Opinion
No. 01 Civ. 7518 (LTS)(RLE)
December 1, 2003
MEMORANDUM ORDER ADOPTING REPORT RECOMMENDATION
On March 18, 2003, Magistrate Judge Ronald L. Ellis issued a Report and Recommendation ("Report") recommending (1) that the Government defendants' motion to dismiss the Amended Complaint (the "Complaint") as to them pursuant to Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6) be granted; (2) that Plaintiffs complaint be dismissed as against Defendants Nuevo Leon, Zambrano, Trevino and Citibank pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii); (3) that Plaintiffs motions filed on July 16, 2002, be denied as moot; and (4) that Plaintiffs application for appointment of counsel be denied. Plaintiff filed objections within the time provided, including extensions. Plaintiff has also filed a "Motion to Impose Sanctions" and a supplement thereto, seeking the imposition of sanctions on opposing counsel and on Judge Ellis. For the following reasons, the Report is adopted, its Recommendations are hereby implemented, and the motion for sanctions is denied.
In reviewing a Report and Recommendation, the Court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C.A. § 636(b)(1)(C) (West 2002). "To accept the report and recommendation of a magistrate to which no timely objection has been made, a district court need only satisfy itself that there is no clear error on the record." Nelson v. Smith, 618 F. Supp. 1186, 1189 (S.D.N.Y. 1985) (citations omitted); see also Pizarro v. Bartlet, 776 F. Supp. 815, 817 (S.D.N.Y. 1991) (court may accept report if it is "not facially erroneous"). The Court is required to make a de novo determination as to the aspects of the Report to which objections are made. United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997).
Plaintiffs objections are set forth in a forty-four-page document, dated July 31, 2003, with attachments (the "Objections"). Despite its length, this document generally does no more than to reargue issues decided against Plaintiff in earlier litigation, disparage the intelligence and morals of various government officials and judges, and take issue with Judge Ellis's recommendations for the simple reason that they are adverse to Plaintiff. When a party makes only conclusory or general objections, or simply reiterates his original arguments, the court reviews the report and recommendation only for clear error. See United States ex rel. Casa Redimix Concrete Corp. v. Luvin Construction Corp., 00 CV 7552 (HB) 2002 WL 31886040, US Dist LEXIS 24700, at *4-5 (S.D.N.Y. Dec. 26, 2002) (objections that are mere attempts to rehash issues that have already been decided should be reviewed for clear error); Camardo v. Gen. Motors Hourly-Rate Employees Pension Plan, 806 F. Supp. 380, 382 (W.D.N.Y. 1992) (court need not consider objections which are frivolous, conclusory or general and constitute a rehashing of the same arguments and positions taken in original pleadings); Chabrier v. Leonardo, No. 90 Civ. 0173 (PKL), 1991 WL 44838 at *1 (S.D.N.Y. Mar. 26, 1991) (restatement of allegations before the Court and assertion that valid constitutional claim exists insufficient to constitute specific objections); Schoolfield v. Dep't of Corr., No. 91 Civ. 1691 (JL), 1994 WL 119740, at *2 (S.D.N.Y. Apr. 6, 1994) (objections asserting that the magistrate judge's decisions are wrong and unjust, and restating relief sought and facts upon which complaint grounded, are conclusory and do not form specific basis for not adopting report and recommendation).
Although the nature of Plaintiff's objections merits only a clear error review, in the interest of fairness the court has conducted a de novo review. The Court has in this connection considered carefully all of the parties' submissions in this case, including the pleadings and Plaintiffs objections, and finds that Judge Ellis' Report presents a well-reasoned and sound analysis of Plaintiff's claims.
Judge Ellis' careful, thoughtful discussion requires little supplementation. It is apparent from the tenor and content of the Objections, as well as from a subsequent complaint filed by Plaintiff which accuses virtually all of the judges involved in ruling on his earlier cases of corruption and malfeasance (see complaint in Friedman v. Wallach et al., No. 03 Civ. 7118 (LTS)(RLE)), that there is little hope that Plaintiff will accept the legal principles underlying Judge Ellis' recommendations, the decisions on his earlier cases and the Court's further conclusions as explained in this Memorandum Order. The Court nonetheless adds the following to Judge Ellis' well-reasoned analysis.
With respect to the effect of the 1997 decision of the Court of International Trade ("CIT") dismissing Plaintiffs claims under the Administrative Procedure Act ("APA") regarding the alleged failure of the Department of Commerce, Department of State and United States Trade Representative ("USTR") to assist Plaintiff in his disputes with Mexican authorities arising from the failure of his business there, Plaintiff disputes Judge Ellis' application of the doctrine of res judicata, arguing that the doctrine cannot apply because the CIT dismissed the complaint for lack of subject matter jurisdiction. See Friedman v. Kantor, 977 F. Supp. 1242 (Ct. Int'l Tr. 1997) ("Friedjrian I"). While the Court adopts Judge Ellis' analysis, it is important to note that the CIT not only held that it lacked subject matter jurisdiction under its enabling statute, for lack of involvement of an "embargo" in the underlying dispute, it also made alternative findings of lack of standing to pursue claims under statutes relating to the Commercial Service and the office of the USTR. The CIT held in this connection, after examining Plaintiffs claims regarding the conduct of his Mexican maquilladora business and an American affiliate that allegedly supplied raw materials to the maquilladora, that Plaintiff was not an "exporter" within the meaning of 15 U.S.C. § 4271(b) and thus was outside the "zone of interests" protected by that statute. Friedman I at 1247-1248. The CIT also held that Plaintiff had failed to establish standing as a person "adversely affected or aggrieved" within the meaning of 19 U.S.C. § 2171(c)(1)(A), relating to the USTR. Id. at 1248. Thus, the CIT held that Plaintiff lacked standing to pursue his claims relating to alleged failure by the Department of Commerce and the USTR to act in connection with his company's troubles — the same claims that are being asserted here.
It is well established that a court has jurisdiction to determine its own jurisdiction, and to resolve issues relevant in that connection.United States v. United Mine Workers, 330 U.S. 258, 292 n. 57 (1947). The CIT's standing determinations were necessary to its decision regarding whether it could hear Plaintiffs claims, as well as to its determination as to whether it had the power to transfer the claims to a federal district court. See 28 U.S.C. § 1631 (providing for transfer to a court in which the action could have been brought). Even if the CIT's decision were not afforded broad res judicata effect based on the transactional analysis employed by Judge Ellis, its determinations on these issues, which were necessary to its final conclusions regarding subject matter jurisdiction, standing and the exercise of authority under the transfer provision of Title 28 of the United States Code, would certainly have collateral estoppel effect, precluding Plaintiff from relitigating, as he attempts to do here, the questions of whether he was in fact an "exporter" and whether he was otherwise within the "zone of interests" protected by the Commerce and USTR statutes analyzed by the CIT. See Gelb v. Royal Globe Ins. Co., 798 F.2d 38, 44 (2d Cir. 1986) (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.").
Nor do Plaintiffs Objections raise any material issue as to whether there was a full and fair opportunity for litigation in the prior proceeding. Plaintiff admits that he was represented by counsel at the trial court level in his CIT action (indeed, it appears that counsel was appointed for him). There is no constitutional entitlement to counsel it civil proceedings at all, and Plaintiffs pro se status on appeal does not vitiate any due process rights or otherwise call into question the fullness and fairness of Plaintiff's opportunity to litigate that proceeding. Thus, notwithstanding Plaintiffs allegations of lying and other scurrilous conduct relating to factual proffers in the CIT and subsequent litigation relating to the nature and legal implications of his business activities, he cannot here relitigate the CIT's conclusions in this regard.
The Court also wishes to make it clear that, in its de novo review of the issues here, all facts as alleged by the Plaintiff have been taken as true (to the extent they relate to issues that Plaintiff is not precluded from relitigating). Upon such review, the Court finds that the Complaint and Amended Complaint fail to set forth facts sufficient to support the exercise of jurisdiction or, where jurisdiction is feasible, to support the causes of action Plaintiff seeks to pursue.
The Court is not, however, required to accept as true Plaintiffs conclusory allegations, for which no factual basis is provided, of lying, conspiracy and moral turpitude on the part of government officials, opposing counsel and judicial officers. Even if, however, the Court were to accept that courts may have been misled as to certain details of Plaintiffs dealings with various entities, it remains plain that the actions of which plaintiff principally complains are discretionary, nonreviewable functions of the executive branch of the government. The Court notes in this connection that the additional documentation attached to Plaintiffs Objections, which the Court has reviewed carefully, does not provide any basis for a determination that any of the defendants had a duty, enforceable through federal court litigation, to assist Plaintiff in the way he apparently desires. Resolution of Plaintiff's dissatisfaction with the outcome of his Mexican business venture and the degree to which U.S. government officials did or did not assist him in seeking to resolve his issues with the Mexican government is not to be found through the federal courts, for the reasons stated in the opinions of the CIT, the United States Court of Appeals for the Federal Circuit, (former) Chief Judge Griesa of this court, Chief Judge Mukasey of this court, and in Judge Ellis' Report.
Friedman v. Daley, 156 F.3d 1358 (Fed. Cir. 1998).
Friedman v. Jones, 00 Civ. 2171 (TPG) (S.D.N.Y. March 10, 2000) (not reported).
Friedman v. United States Department of State, 00 Civ. 4566 (MBM) (S.D.N.Y. June 21, 2000) (not reported).
As to Plaintiffs motions, interposed on July 16, 2002, challenging the constitutionality of the system for handling cases of poor litigants, and asking that the court 1) direct defendants and their offices in Mexico to intervene in his cases abroad, 2) compel the Ex-Im Bank and the Commerce Department to supply him with FOIA documents, 3) appoint an attorney for him and 4) declare unconstitutional fees charged by the Commerce Department for its services, all are denied for the reasons set forth in Judge Ellis' Report. The aspect of Plaintiff's motion that seeks a declaration that the federal courts' system for handling pro se complaints is unconstitutional is denied for the further reason that Plaintiff, who cites no legal authority for his request, has not alleged or demonstrated that the provisions of 28 U.S.C. § 1915, which govern the handling ofin forma pauperis applications and empower courts to dismiss certain pro se complaints sua sponte, deny due process or otherwise violate constitutionally-protected rights, either in general or as applied to Plaintiff. As the above-cited decisions in his prior cases show, Plaintiff has received careful attention from the federal courts notwithstanding his pro se, in forma pauperis status.
The Court further concurs in Judge Ellis' conclusion that injunctive relief barring Plaintiff from further litigation of these issues is appropriate. A district court has the authority to enjoin a plaintiff who engages in a pattern of vexatious litigation from continuing to do so.Fitzgerald v. Field, No. 99 Civ. 3406 (RWS), 1999 WL 1021568, at *5 (S.D.N.Y. Nov. 9, 1999); see Safir v. United States Lines, Inc., 792 F.2d 19, 23 (2d. Cir. 1986). In determining whether or not to restrict a litigant's future access to the courts, courts in this Circuit consider the following factors:
(1) the litigant's history of litigation and in particular whether it entailed vexatious, harassing or duplicative lawsuits; (2) the litigant's motive in pursuing the litigation, e.g., does the litigant have an objective good faith expectation of prevailing?; (3) whether the litigant is represented by counsel; (4) whether the litigant has caused needless expense to other parties or has posed an unnecessary burden on the courts and their personnel; and (5) whether other sanctions would be adequate to protect the courts and other parties.Safir, 792 F.2d at 24. In limiting a plaintiffs ability to litigate, courts consider whether any restrictions imposed are, "taken together, not so burdensome as [to] deny the litigant meaningful access to the courts." Abdullah v. Gatto, 773 F.2d 487, 488 (2d Cir. 1985) (quoting In Re Greea, 669 F.2d 779, 786 (D.C. Cir. 1981)).
Here, a review of Plaintiff's past claims before this Court and the CIT reveals clearly that Plaintiff "cannot be depended upon to accept the results of motion practice or the dismissal of his claims." Fitzgerald, 1999 WL 1021568, at *5. This is the fourth complaint filed by Plaintiff asserting essentially the same claims in slightly altered guise. Plaintiffs prior attempts to pursue these claims have been rejected by courts. Because it is clear that Plaintiff can be depended upon to desist from repeated attempts to relitigate previously-rejected claims, the extraordinary remedy of injunctive relief barring the commencement of further related litigation is appropriate. See Safir, 616 F. Supp. at 619; Fitzgerald, 1999 WL 1021568, at *5.
Plaintiff will therefore be permanently enjoined from litigating further any claims relating to the facts and complaints raised in this lawsuit, except to seek appellate review of this decision or submit papers responding to applications, if any, by Defendants.
The Court has considered all of Plaintiff's other legal and factual arguments raised in his Objection and finds them without merit. The Court adopts Judge Ellis's Report in its entirety.
The Court has considered thoroughly Plaintiff's motion for imposition of sanctions and finds it to be entirely without merit. It is denied.
CONCLUSION
Accordingly, for the foregoing reasons and for the reasons stated in Judge Ellis' Report,
1) The Government defendants' motion to dismiss the Amended Complaint pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure is granted;
2) The Amended Complaint is dismissed as against defendants Nuevo Leon, Zambrano, Trevino and Citibank pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), for failure to state a claim upon which relief can be granted;
3) Plaintiffs motions filed on July 16, 2002, are denied in their entirety;
4) Plaintiffs August 19, 2003, motion for sanctions is denied in its entirety; and
5) Plaintiff is permanently enjoined from litigating further any claims relating to the alleged slip-and-fall incident and his failed business endeavors in Mexico, as well as any claims concerning any alleged attempts unlawfully to prevent Plaintiff from litigating such claims.
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438, 444 (1962).
SO ORDERED.
To the HONORABLE LAURA TAYLOR SWAIN, U.S.D.J.:
I. INTRODUCTION
Pro se plaintiff Abraham Friedman ("Friedman") filed a complaint on August 14, 2001, and an amended complaint on January 1, 2002, against fifteen defendants for damages relating to his slip-and-fall incident and failed business endeavors in Mexico. On April 2, 2002, defendants United States, United States Department of State ("State Department"), United States Department of Commerce ("Commerce Department"), United States Trade Representative ("USTR"), United States Export and Import Bank ("Ex-Im Bank"), United States Small Business Administration ("SBA"), James R. Jones ("Jones"), John Lavele ("Lavele"), John Harris ("Harris"), Aida Alvarez ("Alvarez"), and Eileen Cassidy ("Cassidy") (collectively, the "government defendants"), moved to dismiss the action pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. The government defendants claim that the United States is the only proper defendant with respect to Friedman's tort claims and that his claims are barred by the Federal Tort Claims Act ("FTCA") and the doctrine of res judicata.For the reasons which follow, the Court recommends that the motion to dismiss be GRANTED. The Court also recommends that the claims against the remaining defendants, Secretario de Desarollo Economico Del Estado de Nuevo Leon ("Nuevo Leon"), Carlos Zambrano Plant ("Zambrano"), Jorge Trevino ("Trevino"), and Citibank, be DISMISSED. Finally, Friedman's request for appointment of counsel is DENIED, and his remaining motions should be DENIED as moot.
II. BACKGROUND
A. The Slip-and-Fall Claim
Friedman filed a complaint in this action on August 14, 2001, alleging that he fell on a damaged sidewalk in Mexico outside the building owned and occupied by defendants State Department and Commerce Department. Complaint at ¶ 4. The incident took place on or about January 20, 1999, outside 31 Liverpool Street in Mexico City, while Friedman was there on business. Id. Friedman also alleges that after his fall, which caused "severe bleeding," defendants refused to help him. Id.
B. The Amended Complaint
On January 2, 2002, Friedman filed an amended complaint adding the other government defendants and defendants Nuevo Leon, Zambrano, Trevino, and Citibank. He attached a copy of the August 14, 2001 complaint. Friedman had an American-owned business in Brooklyn, New York, which manufactured home products. Amended Complaint at 1. He decided, partly on the basis of defendants' recommendation, to transfer the business to Monterrey, Mexico. Id. Friedman was General Manager and a minority shareholder of the business, which exported goods from the United States to Mexican companies. Id. The Mexican authorities gave Friedman's company a permit for the "special status" of "maquila[d]ora," which allowed the business to "sell on favorable terms." Id. at 1-2. At some point, the business had a dispute with its landlord, who subsequently obtained a judgment in a Mexican court. Id. at 2. The landlord then seized $500 worth of assets in satisfaction of the judgment, and the Mexican Department of Commerce cancelled the maquiladora permit. Id. Thereafter, Friedman's business was unable to continue operations. Id.
1. Claims Against Government Defendants
Friedman alleges that the government defendants refused to help his business and conspired with Mexican authorities against him. Id. at 2; 6, ¶ 13. He claims that they are liable for his economic damages, pain and suffering, attorney's fees and punitive damages. Id. at ¶¶ 13, 19. The Ex-Im Bank, its manager Lavele, and the Commerce Department officials allegedly abandoned Friedman's business by refusing to provide insurance on invoices, id. at 2; 4, ¶ 7, and the Ex-Im Bank is liable for the lost profits resulting from Friedman's inability to continue operations. id. at ¶ 15. The State Department, United States Ambassador Jones, the Commerce Department, and officials Harris and Lavele were allegedly "instrumental to [withhold] assistance and help for the plaintiff," id. at ¶ 1, and the Commerce Department knew its officials failed to help him and harassed him. Id. at ¶ 2. SBA and its officials are allegedly liable because its statutory mission is to aid small businesses and it did not assist Friedman. Id. at ¶¶ 8, 17. The allegations against federal officials Alvarez and Cassidy are not fully clear, but Friedman suggests that both were aware of his attempts to seek help and contributed to the government's failure to help. Id. at ¶ 9.
Friedman also claims that the State Department, Commerce Department and USTR are liable for breaching their duty under the North American Free Trade Agreement ("NAFTA") to pressure the Mexican officials to "make a j[us]t settlement," id. at ¶ 16, and Harris allegedly hindered Friedman's negotiations under NAFTA by giving false information to the chief negotiator. Id. at ¶¶ 3, 18. Furthermore, the USTR allegedly had a duty to impose sanctions against countries that discriminate against American businesses in violation of international agreements and breached that duty by failing to help Friedman. Id. at ¶¶ 5-6. Friedman also claims that the Commerce Department, Ex-Im Bank, and SBA failed to provide him with requested documents under FOIA. Id. at ¶¶ 4, 7, 9. Finally, Friedman asserts that all defendants are liable for "conspiracy to harm, discrimination, [and] breach of contracts and promises . . . "Id. at ¶ 19.
2. Claims Against Nuevo Leon, Zambrano, Trevino and Citibank
According to Friedman, Nuevo Leon, Zambrano, Trevino, and Citibank are liable for negligence and breach of contract for failing to help him with his investments. Id. at ¶ 14. He claims they are liable for his loss of profits and his pain and suffering. Id. Friedman notes that Zambrano is the head of the Secretario de Desarrollo Economico, an agency that oversees the economy of the state of Nuevo Leon. Id. at ¶ 10. Zambrano and Trevino went to New York City, and with Citibank's assistance, held a conference inviting Citibank depositors, including Friedman, to do business in Nuevo Leon. Zambrano and Trevino allegedly pledged their assistance to American businesspeople in the state of Nuevo Leon, but they and Nuevo Leon then worked against Friedman and failed to assist him. Id. Friedman claims that Citibank was negligent in failing to warn him "not to believe [M]exican promises." Id.
C. Friedman's Prior Suits
This action is Friedman's fourth attempt to gain relief for incidents occurring in Mexico. In his first and second actions, Friedman alleged similar "failure to help" claims as in the instant case. The complaint in his third action alleged the same slip-and-fall claim raised in this action.
1. The First Action
Friedman commenced a suit in 1996 in the United States Court of International Trade, alleging that defendants Commerce Department, State Department, and USTR failed to assist him when he encountered business difficulties in Mexico. See Friedman v. Kantor, 21 C.I.T. 901, 977 F. Supp. 1242 (Ct. Int'l Trade 1997). As in the instant case, he claimed that when the Mexican authorities cancelled his business's maquiladora permit and subsequently seized assets to satisfy a judgment against the business, defendants refused to assist him. Id. at 1245. Friedman claimed violations of 15 U.S.C. § 4721 (b), 19 U.S.C. § 2171(c), 22 C.F.R. § 101.1 and 101.3, and that his claims were entitled to review under the Administrative Procedure Act ("APA"), 5 U.S.C. § 702, 706. Friedman v. Kantor, 977 F. Supp. at 1245. Because the other statutes do not permit a private right of action, he was forced to rely solely on the APA, which allows suits to compel agency action. Id.
The court found that Friedman failed to establish subject matter jurisdiction pursuant to 28 U.S.C. § 1581(i), which gives a court jurisdiction over a civil action arising "out of any law of the United States providing for . . . embargoes." See 28 U.S.C. § 1581(i) (1994); Friedman v. Kantor, 977 F. Supp. at 1246. Friedman alleged that the acts of defendants amounted to an embargo within the meaning of the statute, but the court found that he failed to allege a cause of action under any law providing for an embargo. Id. The court noted that jurisdiction could not be conferred merely because his claim involved an issue of international trade. Id. Additionally, the court found that he lacked standing with respect to two of his claims and could not get review under the APA because he was not within the "zone of interests" protected by 15 U.S.C. § 4721(b) and 19 U.S.C. § 2171 (c). Id. at 1247. The court explained that Friedman did not meet the definition of a "United States exporter" under § 472 1(b) and that the broad authority granted to the USTR pursuant to § 2171(c)(1)(A) imposes no duty on the USTR to protect private parties. Id. at 1248.
The court determined that, while Friedman had standing for his claim challenging actions of the Foreign Service Officers under 22 C.F.R. § 101.1 and 101.3, a transfer of the case to the federal district court "would not be in the interest of justice" because the actions of the officers would be unreviewable. Id. at 1249-51. The Federal Circuit affirmed the decision in an opinion dated October 5, 1998. Friedman v. Daley, 156 F.3d 1358 (Fed. Cir. 1998). In finding that the Court of International Trade had made no reversible error, the court also noted that Friedman's challenges to the decision were based solely on fairness, not on the reasoning underlying the court's conclusions. Id. at 1361.
2. The Second Action
Friedman initiated another suit, Friedman v. Jones, 00 Civ. 2171 (TPG) (not reported), in the Southern District of New York against numerous defendants, including all of the government defendants named in the instant suit, except James R. Jones and USTR. See Defendants' Notice of Motion and Declaration ("Def. Decl.") at Exh. C. Alleging facts based on the same business difficulties in Mexico as those alleged here and in the first action, Friedman claimed that defendants assured him assistance in recovering his business property from the Mexican authorities, and then failed to help him. In an order dated March 10, 2000, The Honorable Thomas P. Griesa dismissed the complaint pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), which allows a court to dismiss an in forma pauperis proceeding at any time if the complaint fails to state a cause of action. Then-Chief Judge Griesa first found that the Court lacked diversity jurisdiction under 28 U.S.C. § 1332. Def. Decl. at Exh. C, pp. 2-3. The Court went on to find that Friedman failed to properly assert federal question jurisdiction under 28 U.S.C. § 1331. Friedman did not state a cause of action under either of the following federal statutes: (1) the civil Racketeer Influenced and Corrupt Organizations ("RICO") Act, 18 U.S.C. § 1961-68, or (2) the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552. As to the RICO claim, the Court found that Friedman did not allege facts indicating "a pattern of racketeering activity" or a "racketeering enterprise." Def. Decl. at Exh. C, p. 4. In dismissing the FOIA claim, the Court noted that Friedman failed to allege that an agency improperly withheld documents. Id. at 5. Friedman also failed to specify what documents were withheld, whether he requested such documents, and whether the defendants denied the request.Id. Furthermore, Friedman failed to state a claim for libel under Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971). The Court noted that "[t]here is no federal cause of action for libel because interest in one's reputation is not a right, privilege or immunity protected by the Constitution or laws of the United States." Def. Decl. at Exh. C, p. 5. Judge Griesa certified that an appeal of his order would not be taken in good faith.
3. The Third Action
Friedman commenced another suit, Friedman v. United States Department of State, 00 Civ. 4566 (MBM) (not reported), in the Southern District of New York against two defendants, the State Department and the Commerce Department. Def. Decl. at Exh. D. There, Friedman filed a complaint that is identical to his first complaint filed in this action, in which he claims he fell on a sidewalk in Mexico City. In an opinion dated June 21, 2000, The Honorable Michael B. Mukasey dismissed the suitsua sponte, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), for failure to state a claim. The Court construed his complaint as an action under the FTCA, as amended, 28 U.S.C. § 1346, §§ 2671-80, and found that Friedman failed to exhaust his administrative remedies, as required by 28 U.S.C. § 2675(a). The Court advised that, "should plaintiff choose to refile his complaint after exhausting his administrative remedies, he must name only the United States as a defendant in the caption." Def. Decl. at Exh. D, n. 1. The Court also warned Friedman that "the continued filing of non-meritorious actions may result in the entry of an order barring plaintiff from filing any action without prior leave of court pursuant to 28 U.S.C. § 1651 (a)." Id. ( citing 28 U.S.C. § 2679(a);Rivera v. United States, 928 F.2d 592, 609 (2d Cir. 1991)).
III. DISCUSSION
A. Standard of Review 1. Dismissal Under 12(b)(1)
Rule 12(b)(1) of the Federal Rules of Civil Procedure provides for the dismissal of a complaint when the federal court "lacks jurisdiction over the subject matter." See FED.R.Civ.P. 12(b)(1). In considering a 12(b)(1) motion, a court must assume as true all factual allegations in the complaint. Shipping Financial Servs. Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir. 1998) ( citing Scheuer v. Rhodes, 416 U.S. 232, 236 (1974));Serrano v. 900 5th Ave. Corp., 4 F. Supp.2d 315, 316 (S.D.N.Y. 1998). Where jurisdictional issues are in dispute, the court may look to "evidence outside the pleadings, such as affidavits." Filetech S.A. v. France Telecom, S.A., 157 F.3d 922, 932 (2d Cir. 1998) ( quoting Antares Aircraft v. Federal Republic of Nigeria 948 F.2d 90, 96 (2d Cir. 1991), vacated on other grounds, 505 U.S. 1215 (1992)).
In most cases, the court will consider a 12(b)(1) motion before ruling on any other motions to dismiss, since dismissal of an action for lack of subject matter jurisdiction will render all other accompanying defenses and motions moot. See United States ex rel Kreindler Kreindler v. United Technologies Corp., 985 F.2d 1148, 1155-56 (2d Cir. 1993), cert. denied sub nom. Kreindler Kreindler v. United Technologies Corp., 508 U.S. 973 (1993); see also Rhulen Agency, Inc. v. Alabama Ins. Guar. Ass'n, 896 F.2d 674, 678 (2d Cir. 1990). Thus, a court confronted with a motion to dismiss pursuant to both Rules 12(b)(1) and 12(b)(6) should decide the jurisdictional question first because "a disposition of a Rule 12(b)(6) motion is a decision on the merits, and therefore, an exercise of jurisdiction." Magee v. Nassau County Medical Center, 27 F. Supp.2d 154, 158 (E.D.N.Y. 1998); see also Rhulen, 896 F.2d at 678.
2. Dismissal Under 12(b)(6)
Dismissal of a complaint for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) is proper only where "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief."Harris v. City of New York, 186 F.3d 243, 247 (2d Cir. 1999) ( quoting Conley v. Gibson 355 U.S. 41, 45-46 (1957)). The test is not whether a plaintiff is likely to prevail ultimately, but whether the claimant is entitled to offer evidence to support the claims. See Chance v. Armstrong, 143 F.3d 698, 701 (2d Cir. 1998). The factual allegations in the complaint are presumed to be true, and all reasonable inferences are drawn in the plaintiffs favor. See EEOC v. Staten Island Sav. Bank, 207 F.3d 144 (2d Cir. 2000). A court does not, however, have to accept as true "conclusions of law or unwarranted deductions of fact." First Nationwide Bank v. Gelt Funding Corp., 27 F.3d 763, 771 (2d Cir. 1994), cert. denied, 513 U.S. 1079 (1995).
Pleadings prepared by pro se plaintiffs are held to less stringent standards than those prepared by lawyers. See Boddie v. Schneider, 105 F.3d 857, 860 (2d Cir. 1997). Generally, courts do not look outside the pleadings when reviewing a motion to dismiss pursuant to Rule 12(b)(6). They may, however, consider the allegations contained in a pro se plaintiffs memorandum of law, where those allegations are consistent with the allegations in the complaint. See Donahue v. United States Dep't of Justice, 751 F. Supp. 45, 49 (S.D.N.Y. 1990). Accordingly, in construing the factual background, the Court will take into consideration both of Friedman's complaints and his response to the government defendants' motion to dismiss ("PI. Resp.") filed October 8, 2002.
Pro se plaintiffs are not, however, completely relieved of pleading requirements. In order to avoid dismissal, a plaintiff must do more than plead mere "[c]onclusory allegations or legal conclusions masquerading as factual conclusions." Gebhardt v. Allspect, Inc., 96 F. Supp.2d 331, 333 (S.D.N.Y. 2000) (quoting 2 James Wm. Moore, Moore's Federal Practice ¶ 12.34[1][b] (3d ed.1997)); see, e.g., Alfaro Motors, Inc. v. Ward, 814 F.2d 883, 887 (2d Cir. 1987) (stating that civil rights complaints "must contain specific allegations of fact which indicate a deprivation of constitutional rights; allegations which are nothing more than broad, simple, and conclusory statements are insufficient to state a claim under § 1983").
B. Jurisdiction over Tort Claims Against Government Defendants
To the extent that Friedman alleges tortious conduct on the part of government agencies or employees, the only proper defendant is the United States. See 28 U.S.C. § 2679(a); 28 U.S.C. § 1346(b)(1); Rivera v. United States, 928 F.2d 592, 609 (2d Cir. 1991). A suit against the United States is the exclusive remedy for torts committed by federal agencies and federal employees acting within the scope of their duties. See 28 U.S.C. § 2679(a), 2679(b)(1). In tort actions against federal employees, the United States will be substituted as a defendant upon certification by the Attorney General that the employee was acting within the scope of employment at the time the claim arose. See 28 U.S.C. § 2679(d)(1). In this case, the United States Attorney for the Southern District of New York has certified, pursuant to his authority under 28 C.F.R. § 15.3(a), that Jones, Harris, Lavele, Alvarez and Cassidy were acting within the scope of their duties as federal employees at the time of the alleged incidents. Def. Decl. at Exh. J. Accordingly, the Court recommends that all tort claims filed against the government defendants other than the United States be DISMISSED.
The United States may not be sued unless it consents to be sued by explicitly waiving its sovereign immunity. United States v. Sherwood, 312 U.S. 584, 586 (1941); Morales v. United States, 38 F.3d 659, 660 (2d Cir. 1994). Such a waiver is a jurisdictional prerequisite to obtaining relief. United States v. Mitchell, 463 U.S. 206, 212 (1983). Pursuant to the FTCA, the United States has waived immunity for any injury "caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his or her employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." 28 U.S.C. § 1346(b)(1).
The FTCA requires the filing of an administrative claim with the relevant federal agency before commencing an action in federal court. 28 U.S.C. § 2675(a). Friedman attached to his amended complaint a State Department decision, dated January 16, 2001, denying his administrative claim for the slip-and-fall incident. Def. Decl. at Exh. B. To the extent that Friedman alleges other tort claims in his amended complaint, he has not demonstrated that he administratively exhausted them with the appropriate federal agencies.
The State Department denied Friedman's claim after finding that there was no negligence on the part of government employees, that the United States is not responsible for the sidewalk where Friedman fell, and that all events occurred in a foreign country. Friedman was authorized to sue within six months of his receipt of the decision. Def. Decl. at Exh B.
Even if Friedman were to meet the exhaustion requirement, the foreign country exception to the FTCA bars all of his tort claims against the United States. See 28 U.S.C. § 2680(k). Pursuant to section 2680(k), the United States does not waive its immunity for tort claims "arising in a foreign country." See Smith v. United States, 507 U.S. 197, 201 (1993); Donahue v. United States Department of Justice, 751 F. Supp. 45, 47 (S.D.N.Y. 1990). Even if the sidewalk where Friedman fell is the property of the United States, and the government defendants breached a duty to him, his claims are barred by § 2680(k). "[F]ederal courts have consistently held that despite American involvement, tort claims arising from government negligence occurring on the grounds of . . . an American embassy and a foreign land occupied by [the] United States . . . are claims arising in a foreign country." Donahue, 751 F. Supp. at 47 (citations omitted); Meredith v. United States, 330 F.2d 9, 10-11 (9th Cir. 1964) (finding Thai law to be applicable on premises of American embassy in Bangkok, and dismissing action pursuant to § 2680(k)). None of the acts alleged against the government defendants in this case occurred in the United States.
Defendants argue that to the extent Friedman alleges that the government intentionally harmed him, his claims are barred by 28 U.S.C. § 2680(h). Memorandum of Law in Support of Government Defendants' Motion to Dismiss the Amended Complaint ("Def. Mem.") at 11. The FTCA excludes certain intentional torts from the waiver of sovereign immunity. Thus, the United States is not liable for "[a]ny claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights." 28 U.S.C. § 2680(h).
Friedman claims that in Mexico, defendants treated him with verbal and physical abuses, and that "they tried to evict me . . . from the consulate and the Embassy." Pl. Resp. at ¶ 12. He alleges that federal officials hurt the "cordial relationship" he had established with the Mexican officials. Id. To the extent that these facts allege intentional torts, his claims are barred by § 2680(h). Defendants also correctly note that Friedman's claim for punitive damages should be dismissed because this form of relief is barred pursuant to 28 U.S.C. § 2674. Def. Mem. at 10, n. 2.
For all of the foregoing reasons, the Court recommends that Friedman's tort claims against the United States be DISMISSED for lack of subject matter jurisdiction.
C. Federal Claims
Friedman has not properly stated a claim under any federal statute or law of the United States, and he does not establish that the Court has jurisdiction pursuant to 28 U.S.C. § 1331. Friedman's allegations fail to state claims on any of the following bases: (1) constitutional violations under Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971); (2) FOIA, 5 U.S.C. § 552; (3) RICO, 18 U.S.C. § 1961-68; (4) APA, 5 U.S.C. § 701 et seq.; or (5) mandamus relief, 28 U.S.C. § 1361.
Friedman has not specified which statutes or laws defendants have violated. The following analysis is based on a liberal construction of the complaint herein.
1. Bivens Action
Friedman does not establish that individual government officials violated a constitutional right under Bivens, 403 U.S. 388. A Bivens claim must allege facts showing that the defendants acted under color of federal law to deprive plaintiff of a constitutional right. See Butz v. Economou, 438 U.S. 478, 498-500 (1978) (according same degree of immunity to federal officials in Bivens actions as that allowed for state officials in § 1983 actions); Barbera v. Smith, 654 F. Supp. 386, 390 (S.D.N.Y. 1987). Friedman must also allege the "personal involvement" of the individual defendants in violating his constitutional rights. Barbera v. Smith, 836 F.2d 96, 99 (2d Cir. 1987).
The alleged failure of defendants to assist Friedman's business in operating, getting insurance, or settling claims in a foreign country does not violate any right, privilege or immunity secured by the United States Constitution. Even if Friedman could establish that defendants had a duty to assist him in securing his business, the breach of that duty would not be a constitutional violation. Friedman also claims that officials at the United States Embassy and consulate in Mexico racially discriminated against him. PI. Resp. at ¶ 12. However, he fails to specify what they did and how their acts violated the Constitution. Because defendants did not act as employers, he cannot state a claim for discrimination under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-2, preventing discrimination in employment practices. Moreover, defendants correctly note that Friedman has named them in their official capacities, which immunizes them from a Bivens action. See Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 510 (2d Cir. 1994) (treating suit against officers in their official capacities as suit against United States and thus dismissing action because of sovereign immunity). To the extent Friedman's claims can be construed as a Bivens action against the federal employees in their individual capacities, it should be DISMISSED.
2. FOIA
Friedman also claims that the Commerce Department, Ex-Im Bank and SBA failed to provide him with requested documents under FOIA. "Under 5 U.S.C. § 552(a)(4)(B) federal jurisdiction is dependent upon a showing that an agency has (1) `improperly'; (2) `withheld'; (3) `agency records.'" Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 150 (1980); Grand Cent. P'ship. Inc. v. Cuomo, 166 F.3d 473, 478 (2d Cir. 1999). However, Friedman's allegations here are as deficient as those in his prior action, Friedman v. Jones, 00 Civ. 2171. He does not specify what documents he requested, nor has he indicated whether the requested documents are "agency records" which were improperly withheld. Therefore, Friedman's FOIA claim against the Commerce Department, Ex-Im Bank, and SBA should be DISMISSED for failure to state a claim.
3. RICO
To the extent that Friedman's allegations can be construed to be a claim that defendants formed a conspiracy in violation of the RICO statutes, his claim must fail. In order to state a civil claim under RICO, a plaintiff first must allege "(1) that the defendant (2) through the commission of two or more acts (3) constituting a `pattern' (4) of `racketeering activity' (5) directly or indirectly invests in, or maintains an interest in, or participates in (6) an `enterprise' (7) the activities of which affect interstate or foreign commerce. 18 U.S.C. § 1962(a)-(c)." Moss v. Morgan Stanley Inc., 719 F.2d 5, 17 (2d Cir. 1983). Second, a plaintiff must show causation, in other words, an injury to "his [or her] business property by reason of a violation of section 1962." Id. ( quoting 18 U.S.C. § 1964(c)); Weizmann List, of Science v. Neschis, 229 F. Supp.2d 234, 255 (S.D.N.Y. 2002) (plaintiff must meet both of the above pleading burdens to properly state a RICO claim). The RICO statute defines "enterprise" to include "any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity." 18 U.S.C. § 1961(4). For a group falling into the latter category, the individuals must be "associated together for a common purpose of engaging in a course of conduct." United States v. Turkette, 452 U.S. 576, 583 (1981); Nasic Breeding Research Farm Ltd. v. Merck Co., Inc., 165 F. Supp.2d 514, 539 (S.D.N.Y. 2001). The plaintiff must provide evidence that the organization functions as a "continuing unit." Turkette, 452 U.S. at 583.
Friedman's allegations cannot be construed to establish that defendants committed any crime meeting the definition of "racketeering activity" found in 18 U.S.C. § 1961(1), or that defendants associated such that they formed an "enterprise." Friedman alleges no facts to support a claim that defendants were acting in concert to injure his business property, and his allegations patently fail to state a claim under the RICO statutes.
4. APA
The APA, 5 U.S.C. § 702, provides in relevant part:
A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.
To obtain judicial review under the APA, a claimant must first "identify some agency action that affected him [or her] in the specified fashion."Lujan v. National Wildlife Federatioa, 497 U.S. 871, 882 (1990). "Agency action" is defined as "the whole or part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act," 5 U.S.C. § 551(13), and such action must be "final agency action." Lujan, 497 U.S. at 882. Second, the claimant must have suffered a "legal wrong" as a result of such action, or have been "adversely affected or aggrieved by agency action within the meaning of a relevant statute." 5 U.S.C. § 702. A person is "adversely affected or aggrieved" if the injury falls within "the zone of interests" protected by a relevant statutory provision that has been allegedly violated.Bennett v. Spear, 520 U.S. 154, 161-165 (1997); Lujan, 497 U.S. at 883.
Friedman does not demonstrate that defendant agencies' failure to act constituted "final agency action." Even if it did, he has not established that such failure was the cause of a "legal wrong." His financial losses and the failure of his business grew out of his disputes with Mexican authorities. While the intervention of defendant agencies might have helped him settle those disputes, he has not shown that they caused his injuries.
Friedman has not identified relevant statutes that were violated by defendants. The following statutes, 15 U.S.C. § 4721 (b), 19 U.S.C. § 2171(c), and 22 C.F.R. § 101.1 and 101.3, describe the respective functions of the United States and Foreign Commercial Service in the Commerce Department's International Trade Administration, the USTR, and Foreign Service Officers. However, the APA does not permit review of claims for violations of those statutory duties. These are the same statutes on which Friedman based his first action in the Court of International Trade. The court there found, pursuant to 5 U.S.C. § 701(a)(2), that the APA does not permit judicial review where "agency action is committed to agency discretion by law." See Friedman v. Kantor, 977 F. Supp. at 1250. The Supreme Court has noted that there is no review under the APA where the "[relevant] statute is drawn so that a court would have no meaningful standard against which to judge the agency's exercise of discretion." Heckler v. Chaney, 470 U.S. 821, 830 (1985); Lincoln v. Vigil, 508 U.S. 182, 191 (1993).
Friedman alleges that the SB A did not follow its policy of aiding and protecting small businesses, and the Ex-Im Bank wrongly decided not to insure his invoices. To the extent that his claims can be construed to allege violations of statutes prescribing the duties of the SB A and Ex-Im Bank, 15 U.S.C. § 631 et seq and 12 U.S.C. § 635 respectively, the claims must fail. As described below, such duties are committed to agency discretion. Accordingly, Friedman has failed to state a claim for relief under the APA.
5. Mandamus
Pursuant to 28 U.S.C. § 1361, "[t]he district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff." Where a plaintiff claims that a federal agent has violated the Constitution or a statute, mandamus is an appropriate form of equitable relief. Almonte v. Pierce, 666 F. Supp. 517, 525 (S.D.N.Y. 1987). The Supreme Court has held that "the remedy of mandamus is a drastic one, to be invoked only in extraordinary circumstances." Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 34 (1980); Will v. United States, 389 U.S. 90, 95 (1967); In re von Bulow, 828 F.2d 94, 96 (2d Cir. 1987). Parties seeking a writ of mandamus must show that no "adequate alternative means" exists for them to obtain relief. Mallard v. United States Dist. Court for the S. Dist. of Iowa, 490 U.S. 296, 309 (1989); Allied Chem. Corp., 449 U.S. at 35. In the Second Circuit, the party seeking mandamus must demonstrate: "(1) a clear right in the plaintiff to the relief sought; (2) a plainly defined and peremptory duty on the part of the defendant to do the act in question; and (3) no other adequate remedy available." Anderson v. Bowen, 881 F.2d 1, 5 (2dCir. 1989).
Defendants argue that Friedman has not alleged the existence of a peremptory duty on the part of the any government defendants. Def. Mem. at 19. Friedman claims that the State Department, Commerce Department, and USTR owed him a duty under NAFTA. However, the NAFTA Implementation Act, 19 U.S.C. § 3301-3473, does not allow for a private right of action against any department or agency of the United States. Defendants note that Friedman did not have a contract with the SBA or participate in its programs. Def. Mem. at 20. The Small Business Act, 15 U.S.C. § 631, declares that the SBA "should aid and assist small businesses . . . to increase their ability to compete in international markets . . ." However, the extent to which the SBA extends aid is within its discretionary power, and Friedman fails to show either a clear right to relief or the existence of a nondiscretionary duty. The Ex-Im Bank was created to provide "aid in financing and to facilitate exports and imports and the exchange of commodities and services between the United States . . . and any foreign country or the agencies or nationals thereof." 12 U.S.C. § 635(a)(1). Nothing in this statute indicates a "plainly defined peremptory duty." Friedman therefore fails to show that Ex-Im Bank had a peremptory duty to insure his invoices or that he has a right to damages for its failure to do so.
Therefore, to the extent that Friedman seeks to compel government officials to intervene in his legal battles and financial difficulties in Mexico, he fails to state a claim for mandamus relief under 28 U.S.C. § 1361.
D. Res Judicata
"Under the doctrine of res Judicata, or claim preclusion, `a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action.'" Flaherty v. Lang, 199 F.3d 607, 612 (2d Cir. 1999) ( quoting Rivet v. Regions Bank of La., 522 U.S. 470, 476 (1998)) (emphasis in opinion); See also Sure-Snap Corp. v. State Street Bank and Trust Co., 948 F.2d 869, 873 (2d Cir. 1991) ( citing Comm'r of Internal Revenue v. Sunnen, 333 U.S. 591, 597 (1948)). Res Judicata serves as a bar where there has been a prior judgment on the merits, and the same parties and causes of action are involved in the subsequent action. Woods v. Dunlop Tire Corp., 972 F.2d 36, 38 (2d Cir. 1992), cert. denied, 506 U.S. 1053 (1993). "[T]he claims [must] arise from the same set of operative facts between the same parties or their privies, whether or not the claim was actually litigated." Tepper v. Bendell, 2002 WL 31729601 (S.D.N.Y. Dec. 5, 2002). Thus, the identity of the facts alleged, not of the legal theories, help to determine whether two causes of action are the same. Woods v. Dunlop Tire Corp., 972 F.2d at 39. In addition, a dismissal for lack of subject matter jurisdiction is not "on the merits" and has no res Judicata effect. Nowak v. Ironworkers Local 6 Pension Fund, 81 F.3d 1182, 1188 (2dCir. 1996).
According to the government defendants, the Court's decision inFriedman v. Kantor, 977 F. Supp. 1242, that a transfer of the action would be futile and that Friedman failed to state a claim under the APA, and the Federal Circuit's affirmation of the decision, was a final judgment on the merits. This Court agrees. "The APA's judicial review provisions are not `jurisdictional,' but rather raise a question of `[w]hether a cause of action exists." Friedman v. Kantor, 977 F. Supp. at 1250, n. 15 ( quoting Air Courier Conference of Am. v. Am. Postal Workers Union, 498 U.S. 517, 523 (1991)). Although the Court of International Trade dismissed for lack of jurisdiction, it considered the merits of Friedman's claim under the APA and found that the federal district court would be unable to review it. The claims in that action arose from the same set of operative facts. There, Friedman's allegations related to the failure of defendants Commerce Department, State Department and USTR to help him after the Mexican authorities cancelled his maquiladora permit. He alleged that the "failure by the responsible government agencies and officials to provide any effective assistance has prevented the business operations in Mexico from reopening." Id. at 1245. Although Friedman might have continued subsequent to that decision to seek the help from defendants, he alleges no new set of facts on which to base a second action. Therefore, Friedman's claim that government defendants failed to assist him is barred by the doctrine of res judicata.
E. Dismissal of Claims Against Remaining Defendants
The Court recommends that the claims against the remaining defendants, Nuevo Leon, Zambrano, Trevino, and Citibank be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). To the extent that Friedman's amended complaint can be construed to allege breach of contract and negligent or fraudulent misrepresentation, he has failed to state a claim. Friedman clearly fails to state a claim for breach of contract. He does not allege the existence of any contract with defendants, nor that he entered into any negotiations with defendants.
To state a claim for negligent misrepresentation, a plaintiff must show that "(1) defendant had a duty, as a result of a special relationship, to give correct information; (2) the defendant made a false representation that he or she should have known was incorrect; (3) the information supplied in the representation was known by the defendant to be desired by the plaintiff for a serious purpose; (4) the plaintiff intended to rely and act upon it; and (5) the plaintiff reasonably relied on it to his or her detriment." Hydro Investors, Inc. v. Trafalgar Power Inc. 227 F.3d 8, 20 (2d Cir. 2000). However, statements relating to future conduct cannot form the basis of a claim for negligent misrepresentation. Id. A cause of action for fraudulent misrepresentation requires a plaintiff to allege that defendants intentionally made a material misrepresentation of fact in order to defraud the plaintiff, and plaintiff reasonably relied to his detriment upon it. P.T. Bank Central Asia v. ABN AMRO Bank N.V., 2003 WL 67997, *3 (N.Y.App.Div. Jan. 9, 2003). Statements regarding future conduct, however, do not support a claim of fraud or misrepresentation under New York law. Catskill Development, L.L.C. v. Park Place Entertainment Corp., 217 F. Supp.2d 423, 437 (S.D.N.Y. 2002).
Defendants' alleged promises of future assistance to conference participants doing business in Mexico cannot form the basis of a claim for misrepresentation. Even if the alleged misrepresentations related to an existing fact, Friedman has not shown that defendants had a duty to him. He fails to demonstrate that it was reasonable to rely on their general assurances about doing business in Mexico.
Friedman alleges that Citibank negligently failed to warn him or made negligent misrepresentations about the risks involved in doing business in Mexico. "In order to state a claim for negligence, plaintiffs must allege the existence of a duty owing by the defendants to the plaintiffs, defendants' failure to discharge that duty, and injury to plaintiffs proximately resulting from that failure." Becker v. Club Las Velas, 1994 WL 367016, *5 (S.D.N.Y. 1994). Friedman has not established that Citibank owed him any duty, and even if it did, he has not established that Citibank's failure to warn was the proximate cause of his injuries. Friedman does not establish that Citibank should have known that Zambrano, Trevino or Nuevo Leon, were engaging in misrepresentations.
Accordingly, Friedman's claims against Zambrano, Trevino, Nuevo Leon, and Citibank should be DISMISSED for failure to state a claim.
F. Friedman's Other Motions
Plaintiff filed several motions on July 16, 2002, requesting that the Court (1) declare that the system for handling cases of poor litigants is unconstitutional; (2) direct defendants and their offices in Mexico to intervene in his cases in Mexico City and Monterrey, Mexico; (3) compel the Ex-Im Bank and the Commerce Department to supply him with FOIA documents; (4) appoint him an attorney; and (5) declare it unconstitutional that the Commerce Department charges money for "their services." The Court recommends that if the motion to dismiss is granted, these motions should be DENIED as moot. The request for appointment of counsel is considered herein.
G. Appointment of Counsel
Civil litigants, unlike criminal defendants, do not have a constitutional right to the appointment of counsel. However, under 28 U.S.C. § 1915(e)(1), "[t]he court may request an attorney to represent any person unable to afford counsel." The Court of Appeals for the Second Circuit has articulated the factors that a court should consider in deciding whether to appoint counsel for an indigent civil litigant. The court "exercises substantial discretion, subject to the requirement that it be guided by sound legal principle." Cooper v. A. Sargenti Co., 877 F.2d 170, 172 (2d Cir. 1989) ( citing Jenkins v. Chemical Bank, 721 F.2d 876, 879 (2d Cir. 1983)). The Court's first inquiry is whether plaintiff can afford to obtain counsel. See Terminate Control Corp. v. Horowitz, 28 F.3d 1335, 1341 (2d Cir. 1994). If the Court finds that a plaintiff cannot afford counsel, it must then examine the merits of the case and determine whether the indigent's position "seems likely to be of substance." Hodge v. Police Officers, 802 F.2d 58, 61-62 (2d Cir. 1986). After the two threshold determinations have been made as to indigence and merit, the Court has discretion to consider the following factors: (1) the indigent's ability to investigate the crucial facts; (2) whether conflicting evidence implicating the need for cross-examination will be the major proof presented to the fact finder; (3) the indigent's ability to present the case; (4) the complexity of the legal issues involved; and (5) any special reason in that case why appointment of counsel would be more likely to lead to a just determination. Id. at 61-62.
Here, Friedman's request to proceed in forma pauperis was granted on August 14, 2001, and therefore, he satisfies the threshold requirement of indigence. However, in light of the foregoing recommendations, Friedman's position does not appear "likely to be of substance," nor does it appear that cross-examination would be the major proof if the case were to proceed to trial. This case does not present novel, or especially complex legal issues. The Court therefore finds that appointment of counsel is not warranted. The application is DENIED.
IV. CONCLUSION
For reasons previously stated, I recommend that the government defendants' motion to dismiss pursuant to 12(b)(1) and 12(b)(6) be GRANTED. I also recommend that the Court dismiss the claims against Nuevo Leon, Zambrano, Trevino, and Citibank, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). Friedman's remaining motions filed on July 16, 2002, should be DENIED as moot, and his application for appointment of counsel is DENIED. Finally, I recommend that Friedman be barred from filing subsequent actions without leave of the court, pursuant to 28 U.S.C. § 1651 (a).
Pursuant to Rule 72, Federal Rules of Civil Procedure, the parties shall have ten (10) days after being served with a copy of the recommended disposition to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of the Court and served on all adversaries, with extra copies delivered to the chambers of the Honorable Laura Taylor Swain, 40 Centre Street, Room 426, and to the chambers of the undersigned, 500 Pearl Street, Room 1970. Failure to file timely objections shall constitute a waiver of those objections both in the District Court and on later appeal to the United States Court of Appeals. See Thomas v. Arn, 474 U.S. 140, 150 (1985); Small v. Secretary of Health and Human Services, 892 F.2d 15, 16 (2d Cir. 1989) ( per curiam); 28 U.S.C. § 636(b)(1) (West Supp. 1995); Fed.R.Civ.P. 72, 6(a), 6(e).