil to Ms. Marsh's will, BNY was appointed as preliminary executor of the estate, a step that Ms. Lefkowitz vigorously but unsuccessfully resisted, and thus the bank was issued preliminary letters testamentary by the Surrogate's Court, Westchester County. (See Streng Aff., Ex. 2). In August 1992, Ms. Lefkowitz filed a petition to revoke BNY's preliminary letters. (See id., Ex. 3). Her petition charged that BNY had been appointed based on "misrepresentations of material fact", and that it was wasting estate resources and engaging in other acts of misconduct and dishonesty. (Id. at ¶ 5). This application was denied by Surrogate Albert Emanuelli in a decision dated December 21, 1992 (id., Ex. 2), and the Surrogate's decision was affirmed following plaintiff's appeal. See Matter of Marsh, 212 A.D.2d 792, 792, 624 N.Y.S.2d 860, 860 (2d Dep't 1995)(affirming Surrogate's order).
Ms. Lefkowitz also objected to the probate of the codicil to her mother's will, which named BNY as executor. A jury trial was held on the question of Ms. Marsh's capacity to execute the codicil, and the jury found that the codicil had been validly executed. That result was then affirmed when plaintiff appealed from the adverse trial result. See Matter of Marsh, 236 A.D.2d 404, 405, 653 N.Y.S.2d 624, 625 (2d Dep't 1997) (affirming verdict and Surrogate's refusal to set aside verdict). Ms. Marsh's will and codicil were admitted to probate by the Surrogate's Court on December 22, 1995 and BNY was granted letters testamentary as executor. See id. at 405, 653 N.Y.S.2d at 625.
Apart from the controversy over the status of the executor, the estate of Irene Marsh has proceeded through probate in Westchester County. On April 10, 1991, BNY, having been appointed preliminary executor, commenced a proceeding under New York Surrogate Court Procedure Act ("SCPA") § 2103 to identify assets belonging to the Irene Marsh estate, and to determine ownership of certain items of tangible personal property that were the subject of an alleged gift by Mrs. Marsh to plaintiff's two sisters. (See Streng Aff. at ¶ 31 & Ex. 13). Ms. Lefkowitz was a party to that proceeding. (See id.). These controversies and other issues then being litigated in the Nicholas Marsh estate proceeding apparently delayed the processing of this estate.
BNY filed an accounting in the Irene Marsh estate in August 2004 covering the period from May 13, 1990 through April 30, 2004, to which plaintiff filed objections. In re Lefkowitz, 13 Misc.3d 1231(A), 2006 WL 3069296, * 1 (Sur. Ct. Westchester County 2006); (Pl.'s Sept. 15, 2009 letter --- attaching In re Estate of Irene B. Marsh, Decision after Trial dated Apr. 16, 2009, 1). In light of BNY's filing, plaintiff sought distribution of certain funds not subject to withholding by BNY on account of its pending applications to assess legal fees and costs against the plaintiff in related proceedings. In re Lefkowitz, 2006 WL 3069296, at * 1. On September 28, 2006 Westchester County Surrogate Anthony A. Scarpino, Jr., issued a decision addressing the potential distribution of those funds to Ms. Lefkowitz, ordering that the funds not be distributed without prior court order because the estate had only limited assets at that point. Id. at * 4.
As a separate matter, by decision dated December 21, 2007 Surrogate Scarpino adjudicated in plaintiff's favor her contention that her mother's assignment of certain personal property to plaintiff's siblings had violated a 1983 will contract between Mr. and Mrs. Marsh concerning distribution of the property, but he rejected Ms. Lefkowitz's request for summary judgment to the effect that her sisters had converted the property. (Pl.'s Post Appeal Status Report --- annexing In re Estate of Irene B. Marsh, Decision & Order dated Dec. 21, 2007, 13-14).
BNY supplemented its accounting to cover the period from May 1, 2004 through March 31, 2006, and plaintiff objected to that filing as well. (Pl.'s Sept. 15, 2009 letter --- attaching In re Estate of Irene B. Marsh, Apr. 16, 2009 Decision at 1). By decision dated February 1, 2008, Surrogate Scarpino dismissed as a matter of law several of plaintiff's objections to BNY's original and supplemental accounting. (Pl.'s Post Appeal Status Report --annexing In re Estate of Irene B. Marsh, Decision & Order dated Feb. 1, 2008, 16-17).
Finally, a trial on plaintiff's remaining objections to those accountings was held in 2008. In its wake, the Surrogate issued three decisions. The first, dated April 16, 2009, addressed plaintiff's many objections to the accountings, accepting some but rejecting the majority. (Pl.'s Sept. 15, 2009 letter -- attaching In re Estate of Irene B. Marsh, Apr. 16, 2009 Decision). To the extent that plaintiff prevailed concerning BNY's handling of the decedent's tangible property that had been taken by plaintiff's sisters, the court ordered BNY to pay Ms. Lefkowitz compensatory damages and interest totaling $274,855.00, less the value of tangible property distributed to plaintiff or sold by BNY. (Id. at 13-23). Surrogate Scarpino, however, rejected plaintiff's conversion claims against her two sisters, holding that those claims were beyond his jurisdiction. (Id. at 43). As for plaintiff's complaint about estate distributions that BNY had made to a sub-account rather than paying Ms. Lefkowitz, the Surrogate found that these withholdings from her in anticipation of her owing additional sums to the estate were unwarranted, and he therefore ordered the bank to pay her interest for the period of withholding at nine percent per annum. (Id. at 23-28). Surrogate Scarpino also addressed all of plaintiff's complaints about attorney's fees payable to MFDDS, rejecting most but ordering a small amount returned to the estate. (Id. at 28-40). The Surrogate also accepted some of plaintiff's objections to BNY's commissions and reduced the commissions slightly. (Id. at 41-42).
On June 5, 2009 the Surrogate issued an amendment to his prior decision in one minor respect, concerning interest payable by BNY. (Id. -- attaching Estate of Irene B. Marsh, Amended Decision After Trial, dated June 5, 2009). On August 28, 2009 he issued a further decision, in response to motions for reconsideration by both BNY and MFDDS and by plaintiff, both motions targeting the awards to plaintiff based on the disposition of personal tangible property by her sisters and BNY's distributions to the sub-account. In that amended decision he modified in certain respects his measurement of the amount of damages and interest that BNY was to pay to plaintiff. (Id. --- attaching In re Estate of Irene B. Marsh, Decision & Order dated Aug. 28, 2009, 8).
Nicholas and Irene Marsh had assets in Hong Kong. After the appointment of BNY in New York as preliminary fiduciary in both estates, BNY engaged solicitors in Hong Kong -- Dianne Brennan and Gordon D. Oldham of the firm Oldham, Li & Nie -- to administer the decendents' Hong Kong estates. (Streng Aff. at ¶ 36). Ms. Lefkowitz, who was separately represented by other Hong Kong solicitors, contested the ancillary probate proceedings in Hong Kong, and even filed a separate suit there against BNY and Li KaShing, the Hong Kong business associate of her deceased father, but the court rejected her challenge in 1996. (See Am. Compl. at ¶ 17; Streng Aff. at ¶¶ 37-38; Lefkowitz v. Li Ka-Shing, 04--103122, Am. Verified Compl. at ¶¶ 31-34 (Sup. Ct. N.Y. County.)). Following the English custom, the Hong Kong court imposed costs on plaintiff as the losing party in the litigation. (See Am. Compl. at ¶ 85). Ms. Lefkowitz had numerous cost orders assessed against her, and she eventually agreed to pay the Hong Kong estates approximately US $900,000.00 to settle these orders. (See Streng Aff. at ¶ 37; Am. Compl. at ¶¶ 87-89).
On November 29, 1999, the Hong Kong court issued a series of "consent orders" that detailed the terms of the settlement agreement as to the cost issue. (See Am. Compl. at ¶¶ 87-89 & orders annexed as Ex. B). In broad outline, BNY agreed to make distributions from Ms. Lefkowitz's share of the U.S. estates of Nicholas and Irene Marsh sufficient to satisfy Ms. Lefkowitz's liability to the Hong Kong estates for the US $900,000.00 in costs. (See Streng Aff. at ¶ 41). According to plaintiff, the orders specified that the parties had agreed that approximately 93% of Ms. Lefkowitz's liability was to be paid out of her share in her father's estate, and that the remaining 7% was to come from her interest in her mother's estate. (See Am. Compl. at ¶ 89 & Ex. B).
On or about February 1, 2000, BNY settled Ms. Lefkowitz's cost surcharge to the Hong Kong estates by charging her debt against her distributions from the two estates. In doing so, plaintiff claims, it did not adhere to the proportions from the Nicholas and Irene Marsh estates that had been specified in the settlement agreement with plaintiff. (See Am. Compl. at ¶ 93).
Plaintiff, a party to the Hong Kong probate proceeding, threatened to contest the accounting of the Marshes' Hong Kong estates (Streng Aff. at ¶¶ 38-39; Am. Compl. at ¶ 113), but apparently never formally did. The accounting for those estates in Hong Kong was approved in December 2003. (Pl.'s Sept. 15, 2009 letter --- attaching In re Estate of Irene B. Marsh, Apr. 16, 2009 Decision at 4; Lefkowitz v. Li Ka-Shing, Am. Verified Compl. at ¶ 27).
4. Related State-Court Litigation by Plaintiff
Plaintiff has filed a host of other lawsuits in New York state court, almost all of which seek to relitigate issues that she raised in the various probate proceedings and lost. Not surprisingly, the courts have uniformly rejected these claims, principally on grounds of res judicata and untimeliness.
In May 1992 plaintiff filed suit in New York State Supreme Court, Westchester County, naming as defendants two companies, known as Joseph Markovits, Inc. ("JMI") and Floral Masquerade, Inc., both of which had been owned by her family until their sale by BNY as executor. Lefkowitz v. Joseph Markovits, Inc., Index No. 010875/92. By this lawsuit she sought compensation for claimed salary and reimbursement for asserted expenses for a period when she had borne responsibility for the management of JMI after her father had become ill in 1985. This claim represented a reiteration of a claim for salary and expense compensation for the period of June 1986 until January 31, 1990 that she had previously asserted in her accounting for the Nicholas Marsh estate in the New York County probate proceeding.
The bank initially intervened in the Westchester lawsuit for the purpose of obtaining a stay because plaintiff had placed the same issues before the Surrogate's Court. The presiding Supreme Court justice (the Hon. Nicholas Colabella), granted the requested stay, and during its pendency the Referee and Surrogate in the Nicholas Marsh probate proceeding rejected Ms. Lefkowitz's parallel claim for salary and expense compensation. (Rudenstine Report I at 25-35, & Streng Aff., Ex. 7 at 6-7. See Lefkowitz v. JMI, No. 2000-01086, Respt's' Br., 2000 WL 34455661, *10-12). The Appellate Division affirmed that decision in 1999, and then denied plaintiff's motion for reargument. (Lefkowitz v. JMI, Respt's' Br., 2000 WL 34455661, at *12). See In re Estate of Nicholas Marsh, 265 A.D.2d at 254, 697 N.Y.S.2d at 26. The Court of Appeals then also denied plaintiff's application for leave to appeal to the Court of Appeals. In re Marsh, 95 N.Y.2d 755, 712 N.Y.S.2d 447 (2000).
In 1999, BNY sought to intervene as a party defendant in plaintiff's pending Supreme Court lawsuit, just as plaintiff was seeking a trial. Plaintiff opposed intervention and sought to disqualify MFDDS as counsel. The presiding justice, the Hon. John P. DiBlasi, granted intervention and, in response to the defendants' motion, dismissed the lawsuit on res judicata grounds. He also denied plaintiff's motion to disqualify MFDDS. (Lefkowitz v. JMI, Respt's' Br., 2000 WL 34455661, at *12-13). Plaintiff appealed, and the Appellate Division affirmed, holding that plaintiff's claims were barred by res judicata. Lefkowitz v. Joseph Markovits, Inc., 279 A.D.2d 456, 719 N.Y.S.2d 585 (2d Dep't 2001).
On February 13, 1995, Ms. Lefkowitz commenced a separate suit against BNY, as executor of Irene Marsh's estate, in Supreme Court, Westchester County. Lefkowitz v. Bank of New York, Index No. 581/95. (See Streng Aff. at ¶ 32 & Ex. 14). In that action, Ms. Lefkowitz complained about the bank's actions with regard to the same items of personal property -- removed by her siblings from her mother's home -- that were subject to the pending SCPA § 2103 proceeding in probate court. (See id.). BNY has answered the complaint, and the record before us seems to indicate that the action is still pending in Supreme Court, apparently because plaintiff has taken no actions to pursue it. (Id.)
On November 1, 1996, Ms. Lefkowitz commenced another lawsuit in Westchester County Supreme Court, this time against her sisters, her sisters' attorneys, MFDDS and Frank Streng. Lefkowitz v. Appelbaum, Index No. 04857/96. (See Streng Aff., Ex. 17). In her complaint, which asserted nine claims of fraud and violations of N.Y. Jud. Law § 487(1), Ms. Lefkowitz alleged that defendants had conspired to defraud her of her share of the family businesses (including JMI), that BNY had sold JMI for the estate for a fraction of what it was worth, and that defendants had made numerous misrepresentations to the New York County Surrogate, causing Ms. Lefkowitz to suffer substantial financial damages. (See id., Ex. 17 at ¶¶ 17-34 & Ex. 18 -- Decision and Order dated Sept. 24, 1997, pp. 2, 5-8).
The trial court entered summary judgment dismissing all of plaintiff's claims on September 24, 1997. (See id., Ex. 18 at 3-23). Justice DiBlasi found that eight of Ms. Lefkowitz's claims were time-barred (id. at 3-15, 18-21), and that the only timely cause of action, one for fraud, failed to state a claim. (Id. at 15-18). Ms. Lefkowitz appealed the statute-of-limitations rulings to the Appellate Division and lost. See Lefkowitz v. Appelbaum, 258 A.D.2d 563, 563, 685 N.Y.S.2d 460, 461 (2d Dep't 1999).
On April 24, 1998, Ms. Lefkowitz commenced another lawsuit against Frank Streng, Robert Redis and MFDDS in Westchester County Supreme Court. Lefkowitz v. Streng, Index No. 19646/97. (See Streng Aff., Ex. 19).*fn5 In that action, Ms. Lefkowitz asserted eight claims against the attorneys, all under N.Y. Jud. Law § 487(1), and alleged that members of the MFDDS firm had made numerous false or fraudulent representations to the New York County Surrogate's Court. (See id. at ¶¶ 83, 84, 89, 91, 96, 98, 101, 109, 113, 116, 120, 124, 134, 142). The defendants answered, and the action is apparently still pending. (Streng Aff. at ¶ 53).
In May 2000, Ms. Lefkowitz once more sued BNY (as executor of her parents' estates) and her sisters in Westchester County Supreme Court. Lefkowitz v. Bank of New York, Index No. 00/05515. (See Streng Aff. at ¶ 55 & Ex. 20). In this suit, Ms. Lefkowitz pressed claims for lost salary, for an alleged ransacking of her office, and for unjust enrichment. (See id., Ex. 20 at ¶¶ 20, 67-74 & Ex. 21 -- Decision and Order dated Jan. 5, 2001, p. 2). All of these claims were subsequently dismissed by Justice Louis A. Barone as barred by res judicata, time-barred, or not legally sufficient as pled. (See id., Ex. 21 at pp. 2-6).
In 2004 plaintiff filed suit in the New York State Supreme Court, New York County, against BNY and Mr. Li Ka-Shing, her late father's Hong Kong business associate. Lefkowitz v. Li Ka-Shing, Index No. 04-103122. She asserted claims that Li had withheld assets from the Hong Kong probate proceeding that had belonged to her father; that BNY had failed to marshal and account for property belonging to her father's estate; and that BNY, in collusion with Li, had breached its fiduciary obligations to her. (Lefkowitz v. Li Ka-Shing, Am. Verified Compl. at ¶¶ 26-55). The trial judge, Hon. Charles E. Ramos, dismissed all of plaintiff's claims on a variety of grounds, including statute of limitations, the res judicata effects of various orders of the Hong Kong courts and lack of standing. See Lefkowitz v. Li Ka-Shing, Order Resettling Orders filed Oct. 28, 2005 at 4-5. He also imposed sanctions of $10,000.00 on plaintiff. Id. at 5. Finally, he enjoined plaintiff from commencing any more proceedings against BNY, Mr. Li Ka-Shing or her parents' estates except through proper probate proceedings brought by the estates in Surrogate's Court, unless she first obtained permission from the State Supreme Court, the Surrogate's Court or the Hong Kong courts. Id. at 6. On appeal, the First Department affirmed, and the Court of Appeals declined to review the case. Lefkowitz v. Li Ka-Shing, 30 A.D.3d 334, 334, 819 N.Y.S.2d 494, 495 (1st Dep't), appeal dismissed, 7 N.Y.3d 864, 824 N.Y.S.2d 608 (2006).
In addition to this litany of related state-court litigation instituted by Ms. Lefkowitz, we note, but do not further discuss, a series of lawsuits brought by plaintiff against a number of law firms that she apparently had retained at various times in connection with estate matters. In most of the suits, she sought to blame the firms for her mis-steps as executrix of her father's estate or assert claims of breach of fiduciary duty or malpractice. See Lefkowitz v. Etra & Etra, 13 A.D.3d 132, 787 N.Y.S.2d 5 (1st Dep't 2004)*fn6; Lefkowitz v. Kaye, Scholer, Fierman, Hays & Handler, 271 A.D.2d 576, 706 N.Y.S.2d 176 (1st Dep't 2000); Lefkowitz v. Schulte, Roth & Zabel, 279 A.D.2d 457, 718 N.Y.S.2d 859 (1st Dep't), motion for leave to appeal denied, 96 N.Y.2d 719, 733 N.Y.S.2d 371 (2001). See also Lefkowitz v. Preminger, 261 A.D.2d 447, 690 N.Y.S.2d 105 (2d Dep't 1999); Shaw, Licitra, Bohner, Esernio, Schwartz & Pfluger, P.C. v. Lefkowitz, 2002 WL 1969237 (N.Y. Dist. Ct. Aug. 15, 2002) (attorneys retained to assist plaintiff in Lefkowitz v. Applebaum, 04857/96, seeking unpaid fees). We also do not address a federal lawsuit that plaintiff filed, apparently originally in state court, under the Employee Retirement Income Security Act, 29 U.S.C. § 1132(a)(1), which was an outgrowth of another dispute about her entitlement to family assets.*fn7
We turn first to defendants' motion to dismiss or stay plaintiff's remaining claims. We then briefly address plaintiff's motion to amend and for partial judgment on the pleadings.*fn8 Finally, we sua sponte consider the appropriateness of joining with the state courts in imposing on plaintiff certain restrictions if she seeks to engage in further estate-related litigation in this court.
I. The Adequacy of the Complaint under Rule 12(c)
Since defendants' motion is premised, in part, on the contention that the complaint fails adequately to plead the remaining claims, we first briefly summarize the applicable legal standards and then turn to an assessment of the pleading. We then address the remaining grounds on which defendants seek dismissal.
A. Rule 12(b)(6) & 9(b) Standards
We start by noting the standards that the movant must meet in order to obtain dismissal for failure to state a claim.*fn9 "The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), abrogated on other grounds by Harlow v. Fitzgerald, 457 U.S. 800 (1982); accord, e.g., Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 476 (2d Cir. 2006). In assessing such a motion, the court must assume the truth of the well-pled factual allegations of the complaint and must draw all reasonable inferences against the movant. See, e.g., Achtman v. Kirby, McInerney & Squire, LLP, 464 F.3d 328, 337 (2d Cir. 2006); Still v. DeBuono, 101 F.3d 888, 891 (2d Cir. 1996).
The traditional test on a Rule 12(b)(6) motion required that the complaint not be dismissed unless "'it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Leibowitz v. Cornell Univ., 445 F.3d 586, 590 (2d Cir. 2006)(quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). The Supreme Court has recently rejected this formulation, however, and hence a complaint is now subject to dismissal unless its factual allegations, if credited, make the claim "plausible". See Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009); Bell Atlantic Corp. v. Twombley, 550 U.S. 544, 560-61 (2007). The court thus must look first to the well-pled factual allegations, determine whether they are plausible, and then determine whether those plausible allegations, if proven, suffice to establish liability. See, e.g., Iqbal, 129 S.Ct. at 1949-50. Twombly does not impose "a universal standard of heightened fact pleading, but... instead requir[es] a flexible 'plausibility standard', which obliges a pleader to amplify a claim with some factual allegations in those contexts where such amplification is needed to render the claim plausible." Iqbal v. Hasty, 490 F.3d 143, 157-58 (2d Cir. 2007), rev'd on other grounds sub. nom. Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009)(emphasis in original). In short, the pleading must "'raise a right to relief above the speculative level.'" ATSI Commc'ns, Inc. v. Shaar Fund Ltd., 493 F.3d 87, 98 (2d Cir. 2007) (quoting Twombly, 550 U.S. at 555).
When addressing a Rule 12(b)(6) motion, the court may not consider evidence proffered by the moving party or its opponent. Rather, the court is limited to reviewing the four corners of the complaint, any documents attached to that pleading or incorporated in it by reference, any documents that are "integral" to the plaintiff's allegations even if not explicitly incorporated by reference, and facts of which the court may take judicial notice. See, e.g., id. at 98; Roth v. Jennings, 489 F.3d 499, 509 (2d Cir. 2007); Leonard F. v. Israel Disc. Bank, 199 F.3d 99, 107 (2d Cir. 1999). Judicial notice may encompass the status of other lawsuits, including in other courts, and the substance of papers filed in those actions. See, e.g., Anderson, 337 F.3d at 205 n.4; Conopco, Inc., 231 F.3d at 86-87; Liberty Mut. Ins. Co. v. Rotches Pork Packers, Inc., 969 F.2d 1384, 1388 (2d Cir. 1992) (court can take judicial notice of document filed in another court "to establish the fact of such litigation and related filings" (quoting Kramer v. Time Warner Inc., 937 F.2d 767, 774 (2d Cir. 1991)); Sure-Snap Corp. v. State St. Bank and Trust Co., 948 F.2d 869, 872 (2d Cir. 1991) (taking judicial notice of bankruptcy court findings to determine their preclusive effect); Dewees v. Legal Servicing, LLC, 506 F. Supp. 2d 128, 130-31 (E.D.N.Y. 2007) (taking judicial notice of New York City Civil Court judgment).
As for the requirements of Rule 9(b), it imposes a more stringent pleading regime than does Rule 8 on certain types of claims. Pertinent to the defendants' pending motion, it requires, for all fraud allegations, that the pleader must "state with particularity the circumstances constituting fraud". To comply with this requirement, "'the complaint must: (1) specify the statements that the plaintiff contends were fraudulent, (2) identify the speaker, (3) state where and when the statements were made, and (4) explain why the statements were fraudulent.'" Lerner v. Fleet Bank, N.A., 459 F.3d 273, 290 (2d Cir. 2006) (quoting Mills v. Polar Molercular Corp., 12 F.3d 1170, 1175 (2d Cir. 1993)). Moreover, although "[m]alice, intent, knowledge, and other conditions of a person's mind may be averred generally", Fed. R. Civ. P. 9(b), if the claim is one for fraud the pleader must nonetheless "'allege facts that give rise to a strong inference of fraudulent intent.'" Lerner, 459 F.3d at 290 (quoting Acito v. IMCERA Group, Inc., 47 F.3d 47, 52 (2d Cir. 1995)).
B. The Pleading Adequacy of Plaintiff's Claims
1. The Fiduciary Breach Claim (Count IV)
Plaintiff asserts her fiduciary-breach claim solely against BNY. (Am. Compl. ¶¶ 178-83). Apart from invoking wholesale all of the preceding 177 paragraphs of the complaint, she states that "BNY repeatedly breached its fiduciary duties to the estate and plaintiff by the acts set forth above" -- referring to the lengthy summary of the history of the estate proceedings found in paragraphs 8 to 166 -- and then lists thirteen categories of alleged wrongdoing, as follows:
1) conversion of plaintiff's distributions
2) delaying the administration of ...