Opinion
97-CV-5238 (JG).
June 21, 2000.
GERMAN LEYBINSKY, A-73-569-408 Dorm#15, Plaintiff Pro Se.
DIANA GUREVICH, Plaintiff Pro Se.
LLOYD M. EISENBERG, Shatzkin Reiss, Attorney for Defendant.
MEMORANDUM AND ORDER
Plaintiffs instituted this action in 1997, alleging numerous acts of malfeasance by counsel retained to represent German Leybinsky in a state rape prosecution. The cases is dismissed because of the plaintiffs' failure to comply with the Court's orders and, in the alternative, because they have failed to state a claim.
BACKGROUND
A. Facts Alleged in the Complaint
For purposes of considering a dismissal under 28 U.S.C. § 1915 (e)(2), the allegations in the complaint must be taken as true. See Cruz v. Gomez, 202 F.3d 593, 595 (2d Cir. 2000).
Plaintiff German Leybinsky was arrested on rape charges on July 17, 1995. (Verified Complaint, ¶ 5.) Plaintiff Diana Gurevich, Leybinsky's wife, telephoned defendant Randolph Frank Iannacone, a criminal defense attorney, regarding Leybinsky's arrest. (Id., ¶ 8.) Iannacone instructed Gurevich to bring him $2,000 in cash, and he advised her that he would not execute a retainer agreement or give her a receipt. (Id.) Furthermore, Iannacone advised Gurevich that he did business only in cash. (Id.)
The next day, Gurevich gave Iannacone the requested $2,000, and Iannacone subsequently met with Leybinsky in the Brooklyn House of Detention, where Leybinsky was being detained. (Id., ¶ 9.) Iannacone advised Leybinsky that the police had a "very strong case" and that he typically charged $50,000 to handle a rape defense. (Id., ¶ 10.)
On July 20, 1995, Gurevich asked Iannacone to represent Leybinsky at a bail hearing. (Id., ¶ 11.) Iannacone told Gurevich that she had to pay him another $2,000 in cash for him to appear. (Id.) Notwithstanding the fact that Iannacone had already filed a notice of appearance on behalf of Leybinsky, the attorney warned Gurevich that he would not attend the bail hearing unless she paid him. (Id.)
Although the complaint does not state whether Gurevich made the $2,000 payment, Iannacone represented Leybinsky at the bail hearing. (Id., ¶ 12.) Leybinsky's bail was set at $20,000, and Iannacone recommended the bail bond services of H.P. Mauica Company. (Id.) On July 21, 1995, Gurevich gave H.P. Mauica $17,000 "as security" for the bail bond, along with $1,700 "for the bail bond service." (Id., ¶ 13.) Later that day, Leybinsky was released on bond. (Id.) Subsequently, Leybinsky went to the office of H.P. Mauica to "politely" request a receipt for Gurevich's payment, but the company refused to provide one. (Id., ¶ 14.)
In early August, H.P. Mauica appeared in court and "had . . . Leybinsky's bail bond revoked on the pretext that Leybinsky had threatened an employee [of] the Company." (Id., ¶ 16.) Although Leybinsky asked Iannacone to help him "resolve" this situation, Iannacone refused to do so. (Id.) On August 21, 1995, Leybinsky was again released on bond after Gurevich posted $20,000 in cash. (Id., ¶ 15.)
In the meantime, Leybinsky testified before the grand jury regarding the rape charge. (Id., ¶ 17.) Gurevich paid Iannacone $2,000 in cash before this proceeding. (Id., ¶ 18.) Before the testimony, Iannacone instructed Leybinsky to perjure himself in several ways, and Leybinsky did so. (Id., ¶ 18.) Specifically, Leybinsky testified falsely, at Iannacone's direction, that he was either at home, shopping, visiting his mother-in-law, or visiting his mother at the time of the rape and that he did not know the victim. (Id.) Iannacone also "set up a signal system," by which he would nod his head up and down when he wanted Leybinsky to answer a question affirmatively or side to side when he wanted a negative answer. (Id.) Gurevich's mother testified falsely before the grand jury that Leybinsky was with her at the time of the rape. (Id.) At Iannacone's direction, Leybinsky's mother testified that Leybinsky was with her at the time of the rape. (Id.)
The complaint does not explain how exactly Leybinsky could have provided all these contradictory alibis.
Iannacone directed Leybinsky in this course of conduct notwithstanding the fact that the attorney "knew or should [have] know[n]" that Leybinsky did in fact have sexual contact with the complainant, whom he had known for a year, but that it was consensual. (Id., ¶ 22.)
"As a direct result and consequence of the obvious fabricated alibis and stories," the grand jury indicted Leybinsky for "rape and sexual abuse." (Id., ¶ 19.) In addition to suborning Leybinsky's perjury, Iannacone failed to "attempt to discover what evidence the police had against [Leybinsky] prior to his [g]rand [j]ury testimony," a failure that also contributed to Leybinsky's indictment. (Id., ¶ 22.)
At the post-indictment arraignment on these charges, Iannacone refused to represent Leybinsky unless he was paid another $1,000. Leybinsky told the attorney that he could not afford any more payments, so Iannacone withdrew from the representation. (Id., ¶ 20.) Subsequently, Leybinsky obtained new counsel, whose fee was $10,000. (Id., ¶ 21.)
In September 1995, Gurevich telephoned Iannacone and requested receipts for the money she had paid him, which came to approximately $8,300, but he refused. (Id., ¶ 24.) He later denied having received the money at all. (Id., ¶ 28.) In other conversations with Gurevich, Iannacone was verbally abusive, made lewd remarks, and "recklessly eyeball[ed]" her. (Id., ¶ 26.) Iannacone also tried to persuade Gurevich "to abandon, leave and divorce" Leybinsky. (Id., ¶ 29.)
Leybinsky alleges that these actions by Iannacone constituted legal malpractice, negligence, breach of contract, negligent infliction of emotional distress, and intentional infliction of emotional distress. (Id., ¶ 32.) Gurevich also alleges negligent and intentional infliction of emotional distress. (Id., ¶ 33.) In addition, plaintiffs allege that Iannacone, "while acting under color of law as a Court officer," violated Leybinsky's rights under the First, Fifth, Sixth, and Fourteenth Amendments. (Id., ¶ 35.)
B. Procedural History
On April 6, 2000, I ordered plaintiffs to show cause on or before May 5, 2000, why this case should not be dismissed as frivolous. Plaintiffs had previously failed on numerous occasions to provide copies of his submissions to his adversary or to provide proof of such service to the Court. Accordingly, in the April 6 order, I advised plaintiffs that if they did not include proof of service on their adversary with their submissions, those submissions would not be considered. Nonetheless, in two letters to the Court regarding the order to show cause — dated April 17, 2000, and April 22, 2000 — Leybinsky failed to provide proof of service on his adversary. In an order dated May 2, 2000, I advised Leybinsky that the two submissions would not be considered because of his failure to comply with my explicit instructions.
Nonetheless, the flood of ex parte letters and submissions continued. Submissions dated April 27, May 1, May 10, May 14, and May 15 included no proof of service. I issued another order on May 19 once again advising Leybinsky that none of his submissions would be considered because they did not include proof of service. Yet Leybinsky made another ex parte submission on June 2.
DISCUSSION
A. Rule 41(b) Dismissal
Federal Rule of Civil Procedure 41(b) authorizes dismissal of a complaint "[f]or failure of the plaintiff . . . to comply with . . . any order of court." Such a dismissal may be sua sponte. See Spencer v. Doe, 139 F.3d 107, 112 (2d Cir. 1998). I recognize that a Rule 41(b) is a "harsh remedy," id., but it is appropriate in this case. It is axiomatic that ex parte communications are not permitted, as they deprive a party's adversary of the opportunity to respond to a party's application or argument. It is therefore critical that parties provide copies of all written court communications to their adversaries. In my experience, even pro se plaintiffs understand this rule; they typically provide proof of service on their adversary, at least in the form of a "cc" at the end of the submission. Leybinsky clearly understands the concept of proof of service as well, as many of his submissions include proof of service on the Pro Se Clerk's Office, or a "cc" to his wife.
I have considered the factors that the Second Circuit has directed be reviewed in such cases. See id. at 112-13. First, plaintiffs' failure to comply has lasted nearly two months. Second, plaintiffs were ordered to show cause why their complaint should not be dismissed and were warned that no submission unaccompanied by proof of service would be considered. They were thus on notice that failure to comply with my order (by failing to show cause in the court-ordered way) would lead to dismissal. Third, there has been prejudice to the defendant because he has not been privy to plaintiffs' attempted communications with the Court, and there will likely be further prejudice if the case continues because plaintiffs are likely to continue to disobey my orders on this subject. Fourth, attempting to police plaintiffs' conduct in this case had taken an inordinate amount of the Court's time, while plaintiff's interest in being heard is minimal given that, for the reasons discussed below, he has failed to state a federal claim. Finally, I do not believe that any lesser sanction would be efficacious, given plaintiffs' repeated and willful failure to comply with my orders.
B. 28 U.S.C. § 1915 (e)(2) Dismissal
In the alternative, I dismiss this action because it is "frivolous" and "fails to state a claim on which relief may be granted." 28 U.S.C. § 1915 (e)(2)(B)(i) (ii).
First, plaintiffs may not maintain constitutional claims against Iannacone because he was not a state officer and therefore did not act under color of state law. See Polk County v. Dodson, 454 U.S. 312, 318 (1981) ("[A] lawyer representing a client is not, by virtue of being an officer of the court, a state actor `under color of state law' within the meaning of § 1983."). Moreover, Leybinsky does not allege, nor can his pleadings reasonably be construed as alleging, that Iannacone entered into a conspiracy with state officials in order to deprive Leybinsky of his constitutional rights. See Tower v. Glover, 467 U.S. 914, 919, 923 (1984).
Second, to the extent plaintiffs seek to have this Court exercise supplemental jurisdiction over their state law claims, I refuse to do so given the dismissal of the federal causes of action. See 28 U.S.C. § 1367 (c)(3). Moreover, plaintiffs have not alleged the existence of diversity jurisdiction, nor could they given that all parties appear to be residents of New York.
CONCLUSION
For these reasons, the complaint is dismissed. The Clerk is directed to enter judgment against plaintiffs and close this case.
So Ordered.