Opinion
18-CV-2143(JS)(SIL)
07-01-2022
GARY EDELMAN, Plaintiff, v. UNITED STATES GOVERNMENT; DEPARTMENT OF EDUCATION; BETSY DEVOS; NAVIENT SOLUTIONS; STRADLEY RONON STEVENS & YOUNG; GERARD DONOVAN; JOYCE DEMOSS; THADDEUS BARTKOWIAK; DAWN SCANIFFE; ANGELICA KAMIONKA; EMILY POLLACK; JOCYLINE LAST NAME UNKNOWN; DONNA SOLES; ERIC HURWITZ; FRANCIS MANNING ALIAS FRANNY; NEW YORK HIGHER EDUCATION; THOMAS BRENNAN; ALEX RODRIGUEZ; NICOLETTE PIRRONE; DEPARTMENT OF JUSTICE; ROBERT SHUMACHER, II; VAUGHN BOND; ROY MAHON; and JOANNA SEYBERT, Defendants.
For Plaintiff: Gary Edelman, pro se For Defendants: United States of America, Department of Education, and Betsy DeVos: Richard W. Schumacher II, Esq. James H. Knapp, Esq. United States Attorney's Office Navient Solutions, LLC, Stradley Ronon Stevens & Young, LLP, and Gerard Donovan: Francis X. Manning, Esq. Stradley Ronon Stevens & Young, LLP Joyce Demoss, Thaddeus Bartkowiak, Dawn Scaniffe, Angelica Kamionka, Emily Pollack, Joycyline (last name unknown), Donna Soles, Eric Hurwitz, Francis Manning (alias: Franny), New York Higher Education, Thomas Brennan, Alex Rodriguez, Nicolette Pirrone, Department of Justice, Robert Schumacher II, Vaughn Bond, Roy Mahon, Joanna Seybert:
For Plaintiff: Gary Edelman, pro se
For Defendants: United States of America, Department of Education, and Betsy DeVos:
Richard W. Schumacher II, Esq. James H. Knapp, Esq. United States Attorney's Office
Navient Solutions, LLC, Stradley Ronon Stevens & Young, LLP, and Gerard Donovan:
Francis X. Manning, Esq. Stradley Ronon Stevens & Young, LLP
Joyce Demoss, Thaddeus Bartkowiak, Dawn Scaniffe, Angelica Kamionka, Emily Pollack, Joycyline (last name unknown), Donna Soles, Eric Hurwitz, Francis Manning (alias: Franny), New York Higher Education, Thomas Brennan, Alex Rodriguez, Nicolette Pirrone, Department of Justice, Robert Schumacher II, Vaughn Bond, Roy Mahon, Joanna Seybert:
MEMORANDUM & ORDER.
SEYBERT, DISTRICT JUDGE
Before the Court is the Third Amended Complaint filed pro se by plaintiff Gary Edelman (“Plaintiff” or “Edelman”). For the reasons that follow, the Third Amended Complaint (“TAC”) is DISMISSED pursuant to 28 U.S.C. § 1915(e)(2)(B). The Clerk of the Court shall enter JUDGMENT and mark this case CLOSED.
BACKGROUND
The Court assumes familiarity with the background of this case.
I. Procedural History
The Court recites only those portions of the procedural history relevant to review of Plaintiff's TAC. On December 4, 2020, this Court issued an order granting the respective motions to dismiss filed by the United States Government (the “Government”), the United States Department of Education (“DOE”), Betsy Devos, in her official capacity as Secretary of Education (“Devos” and together with the United States and DOE, the “Federal Defendants”), Gerard Donovan (“Donovan”), Stradley Ronon Stevens & Young, LLP (“SRSY”), and Navient Solutions, LLC. (“Navient” and together with Donovan and SRSY, the “Non-Federal Defendants”; collectively with the Federal Defendants, the “Defendants”) and dismissing Plaintiff's Second Amended Complaint (“SAC”). (See Order at 56, ECF No. 65.) The Court further granted Plaintiff leave to file a TAC within thirty (30) days from the date of the December 4, 2020 Memorandum & Order, i.e., on or before January 4, 2021. (Id. at 55.)
Upon Plaintiff's request, the Court extended the deadline to file the TAC through April 6, 2021. (See Jan. 4, 2021 Ltr., ECF No. 67; Jan. 6, 2021 Elec. Order.) After the April 6, 2021 deadline for Plaintiff to file his TAC passed without Plaintiff exercising his right to amend, the Court became aware of a document, date stamped June 13, 2021, that was apparently filed by Plaintiff in the Clerk's Office for the Eastern District of New York, Brooklyn. (See June 13, 2021 Submission, ECF No. 73.) That document indicated, on the first page of the submission, that Plaintiff “[a]ttached [h]is Amended Complaint 3.” (Id. at 1.) As far as the Court could discern, no amended complaint had been filed with the submission. Accordingly, by Order dated December 15, 2021, Plaintiff was afforded a final thirty (30) days, or by January 14, 2022, to “date, sign, file and serve the third amended complaint he supposedly filed with his June 13, 2021 submission.” (Dec. 15, 2021 Order, ECF No. 74.) On January 14, 2022, Plaintiff timely filed his TAC. (TAC, ECF No. 75.)
II. The Court's December 4, 2020 Order
Given that “Plaintiff [wa]s granted leave to amend his SAC in accordance with this Memorandum and Order,” the Court summarizes that fifty-seven-page Memorandum and Order as is relevant to the present matter. (Order at 55.)
All Defendants had moved to dismiss the SAC, which purported to allege numerous claims against the Non-Federal Defendants related to the servicing of Plaintiff's federal student loans, as well as a claim that the Federal Defendants colluded with the Non-Federal Defendants, thereby violating federal and state law. (Id. at 2.) More specifically, the Federal Defendants moved to dismiss the SAC pursuant to Federal Rule of Civil Procedure (“Rule”) 12(b)(1) for lack of subject matter jurisdiction, or, in the alternative, pursuant to Rule 12(b)(6) for failure to state a claim upon which relief can be granted, and the Non-Federal Defendants' moved to dismiss pursuant to Rule 12(b)(6).
The Court reviewed the lengthy procedural history between the parties, including the prior proceeding commenced in 2016 in the Nassau County Supreme Court involving Plaintiff and SRSY, on behalf of Donovan, an employee of Navient, alleging harassment due to Plaintiff's voluminous phone calls and internet postings regarding Donovan. (See State Compl. dated Apr. 25, 2016, ECF No. 58-2, Ex. A, attached to Decl. of Francis X. Manning.) Edelman filed counterclaims against Donovan alleging harassment and interference with his ability to have his loans serviced. (Pl. Countercls., Ex. B.) On September 14, 2016, those counterclaims were dismissed with prejudice. (Sept. 14, 2016 Dismissal Order, Ex. C.)
The parties negotiated a settlement as to Donovan's claims against Plaintiff memorialized in a consent judgment entered on August 3, 2017. (Aug. 3, 2017 Consent J., Ex. D.) Pursuant to the consent judgment: (1) Plaintiff agreed to remove all his internet postings referencing Navient, its employees and affiliates, including Donovan, and SRSY and its attorneys and employees (see id. ¶ 2); and (2) Plaintiff was permanently enjoined from: (a) posting anything on the internet or otherwise publishing information concerning any of the parties with limited exceptions (see id. ¶ 3), (b) contacting Donovan in any manner, or harassing, defaming or threatening him, and from interfering in his employment relationship with Navient (see id. ¶¶ 4, 5); (c) communicating with Navient or any person employed by, or affiliated with Navient, with the limited exception regarding e-mail correspondence to Navient concerning legitimate inquiries as to any of his student loans that were being serviced by Navient (see id. ¶ 8); and (d) calling SRSY or any employees of SRSY (see id. ¶ 7).
Approximately eight months later, on April 11, 2018, Plaintiff filed a complaint in this Court against the Government (see Compl., ECF No. 1); on July 3, 2018, he commenced a separate action against Navient, SRSY and Donovan (see Not. Related Case, ECF No. 5). On November 14, 2018, among other things, the Court consolidated Plaintiff's two federal cases. (Nov. 14, 2018 Elec. Order.) Plaintiff then filed an amended complaint against all Defendants on December 12, 2018 (ECF No. 15) and was later permitted to file a SAC, which Plaintiff filed on June 24, 2019. (SAC, ECF No. 43.)
The SAC raised thirty-eight counts related to Plaintiff's federal student loans, consisting of Federal Family Education Loans (“FFEL”) and/or direct loans, which he obtained from the DOE between 2003 and 2011 to pay for his undergraduate and graduate studies (hereafter, the “Loans”). (SAC 25-32, 9899.) With two exceptions, the Loans were guaranteed by the DOE. (SAC 100-01.) The Court carefully and painstakingly considered each of Plaintiff's claims and the Defendants' arguments as set forth in their respective motions to dismiss.
A. Claims Dismissed for Lack of Subject Matter Jurisdiction
The doctrine of sovereign immunity shields the United States, its agencies, and its officers in their official capacities, from suit, absent a waiver. In the absence of any allegations suggesting the basis for a waiver of the Federal Defendants' sovereign immunity in the SAC, the Court liberally construed the pro se submission and considered whether immunity had been waived. (See Order at 15-26.)
Finding no waiver of sovereign immunity with regard to Plaintiff's constitutional claims alleging a deprivation of his Fifth and Fourteenth Amendment rights against DeVos, the Court dismissed these claims for lack of subject matter jurisdiction. The Court concluded that “an action against a federal agency or federal officers in their official capacities is essentially a suit against the United States,” so “such suits are barred under the doctrine of sovereign immunity unless such immunity is waived.” (Id. at 19 (internal quotation marks and citation omitted).) Similarly, the Court dismissed Plaintiff's claims under the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. §§ 1681, et seq., against the Federal Defendants for lack of subject matter jurisdiction, because the FCRA does not contain a clear and unequivocal waiver of the Government's sovereign immunity. (Id. at 19-20.)
Likewise, to the extent that the SAC alleged claims sounding in tort against the Federal Defendants, the Court dismissed them for lack of subject matter jurisdiction under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 2671, et seq. (Order at 20-22.) Although the FTCA provides a limited waiver of sovereign immunity where suit is brought against the United States based upon torts committed by its officers, “where a tort claim stems from a breach of contract, the cause of action is ultimately one arising in contract, and thus is properly within the exclusive jurisdiction of the Court of Federal Claims to the extent that damages exceed $10,000.” (Id. at 21 (quoting Awad v. United States, 301 F.3d 1367, 1372 (Fed. Cir. 2002)). Thus, the Court found that Plaintiff's tort claims against the Federal Defendants for breach of fiduciary duty and intentional infliction of emotional distress (SAC 1663-713, 1642-59) stem from a contract, i.e., the master promissory note (the “Note”), and thus are merely a restatement of Plaintiff's breach of contract claim. (Order at 22.) Similarly, the Court found that Plaintiff's intentional infliction of emotional distress claim against the Federal Defendants is premised on the DOE's efforts in having the Loans serviced. (Id. (citing SAC 1644-48).) Because such allegations were “inextricably intertwined” with the DOE's alleged breach of the loan agreement, and given that both claims sought monetary damages, which is relief that is generally considered contractual, the Court found that the FTCA's limited waiver of sovereign immunity did not apply. Accordingly, the Court lacked subject matter jurisdiction to adjudicate Plaintiff's breach of fiduciary duty and intentional infliction of emotional distress claims. (Id. at 23.)
The Court also dismissed Plaintiff's breach of contract claims under the Tucker Act, 28 U.S.C. § 1491, et seq., for lack of subject matter jurisdiction, because the Tucker Act grants exclusive jurisdiction to the Court of Federal Claims over, inter alia, “any claim against the United States founded . . . upon any express or implied contract with the United States” in excess of $10,000. 28 U.S.C. § 1491(a)(1). (Order at 16.)
Further, the Court found that it lacked subject matter jurisdiction to adjudicate Plaintiff's claims against the Federal Defendants brought pursuant to the Administrative Procedure Act (“APA”) given that Plaintiff did not allege that he complied with the applicable regulations governing the procedures for a borrower seeking to cancel his federal student loans. (Id. at 23-25.) Notably, in light of Plaintiff's pro se status, the Court granted Plaintiff leave to amend his APA claims to address this deficiency in his pleadings, i.e., the lack of allegations that he followed the applicable administrative procedures governing the cancellation of his Loans if, in fact, he followed said procedures. (Id. at 25.)
B. Claims Dismissed with Prejudice for Failure to State a Claim for Relief
Plaintiff's claims brought under 15 U.S.C. § 45(a) of the Federal Trade Commission Act (the “FTC Act”) were dismissed with prejudice, because the FTC Act is only subject to enforcement by the Federal Trade Commission and does not provide for a private cause of action. See Hourani v. Wells Fargo Bank, N.A., 158 F.Supp.3d 142, 148 (E.D.N.Y. 2016) (citing Alfred Dunhill Ltd. v. Interstate Cigar Co., 499 F.2d 232, 237 (2d Cir. 1974)) (finding no statutory basis for a private right of action under the FTCA). Similarly, any claim brought pursuant to the Higher Education Act of 1965 (“HEA”), 20 U.S.C. § 1070, et seq., failed to state a claim for relief because the HEA does not provide a private right of action for student borrowers. (See Order at 17); see also Wimberly v. U.S. Dep't of Educ., No. 12-CV-7773, 2013 WL 6123172, at *2 (S.D.N.Y. Nov. 21, 2013); Nehorai v. U.S. Dep't of Educ. Direct Loan, No. 08-CV-920, 2008 WL 1767072 at *1 (E.D.N.Y. Apr. 14, 2008). Accordingly, Plaintiff's FTC Act claims were dismissed with prejudice. (Order at 17, 39.)
The Court also dismissed Plaintiff's claims under the Consumer Financial Protection Act (“CFPA”), which provides that “[i]f any person violates a Federal consumer financial law, the [Consumer Financial Protection Bureau] may . . . commence a civil action against such person to impose a civil penalty or to seek all appropriate legal and equitable relief including a permanent or temporary injunction as permitted by law.” 15 U.S.C. § 5564(a). Thus, since the CFPA authorizes only the Consumer Financial Protection Bureau to bring claims under the statute, Plaintiff was foreclosed from privately maintaining such an action. See Fraser v. Aames Funding Corp., No. 16-CV-0448, 2017 WL 564727, at *4-5 (E.D.N.Y. Jan. 24, 2017). Accordingly, Plaintiff's CFPA claims were dismissed with prejudice. (Order at 18, 29.)
Similarly, Plaintiff's Freedom of Information Act (“FOIA”) claims, which exclusively sought monetary damages in the amount of $15,000 (SAC 2031), were dismissed with prejudice because “the FOIA does not provide a private right of action for monetary damages. See Diamond v. FBI, 532 F.Supp. 216, 233 (S.D.N.Y. 1981) (citing 5 U.S.C. § 552(a)(4)(B)), aff'd sub nom. 707 F.2d 75 (2d Cir. 1983).” (Order at 26.)
Further, Plaintiff's Fair Debt Collection Practices Act (“FDCPA”) claims against Navient were dismissed with prejudice because Navient is not a debt collector under the statute. (Id. at 29.) Critically, the Act defines a “debt collector” as a person “who regularly collects . . . debts owed . . . another” or a person involved “in any business the principal purpose of which is the collection of any debts,” 15 U.S.C. § 1692a(6), and explicitly excludes “any person collecting or attempting to collect any debt owed or due . . . to the extent such activity . . . concerns a debt which was not in default at the time it was obtained by such person.” (Order at 29-30.) Indeed, “[w]hen a loan servicer obtains an account prior to its default, that loan servicer operates as a creditor, not a debt collector, for the purposes of the FDCPA.” Allen v. United Student Aid Funds, Inc., No. 17-CV-8192, 2018 WL 4680023, at *4 (S.D.N.Y. Sept. 28, 2018), reconsideration denied, 2019 WL 4686529 (S.D.N.Y. Sept. 26, 2019) (citation omitted) (finding Navient was not a debt collector under the FDCPA when it began servicing the plaintiff's loans prior to default). Therefore, because Plaintiff had not plausibly alleged that Navient was a “debt collector” within the meaning of the FDCPA -- nor could he -- his FDCPA claim was dismissed with prejudice. (Order at 30.)
Next, the Court dismissed with prejudice Plaintiff's claims against Navient for breach of contract, unjust enrichment, and breach of fiduciary duty. (Id. at 32-33.) The Court explained that “[d]istrict courts in this Circuit have held that in the absence of express language in the servicing contract between the Government and a loan servicer, such contracts do not confer third- party beneficiary status on borrowers like Plaintiff.” (Id. at 31 (citations omitted).) Thus, Plaintiff's failure to identify any language in the servicing contract between the DOE and Navient evidencing an intent to permit enforcement by borrowers, precluded his claim that he is anything more than an incidental beneficiary. As such, Plaintiff's breach of contract claim against Navient failed to state a claim and was dismissed with prejudice. (Id. at 32.) Similarly, Plaintiff's unjust enrichment claim against Navient was dismissed with prejudice because such claims are a quasi-contract theory and lie only “in the absence of any agreement.” (Id. at 32-33 (citations omitted).) Further, because Plaintiff had not plausibly alleged the existence of a fiduciary relationship between himself and Navient -- nor could he -- (see id. at 34-35), his breach of fiduciary duty failed to state a claim and was thus dismissed with prejudice. (Id. at 35.)
The Court also dismissed Plaintiff's RICO claims brought against Navient and SRSY with prejudice for failure to “satisf[y] the ‘enterprise' element of a RICO claim.” (Id. at 47.) The Court found that “there [wa]s no indication, even from a liberal reading of the SAC, that a valid RICO claim might be plausibly stated.” (Id. at 44-47 and n.8.) Last, Plaintiff's negligent infliction of emotional distress claim alleged against Donovan was dismissed with prejudice because Plaintiff did not allege -- nor could he -- that Donovan owed him a duty. (Id. at 53-54 (“The general rule is that a lender does not owe tort duties to a borrower.” (internal quotation marks and citation omitted)).)
C. Claims Dismissed Without Prejudice for Failure to State a Claim
Of the 38 claims set forth in the SAC, all of them were dismissed either for lack of subject matter jurisdiction or with prejudice for failure to state a claim for relief with the exception of the following claims which were dismissed without prejudice for failure to state a claim for relief as pleaded. Plaintiff was permitted Plaintiff to re-plead only these claims, with the exception of his contempt of court claim, in a TAC.
Plaintiff's claims against Navient brought pursuant to the FCRA, 15 U.S.C. § § 1681, et seq., and for defamation, as pleaded in the SAC, did not state a claim. (Order at 27-28.) Accordingly, these claims were dismissed without prejudice. With regard to the FCRA claim, Plaintiff had alleged that Navient provided inaccurate information to credit reporting agencies and failed to conduct a reasonable investigation of the inaccuracies after Plaintiff disputed them. (SAC 836-47, 855-67.) However, pursuant to 15 U.S.C. § 1681s-2(b) (“Section 1681s-2(b)”), a claim may be stated only if a plaintiff shows that: “(1) the furnisher [of information] received notice of a credit dispute from a credit reporting agency, and (2) the furnisher thereafter acted in willful or negligent noncompliance with the statute.” (Order at 27 (quoting Nguyen v. Ridgewood Sav. Bank, 66 F.Supp.3d 299, 305 (E.D.N.Y. 2014)). Notably, the furnisher's duty to investigate as set forth in Section 1681s-2(b) “is triggered only after a furnisher of information receives notice from a credit reporting agency of a consumer's dispute.” (Id. (quoting Mendy v. JP Morgan Chase & Co., No. 12-CV-8252, 2014 WL 1224549, at *5 (S.D.N.Y. Mar. 24, 2014).)
In the absence of any allegations that Navient received notification from a consumer reporting agency regarding the accuracy of information furnished by Navient, as required by Section 1681s-2(b), the Court concluded that Plaintiff lacked standing to bring his FCRA claim. (Id. at 28 (citing Prakash v. Homecomings Fin., No. 05-CV-2895, 2006 WL 2570900 at *3, 4-5 (E.D.N.Y. Sept. 5, 2006) (“[P]laintiff lacks standing to bring his claims under the Fair Credit Reporting Act” where “nowhere in the complaint or opposition to the instant motion does plaintiff allege that defendant [data furnisher] received notice of the dispute from a credit reporting agency.”).) Accordingly, Plaintiff's FCRA claims against Navient were dismissed without prejudice. (Id. at 29.)
Plaintiff's defamation claim, which was based on an October 4, 2017 letter Navient sent to “the loan owner and regulatory agency [HESC], in response to Plaintiff's dispute of the loans” (SAC 1084-85) did not state a claim because the common law privilege protected the challenged statement. (Id. at 35-36.) The Court explained:
New York recognizes a qualified “common interest privilege” when the defamatory statement is made between persons who share a common interest in the subject matter. Liberman v. Gelstein, 80 N.Y.2d. 429, 437 (1992). “[A] qualified privilege arises when a person makes a good-faith, bona fide communication upon a subject in which he or she has an interest, or a legal, moral or societal interest to speak, and the communication is made to a person with a corresponding interest.” Demas v. Levitsky, 738 N.Y.S.2d 402, 410 (3d Dep't 2002) (citation omitted).(Id. at 36-37.) However, “a plaintiff can overcome the common interest privilege by alleging that the defamatory statement was motivated solely by [common law or constitutional] malice.” (Id. at 37 (quoting Thorsen v. Sons of Norway, 996 F.Supp.2d 143, 173 (E.D.N.Y. 2014) (emphasis and citation omitted)). In the absence of any facts which, if proven, would defeat this privilege, Plaintiff failed to state a plausible defamation claim. (Id. at 39.) Finding Plaintiff's allegations that Navient's statement was “intentional” or “negligent” were wholly conclusory and unsupported by any factual allegation, the Court dismissed Plaintiff's defamations claim without prejudice. (Id. at 38-39.)
The Court also dismissed Plaintiff's intentional infliction of emotional distress claims against Navient and SRSY without prejudice because, as pleaded, he did not state a plausible claim. (Id. at 41.) As the Court explained:
Even accepting as true Plaintiff's allegations, Non-Federal Defendants' actions fall well short of the exceedingly high level of conduct typically deemed sufficient to sustain a claim for intentional infliction of emotional distress under New York law. See Doe v. City of New York, 18-CV-670, 2018 WL 3824133, at *11 (E.D.N.Y. August 9, 2018) (finding allegations that defendants “pressured, bullied, threatened and intimidated” plaintiff insufficient to satisfy extreme and outrageous conduct); Fleming v. Hymes-Esposito, No. 12-CV-1154, 2013 WL 1285431 at *9 (S.D.N.Y. March 29, 2013) (finding allegations of defamation, numerous phone calls, and unauthorized visits to plaintiff's home failed to plead extreme and outrageous conduct).(Id.) Accordingly, in the absence of factual allegations of conduct that is “extreme” and “outrageous,” the Court dismissed Plaintiff's intentional infliction of emotional distress claims without prejudice. (Id.)
Plaintiff's fraud claim against Navient and SRSY was dismissed without prejudice because Plaintiff did not plausibly allege any of the elements for such claim as required by New York State law, nor did he comply with Federal Rule of Civil Procedure 9(b)'s particularity requirement. (Id. at 41-44.) Specifically, fatal to Plaintiff's fraud claim was the absence of the identity of “the allegedly fraudulent statements, the speaker of those statements,” or “when and where the statements were made. (Id. at 43.) Further, “Plaintiff fail[ed] to explain how any of the alleged statements were fraudulent.” (Id.) Thus, the Court dismissed Plaintiff's fraud claim without prejudice. (Id. at 44.)
Similarly, Plaintiff did not plausibly allege a tortious interference with a contract claim under New York State law against the Non-Federal Defendants. (Id. at 46-50.) Plaintiff's conclusory allegations that the Non-Federal Defendants tortiously interfered with his contract with the DOE were not plausible because they “lack[ed] the specificity required to state a claim for tortious interference with a contract.” (Id. at 49.) Indeed, the Court found that “Plaintiff's conclusory allegation that the Non-Federal Defendants' conduct ‘induced DOE and others to breach the FFEL Loan Master Promissory Note Contract and or Direct Loan' (SAC 875-76; 1154-55; 1894-95), does not satisfy his pleading burden as mere recitation of the legal standard.” (Id.) Further, “Plaintiff fail[ed] to include any factual allegations as to any actions taken by the Non-Federal Defendants to “intentionally procure” the DOE's breach of the Note. (Id. (cleaned up).) While Plaintiff refers to Navient's alleged failure to provide him with a toll-free number and its refusal to process payments, deferments, and forbearances (SAC 885-87), he does not allege how this conduct was the “but for” cause of DOE's alleged breach of the Note. (Id. at 49-50.) Accordingly, the Court dismissed Plaintiff's tortious interference with contract claim without prejudice. (Id. at 50.)
Plaintiff's conspiracy claim against the Defendants, brought pursuant to 42 U.S.C. § 1985(2), was also dismissed without prejudice in the absence of any allegations suggesting that there was a “meeting of the minds” among any of the Defendants or that a class-based discriminatory animus motivated the Non-Federal Defendants' actions. (Id. at 50-52.) Finally, the Court declined to consider Plaintiff's contempt of court against Donovan, given “the state court's explicit retention of jurisdiction,” and thus dismissed such claim without prejudice and in deference to the state court which “is best qualified to interpret and enforce its own order.” (Id. at 54-55.)
The Court granted Plaintiff leave to amend his SAC “in accordance with this Memorandum and Order and,” on January 14, 2022, Plaintiff filed his 143-page TAC against all of the same Defendants as the SAC but with the addition of some eighteen new defendants, including the undersigned.
III. The Third Amended Complaint
Notwithstanding the Court's clear guidance that Plaintiff was “granted leave to file a Third Amended Complaint in accordance with th[e] Memorandum and Order,” Plaintiff has instead filed a voluminous TAC adding many New Defendants and fanciful allegations. (See generally TAC and in particular lines 148-158, 196-202, 508-519.) Upon closer review, however, Plaintiff has largely simply re-submitted his SAC. Indeed, only 16 of the 143 pages are new. (See TAC at pp. 1-8, 45-49, 109-111.) Plaintiff has, however, amended the SAC to allege all of his claims against all of the Defendants in the TAC (see TAC at pp. 51, 53-56, 5860, 62-64, 66, 68-72, 82, 84, 85-89, 91-99, 101-102, 104, 106107), has added eighteen New Defendants, and has included four new paragraphs on page 22. Given that the Court has already painstakingly and comprehensively analyzed and dismissed all of the claims set forth in the SAC in its fifty-seven-page opinion, many for lack of subject matter jurisdiction or with prejudice for failure to state a claim for relief, the Court considers only the new allegations. (Compare SAC, with TAC.)