Amadasu v. Bronx Lebanon Hospital Center

Full title: DARLINGTON AMADASU, M.D., Plaintiff, v. BRONX LEBANON HOSPITAL CENTER and…

Court: United States District Court, S.D. New York

Date published: Jan 21, 2005

03 Civ. 6450 (LAK) (AJP) (S.D.N.Y. Jan. 21, 2005)

Opinion

03 Civ. 6450 (LAK) (AJP).

January 21, 2005

REPORT AND RECOMMENDATION

ANDREW PECK, Magistrate Judge

To the Honorable Lewis A. Kaplan, United States District Judge:

On August 25, 2003, pro se plaintiff Darlington Amadasu filed a complaint in this Court alleging various federal and state law claims stemming from the termination of his employment at Bronx Lebanon Hospital some ten years earlier, on September 22, 1993. (See Dkt. No. 2: Complaint; Dkt. No. 51: Amended Complaint ("Am. Compl.").) Presently before this Court are defendants' motions to dismiss the amended complaint pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. (Dkt. No. 65: Defs. Notice of Motion at 1; see also Dkt. Nos. 79-83.) Defendants move to dismiss on the grounds that: (1) Amadasu's claims are time-barred (Dkt. No. 65: Defs. Br. at 2-9); (2) Amadasu's state law claims are barred by res judicata and collateral estoppel (id. at 9-10); (3) Amadasu's Title VII and New York antitrust claims are jurisdictionally defective (id. at 10-11); and (4) Amadasu has failed to state any legally cognizable federal or state claim (id. at 11-25).

For the reasons set forth below, defendants' motions to dismiss should be GRANTED and plaintiff Amadasu's complaint should be dismissed with prejudice.

FACTS

This suit arises from plaintiff Darlington Amadasu's termination from Bronx Lebanon Hospital in September 1993. From May 1992 until September 21, 1993, Amadasu was employed at Bronx Lebanon Hospital as a family practice resident. (Dkt. No. 51: Am. Compl. ¶ 3.) On September 21, 1993, the Hospital discharged Amadasu after he was accused of performing an unauthorized pelvic examination on a thirteen year-old girl. (See Am. Compl. ¶ 4.) According to Amamdasu, he was not told why he was discharged until three months later, when Margaret Rosenberg "fabricated and published materially false, and misleading conclusory unsupported reason for discharging" Amadasu. (Am. Compl. ¶ 4.) Amadasu's 80 page, 438 paragraph, forty-one count amended complaint outlines events leading up to and surrounding his termination. (Am. Compl. ¶¶ 9-185.)

The Defendants

The defendants include Bronx Lebanon Hospital Center ("BLHC"), Amadasu's employer, and the Institute for Urban Family Health, Inc. ("IUFH"), Amadasu's employer for the residency training program, and five employees of those entities (defendants Rosenberg, Calman, Gumbs, Fuentes and Quarless). (See Dkt. No. 65: Defs. Br. Ex. D at p. 1 #1-7.) Amadasu also names as defendants various law firms and lawyers who represented BLHC in Amadasu's prior state court suit against BLHC (the Wilson, Elser and Marshall, Conway Wright defendants). (Id. at 1 #12-19.) Also named as defendants are the patient who sued BLHC for malpractice because of Amadasu's (alleged) misconduct, and others connected to her. (Id. at 1 #8-11.)

The Amended Complaint's Allegations, in Brief

From May 1992 to September 21, 1993, Amadasu was employed at Bronx Lebanon Hospital Center as a family practice resident. (E.g., Dkt. No. 51: Am. Compl. ¶ 3.) The vast majority of Amadasu's amended complaint describes events that occurred in that 1992-1993 time period. (Am. Compl. ¶¶ 12-17, 19, 60, 61, 63-95, 97-141, 143-55, 157-66, 183-85.) The remainder of his complaint outlines events that allegedly occurred within the past few years. (Am. Compl. ¶¶ 5-8, 11, 18, 45, 180-82, 186-187, 191, 193, 194, 202, 208, 220-22, 226.) Amadasu asserts that "after [his] discharge and continuing to date, [defendants] have engaged and continue to engage in regular, similar, repeated and continuing series of discriminatory acts, and systematic policy, pattern or custom of discrimination and retaliation against plaintiff arising from their employment, educational training policies, or patterns and practices in continuing violations. The month to month and year to year continuing discriminations and retaliations pervade a series of impermissible similar and frequent events, tortious acts, omissions or commissions linked in chain culminating in discriminating and retaliatory act occurring earliest on August 30, 2002 and latest on December 23, 2002, and thereafter continuing to the present and causing continuing personal injuries." (Am. Compl. ¶ 5.) Amadasu states that "[e]very month and every year since discharge and continuing to date," defendants blocked his career opportunities by "stigmatizing [him] to prospective or potential employers" (Am. Compl. ¶ 6) and that defendants ruined his reputation with "false information or negative references." (Am. Compl. ¶ 7; see also id. ¶¶ 11, 18, 45, 191, 202, 208, 220-22, 226.) He claims:

Since termination of the plaintiff, BLHC and IFUH and their employees, servants and agents, inter alia, Fuentes, Gumbs, Calman, Quarless and defendant Rosenberg, have concertedly willfully, intentionally, knowingly and with reckless disregard for the truth, falsely communicated to each prospective employers of the plaintiff that the plaintiff had conducted a pelvic examination without explanation, consent or an indication and that plaintiff committed the crime of sexual abuse and child molestation against Gustave. . . .

These defamatory assertions of false statements of fact, pertaining to and about the plaintiff, have been communicated continuously month-to-month and year-to-year, and continuing to the present to, including but not limited to, the following partial list of prospective employers where plaintiff applied for employment. . . .

(Am. Compl. ¶¶ 180-81.) Amadasu states that "by being defamed" in this manner he is "suffering permanent extreme, serious, and severe emotional, mental, and psychological anguish, permanent major depression associated with and resulting from and incidental to his employment with BLHC and the IFUH, all in their totality warrants award of punitive damages against the defendants." (Am. Compl. ¶ 193.)

Amadasu also asserts claims of fraud and conspiracy against defendants Rosenberg, Marshall, Conway Wilson, Andriola, Bronx Lebanon Hospital Center, Institute for Urban Family Health and their employees, and Wilson, Elser, Moskowitz, Edelman and its agents relating to his various law suits. (Am. Compl. ¶ 186.) Amadasu claims that the defendants "worked fraud upon the [state] court and the plaintiff by misleading misstatement, omitting and misrepresenting facts, employing subterfuges, trickery, 'judicial prostitutions,' and introducing forged or manufactured documents, which subverted the normal machinery of adjudication or impugned the integrity of the administration of justice at the state court." (Am. Compl. ¶ 186.)

PROCEDURAL HISTORY

Amadasu had filed a prior lawsuit in state court, see Amadasu v. Bronx Lebanon Hosp. Ctr., Inc., 10 A.D.3d 571, 782 N.Y.S.2d 82 (1st Dep't 2004) (hereafter, "Amadasu I"), claiming breach of contract, wrongful termination and defamation against Bronx Lebanon Hospital Center and Rosenberg. Ruling for defendants on appeal, the First Department held that Amadasu'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." Id. at 572, 782 N.Y.S.2d at 83 (citations omitted).¹

1 Amadasu filed another multi-claim employment-related law suit in a claim unrelated to this case in the Southern District of Ohio, which was transferred to the District of Utah; the Tenth Circuit affirmed the district court's dismissal of Amadasu's complaint. Amadasu v. University of Utah, No. 02-4236, 92 Fed. Appx. 766, 769, 2004 WL 586120 at *2 (10th Cir. Mar. 25, 2004).

On August 25, 2003, Amadasu filed his original complaint in this Court. (Dkt. No. 2: Compl.) This Court "strongly advise[d]" 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 statue of limitations. (Dkt. No. 34: 1/23/2004 Order.) This Court thereafter ordered Amadasu to file an amended complaint, which he did on April 14, 2004. (Dkt. 39: 2/24/2004 Order; Dkt. No. 51: Am. Compl.)²

2 Amadasu repeatedly moved for judgment on the pleadings and judgment by default. (E.g., Dkt. No. 76.) Those motions were denied by this Court and the denials were affirmed by Judge Kaplan. (E.g., Dkt. Nos. 85, 93.)

Presently before the Court are defendants' motions to dismiss. (E.g., Dkt. No. 65.)

ANALYSIS

I. THE STANDARD GOVERNING A MOTION TO DISMISS ³

3 For additional decisions by this Judge discussing the standard governing a motion to dismiss in language substantially similar to that in this section, see, e.g., Doe v. Goord, 04 Civ. 0570, 2004 WL 2829876 at *5-6 (S.D.N.Y. Dec. 10, 2004) (Peck, M.J.); Lynch v. Menifee, 02 Civ. 5219, 2004 WL 1738888 at *3-4 (S.D.N.Y. Aug. 4, 2004) (Peck, M.J.); Pierce v.Marano, 01 Civ. 3410, 2002 WL 1858772 at *3-4 (S.D.N.Y. Aug. 13, 2002) (Peck, M.J.); Bolanos v. Norwegian Cruise Lines Ltd., 01 Civ. 4182, 2002 WL 1465907 at *3 (S.D.N.Y. July 9, 2002) (Peck, M.J.), aff'd, 2004 WL 769766 (S.D.N.Y. Apr. 12, 2004) (Berman, D.J.); Pantoja v. Scott, 96 Civ. 8593, 2001 WL 1313358 at *4 (S.D.N.Y. Oct. 26, 2001) (Peck, M.J.); Leemon v.Burns, 175 F. Supp. 2d 551, 553-54 (S.D.N.Y. 2001) (Peck, M.J.); LaSalle Nat'l Bank v. Duff Phelps Credit Rating Co., 951 F. Supp. 1071, 1080-81 (S.D.N.Y. 1996) (Knapp, D.J. Peck, M.J.); In re Towers Fin. Corp. Noteholders Litig., 93 Civ. 0180, 1995 WL 571888 at *11 (S.D.N.Y. Sept. 20, 1995) (Peck, M.J.), report rec. adopted, 936 F. Supp. 126 (S.D.N.Y. 1996) (Knapp, D.J.).

A district court should deny a Rule 12(b)(6) motion to dismiss "'unless it appears to a certainty that a plaintiff can prove no set of facts entitling him to relief.'" IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1052 (2d Cir. 1993) (quotingRyder Energy Distrib. Corp. v. Merrill Lynch Commodities Inc., 748 F.2d 774, 779 (2d Cir. 1984)), cert. denied, 513 U.S. 822, 115 S. Ct. 86 (1994).⁴ A court must accept as true the facts alleged in the complaint and draw all reasonable inferences in favor of the nonmoving party — here, the plaintiff.Cosmas v. Hassett, 886 F.2d 8, 11 (2d Cir. 1989).⁵

4 Accord, e.g., Weinstein v. Albright, 261 F.3d 127, 131 (2d Cir. 2001); In re Scholastic Corp. Sec. Litig., 252 F.3d 63, 69 (2d Cir.), cert. denied, 534 U.S. 1071, 122 S. Ct. 678 (2001); Grandon v. Merrill Lynch Co., 147 F.3d 184, 188 (2d Cir. 1998).

5 Accord, e.g., Weinstein v. Albright, 261 F.3d at 131; In re Scholastic Corp. Sec. Litig., 252 F.3d at 69.

The "standards for dismissal under [Rule] 12(b)(6) and 12(b)(1) are substantively identical." Lerner v. Fleet Bank, N.A., 318 F.3d 113, 128 (2d Cir.), cert. denied, 124 S. Ct. 532 (2003);see also, e.g., Moore v. PaineWebber, Inc., 189 F.3d 165, 169 n. 3 (2d Cir. 1999); Bishop v. Porter, 02 Civ. 9542, 2003 WL 21032011 at *3 (S.D.N.Y. May 8, 2003); Tennant v. United States Bureau of Prisons, 02 CV 00558, 2003 WL 1740605 at *1 (D. Conn. Mar. 29, 2003).⁶

6 The only substantive difference is "that the party invoking the jurisdiction of the court has the burden of proof in a 12(b)(1) motion, in contrast to a 12(b)(6) motion, in which the defendant has the burden of proof." Lerner v. Fleet Bank, N.A., 318 F.3d at 128 (citing Thompson v. County of Franklin, 15 F.3d 245, 249 (2d Cir. 1994)); see also, e.g., Langella v. Bush, 306 F. Supp. 2d 459, 463 (S.D.N.Y. 2004) ("On a motion to dismiss pursuant to Rule 12(b)(1), plaintiff carries the burden of establishing that subject matter jurisdiction exists over his complaint."); Bishop v. Porter, 2003 WL 21032011 at *3.

A motion to dismiss challenges only the face of the pleading. Thus, in deciding a motion to dismiss, "the Court must limit its analysis to the four corners of the complaint." Vassilatos v.Ceram Tech Int'l Ltd., 92 Civ. 4574, 1993 WL 177780 at *5 (S.D.N.Y. May 19, 1993) (citing Kopec v. Coughlin, 922 F.2d 152, 154-55 (2d Cir. 1991)).⁷ The Court, however, may consider documents attached to the complaint as an exhibit or incorporated in the complaint by reference. E.g., Chambers v. Timer Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002) ("Because this standard has been misinterpreted on occasion, we reiterate here that a plaintiff's reliance on the terms and effect of a document in drafting the complaint is a necessary prerequisite to the court's consideration of the document on a dismissal motion; mere notice or possession is not enough."); Yak v. Bank Brussels Lambert, BBL (USA) Holdings, Inc., 252 F.3d 127, 130 (2d Cir. 2001) (citing Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir. 1991), cert. denied, 503 U.S. 960, 1125 S. Ct. 1561 (1992)); Rothman v. Gregor, 220 F.3d 81, 88 (2d Cir. 2000) ("For purposes of a motion to dismiss, we have deemed a complaint to include any written instrument attached to it as an exhibit or any statements or documents incorporated in it by reference. . . ."); see also, e.g., Paulemon v. Tobin, 30 F.3d 307, 308-09 (2d Cir. 1994);Brass v. American Film Tech., Inc., 987 F.2d 142, 150 (2d Cir. 1993).

7 Accord, e.g., Aniero Concrete Co. v. New York City Constr. Auth., 94 Civ. 3506, 2000 WL 863208 at *31 (S.D.N.Y. June 27, 2000); Six West Retail Acquisition, Inc. v. Sony Theatre Mgmt. Corp., 97 Civ. 5499, 2000 WL 264295 at *12 (S.D.N.Y. Mar. 9, 2000) ("When reviewing the pleadings on a motion to dismiss pursuant to Rule 12(b)(6), a court looks only to the four corners of the complaint and evaluates the legal viability of the allegations contained therein.").

When additional materials are submitted to the Court for consideration with a 12(b)(6) motion, the Court must either exclude the additional materials and decide the motion based solely upon the complaint, or convert the motion to one for summary judgment under Fed.R.Civ.P. 56. See Fed.R.Civ.P. 12(b); Friedl v. City of New York, 210 F.3d 79, 83 (2d Cir. 2000); Fonte v. Board of Managers of Cont'l Towers Condos, 848 F.2d 24, 25 (2d Cir. 1988).

The Court's role in deciding a motion to dismiss "'is merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof.'" Saunders v. Coughlin, 92 Civ. 4289, 1994 WL 88108 at *2 (S.D.N.Y. Mar. 15, 1994) (quoting Geisler v. Petrocelli, 616 F.2d 636, 639 (2d Cir. 1980)); accord, e.g., Watson v. McGinnis, 964 F. Supp. 127, 130-31 (S.D.N.Y. 1997) (Kaplan, D.J. Peck, M.J.). "'[T]he issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.'" Saunders v. Coughlin, 1994 WL 88108 at *2 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S. Ct. 1683, 1686 (1974)). A Rule 12(b)(6) motion will be granted "'only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.'"Saunders v. Coughlin, 1994 WL 88108 at *2 (quoting Hishon v. King Spalding, 467 U.S. 69, 73, 104 S. Ct. 2229, 2232 (1984)).

When reviewing a pro se complaint, the Court must use less stringent standards than if the complaint had been drafted by counsel. See, e.g., LaBounty v. Adler, 933 F.2d 121, 123 (2d Cir. 1991); Watson v. McGinnis, 964 F. Supp. at 131;Saunders v. Coughlin, 1994 WL 88108 at *2 (citing Hughes v.Rowe, 449 U.S. 5, 101 S. Ct. 173 (1980)). However, "[d]ismissal under Rule 12(b)(6) is proper if the complaint lacks an allegation regarding an element necessary to obtain relief. . . ." 2 Moore's Federal Practice § 12.34[4][a], at 12-72.7 (2004). Thus, the "'duty to liberally construe a plaintiff's complaint [is not] the equivalent of a duty to re-write it.'" Id., § 12.34[1][b], at 12-61; see also, e.g., Joyner v. Greiner, 195 F. Supp. 2d 500, 503 (S.D.N.Y. 2002) (action dismissed because pro se plaintiff "failed to allege the facts tending to establish" that defendants violated his constitutional rights).

II. DEFENDANTS ARE ENTITLED TO DISMISSAL OF ALL OF AMADASU'S FEDERAL CLAIMS BECAUSE THEY ARE TIME-BARRED

Amadasu was terminated from Bronx Lebanon Hospital on September 21, 1993. (Dkt. No. 51: Am. Compl. ¶ 3.) He filed his original complaint in this action before this Court on August 25, 2003, almost ten years after his termination. (Dkt. No. 2: Compl.) No federal claim directly or indirectly asserted by Amadasu has even close to a ten year statute of limitations.⁸ The longest statute of limitations that is possibly applicable to any of Amadasu's federal claims is four years. See 15 U.S.C. § 15b; see also Jones v. R.R. Donnelley Sons Co., 541 U.S. 369, 124 S. Ct. 1836, 1839 (2004) (catchall four year statute of limitations for federal statutes enacted after 12/1/90 applies to claim under 42 U.S.C. § 1981);Robertson v. Doe, No. 01-9434, 40 Fed. Appx. 631, 632, 2002 WL 1567065 at *1 (2d Cir. Jul. 17, 2002) (three year statute of limitations under Title VI); Carter v. New York City Dep't of Corr., No. 00-7118, 7 Fed. Appx. 99, 103, 2001 WL 345170 at *2 (2d Cir. Apr. 5, 2001) ("The 300 day limit [in Title VII actions] functions as a statute of limitations."); Higgins v. New York Stock Exch., 942 F.2d 829, 831 (2d Cir. 1991) (four year antitrust statute of limitations); Hill v. Citibank Corp., 312 F. Supp. 2d 464, 472 (S.D.N.Y. 2004) (same); Applera Corp. v. MJ Research Inc., No. 3:98 CV 1201, ___ F. Supp. 2d ___, 2004 WL 2966653 at *8 (D. Conn. Dec. 22, 2004) (same); Meridien Int'l Bank Ltd. v. Republic of Liberia, 23 F. Supp. 2d 439, 453 (S.D.N.Y. 1998) (same).⁹

8 Amadasu asserts the following federal claims, all relating to his BLHC employment and subsequent termination: (1) Titles VI and VII; (2) 42 U.S.C. § 1981; (3) First, Fourth, Fifth and Sixth Amendment violations; (4) 42 U.S.C. § 1985; (6) 42 U.S.C. § 1986; (7) 28 U.S.C. §§ 2201 2202 (for declaratory relief that BLHC's Rules created a contract with him); (8) 28 U.S.C. § 1651 (for injunctive relief); (9) 15 U.S.C. §§ 1 2; and (10) 28 U.S.C. § 1927. (Compl., Counts 1-9, 15, 18-19, 21, 28-31.)

9 In none of Amadasu's papers does he attempt to argue that any statutes of limitations should be subject to equitable tolling. "The plaintiff bears the burden of 'demonstrating the appropriateness of equitable tolling.'" Lloyd v. Bear Stearns Co., 99 Civ. 3323, 2004 WL 2848536 at *10 (S.D.N.Y. Dec. 9, 2004) (quoting Boos v. Runyon, 201 F.3d 178, 185 (2d Cir. 2004)); see also, e.g., Harrison v. Potter, 323 F. Supp. 2d 593, 601 (S.D.N.Y. 2004) ("Absent grounds for equitable tolling, courts may deny parties access to federal court" when suit brought outside Title VII limitations period.).

Amadasu riddles the word "continuing" throughout his amended complaint. (See, e.g., Am. Compl. ¶¶ 2, 5, 7, 181, 193, 233, 242, 245, 249.) However, as defendants point out (Dkt. No. 65: Defs. Br. at 3), merely placing the word "continuing" before a claim related to a 1993 termination does not cure a time-bar.See, e.g, United Air Lines, Inc. v. Evans, 431 U.S. 553, 558, 97 S. Ct. 1885, 1889 (1977) ("United's seniority system does indeed have a continuing impact on her pay and fringe benefits. But the emphasis should not be placed on mere continuity; the critical question is whether any present violation exists.") (emphasis in original); Cavallaro v. Corning Inc., 93 F. Supp. 2d 334, 339 (W.D.N.Y. 2000) ("An employer's failure to reinstate a plaintiff who alleges discriminatory treatment does not give rise to a continuing violation. Were that the case, an employee who stopped working because of an employer's allegedly discriminatory conduct and whose claim would otherwise be time-barred could easily circumvent the ADA's 300-day filing requirement simply by attempting to return to work."); Brown v.City of New York, 869 F. Supp. 158, 169 (S.D.N.Y. 1994) ("While Brown's treatment at the DOB may have constituted a continuing violation, the Court finds that the DOB's discriminatory conduct ceased when Brown left his employment there. As a result, the last act of discrimination took place outside the statute of limitations period. Accordingly, the Court finds that Brown's claims against the DOB are time-barred."); Skeet v. New York City Dep't of Consumer Affairs, 93 Civ. 2121, 1994 WL 86405 at*2 (S.D.N.Y. Mar. 15, 1994) ("In the instant case, plaintiff argues that his difficulty in obtaining employment with the city demonstrates a 'continuing violation' of civil rights, which delays commencement of the limitations period to the present. . . . However, '[i]t is simply insufficient for [the plaintiff] to allege that his termination "gives present effects to the past illegal act and therefore perpetuates the consequences of forbidden discrimination.". . . The emphasis is not upon the effect of earlier employment decisions; rather, it 'is [upon] whether any present violation exists."'") (quoting Delaware State College v. Ricks, 449 U.S. 250, 258, 101 S. Ct. 498, 504 (1980)); Stephney v.Hospital for Joint Diseases, 83 Civ. 6123, 1985 WL 4271 at *3 n. 10 (S.D.N.Y. Dec. 4, 1985) ("'[C]ourts have applied [the U.S. Supreme Court's decision in United Airlines, Inc. v. Evans] to hold that the continuing violation theory does not make timely a filing based merely on the continuing effects of an allegedly discriminatory denial of promotion.'").

All of Amadasu's federal claims are time-barred and should be dismissed.

III. AMADASU'S STATE LAW CLAIMS SHOULD BE DISMISSED

Amadasu's remaining state law claims (summarized in Dkt. No. 65: Defs. Br. Ex. D at 2-5) remain before this Court through diversity jurisdiction. (See Am. Compl. ¶ 21.) The state law claims are: Count 10, fraudulent concealment of evidence (Am. Compl. ¶¶ 277-81); Count 11, continuing negligence and gross negligence (Am. Compl. ¶¶ 282-89); Count 12, negligence in hiring, supervision retention and discipline (Am. Compl. ¶¶ 290-97); Count 13, misrepresentation (Am. Compl. ¶¶ 298-301); Count 14, defamation, libel and slander per se (Am. Compl. ¶¶ 302-09); Count 15, invasion of privacy and false light (Am. Compl. ¶¶ 310-16); Count 16, continuing intentional infliction of emotional distress and mental anguish (Am. Compl. ¶¶ 313-16); Count 17, violation of New York State Human Rights Law, (i.e., Executive Law) (Am. Compl. ¶¶ 317-22); Count 20, common law civil conspiracy(Am. Compl. ¶¶ 344-46); Count 22, injurious falsehood/disparagement (Am. Compl. ¶¶ 351-53); Count 23, repeated and continuing breach of contract (Am. Compl. ¶¶ 354-62); Count 24, breach of implied covenant of good faith and fair dealing (Am. Compl. ¶¶ 363-65); Count 25, negligent performance of employment and derivative contracts (Am. Compl. ¶¶ 366-67); Count 26, continuing non-hiring, retaliation, wrongful discharge and violation of New York public policy (Am. Compl. ¶¶ 368-75); Count 27, continuing tortious intentional interference with contractual relations (Am. Compl. ¶¶ 376-77); Count 28, declaratory relief for breach of contract based on BLHC by-laws and rules (Am. Compl. ¶¶ 378-79); Count 32, promissory estoppels (Am. Compl. ¶¶ 396-97); Count 33, breach of equitable estoppels and ratification doctrine (Am. Compl. ¶¶ 398-401); Count 34, workers compensation occupational injuries (Am. Compl. ¶¶ 402-06); Count 35, fraudulent inducement to accept a position with BLHC (Am. Compl. ¶¶ 407-08); Count 36, unjust and fraudulent enrichment (Am. Compl. ¶¶ 409-13); Count 37, negligent and reckless concealment and spoilation of evidence (Am. Compl. ¶¶ 414-18); Count 38, fraud (Am. Compl. ¶¶ 419-22); Count 39, continuing tortious litigation and discovery abuses (Am. Compl. ¶¶ 423-30); and Count 40, conspiracy to defraud and fraud, collusion, deceit and cover-up (Am. Compl. ¶¶ 431-36). A. Amadasu's State Law Claims Relating To His Tenure at BLHC, Counts Eleven Through Thirteen, Twenty-Two Through Twenty-Eight, Thirty-Two, Thirty-Three, Thirty-Five, and Thirty-Eight, are Barred Under The Doctrines of Collateral Estoppel and Res Judicata

In a case filed in New York state court, Amadasu I, Amadasu brought breach of contract, wrongful termination and defamation claims against BLHC and Margaret Rosenberg regarding his 1992-1993 employment at BLHC, and subsequent BLHC communications with prospective employers. (See Dkt. No. 65: Defs. Br. Ex. A: 7/10/2002 Justice Green Order 3/14/2000 Justice Suarez Order.)See also Amadasu v. Bronx Lebanon Hosp. Ctr., Inc., 10 A.D. 3d 571, 782 N.Y.S.2d 82 (1st Dep't 2004). Collateral estoppel, or issue preclusion, bars Amadasu's claims in this action to the extent that they are premised on the events that Amadasu described in his state law complaint. Res judicata, or claim preclusion, bars Amadasu's remaining 1992-1993 related claims because they arise out of the same nucleus of facts as the prior state court law suit and could have been previously asserted by Amadasu.

1. Collateral Estoppel

"For collateral estoppel to bar a party from litigating an issue in a second proceeding, '(1) the issues in both proceedings must be identical, (2) the issue in the prior proceeding must have been actually litigated and actually decided, (3) there must have been a full and fair opportunity for litigation in the prior proceeding, and (4) the issue previously litigated must have been necessary to support a valid and final judgment on the merits.'"Cameron v. Church, 253 F. Supp. 2d 611, 618 (S.D.N.Y. 2003) (quoting Gelb v. Royal Globe Ins. Co., 798 F.2d 38, 44 (2d Cir. 1986), cert. denied, 480 U.S. 948, 107 S. Ct. 1608 (1987)); accord, e.g., S.E.C. v. Monarch Funding Corp., 192 F.3d 295, 304 (2d Cir. 1999); Levy v. Kosher Overseers Ass'n of America, Inc., 104 F.3d 38, 41 (2d Cir. 1997); Central Hudson Gas Elec. Corp. v. Empresa Naviera Santa S.A., 56 F.3d 359, 368 (2d Cir. 1995); Marshall v.National Ass'n of Letter Carriers, 03 Civ. 1361, 2003 WL 22519869 at *6-7 (S.D.N.Y. Nov. 7, 2003) (Peck, M.J.), report rec. adopted, 03 Civ. 1361, 2004 WL 2202574 (S.D.N.Y. Sep. 30, 2004) (Swain, D.J.); Semi-Tech Litig., LLC v. Bankers Trust Co., 272 F. Supp. 2d 319, 2003 WL 21666591 at *3 (S.D.N.Y. July 17, 2003); Latino Officers Ass'n, Inc. v. City of New York, 99 Civ. 9568, 2003 WL 21650007 at *2 (S.D.N.Y. July 14, 2003);Pantoja v. Scott, 96 Civ. 8593, 2001 WL 1313358 at *7 (S.D.N.Y. Oct. 26, 2001) (Peck, M.J.).

Each of these requirements is met insofar as Amadasu seeks to claim breach of contract and wrongful termination. The breach of contract and wrongful termination issues in this action are identical to the issues in Amadasu's prior New York state court action, Amadasu I. Both Amadasu's current amended complaint and his prior Amadasu I state law complaint alleged breach of contract and wrongful termination of his 1992-1993 employment at BLHC. (Compare, e.g., Am. Compl. ¶¶ 354-62, 368-75 with Amadasu v. Bronx Lebanon Hosp. Ctr., Inc., 10 A.D.3d 571, 782 N.Y.S.2d 82 (1st Dep't 2004)). These issues were decided against Amadasu in Justice Green's summary judgment decision. (See Dkt. No. 65: Defs. Br. Ex. A: Justice Green Order.) As a grant of summary judgment, Justice Green's decision operated as a decision on the merits of the claims asserted in Amadasu I. See, e.g., Weston Funding Corp. v. Lafayette Towers, Inc., 550 F.2d 710, 714-15 (2d Cir. 1977) (summary judgment is dismissal on the merits for res judicata purposes); Azzolini v. Marriott Int'l, Inc., 03 Civ. 4345, 2004 WL 42285 at *1 (S.D.N.Y. Jan. 7, 2004) (order granting summary judgment for employer in prior race discrimination action arising from termination was a final judgment on the merits for res judicata purposes); Dynacore Holdings Corp. v. U.S. Philips Corp., 243 F. Supp. 2d 31, 35-36 (S.D.N.Y. 2003) ("The Second Circuit affirmed the district court's grant of summary judgment of infringement, thus reaching a final determination on the merits," thus meeting the requirement for collateral estoppel.), aff'd, 363 F.3d 1263 (Fed. Cir. 2004); Dillard v. Henderson, 43 F. Supp. 2d 367, 369 (S.D.N.Y. 1999) ("A judgment on the merits for purposes of res judicata is not necessarily a judgment based upon a trial of contested facts; it may, for example, be a default judgment, . . . or a summary judgment.").¹⁰

10 Amadasu makes no showing that he did not have a full and fair opportunity to litigate the issues in Amadasu I, a showing that is his burden to establish. See, e.g., Marshall v.National Ass'n of Letter Carriers, 2003 WL 22519869 at *7;James v. City of New York, 01 Civ. 30, 2003 WL 21991591 at *4 (S.D.N.Y. Aug. 20, 2003) ("In applying collateral estoppel . . ., the burden rests upon the opponent to establish the absence of a full and fair opportunity to litigate the issue in prior action or proceeding.") (internal quotations omitted); Bonilla v.Brancato, 99 Civ. 10657, 2002 WL 31093614 at *4 (S.D.N.Y. Sept. 18, 2002) ("[T]he party against whom the doctrine of collateral estoppel is asserted bears the burden of showing the absence of a full and fair opportunity to litigate in the prior proceeding.").

Collateral estoppel thus precludes relitigation of the issues raised in Amadasu I. ¹¹ 2. Res Judicata

11 Application of collateral estoppel principles to Amadasu's defamation claim is discussed in Point III. F below.

The Second Circuit has held that res judicata challenges may properly be made via a threshold motion to dismiss. See, e.g., Thompson v. County of Franklin, 15 F.3d 245, 253 (2d Cir. 1994) ("Res judicata challenges may properly be raised via a motion to dismiss for failure to state a claim under Rule 12(b)(6)."); Marshall v. National Ass'n of Letter Carriers, 03 Civ. 1361, 2003 WL 22519869 at *7 (S.D.N.Y. Nov. 7, 2003) (Peck, M.J.); Pantoja v. Scott, 96 Civ. 8593, 2001 WL 1313358 at *4 (S.D.N.Y. Oct. 26, 2001) (Peck, M.J.); Clarkstown Recycling Ctr., Inc. v. Parker, Chapin, Flattau Klimpl, 1 F. Supp. 2d 327, 329 (S.D.N.Y. 1998) (Parker, D.J.) ("A challenge based on res judicata grounds may be properly raised in a motion to dismiss pursuant to Rule 12(b)(6).").

Amadasu adds claims and defendants to his current action that he may not have mentioned in Amadasu I in state court. Any additional claims are nevertheless precluded by the doctrine of res judicata.

" Res Judicata 'applies to preclude later litigation if the earlier decision was (1) a final judgment on the merits, (2) by a court of competent jurisdiction, (3) in a case involving the same parties or their privies, and (4) involving the same [claim, or] cause of action.'" Cameron v. Church, 253 F. Supp. 2d 611, 619 (S.D.N.Y. 2003) (citing In re Teltronics Servs., Inc., 762 F.2d 185, 190 (2d Cir. 1985)); see also, e.g., Pike v.Freeman, 266 F.3d 78, 91 (2d Cir. 2001); Rezzonico v. H R Block, Inc., 182 F.3d 144, 148 (2d Cir. 1999), cert. denied, 528 U.S. 1189, 120 S. Ct. 1243 (2000); Central Hudson Gas Elec. Corp. v. Empresa Naviera Santa S.A., 56 F.3d 359, 366 (2d Cir. 1995); Marshall v. National Ass'n of Letter Carriers, 2003 WL 22519869 at *78; Semi-Tech Litig., LLC v.Bankers Trust Co., 272 F. Supp. 2d 319, 325 (S.D.N.Y. July 17, 2003); Bishop v. Porter, 02 Civ. 9542, 2003 WL 21032011 at *4-5 (S.D.N.Y. May 8, 2003). Res Judicata applies "'not only as to what was pleaded, but also as to what could have been pleaded.' Res judicata bars cases that arise from the same 'operative nucleus of fact.' 'New legal theories do not amount to a new cause of action so as to defeat the application of the principle of res judicata.'" Cameron v. Church, 253 F. Supp. 2d at 619 (citations omitted); see also, e.g., Pike v. Freeman, 266 F.3d at 91; Rezzonico v. H R Block, Inc., 182 F.3d at 145; Marshall v. National Ass'n of Letter Carriers, 2003 WL 22519869 at *8; Sanchez v. Dankert, 03 Civ. 3276, 2003 WL 21744087 at *2 (S.D.N.Y. July 16, 2003);Bishop v. Porter, 2003 WL 21032011 at *5. "To determine whether two actions arise from the same transaction or claim, 'we look to whether the underlying facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties' expectations or business understanding or usage.'" Marvel Characters, Inc. v. Simon, 310 F.3d 280, 287 (2d Cir. 2002) (quoting Pike v. Freeman, 266 F.3d at 91); see also, e.g., Marshall v. National Ass'n of Letter Carriers, 2003 WL 22519869 at *8; Semi-Tech Litig., LLC v. Bankers Trust Co., 272 F. Supp. 2d at 325; Commer v. McEntee, 00 Civ. 7913, 2003 WL 22204550 at *5 (S.D.N.Y. Sept. 24, 2003); Cameron v. Church, 253 F. Supp. 2d at 619.

Looking at these four requirements, it is evident that any claims that this action brings against BLHC or its employees are barred by res judicata. Justice Green granted summary judgment for BLHC and Rosenberg in the state court action, and his decision was affirmed by the First Department in Amadasu v.Bronx Lebanon Hosp. Ctr., Inc., 10 A.D.3d 571, 782 N.Y.S.2d 82 (1st Dep't 2004). This constituted a final judgment on the merits. See, e.g., cases cited on page 17 above. There can be no dispute that the Supreme Court of the State of New York is a "court of competent jurisdiction." In Amadasu I, Amadasu had brought claims against BLHC and Rosenberg arising from his 1992-1993 employment and his 1993 termination. The state law claims and causes of action that Amadasu brings in the instant case are either exactly the same or variants of the prior claims, and arise out of the same set of events, i.e., his BLHC employment and 1993 termination. Therefore, all state law claims in the instant action against BLHC and its employees are barred by res judicata and/or collateral estoppel. 3. The Doctrines of Res Judicata and Collateral Estoppel Also Apply to Defendants Not Named in Earlier Actions

Amadasu also names as defendants, inter alia, IUFH and BLHC employees Calman, Gumbs, Fuentes and Quarless, none of whom Amadasu named as defendants in his earlier state court action,Amadasu I. Nonetheless, the doctrines of collateral estoppel and res judicata bar issues and claims against these additional parties as well. As discussed on page 14 above, the doctrine of collateral estoppel does not require that the same parties are named in the earlier action in order to apply to the instant action.

The third prong of the doctrine of res judicata requires the same parties or their privies in both actions in order to preclude later litigation. See, e.g., Marshall v. National Ass'n of Letter Carriers, 03 Civ. 1361, 2003 WL 22519869 at *9 (S.D.N.Y. Nov. 7, 2003) (Peck, M.J.); Cameron v. Church, 253 F. Supp. 2d 611, 619 (S.D.N.Y. 2003). Amadasu is the plaintiff in both actions. Some of the defendants here also were defendants inAmadasu I. As to the new defendants here, as long as the new defendants have a sufficiently close relationship to the prior defendants — which they do here since the new defendants at issue are employees of or closely affiliated with BLHC — this third prong is met, and Amadasu is barred from bringing suit. See, e.g., Meagher v. Board of Tr. of Cement Concrete Workers., 79 F.3d 256, 258 (2d Cr. 1996) ("the relationship between the [prior defendant] Fund and the [current defendant] Trustees is sufficiently close to warrant the application of res judicata"); Central Hudson Gas Elec. Corp. v. Empresa Naviera Santa S.A., 56 F.3d 359, 367-68 (2d Cir. 1995) ("In its modern form, the principle of privity bars relitigation of the same cause of action against a new defendant known by a plaintiff at the time of the first suit where the new defendant has a sufficiently close relationship to the original defendant to justify preclusion.") (citing Amalgamated Sugar Co. v. NL Indus., Inc., 825 F.2d 634, 640 (2d Cir.),cert. denied, 484 U.S. 992, 108 S. Ct. 511 (1987)); Marshall v. National Ass'n of Letter Carriers, 2003 WL 22519869 at *9;Vets North, Inc. v. Libutti, No. CV-01-7773, 2003 WL 21542554 at *11 (E.D.N.Y. Apr. 21, 2003) ("'Contemporary courts have broadly construed the concept of privity, far beyond its literal and historic meaning, to include any situation in which the "relationship between the parties" is "sufficiently close" to supply preclusion.'") (citing Nabisco, Inc. v. Amtech Int'l, Inc., 95 Civ. 9699, 2000 WL 35854 at *6 (S.D.N.Y. Jan. 18 2000)); John Street Leashold, LLC v. Capital Mgmt. Res., L.P., 154 F. Supp. 2d 527, 542-44 (S.D.N.Y. 2001), aff'd, 283 F.3d 73 (2d Cir.), cert. denied, 537 U.S. 883, 123 S. Ct. 106 (2002); Garver v. Brown Co. Sec. Corp., 96 Civ. 2507, 1998 WL 54608 at *4 n. 4 (S.D.N.Y. Feb. 10, 1998). Here, the new defendants, as employees and an affiliate of BLHC, have a sufficiently close relationship to earlier defendant BLHC to be considered in privity where the plaintiff, Amadasu, is the same in both cases. Therefore, the preclusive effect of the First Department's affirmance of the Supreme Court's summary judgment decisions applies to protect all current defendants against whom 1992-1993 breach of contract and wrongful termination claims are asserted. See also, e.g. Marshall v. National Ass'n of Letter Carriers, 2003 WL 22519869 at *9; Cameron v. Church, 253 F. Supp. 2d at 623 (" Res judicata operates to preclude claims, rather than particular configurations of parties; Plaintiff's addition of new defendants, in the context of allegations of their involvement in the series of alleged deprivations, does not entitle him to revive the previously dismissed claims."); Waldman v. Village of Kiryas Joel, 39 F. Supp. 2d 370, 382 (S.D.N.Y. 1999) (Parker, D.J.) ("[G]overnment officials sued in their official capacities are generally considered to be in privity with the governmental entity that they serve. . . . Moreover, res judicata also bars litigation of [plaintiff's] first claim against the Village officials in their individual capacities.") (citations omitted),¹² aff'd, 207 F.3d 105 (2d Cir. 2000); Official Publ'ns, Inc. v.Kable News Co., 811 F. Supp. 143, 147 (S.D.N.Y. 1993) ("The doctrine of res judicata also bars litigation of the same causes of action against defendants who were known to plaintiff at the time the first action was filed but were not named where the newly-added defendants have a sufficiently close relationship to the original defendant . . . Where the 'new' defendants are sufficiently related to one or more of the defendants in the previous action which arises from the same transaction all defendants may invoke res judicata.") (citations omitted).

12 Judge Parker noted in Waldman that alleged co-conspirator defendants are considered in "privity" for res judicata purposes. Waldman v. Village of Kiryas Joel, 39 F. Supp. 2d at 381-82 ("Res judicata is available to a newly named defendant with a close or significant relationship to a defendant previously sued, when the claims in the new action are essentially the same as those in the prior action and the defendant's existence and participation in the relevant events was known to the plaintiff. These cases penalize a plaintiff for asserting in a subsequent action the same claim against a co-conspirator, whose participation in the plaintiff's prior action was clear, but whom the plaintiff chose not to sue earlier. The courts have warned that because co-conspirators were 'in privity' with prior defendants they are entitled to res judicata.") (citations omitted).

Thus, the doctrines of collateral estoppel and res judicata require dismissal of all of Amadasu's state law claims that relate to his BLHC tenure as against all defendants. B. Amadasu's Fourteenth, Sixteenth, Seventeenth, Twenty-Second, Twenty-Sixth, Twenty-Seventh, and Thirty-Fourth Claims are Barred by the Applicable Statutes of Limitations ¹³ 1. Count Seventeen and Twenty-Six: New York State Executive Law Claims

13 While several other state law claims asserted by Amadasu are time-barred, we need not discuss them as they are barred by the doctrines of res judicata and collateral estoppel. For example, Amadasu's claims for breach of contract, derived from his 1992-93 employment and 1993 termination, discussed above, are time barred by New York's six year statute of limitations for contract actions. See, e.g., C.P.L.R. § 213(2); Terry v.UNUM Life Ins. Co., No. 04-0947, ___ F.3d ___, 2005 WL 39653 at *1 (2d Cir. Jan. 10, 2005) ("New York law . . . provides a six-year statute of limitations for breach of contract.");Brown v. Prudential Bache Sec., 91 Civ. 3649, 1992 WL 350792 at *7 (S.D.N.Y. Nov. 13, 1992) ("Under New York law, an action for contractual obligation, including the obligations of an employment contract, are subject to a six-year statute of limitations.").

Amadasu's claims brought under the New York Executive Law are subject to a three-year statute of limitations. See Blake v.Bronx Lebanon Hosp. Ctr., 02 Civ. 3827, 2003 WL 21910867 at *4 (S.D.N.Y. Aug. 11, 2003) (citing cases); Bloom v. New York City Bd. of Educ. Teachers' Retirement Sys., 00 Civ. 2728, 2003 WL 1740528 at *7, 10 (S.D.N.Y. Apr. 2, 2003); Rodriguez v. The Am. Friends of Hebrew Univ., Inc., 96 Civ. 0240, 1999 WL 493369 at *2 (S.D.N.Y. July 12, 1999); Johnson v. Delphi Energy Engine Mgmt. Sys., Inc., 12 F. Supp. 2d 281, 284 (W.D.N.Y. 1998), aff'd, 181 F.3d 82 (2d Cir. 1999). These claims, which relate to Amadasu's 1993 termination, clearly are time-barred and should be dismissed.

2. Count Fourteen, Sixteen, Twenty-Two and Twenty-Seven: Intentional Torts

New York State law applies a one-year statute of limitations to intentional torts. See, e.g., Carter v. Port Auth. of New York New Jersey, 03 Civ. 8751, 2004 WL 2978282 at *3 (S.D.N.Y. Dec. 20, 2004); Sleigh v. Charlex, Inc., 03 Civ. 1369, 2004 WL 2126742 at *3 (S.D.N.Y. Sept. 14, 2004); Smith v.Soros, 02 Civ. 4229, 2003 WL 22097990 at *7 (S.D.N.Y. Sept. 5, 2003), aff'd, No. 03-9341, 111 Fed. Appx. 73, 2004 WL 2378815 (2d Cir. Oct. 25, 2004); C.P.L.R. § 215(3). Amadasu's intentional tort claims are premised on events that occurred in 1992-1993 and should therefore be dismissed as time-barred. His intentional tort defamation claim is time barred to the extent it relates to alleged defamatory statements prior to August 25, 2002. (See also pages 28-29 below.)

3. Count Thirty-Four: Worker's Compensation/Occupational Injury

New York Worker's Compensation claims must be filed within two years of the alleged violation. See N.Y. Work. Compl. Law §§ 28, 120; Sandberg v. KPMG Peat Marwick, LLP, 111 F.3d 331, 336 (2d Cir. 1997). Because Amadasu was terminated from BLHC in 1993, this claim also should be dismissed as time-barred.

C. Spoliation of Evidence, Amadasu's Thirty-Seventh Claim, Invasion of Privacy and False Light, Amadasu's Fifteenth Claim, and Civil Conspiracy, Amadasu's Twentieth Claim, are not Recognized in New York and Should be Dismissed

Amadasu's thirty-seventh count asserts a claim of "Spoliation of Evidence" against defendants for destroying or concealing medical records and other legal documents relating to his state court action, Amadasu I. (Am. Compl. ¶¶ 414-18.) However, it is well settled that New York courts do not recognize the tort of spoliation of evidence. See, e.g., Drake v. Laboratory Corp. of America Holdings, 290 F. Supp. 2d 352, 375 n. 18 (E.D.N.Y. 2003); Sterbenz v. Attina, 205 F. Supp. 2d 65, 71-72 (E.D.N.Y. 2002); Whittlesey v. Espy, 96 Civ. 0671, 1996 WL 689402 at *1 (S.D.N.Y. Nov. 26, 1996); Mondello v. Dun Bradstreet Corp., 94 Civ. 4383, 1996 WL 239890 at *3 n. 1 (S.D.N.Y. May 9, 1996). Amadasu's spoilation claim therefore should be dismissed.

Amadasu's Fifteenth Count asserts a claim of "Invasion of Privacy and False Light." (Am. Compl. ¶¶ 310-12.) However, "New York does not recognize a claim of 'false light' invasion of privacy." Pedraglio Loli v. Citbank, Inc., 97 Civ. 2179, 1997 WL 778750 at *5 (S.D.N.Y. Dec. 18, 1997), aff'd, 173 F.3d 845 (2d Cir. 1999), cert. denied, 528 U.S. 1168, 120 S. Ct. 1191 (2000); see also, e.g., Weinstein v. Friedman, 94 Civ. 6803, 1996 WL 137313 at *20-21 (S.D.N.Y. Mar. 26, 1996), aff'd, 112 F.3d 507 (2d Cir. 1996); Cardone v. Empire Blue Cross Blue Shield, 884 F. Supp. 838, 848 (S.D.N.Y. 1995); Geary v.Goldstein, 831 F. Supp. 269, 277 (S.D.N.Y. 1993). Amadasu's invasion of privacy claim should be dismissed.

Amadasu's Twentieth Count asserts a claim of "Continuing Common law Civil Conspiracy." (Am. Compl. ¶¶ 344-46.) However, New York does not recognize an independent cause of action for civil conspiracy. See, e.g., Banca Commerciale Italiana v.Northern Trust Int'l Banking Corp., 160 F.3d 90, 93 (2d Cir. 1998) (affirming district court holding that defendants claim failed because "New York does not recognize a cause of action for civil conspiracy."). Only if an actionable underlying tort is established may a plaintiff plead the existence of a conspiracy.See, e.g., Treppel v. Biovail Corp., 03 Civ. 3002, 2004 WL 2339759 at *8 (S.D.N.Y. Oct. 15, 2004) ("[D]efendants are correct that New York law does not recognize an independent cause of action for civil conspiracy. . . . However, '[i]f an underlying, actionable tort is established, . . . plaintiff may plead the existence of a conspiracy in order to demonstrate that each defendant's conduct was part of a common scheme.'") (citingSepenuk v. Marshall, 98 Civ. 1569, 2000 WL 1808977 at *6 (S.D.N.Y. Dec. 8, 2000)); see also, e.g., Endovasc Ltd. v.J.P. Turner Co., 02 Civ. 7313, 2004 WL 634171 at *14 (S.D.N.Y. Mar. 30, 2004) ("There is no cognizable claim for the tort of civil conspiracy in New York."); Kraft v. Rector, 01 Civ. 7871, 2004 WL 540327 at *3 n. 5 (S.D.N.Y. Mar. 17, 2004) ("Because New York law does not recognize an independent tort for conspiracy . . . the Court sua sponte dismisses plaintiff's civil conspiracy claim. . . ."). Because none of Amadasu's possible underlying claims pertaining to Count 20 survive, the conspiracy claim should be dismissed.

D. Amadasu's Fraud Claims Are Barred By Res Judicata and/or the Statute of Limitations, and His "Litigation Fraud" Claims Can Only Be Brought in State Court

Amadasu asserts various fraud claims in Counts Eight, Ten, Thirty-Six, and Thirty-Eight through Forty. (See pages 12-13 above.) Defendants contend that such claims are "utterly conclusory" and "clearly fail to meet the stringent pleading requirements of a fraud claim, much less the more stringent requirement to avoid the effect of state court judgments already rendered." (Dkt. No. 65: Defs. Br. at 17.) To the extent that Amadasu's "fraud" claims relate to his 1992-1993 BLHC employment and termination, these claims are barred not only by the doctrine of res judicata, as discussed above, but also by New York's six year statute of limitations for fraud. See C.P.L.R. § 213[8];see also, e.g., Williams v. Dow Chem. Co., 01 Civ. 4307, 2004 WL 1348932 at *7 (S.D.N.Y. Jun. 16, 2004) ("[P]laintiff's fraud claim is governed by a six-year statute of limitations, CPLR § 213(8)."); Wynn v. Security Mut. Ins. Co., 12 A.D.3d 1100, 1101, 784 N.Y.S.2d 467, 468, (4th Dep't 2004); Siler v. Lutheran Soc. Servs. of Metropolitan N.Y., 10 A.D.3d 646, 648, 782 N.Y.S.2d 93, 95 (2d Dep't 2004).

Amadasu asserts in Count 40 that defendants "engaged in a scheme, common course of conduct, and conspiracy to defraud plaintiff and the state court." (Am. Compl. ¶ 431.) "As part of the scheme, common course of fraud and conspiracy to defraud, defendants made false and fraudulent statements and misrepresentations to and concealed evidence from, the plaintiff and the state court . . ." (Am. Compl. ¶ 433.) Amadasu's allegations that defendants perpetrated fraud is best characterized as a claim for fraud under C.P.L.R. § 5015(a)(3).¹⁴ See, e.g., Woodson v. Mendon Leasing Corp., 100 N.Y.2d 62, 68, 760 N.Y.S.2d 727, 731 (2003); Dyno v. Lewis, 300 A.D.2d 784, 785, 752 N.Y.S.2d 117, 118 (3d Dep't 2002). Amadasu's proper mechanism for such a claim, however, is to return to state court and make a motion in Amadasu I. This Court is barred from reviewing his litigation fraud claims pursuant to the Rooker-Feldman doctrine. See, e.g., Sharp v. Bivona, 304 F. Supp. 2d 357, 363 (E.D.N.Y. 2004) ("'The fact that [a] plaintiff alleges that the state court judgment was procured by fraud does not remove his claims from the ambit ofRooker-Feldman.'") (quoting Parra v. Greenpoint Mortg. Co., No. 01-CV-02010, 2002 WL 32442231 at *2 (E.D.N.Y. Mar. 26, 2002)), aff'd, No. 02-7400, 53 Fed. Appx. 164, 2002 WL 31832742 (2d Cir. Dec. 18, 2002); Ulysses I Co. v. Feldstein, 01 Civ. 3102, 2002 WL 1813851 at *10 (S.D.N.Y. Aug. 8, 2002) ("The Court of Appeals [for the 2d Cir.] has held . . . that it has 'never recognized a blanket fraud exception to Rooker-Feldman.'") (quoting Johnson v.Smithsonian Institution, 189 F.3d 180, 186-87 (2d Cir. 1999)),aff'd, 346 F.3d 27 (2d Cir. 2003), cert. denied, 125 S. Ct. 49 (2004); see generally Holmes v. State of New York Office of Court Admin., 00 Civ. 7871, 2001 WL 5035 at *1-2 n. 2 (S.D.N.Y. Jan. 2, 2001) (Peck, M.J.) (general discussion ofRooker-Feldman doctrine, citing cases). Because Amandasu's litigation fraud claims are inextricably intertwined with the state court decision in Amadasu I, Amadasu's litigation fraud claims are barred by the Rooker-Feldman doctrine and should be dismissed.

14 C.P.L.R. § 5015(a)(3), Relief from Judgment or Order, provides:

(a) On motion. The court which rendered a judgment or order may relieve a party from it upon such terms as may be just, on motion of any interested person with such notice as the court may direct, upon the ground of:

. . .

3. fraud, misrepresentation, or other misconduct of an adverse party;

E. Amadasu Fails to State a Claim for "Fraudulent and Unjust Enrichment" (36th Claim)

Amadasu's thirty-sixth count asserts a claim of "Unjust and Fraudulent Enrichment" against defendants Zelen, Brevett, Gustave, and Schaffer based upon a "frivolous and fraudulent medical malpractice suit." (Am. Compl. ¶¶ 409-13.) There is no recognized "fraudulent enrichment" cause of action, and Amadasu does not state a viable claim for unjust enrichment. "In order to state a claim for unjust enrichment under New York law, a plaintiff must allege that '(1) defendant was enriched, (2) at plaintiff's expense, and (3) equity and good conscience militate against permitting defendant to retain what plaintiff is seeking to recover.'" Davis v. Lenox Hill Hosp., 03 Civ. 3746, 2004 WL 1926087 at *6 n. 24 (S.D.N.Y. Aug. 31, 2004) (quotingBriarpatch Ltd., L.P v. Phoenix Pictures, Inc., 373 F.3d 296, 306 (2d Cir. 2004)); see also, e.g., SAS Group, Inc. v. Worldwide Inventions, Inc., 245 F. Supp. 2d 543, 551 n. 3 (S.D.N.Y. 2003); AdiPar Ltd. v. PLD Int'l Corp., 01 Civ. 0765, 2002 WL 31740622 at *11 (S.D.N.Y. Dec. 6, 2002). Amadasu asserts that defendants in the underlying malpractice action were unjustly enriched because they accepted a 175,000.00 settlement. (Am. Compl. ¶ 410.) Not only is this obviously not a viable claim for unjust enrichment, but Amadasu did not contribute to that settlement amount; it was paid to Gustave by BLHC and IFUH. (Am. Compl. ¶ 410.) Thus, the second prong that enrichment be "at plaintiff's expense," obviously is not met. Amadasu's unjust enrichment claim should be dismissed.

F. Amadasu's Continuing Defamation Claim (14th Count) Should be Dismissed

Amadasu's Fourteenth Count sets forth a claim of "Repeat Continuing Defamation Per se." (Am. Compl. ¶¶ 302-09.) Amadasu states that he "has been compelled to disclose the defamatory conduct and statements made about him to third parties in connection with applications for employment" and that the "defamatory statements . . . were motivated by defendants' malice, ill will, personal spite, or in the alternative by defendants' culpable recklessness or gross negligence." (Am. Compl. ¶¶ 303-04.) Amadasu lists prospective employers to whom he alleges BLHC gave a defamatory statement about him, and alleges that the defamatory statement is that Amadasu "had conducted a pelvic examination without explanation, consent or an indication and that plaintiff committed the crime of sexual abuse and child molestation against Gustave." (Am. Compl. ¶¶ 180-81.)

Amadasu previously asserted in Amadasu I that he had viable claims against BLHC and Rosenberg because they sent negative references to prospective employers. This issue was addressed and dismissed by Justice Suarez:

[Amadasu's] second cause of action alleges that Defendants provided negative references to prospective employers and thereby tortiously interfered with his prospective economic advantage. This cause of action sounding in defamation is barred. CPLR § 215(3) requires intentional torts be interposed within one year from accrual. [Amadasu's] cause of action based upon Defendants continuing to inform potential employers of the alleged sexual abuse, the latest incident occurring on March 12, 1999, must also be dismissed. Defendants enjoy a qualified privilege for the purpose of communicating specific allegations regarding the resident's [i.e., Amadasu's] professional conduct to prospective employers. [Amadasu's] conclusory allegations of malice are insufficient to defeat Defendant's summary judgment motion.

(Dkt. No. 65: Defs. Br. Ex. A: 3/14/2000 Suarez Order at 4-5, citations omitted.)

Amadasu's claims that he continues to be harmed by defendants' defamatory statements to prospective employers is barred by the doctrine of collateral estoppel. As discussed in Section III.A.1 above, collateral estoppel bars a party from litigating an identical issue in a later proceeding where there was a full and fair opportunity for litigation in the first proceeding and the issue previously litigated was necessary to support a final judgment on the merits. (See page 14 above.) Justice Suarez dismissed Amadasu's claim that the defendants defamed him by providing negative references to prospective employers on the merits. (See pages 28-29 above). Because Justice Suarez ruled that defendants "enjoy a qualified privilege for the purpose of communicating specific allegations regarding the resident's professional conduct to prospective employers," Amadasu is collaterally estopped from arguing this issue in any subsequent law suit. See, e.g., Jones v. Trump, 96 Civ. 2995, 1997 WL 277375 at *5 (S.D.N.Y. May 27, 1997) ("Because this [libel] issue has already been resolved adversely to plaintiff, plaintiff is collaterally estopped from litigating the same issue in this action, and his claims for defamation must be dismissed pursuant to Rule 12(b)(6)."), aff'd, No. 97-9017, 1998 WL 1967891 (2d Cir. Sep. 21, 1998); Mendoza v. SSC B Lintas, 799 F. Supp. 1502, 1512 (S.D.N.Y. 1992) ("[E]ven if Mendoza were forced to disclose to employers that he was terminated because of his performance, the findings of the [New York State Division of Human Rights] preclude a finding that such a statement is defamatory under the doctrine of collateral estoppel."); see also cases cited in Section III.A. Accordingly, since Amadasu asserts that BLHC continues to repeat the very same employment-related information that Justice Suarez held to not be actionable, Amadasu's defamation claim is barred by the doctrine of collateral estoppel.

Even if Amadasu's defamation claim were not barred by collateral estoppel, he still has not pleaded a viable defamation claim.

The statute of limitations for defamation is one year.¹⁵ Thus, any claim for allegedly defamatory remarks prior to August 25, 2002 is time-barred.

15 See C.P.L.R. § 215(3); see also, e.g., Viruet v.Citizen Advice Bureau, 01 Civ. 4594, 2002 WL 1880731 at *23 (S.D.N.Y. Aug.15, 2002) (Peck, M.J.) ( cases cited therein).

"Communications between a 'plaintiff's former employer . . . [and] the plaintiff's prospective employer cannot support a cause of action to recover damages for defamation' because New York recognizes a 'qualified privilege' with respect to communications between former and prospective employers 'as to the character of a former employee . . . even though such information may prove ultimately to be inaccurate.'" Cellamare v. Milbank, Tweed, Hadley McCloy, No. 03-CV-0039, 2003 WL 22937683 at *9 (E.D.N.Y. Dec. 2, 2003) (quoting Serratore v. American Port Serv., Inc., 293 A.D.2d 464, 739 N.Y.S.2d 452, 465-66 (2d Dep't 2002)); see also, e.g., Purgess v. Sharrock, 33 F.3d 134, 141 (2d Cir. 1994) (under N.Y. Public Health Law § 2805-K, hospital has immunity from defamation suit for providing information about doctor in good faith to other hospitals); Nicholls v. Brookdale Univ. Hosp. Med. Ctr., No. 03-CV-6233, 2004 WL 1533831 at *10 (E.D.N.Y. July 9, 2004) (Weinstein, D.J.) (quoting Cellamare); Huntenman v.Yonkers, 95 Civ. 1276, 1997 WL 527880 at *9 (S.D.N.Y. Aug. 25, 1997); Schwartz v. Society of New York Hosp., 232 A.D.2d 212, 212, 647 N.Y.S.2d 776, 777 (1st Dep't 1996); Davis v.Independent Transporters of Handicapped, Inc., 226 A.D.2d 496, 496, 641 N.Y.S.2d 114, 115 (2d Dep't 1996). The fact that Amadasu was sued by a thirteen-year-old patient for sexual assault is certainly the type of information that BLHC should share and is covered by qualified privilege.¹⁶ This is the same conclusion that Justice Suarez came to in Amadasu I. (Defs. Br. Ex. A: 3/14/00 Justice Suarez Order at 4-5.)

16 The fact that Amadasu was sued by defendant Gustave for the above allegations is a matter of public record and is undisputed by Amadasu. Because truth is a defense to defamation, Amadasu was not defamed by defendants alerting any prospective employers to Gustave's law suit against Amadasu. See, e.g., Ciuffetelli v. Apple Bank For Savings, No. 99-7741, 208 F.3d 202 (Table), 2000 WL 340388 at *3 (2d Cir. Mar. 30, 2000) ("Truth is an absolute defense to an action based on defamation.");Guccione v. Hustler Magazine, Inc., 800 F.2d 298, 300 (2d Cir. 1986) ("Under New York law, [which applies to this diversity suit,] it is 'fundamental that truth is an absolute, unqualified defense to a civil defamation action.'"), cert. denied, 479 U.S. 1091, 107 S. Ct. 1303 (1987); Treppel v. Biovail Corp., 03 Civ. 3002, 2004 WL 2339759 at *11 (S.D.N.Y. Oct. 15, 2004) (same).

While Amadasu makes conclusory assertions that defendants were motivated by "malice, ill will, personal spite, or in the alternative by defendants' culpable recklessness or gross negligence" (e.g., Am. Compl. ¶¶ 303-04), that is too conclusory and unsupported by any evidentiary fact, to survive a motion to dismiss. "[W]here a qualified privilege exists, plaintiff has the burden of proving actual malice. 'Although the existence of malice is usually a question of fact, the issue is one for the jury only if the plaintiff provides evidence warranting such submission.' Conclusory allegations are insufficient to show malice." Utility Metal Research, Inc. v.Generac Power Sys., Inc., No. 02-CV-6205, 2004 WL 2613993 at *7 (E.D.N.Y. Nov. 18, 2004) (quoting Kaplan v. MacNamara, 116 A.D.2d 626, 627, 497 N.Y.S.2d 710, 712 (3rd Dept. 1986)); see also, e.g., McNally v. Yarnall, 764 F. Supp. 838, 851 (S.D.N.Y. 1991) ("Malice is a question of fact for the jury if the plaintiff provides evidentiary facts — and not mere conclusory allegations — that the defendant was motivated by actual malice.") (emphasis added); see also e.g., Shred-It USA, Inc. v. Mobile Data Shred, Inc., Nos. 03-7633(L), 03-7655, 92 Fed. Appx. 812, 814, 2004 WL 350152 at *2 (2d Cir. Feb. 25, 2004) (affirming grant of summary judgement where plaintiff "produced no evidence (other than his conclusory assertions and affidavits) to support his other counterclaims of fraud, tortious interference with prospective economic advantage, defamation, and conversion."); Shoemaker v. California, No. 95-7964, 101 F.3d 108 (table), 1996 WL 107287 at *1 (2d Cir. Mar. 8, 1996) ("Shoemaker's complaint, which consists of conclusory accusations of electronic eavesdropping and defamation, does not satisfy the pleading requirements of Fed.R.Civ.P. 8(a) and 8(e)(1)."), cert. denied, 419 U.S. 991, 117 S. Ct. 479 (1996); Martinez v. City of New York, 00 Civ. 7914, 2003 WL 2006619 at *7 (S.D.N.Y. Apr. 30, 2003), aff'd, No. 03-7495, 82 Fed. Appx. 253, 2003 WL 22879401 (2d Cir. Dec. 4, 2003);Scholastic, Inc. v. Stouffer, 124 F. Supp. 2d 836, 849 (S.D.N.Y. 2000) (Motion to dismiss granted because "[m]ere conclusory statements that the claimant was disparaged by false statements are insufficient to state a defamation claim."); Lee v. Bankers Trust Co., 96 Civ. 8153, 1998 WL 107119 at *3 (S.D.N.Y. Mar. 11, 1998) ("Plaintiff's vague conclusory allegations, without more, are insufficient to state a claim for defamation."), aff'd, 166 F.3d 540 (2d Cir. 1999).

Justice Suarez in Amadasu I also dismissed Amadasu's defamation claim on the ground of qualified privilege and Amadasu's failure to assert "malice" in other than conclusory form. (Defs. Br. Ex. A: 3/14/2000 Justice Suarez Order at 4-5.) Despite that prior warning, Amadasu asserts malice in only conclusory fashion. (Compl. ¶ 303-04.) Accordingly, Amadasu should not be given leave to replead (indeed, he did not seek leave to replead in response to defendants' motions to dismiss). See, e.g., Kades v. Organic Inc., 00 Civ. 3671, 2003 WL 470331 at *1 n. 3 (S.D.N.Y. Feb. 24, 2003); Ray v. General Motors Acceptance Corp., No. CV-92-5043, 1995 WL 151852 at *7 (E.D.N.Y. Mar. 28, 1995).

Amadasu's defamation claim should be dismissed on statute of limitations, collateral estoppel and qualified privilege grounds.

CONCLUSION

For the reasons set forth above, defendants motion to dismiss should be GRANTED and Amadasu's complaint should be dismissed in its entirety.

FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION

Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Lewis A. Kaplan, 500 Pearl Street, Room 1310, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Kaplan. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S. Ct. 466 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822, 115 S. Ct. 86 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S. Ct. 825 (1992); Small v.Secretary of Health Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988);McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).