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Kevin Watkins v. Derek Smith; Adriane Eisen; Bryan S. Arce; William K.

November 19, 2012


The opinion of the court was delivered by: Denise Cote, District Judge


Kevin Watkins ("Watkins) asserts that certain attorneys, their law firms, and their co-conspirator have violated federal and state law by trying to extort money from him and compete unfairly with him. Watkins has failed to plead a violation of federal law, and the Court declines to exercise supplemental jurisdiction over his state law claims.


The following facts are asserted in the amended complaint and taken as true for purposes of this motion. Watkins represents claimants with discrimination complaints before the Unemployment Insurance Appeal Board, the Equal Employment Opportunity Commission ("EEOC"), and the Merit Systems Protection Board ("MSPB"). All of the defendants, except Jessica Dugue ("Dugue"), are also involved in the representation of claimants with discrimination complaints in front of these same institutions and work from the 35th floor at 30 Broad Street in New York. These defendants "work together in the same office and as a single interrelated enterprise."

Over the past three years, the defendants developed a plan to sabotage small businesses through schemes involving imposters, enticement, and extortion. They have targeted approximately 50 to 100 businesses each month. The defendants send "imposters" to these small businesses in order to use a number of ploys to trick the business owners into making recorded statements of a sexual nature. The defendants edit the recordings and use them to extort the business owners under the guise of representing these imposters in law suits against the business owners and seeking to "discuss settlement." Beginning in August of 2010, the plaintiff claims that defendants used unfair tactics against his business. Around August 1, 2010, in order to "suppress" the plaintiff's business, the defendant attorneys began advertising on the internet under the key word "Unemployment," without any intention of offering services to represent the unemployed. In November and December of 2010, the defendants paid "imposters" to pose as prospective clients. The imposters requested appointments with the plaintiff that they failed to keep or appeared for their appointments and described "long drawn out scenarios" that were later proven to be false. On at least one occasion these tactics permitted the defendant attorneys to obtain the contact information for one of the plaintiff's clients.

In January 2012, the defendants selected the plaintiff as the target for another scheme. Around January 31, the attorney-defendants instructed Dugue to make an appointment with the plaintiff. On the day of the appointment, Dugue arrived without necessary documents; she returned four hours later after the plaintiff's other clients had left. Dugue then flirted with the plaintiff, requesting gifts and favors from him. The plaintiff, who had agreed to represent Dugue, appeared at her unemployment hearing on February 6, but Dugue did not appear. After Dugue missed another appointment, the plaintiff stopped representing her.

On February 16, Dugue arrived at plaintiff's office "after hours" and requested that the plaintiff reopen her case, which he refused to do. Dugue, acting on instructions from the other defendants, attempted to barter telephone answering services and sexual favors in lieu of payment of the plaintiff's retainer. Dugue secretly recorded the conversation.*fn1

On May 16, the plaintiff received a Federal Express envelope that had traveled through a New Jersey facility before reaching the plaintiff in New York. It contained a letter from defendants Derek Smith ("Smith") and Adriane Eisen ("Eisen") demanding "settlement" of Dugue's claims against the plaintiff, threatening to expose the defendant, and instructing the plaintiff to comply by May 25. The letter was accompanied by a "Draft Complaint."

One of his former clients, Alexander Guerrieri ("Guerrieri"), informed the plaintiff sometime after May 14 that he was being represented by Smith and Eisen before the MSPB. The plaintiff had stopped representing Guerrieri on May 14, after having been accused of "being in league" with the government defendants. Eisen has told the plaintiff that she does not represent Guerrieri.

On May 25, the plaintiff filed this action in the Civil Court of the City of New York. The plaintiff pleads six causes of action: 1) civil Racketeer Influenced and Corrupt Organizations Act ("RICO") violations under 18 U.S.C. § 1962(c) and (d); 2) an antitrust violation under 15 U.S.C. § 1; 3) tortious interference with contract; 4) tortious interference with prospective economic advantage; 5) libel; and 6) intentional infliction of emotional harm.

On June 13, 2012, this case was removed to federal court. The defendants in this case fall into two groups. In one group are defendants Derek Smith, Adriane Eisen, Bryan S. Arce, Ismail S. Sekendiz, Laurie E. Morrison, Zafer A. Akin, Derek T. Smith Law Group, P.C., Arce Law Groupe, PC, and Jessica Dugue (collectively "the Eisen defendants"). In the other group are defendants Marjorie Mesidor, William K. Phillips, and Phillips & Phillips (collectively "the Phillips defendants"). The Phillips defendants filed a motion to dismiss the complaint on June 26. The Eisen defendants filed a motion to dismiss on July 9 and attached a number of exhibits to their motion. In an Order dated June 27, the plaintiff was given an opportunity to amend his complaint and instructed that he would have no further opportunity to amend. On July 27, the plaintiff filed his amended complaint.

The two groups of defendants renewed their motions to dismiss on August 27. Those motions were fully submitted on October 5.*fn2 For the following reasons, the defendants' motions to dismiss are granted.


When deciding a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the court must "accept all allegations in the complaint as true and draw all inferences in the non-moving party's favor." LaFaro v. New York Cardiothoracic Grp., PLLC, 570 F.3d 471, 475 (2d Cir. 2009) (citation omitted). To survive a motion to dismiss, "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). The court is "not bound to accept as true legal conclusions couched as factual ...

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