Opinion
01 Civ. 6979 (GBD) (GWG)
December 16, 2003
REPORT AND RECOMMENDATION
I. BACKGROUND
In his amended complaint, pro se plaintiff Dennever Livingston asserts claims against the defendants under 42 U.S.C. § 1983, 42 U.S.C. § 1985 and 18 U.S.C. § 242. See Amended Complaint, filed June 18, 2002 (Docket #12) ("Am. Compl."). In brief, the amended complaint alleges that, after his 1997 federal conviction of various money laundering and drug trafficking charges, Livingston contacted defendant attorney Kenneth Schreiber of the law offices of defendant Sparrow, Singer Schreiber, Esqs. in order to pursue a criminal appeal. Id. at 2-3. Schreiber referred him to defendant attorney Gino Singer. Id. at 3. Livingston alleges that he retained Singer and paid him $50,000 to represent him in his appeal but that Singer failed to file appellate briefs and to maintain contact with him. Id. at 3-4. Subsequently, Livingston secured alternate counsel and perfected his appeal. Id. at 3. Ultimately, Livingston's conviction was vacated in part, though his 30-year prison sentence was affirmed in full. See United States v. Stewart, 256 F.3d 231, 241-54, 257 (4th Cir. 2001), cert. denied, 535 U.S. 977 (2002).
The amended complaint incorrectly spells Schreiber as "Shriber."See Affidavit of Kenneth J. Schreiber, dated November 27, 2002 ("Schreiber Aff") (reproduced in Notice of Motion, filed December 10, 2002 (Docket #26) ("Notice of Motion")), at 4 n. 2.
Singer is not at Schreiber's law firm and is unrelated to the "Singer" in the name of that firm. See Schreiber Aff. at 1 n. 1; Affidavit of Gino Josh Singer, dated December 3, 2002 ("Singer Aff") (reproduced in Notice of Motion), at 1 n. 1.
The complaint essentially seeks money damages for the defendants' alleged failure to provide adequate legal services. Defendants have now moved for summary judgment arguing that the federal claims must be dismissed and that the Court lacks jurisdiction over the complaint to the extent that it could be construed as attempting to raise a state law contract claim on the basis of diversity jurisdiction. For the reasons below, the defendants' motion should be granted.
II. DISCUSSION
A. Summary Judgment Standard
Summary judgment may not be granted unless "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c): see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). A material issue is a "dispute over facts that might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby. Inc. 477 U.S. 242, 248 (1986). A genuine issue of material fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. Thus, "'[a] reasonably disputed, legally essential issue is both genuine and material'" and precludes a finding of summary judgment. McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (quoting Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996)).
When determining whether a genuine issue of material fact exists, courts must resolve all ambiguities and draw all factual inferences in favor of the nonmoving party. See, e.g., Savino v. City of New York, 331 F.3d 63, 71 (2d Cir. 2003) (citing Anderson, 477 U.S. at 255); McPherson, 174 F.3d at 280. Nonetheless, "mere speculation and conjecture is insufficient to preclude the granting of the motion." Harlen Assocs. v. Incorporated Vill. of Mineola, 273 F.3d 494, 499 (2d Cir. 2001) (citing Western World Ins. Co. v. Stack Oil. Inc., 922 F.2d 118, 121 (2d Cir. 1990)).
In this case, the defendants properly served a notice on Livingston, as a pro se litigant, warning him of the consequences of any failure to oppose their motion, as required by Local Civil Rule 56.2.See Notice to Pro Se Litigant Opposing Summary Judgment, filed December 10, 2002 (Docket #25). Livingston has submitted papers in opposition to the defendants' motion. See Motion in Opposition to Summary Judgement [sic], filed March 10, 2003 (Docket #32) ("PI. Opp.").
B. The Federal Claims
To state a viable claim under 42 U.S.C. § 1983, Livingston must show that the defendants acted "under color of a state "statute, ordinance, regulation, custom, or usage." Absent special circumstances suggesting a concert of action or conspiracy between a private individual and a state official, see Tower v. Glover, 467 U.S. 914, 923 (1984); Adickes v. S.H. Kress Co. 398 U.S. 144, 152 (1970); Fries v. Barnes, 618 F.2d 988, 990-91 (2d Cir. 1980), private parties are not generally liable under section 1983. See, e.g., Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999);Rendell-Baker v. Kohn, 457 U.S. 830, 838-43 (1982); Flagg Bros, v. Brooks, 436 U.S. 149, 155-57 (1978); Leeds v. Meltz, 85 F.3d 51, 54 (2d Cir. 1996). Here, even giving his submissions a liberal construction, see, e.g., Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (per curiam), Livingston does not allege nor is there any factual basis for claiming that defendants took any action under color of state law. In representing Livingston, Singer was engaged in purely private conduct. There is no suggestion of any state involvement necessary to transform his private acts into state action. While Livingston alleges that defendants "are all officers of the Court and as such acted under the color of law," P1. Opp. ¶ 12, it is well-established that private attorneys, despite their status as officers of the court, do not act under color of state law for purposes of section 1983. See, e.g., Polk County v. Dodson, 454 U.S. 312, 320-325 (1981); Greene v. Berger Montague. P.C. 1998 WL 99574, at *3 (S.D.N.Y. Mar. 5, 1998); Srubar v. Rudd, Rosenberg, Mitofsky Hollender, 875 F. Supp. 155, 163 (S.D.N.Y. 1994),aff'd, 71 F.3d 406 (2d Cir. 1995). Therefore, Livingston's claim under section 1983 must be dismissed.
Livingston's civil rights conspiracy claim under 42 U.S.C. § 1985 is also devoid of merit. Although it is not clear from his submissions, it would appear that Livingston's claim is under the third clause of section 1985. To prevail on a claim under section 1985(3), a plaintiff must demonstrate that defendants "(1) engaged in a conspiracy; (2) for the purpose of depriving, either directly or indirectly, any person or class of persons the equal protection of the laws, or the equal privileges and immunities under the laws; (3) acted in furtherance of the conspiracy; and (4) deprived such person or class of persons the exercise of any right or privilege of a citizen of the United States." N.Y. State Nat'l Org. for Women v. Terry, 886 F.2d 1339, 1358 (2d Cir. 1989) (citing Griffin v. Breckenridge, 403 U.S. 88, 102-03 (1971)), cert. denied, 495 U.S. 947 (1990). While section 1985(3), unlike section 1983, encompasses private conspiracies, see, e.g., Griffin, 403 U.S. at 101, 104, a plaintiff must nevertheless show "some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action,"id. at 102; accord Thomas v. Roach, 165 F.3d 137, 146 (2d Cir. 1999).
Here, Livingston has not alleged any "conspiracy" to deprive him of a protected right. The only involvement of Schreiber in the acts complained of was his referral of Singer. See Am. Compl. at 3. There is no allegation that Schreiber had any part in any subsequent discussions between Livingston and Singer or in any way assisted Singer in his representation of Livingston. See also Schreiber Aff. at 3 ("I know absolutely nothing of that which transpired between [Livingston] and [Singer] after I provided members of [Livingston's] family and/or his friends with [Singer's] name."). Thus, without showing the involvement of at least two participants, Livingston has not shown there was any "conspiracy" under section 1985(3). Moreover, to the extent Livingston alleges that the defendants conspired to commit "hate crimes" against him because he could speak only a limited amount of English, Am. Compl. at 4, this sort of conclusory allegation is also insufficient to state a claim under section 1985(3). See, e.g., Posr v. Court Officer Shield No. 207, 180 F.3d 409, 419 (2d Cir. 1999) ("The mere assertion of racial motivation is not sufficient to state a conspiracy claim [absent] facts sufficient to support a conclusion of race-based animus." (citingGraham, 89 F.3d at 82)).
Finally, Livingston's claim under 18 U.S.C. § 242 is also without merit because the statute is criminal in nature and provides no civil or private right of action. See, e.g., Dugar v. Coughlin, 613 F. Supp. 849, 852 n. 1 (S.D.N.Y. 1985); Powell v. Kopman, 511 F. Supp. 700, 704 (S.D.N.Y. 1981); Sauls v. Bristol-Myers Co., 462 F. Supp. 887, 889 (S.D.N.Y. 1978); Williams v. Halperin, 360 F. Supp. 554, 556 (S.D.N.Y. 1973).
In sum, Livingston has not alleged any claim under federal law and therefore all of these claims must be dismissed.
C. Diversity Jurisdiction
Livingston does not specifically state that he seeks relief under a state law breach of contract theory. But as his papers liberally construed appear to state such a claim, the Court will assume he intended to include it. Livingston does adequately allege that Singer failed to fulfill his contract to provide legal services. His papers can also be liberally construed as alleging that Singer is a citizen of the State of New York and that Livingston is a citizen of the State of Georgia and/or is a "subject of a foreign state," 28 U.S.C. § 1332(a)(2). See generally Am. Compl. at 1-2.
The missing element of Livingston's complaint is that the amount-in-controversy does not exceed $75,000 as required by 28 U.S.C. § 1332(a). Defendants have moved to dismiss on this basis.See Joint Memorandum of Law Submitted on Behalf of Defendants Gino Singer and Kenneth Shriber, filed December 10, 2002 (Docket #27), at 13. Livingston, as the party asserting diversity jurisdiction, has the burden of establishing the existence of the jurisdictional amount-in-controversy. See, e.g., Lupo v. Human Affairs Int'l. Inc., 28 F.3d 269, 273 (2d Cir. 1994) (citing McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189 (1936)).
While Livingston's complaint alleges compensatory damages of $10 million and punitive damages of $10 million as against each defendant, Am. Compl. at 6, the Court is not bound by the amount claimed in his ad damnum clause if it appears "to a legal certainty that the claim is really for less than the jurisdictional amount," Ocean Ships. Inc. v. Stiles, 315 F.3d 111, 115 (2d Cir. 2002) (citing St. Paul Mercury Indem. Co. v. Red Cab Co. 303 U.S. 283, 288-89 (1938)); see Pirenne Python Schifferli Peter Associes v. Wyndham Partners. L.P., 1995 WL 261512, at *2 (S.D.N.Y. May 3, 1995) (the "legal certainty" test is "clearly" met "when the terms of a contract limit the plaintiffs possible recovery" (citing 14A Charles A. Wright et al., Federal Practice and Procedure § 3702, at 48-50 (2d ed. 1985))).
In determining the amount-in-controversy, interest and costs are excluded. 28 U.S.C. § 1332(b). Additionally, "[t]he Second Circuit has held that attorney's fees may be used to satisfy the amount in controversy only where they are recoverable as of right pursuant to statute or contract." In re Ciprofloxacin Hydrochloride Antitrust Litig., 166 F. Supp.2d 740, 755 (E.D.N.Y. 2001) (citing Givens v. W.T. Grant Co. 457 F.2d 612, 614 (2d Cir.), vacated on other grounds, 409 U.S. 56 (1972)); accord Maxons Restorations. Inc. v. Newman, 2003 WL 22743023, at *4 (S.D.N.Y. Nov. 19, 2003).
Here, Livingston fails to allege facts to support a claim for damages in excess of the statutory amount. Beginning with compensatory damages, all that is left of the complaint following dismissal of the federal civil rights claims is a claim for breach of contract in the amount of $50,000 — the amount of fees allegedly paid by Livingston to Singer. Livingston does not allege that he paid any monies to any other defendant. Nor does he allege any factual basis to support a claim for compensatory damages in excess of $50,000. Thus, the most Livingston could recover in compensatory damages is $50,000.
As for his claim for attorneys' fees, he has no statutory right to them for the alleged breach of contract; nor has he suggested that the contract with Singer itself contained a fee-shifting provision. Thus, his unspecified claim for attorneys' fees cannot be included in calculating the amount-in-controversy.
Finally, punitive damages can be included in calculating the jurisdictional amount only if they are legally recoverable under applicable state law. See, e.g., AFA Tours. Inc. v. Whitchurch, 937 F.2d 82, 87 (2d Cir. 1991); Rosenberg v. GWV Travel, Inc., 480 F. Supp. 95, 97 (S.D.N.Y. 1979). Under New York law, it is settled that where "punitive damages are premised upon a private breach of contract, even a breach committed wilfully and without justification does not warrant the imposition of punitive damages." Keles v. Yale Univ., 889 F. Supp. 729, 735 (S.D.N.Y. 1995) (citing Halpin v. Prudential Ins. Co., 48 N.Y.2d 906, 907 (1979); Cross v. Zyburo, 185 A.D.2d 967, 968 (2d Dep't 1992); JGS. Inc. v. Lifetime Cutlery Corp., 87 A.D.2d 810, 810 (2d Dep't 1982)),aff'd, 101 F.3d 108 (2d Cir. 1996). Punitive damages may be permitted only if a plaintiff has demonstrated "a factual basis for inferring morally culpable conduct." Id.; accord N.Y. Univ. v. Cont'l Ins. Co., 87 N.Y.2d 308, 315-16 (1995) (punitive damages arising from a breach of contract are available "only in those limited circumstances where it is necessary to deter defendant and others like it from engaging in conduct that may be characterized as 'gross' and 'morally reprehensible,' and of 'such wanton dishonesty as to imply a criminal indifference to civil obligations'" (citations omitted));see also Rocanova v. Equitable Life Assurance Soc'y, 83 N.Y.2d 603, 613 (1994) ("[A] private party seeking to recover punitive damages must not only demonstrate egregious tortious conduct by which he or she was aggrieved, but also that such conduct was part of a pattern of similar conduct directed at the public generally.").
In his complaint, Livingston alleges that, after paying Singer $50,000, he spoke with Singer on three additional occasions and "had no further contact with him." Am. Compl. at 3. Thereafter, Livingston, members of his family, and a clerk from the Fourth Circuit allegedly attempted to contact Singer but to no avail. Id. Attached to his submissions are various letters written by Livingston and these other individuals to Singer. In one such letter, Livingston, apparently in response to a letter from Singer, indicates that Singer was in the process of a divorce, that this "affected [Singer's] ability to concentrate effectively on paramount matters such as my appeal" and that Singer should have "properly communicate [d] this with the Court and I your Client." Letter from Livingston to Singer, dated March 14, 2000 (reproduced in Complaint, filed July 30, 2001 (Docket #1)), at 1.
In the papers seeking summary judgment, Singer has submitted a lengthy affidavit in which he states that he did not in fact receive $50,000 and that he performed some services in pursuing the appeal but was discharged by Livingston before a brief could be filed because Livingston felt he should not have sought any extensions from the Fourth Circuit. Singer Aff. at 2 n. 3, 9-10. Livingston's response addresses none of these matters. Instead, he complains regarding the performance of the new attorney who handled his appeal, P1. Opp. ¶ 8, and appears to concede that Singer visited him in Virginia while he was in prison, id ¶ 10. Livingston does not otherwise controvert Singer's affidavit. Based on the evidence submitted as part of the summary judgment motion, Livingston's breach of contract claim does not meet New York's strict requirements for obtaining punitive damages on such a claim.
Because Livingston cannot meet the jurisdictional amount for diversity jurisdiction, the amended complaint must be dismissed. Obviously, Livingston is free to attempt to bring the breach of contract claim in state court. Conclusion
For the foregoing reasons, defendants' motion for summary judgment should be granted. The amended complaint should be dismissed without prejudice to refiling in a state court insofar as it raises a claim for breach of contract.
PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have ten (10) days from service of this Report and Recommendation to file any objections. See also Fed.R.Civ.P. 6(a), (e). Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with copies sent to the Honorable George B. Daniels, 40 Centre Street, New York, New York 10007, and to the undersigned at the same address. Any request for an extension of time to file objections must be directed to Judge Daniels. If a party fails to file timely objections, that party will not be permitted to raise any objections to this Report and Recommendation on appeal. See Thomas v. Arn, 474 U.S. 140 (1985).