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James P. Mcgee v. James Dunn

April 29, 2013

JAMES P. MCGEE,
PLAINTIFF,
v.
JAMES DUNN, J. DUNN CONSTRUCTION CORP., GRANTING DEFENDANT JAMES ECTOR PEREZ GALINDO, TOWN OF CARMEL, POLICE DEPARTMENT,
TOWN OF CARMEL POLICE OFFICERS, CHRISTOPHER FOX, JOHN DOE (FOX'S SUPERVISOR ON THE DAY OF THE ARREST), DET. ROBERT BAGNAROL, LT. BRIAN KARST, SGT. JOHN (JACK) HARNEY, LT. MICHAEL CASSARI, CHIEF MICHAEL R. JOHNSON, PUTNAM COUNTY DISTRICT ATTORNEY'S OFFICE, KEVIN WRIGHT, ESQ., THEN-PUTNAM COUNTY DISTRICT ATTORNEY AND ROBERT A. NOAH, ESQ., PUTNAM COUNTY ASSISTANT DISTRICT ATTORNEY, DEFENDANTS.



The opinion of the court was delivered by: Frederick P. Stamp, Jr. United States District Judge

MEMORANDUM OPINION AND ORDER LIFTING THE STAY AND DUNN'S MOTION TO DISMISS TOWN OF CARMEL

I. Procedural History

This action arises out of a longstanding dispute between the plaintiff, James P. McGee, and one of the fifteen named defendants, James Dunn ("Dunn"). As noted in a previous order, the plaintiff's complaint, filed in the United States District Court for the Southern District of New York, asserts claims against the following defendants: Ector Perez Galindo ("Galindo"); the Putnam County District Attorney's Office, Kevin Wright, and Robert Noah (collectively the "PCDA defendants"); the Town of Carmel, the Carmel Police Department, and the Carmel Police Officers Christopher Fox, John Doe, Detective Robert Bagnarol, Lieutenant Brian Karst, Sergeant John Harney ("Harney"), Lieutenant Michael Cazzari, and Chief Michael R. Johnson (collectively "the Town of Carmel defendants"); and James Dunn and J. Dunn Construction Corp. ("JDCC") (collectively, the "Dunn defendants"). The plaintiff alleges in his complaint that the defendants conspired to bring about his arrest and prosecution based on false and misleading evidence and to engage in a malicious abuse of process. The plaintiff brings his complaint pursuant to 42 U.S.C. § 1983, alleging due process violations that resulted from the defendants' conspiracy. According to the plaintiff, he is entitled to compensatory damages, punitive damages, and attorney's fees for the mental and emotional pain and suffering he has experienced as a result of the defendants' alleged conspiracy.

The defendants filed four separate motions to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. After the parties briefed these motions, this Court entered a memorandum opinion and order, wherein it granted defendants' motions to dismiss as to all but one defendant, defendant Dunn.*fn1 As to defendant Dunn, this Court stayed the action due to his Chapter 7 bankruptcy petition, and directed that defendant Dunn inform this Court if the automatic stay was lifted by the United States Bankruptcy Court. On April 16, 2013, defendant Dunn, through counsel, notified this Court that the United States Bankruptcy Court terminated the automatic stay with respect to defendant Dunn. Accordingly, the stay placed on this action concerning defendant Dunn is terminated and this Court will now proceed to make a determination as to defendant Dunn's motion to dismiss.

In support of defendant Dunn's motion,*fn2 he argues that this action should be dismissed based on res judicata and collateral estoppel because the plaintiff's allegations in this case are identical to the allegations that were raised and dismissed in the state court action. Further, defendant Dunn contends that the plaintiff's allegations against Dunn should be dismissed as legally insufficient. The plaintiff responded to the Dunn defendants' motion to dismiss by arguing first that, because the state court dismissal was not a decision on the merits, res judicata does not apply. Further, even if it does apply, the complaint states a § 1983 claim against defendant Dunn as it properly alleges that Dunn acted under color of state law, and it adequately alleges all of the elements of the claimed violations under § 1983. Defendant Dunn did not file a reply to the plaintiff's response in opposition.

For the reasons stated below, this Court finds that the motion to dismiss as to defendant Dunn must be granted.

II. Facts*fn3

The plaintiff and his wife hired James Dunn to perform work on their house pursuant to three home improvement contracts. On or about May 19, 2005, Dunn collected his tools and walked off the job after a dispute arose between him and the plaintiff regarding the placement of electrical wiring and other issues related to the construction. Several days later, Dunn informed the plaintiff that he would not return until the plaintiff paid him the remaining balances on the three contracts in cash, plus $800.00 for the additional work that he had allegedly performed. On May 30, 2005, Dunn increased his demand from $800.00 to $5,000.00. The plaintiff was unable to persuade Dunn to return to complete the work.

On or about July 18, 2005, the McGees suffered extensive water damage to their home during a storm. After filing a claim with their insurance carrier, Liberty Mutual, the senior insurance inspector determined that the water damage was due to the faulty installation of the roof by Dunn in May 2005. Liberty Mutual paid the McGees for the ceiling damage and then attempted to pursue a subrogation action against Dunn for reimbursement. Liberty Mutual was unable to contact Dunn for approximately fourteen months.

The plaintiff then brought a small claims action against Dunn in the Town of Carmel Justice Court regarding one of the three contracts entered into between them. Subsequently, Dunn filed a counterclaim against McGee, and McGee then brought a second small claims action in that court regarding the second contract. McGee also brought a consumer complaint before the Dutchess County Department of Consumer Affairs ("DCDCA") regarding one of the three contracts that he had entered into with Dunn, but the DCDCA determined that the matter was beyond its scope.

Because the amount of damages related to his two small claims actions in the Town of Carmel Justice Court exceeded the subject matter jurisdiction of that court, McGee withdrew his two small claims actions in order to commence an action in the New York State Supreme Court. However, the trial of Dunn's counterclaim proceeded in small claims court. Prior to this trial, McGee's lawyer, Mark Starkman, withdrew from representing him, allegedly because Dunn had induced Starkman to believe false accusations about McGee's honesty. Dunn's counterclaim was tried in the Town of Carmel Justice Court, with McGee proceeding pro se.*fn4 By decision and order dated November 29, 2005, Judge James Reitz found in McGee's favor and dismissed Dunn's counterclaim in its entirety.

On December 20, 2006, McGee brought a civil action against Dunn in the New York State Supreme Court relating to all three contracts. This action was ultimately concluded by way of a settlement agreement pursuant to which Dunn agreed to a judgment against his construction contracting firm, JDCC.

Over the course of the litigation described above, Dunn often discussed his ongoing private dispute with the McGees at Fiddler's Bar, a local establishment frequented by members of the Carmel Police Department and the Putnam County District Attorney's Office. According to the complaint, almost all of the defendants in this case had some connection to Fiddler's Bar, either as a patron, employee, or contractor. The complaint further states that Dunn, with the aid of his attorney Philip Marin, Esq. ("Marin"), induced Galindo to swear out the criminal complaint against McGee that brought about the false arrest and malicious prosecution at issue in this case.*fn5

Beginning in August 2005, Dunn unsuccessfully attempted to convince various agencies to initiate criminal investigations and proceedings against McGee. Dunn made various claims against McGee, including: that McGee had illegal structures on his property; that McGee had forged estimates from other contractors for completing the work that Dunn had abandoned; that McGee had committed insurance fraud; and that McGee had asked Dunn to perform illegal construction. When McGee's attorney, Mark Starkman, withdrew from representing him in December 2005, Dunn allegedly spread falsehoods to various agencies regarding the McGees' dishonesty. In November and December 2006, Dunn allegedly attempted to persuade the Dutchess County Supervisor's Office, the Dutchess County Attorney's Office, and the Dutchess County District Attorney's Office to bring criminal charges against McGee for insurance fraud and forgery, but to no avail.

In 2006, Liberty Mutual commenced an inter-insurance company arbitration proceeding against Dunn and his insurance carrier, Utica First. The Inter-Insurance Company Arbitration Board ruled in the McGees' favor, finding Dunn liable for the water damage to the McGees' home. As a result of this decision, Utica First reimbursed Liberty Mutual for the insurance payment it had made to the McGees. Dunn filed a complaint about this decision with the New York State Department of Insurance, ...


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