Opinion
01 Civ. 5605 (LAK)(FM)
November 12, 2002
REPORT AND RECOMMENDATION TO THE HONORABLE LEWIS A. KAPLAN
This Report and Recommendation was prepared with the able assistance of Efram Friedman, a student at Fordham Law School.
I. Introduction
On May 21, 2002, this case was remanded to me for reconsideration after pro se plaintiff Melanie Tarka presented evidence not previously considered by me as part of her objections to my April 12, 2000 Report and Recommendation. (See Docket No. 11). In that Report and Recommendation, I recommended that the complaint be dismissed, pursuant to Fed.R.Civ.P. 4(m), because Ms. Tarka failed to effect proper service on defendant Bernard Armstrong within 120 days after this action was filed. (See Docket No. 8). I made that recommendation after an evidentiary hearing at which Mr. Armstrong's counsel also sought to file a motion which urged, among other relief, that this action be dismissed on several grounds, including the Eleventh Amendment, res judicata, and collateral estoppel.
Following the remand, I eventually instructed Ms. Tarka to respond first to the collateral estoppel and res judicata aspects of Mr. Armstrong's motion. (See Docket No. 15). In addition to those issues, her opposition memorandum of law addressed Mr. Armstrong's contentions concerning the Eleventh Amendment. (See Tarka Mem. of L. at 2). Having reviewed the parties' submissions, it is clear that Ms. Tarka cannot pursue this action against Mr. Armstrong to the extent (if at all) that she is suing him in his official capacity. Of far greater importance, it also is clear that Ms. Tarka filed a prior action in this District arising out of the same facts and is therefore precluded from litigating anew against Mr. Armstrong in this suit. Accordingly, as set forth in greater detail below, I recommend that the complaint in this action be dismissed with prejudice.
II. Relevant Facts A. Action No. 1
On February 18, 2000, Ms. Tarka commenced a pro se action in this District ("Action N o. 1") against the law firm of Greenfield Stein Senior LLP, several members of that firm, and Mr. Armstrong. She subsequently filed a "First Amended Complaint" on May 23, 2000. (See Aff. of Ass't Att'y Gen. Carolyn Cairns Olson, sworn to on April 10, 2002 ("Olson Aff."), Ex. A). As in the present action, Ms. Tarka named Mr. Armstrong "Individually, as the Clerk of the Surrogate's Court of New York County." (Id.). Also, as in the present action, Ms. Tarka's complaint noted that Mr. Armstrong had acted "under the color of his authority as clerk of the Surrogate's Court," but was being "sued in his individual capacity." (Id. ¶ 12).
The corresponding allegations in the present action may be found in paragraph 5 of Ms. Tarka's complaint. (See Docket No. 1).
Ms. Tarka alleged in Action No. 1 that she had filed a "legal malpractice action" in Surrogate's Court as a consequence of her former lawyers' inept handling of several matters arising out of the death of her mother. (Id. ¶¶ 1, 2, 19). Thereafter, according to the complaint, several documents that Ms. Tarka had filed in the malpractice action were removed from the official court file. (Id. ¶ 1). Ms. Tarka alleged that several Surrogate's Court employees, including Mr. Armstrong, had conspired with at least one of her former attorneys to remove those documents from the court file during the pendency of the malpractice action, thereby obstructing her ability to obtain appellate review. (Id. ¶ 20). Although the complaint set forth thirteen causes of action, Mr. Armstrong was only named in the first cause of action, which alleged the existence of a conspiracy to deprive Ms. Tarka of her constitutionally-protected right to petition the government for redress of her grievances. (Id. ¶¶ 15-51). The remaining twelve counts of the First Amended Complaint alleged various state law claims against the law firm defendants. (Id. ¶¶ 52-253).
After he was served with the First Amended Complaint in Action No. 1, Mr. Armstrong filed an answer in which he denied Ms. Tarka's allegations and asserted a number of affirmative defenses, including defenses based on "absolute judicial and quasi-judicial immunity" and the Eleventh Amendment. (See Olson Aff. Ex. B, ¶¶ 56-57). Mr. Armstrong's law firm co-defendants, rather than answering, moved to dismiss the First Amended Complaint for lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted. (See Action No. 1, 00 Civ. 1262, Docket Nos. 7-9).
In an Opinion and Order dated August 8, 2000, Judge Scheindlin granted the law firm defendants' motion. Tarka v. Greenfield Stein Senior LLP, 2000 WL 1121557, at *1 (S.D.N.Y. Aug. 8, 2000). With respect to the federal law claim, Judge Scheindlin found that Ms. Tarka "has offered no facts suggesting the existence of a conspiracy of any sort." Id. at *3. With respect to the state law claims, Judge Scheindlin held that diversity jurisdiction existed, but nevertheless granted the law firm defendants' motion because, on the day that Ms. Tarka instituted Action No. 1, she also filed "a virtually identical action in New York State Supreme Court." Id. at *2-*7. Judge Scheindlin determined that Action No. 1 therefore presented "a unique case" in which Colorado River abstention was appropriate. Id. at *7.
A Lexis search indicates that Ms. Tarka's state court suit against the law firm defendants was disposed of on October 16, 2000.
In the conclusion section of her Opinion and Order, Judge Scheindlin granted the "defendants'" motion to dismiss. Id. Although Judge Scheindlin had defined the term "defendants" to refer solely to the moving law firm defendants, id. at *1 n. 1, it is clear that the intent of her Opinion and Order was to dismiss Action No. 1 in its entirety since she observed that the granting of the law firm defendants' motion rendered the action against Mr. Armstrong "moot" and directed the Clerk of the Court to "close this case." Id. at *3 n. 4, *7. Consistent with Judge Scheindlin's directive, on August 11, 2000, the Clerk of the Court entered a judgment which closed Action No. 1. (See Action No. 1, 00 Civ. 1262, Docket No. 21).
On August 28, 2000, Ms. Tarka moved to vacate the Opinion and Order in Action No. 1. (See Olson Aff. Ex. D). Finding that Ms. Tarka had failed to demonstrate that there was any controlling decision or data that the Court had overlooked, Judge Scheindlin denied that motion within a matter of weeks. (Id. Ex. E). Ms. Tarka then filed a notice of appeal from both the original Opinion and Order and the order denying reconsideration. (Id. Ex. F). On January 30, 2001, the appeal was dismissed as a consequence of Ms. Tarka's failure to comply with the Second Circuit's scheduling order. (Id. Ex. G).
B. Action No. 2
Ms. Tarka's complaint in the present action ("Action No. 2") names as defendants Mr. Armstrong and four other Surrogate's Court employees identified as John and Jane Doe court attorneys and John and Jane Doe clerks. (Tarka Aff. Ex. 7). Unlike Action No. 1, Ms. Tarka has not joined the law firm or any of its partners as defendants in this suit. (Id.). The complaint alleges, however, that Ms. Tarka's former law firm "enjoy[s] a close relationship with the Surrogate's Court" as a consequence of such activities as contributing to judicial election campaigns. (Id. ¶ 11). She alleges, on information and belief, that these activities, in turn, led to an "agreement" between Mr. Armstrong and others unknown "to defeat [her malpractice] lawsuit as a personal favor to the law firm and its attorneys." (Id. ¶¶ 12, 13). According to the complaint, either Mr. Armstrong or one of the unidentified defendants removed or discarded certain documents from the official Surrogate's Court file regarding her malpractice claim in furtherance of that agreement. (Id. ¶¶ 14-36).
III. Discussion A. Eleventh Amendment
Ms. Tarka's complaint in Action No. 2 states that she has named Mr. Armstrong individually, but also indicates that she is suing him "as Clerk of the Surrogate's Court." (See Olson Aff. Ex. A). Although it is unclear from the complaint alone whether Mr. Armstrong is being sued in his personal capacity, his official capacity, or both, Ms. Tarka's opposition papers indicate that she seeks to recover damages from him only in his personal capacity. (See Tarka Mem. of L. at 2). As Ms. Tarka evidently recognizes, it is settled law that the Eleventh Amendment renders a state or its agency immune from suit in federal court, where, as here, there has been no consent to be sued.
See, e.g., Papasan v. Allain, 478 U.S. 265, 276, 106 S.Ct. 2932, 2939, 92 L.Ed.2d 209 (1986); Pennhurst State Sch. Hosp. v. Halderman, 465 U.S. 89, 100-02, 104 S.Ct. 900, 907-09, 79 L.Ed.2d 67 (1984); Melo v. Combes, 1998 WL 67667, at *3 (S.D.N.Y. Feb. 18, 1998) (Koeltl, J.). Moreover, when officials are sued in their official, rather than their personal capacities, the state is the real party in interest. Id. Accordingly, even if Ms. Tarka had not conceded the correctness of Ms. Tarka's position, any effort on her part to recover damages from Mr. Armstrong in his official capacity would be barred by the Eleventh Amendment. See, e.g., Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261, 269-70, 117 S.Ct. 2028, 2034, 138 L.Ed.2d 438 (1997).
B. Res Judicata
More importantly, because Ms. Tarka previously named Mr. Armstrong as a defendant in Action No. 1, her present claims are barred by the doctrine of res judicata.
"To prove that a claim is precluded under this doctrine, 'a party must show that (1) the previous action involved an adjudication on the merits; (2) the previous action involved the [parties] or those in privity with them; [and] (3) the claims asserted in the subsequent action were, or could have been, raised in the prior action.'" Pike v. Freeman, 266 F.3d 78, 91 (2d Cir. 2001) (quoting Monahan v. New York City Dep't of Corr., 214 F.3d 275, 285 (2d Cir. 2000)); accord Cieszkowska v. Gray Line N.Y., 295 F.3d 204, 205 (2d Cir. 2002) (per curiam); Flaherty v. Lang, 199 F.3d 607, 612 (2d Cir. 1999). "The policies underlying res judicata reflect the sensible goal that where possible all related claims be resolved in one proceeding." Epperson v. Entm't Express, Inc., 242 F.3d 100, 109 (2d Cir. 2001). Accordingly, "[e]ven claims based upon different legal theories are barred provided they arise from the same transaction or occurrence." Cieszkowska, 295 F.3d at 205 (quoting L-Tec Elecs. Corp. v. Cougar Elec. Org., Inc., 198 F.3d 85, 88 (2d Cir. 1999) (per curiam) (internal quotation m arks omitted).
Here, the dismissal of Action No. 1 for failure to state a claim for relief constituted a judgment on the merits, Federated Dep't Stores, Inc. v. Moitie, 452 U.S. 394, 399 n. 3, 101 S.Ct. 2424, 2428 n. 3, 69 L.Ed.2d 103 (1981); Lipin v. Nat'l Union Fire Ins. Co. of Pittsburgh, Pa., 202 F. Supp.2d 126, 136 (S.D.N.Y. 2002); Fed.R.Civ.P. 41(b), which became final upon the dismissal of Ms. Tarka's appeal for want of prosecution. Additionally, as the pleadings make clear, both Ms. Tarka and Mr. Armstrong were parties to the earlier suit. Although Ms. Tarka chose not to name the law firm defendants in Action No. 2 and studiously avoided the use of the word "conspiracy" in her complaint, it also is evident that both cases arise out of the same set of facts.
Consequently, the claims that Ms. Tarka seeks to assert in Action No. 2 are barred by res judicata.
Ms. Tarka's opposition papers advance three reasons why the judgment in Action No. 1 should not be given preclusive effect. First, she asserts that Judge Scheindlin's Opinion and Order does not constitute a final judgment against Mr. Armstrong because the Court "did not consider the claims against Armstrong and the other [S]urrogate's [C]ourt employees." (See Tarka Mem. of L. at 3). Contrary to this contention, Judge Scheindlin specifically held that "the action against Armstrong" was "moot" because the complaint did not set forth any "facts suggesting the existence of a conspiracy of any sort." Tarka, 2000 WL 1121557, at *3 n. 4. The judgment closing Action No. 1 subsequently entered by the Clerk of the Court consequently constitutes a judgment with respect to Ms. Tarka's claims against Mr. Armstrong.
Ms. Tarka next asserts that the claims and defendants in the two federal lawsuits are not the same because Action No. 1 alleged a Section 1983 conspiracy between the law firm defendants and the Surrogate's Court employees while Action No. 2 is not brought against the law firm defendants and contains no such conspiracy claims. (See Tarka Mem. of L. at 4-6). For res judicata to apply, however, it is not necessary that the claims in the second suit be identical to those previously litigated and decided.
Rather, the movants need only show that the second suit arises from the same transaction or occurrence or series of transactions or occurrences. See Cieszkowska, 295 F.3d at 205; L-Tec Elecs. Corp., 198 F.3d at 88; see also Saud v. Bank of N.Y., 929 F.2d 916, 919 (2d Cir. 1991) (quoting Expert Elec., Inc. v. Levine, 554 F.2d 1227, 1234 (2d Cir. 1977)) ("it is the facts surrounding the transaction or occurrence which operate to constitute the cause of action, not the legal theory upon which a litigant relies") (internal quotation marks omitted). In this case, because Action No. 2 arises out of the same nucleus of facts as Action No. 1, Ms. Tarka's effort to advance new legal theories cannot salvage her suit.
Finally, Ms. Tarka contends that she was not afforded a full and fair opportunity to litigate a First Amendment claim that she now seeks to assert in Action No. 2. (See Tarka Mem. of L. at 6-7). Under res judicata, however, the precluded claim need not actually have been litigated; rather, it need only be shown that the party seeking to assert the claim had a full and fair opportunity to bring it in the prior proceeding.
Indeed, even a judgment awarded by default may serve as the basis for assertion of res judicata as a defense. See Morris v. Jones, 329 U.S. 545, 550-51, 67 S.Ct. 451, 455, 91 L.Ed. 488 (1947). Inasmuch as Ms. Tarka could have incorporated her present claims into her prior suit, res judicata bars her from filing a new suit arising out of facts which she previously has presented to this Court.
IV. Conclusion
For the foregoing reasons, Ms. Tarka's complaint in this action should be dismissed, and she should be cautioned not to file any further lawsuits against Mr. Armstrong relating to the allegedly missing Surrogate's Court documents.
V. Notice of Procedure for Filing of Objections to this Report and Recommendation
The parties are hereby directed that if they have any objections to this Report and Recommendation, they must, within ten days from today, make them in writing, file them with the Clerk of the Court, and send copies to the chambers of the Honorable Lewis A. Kaplan, United States District Judge, and to the chambers of the undersigned, at the United States Courthouse, 500 Pearl Street, New York, New York 10007, and to any opposing parties. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e), 72(b). Any requests for an extension of time for filing objections must be directed to Judge Kaplan. Any failure to file timely objections will result in a waiver of those objections for purposes of appeal. See Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e), 72(b).