Moskovits v. Bank of America, N.A.
21-886-cv
| 2d Cir. | Apr 19, 2022Background:
- In Dec. 2018 Moskovits (pro se, resident of Brazil) sued Bank of America and others in New York state court over alleged business disputes; related filings allegedly included inflammatory and threatening material.
- Justice Barry Ostrager issued a sealing order limiting access to the state-court docket entries to parties and the court; Moskovits appealed the sealing order.
- While that appeal was pending, Moskovits filed a federal suit naming Bank of America, counsel for the parties, Grigsby, Justice Ostrager (in his individual and judicial capacities), and Does 1–10, alleging violations of 42 U.S.C. §§ 1983, 1985, 1988, the Alien Tort Statute (based on UDHR provisions), and "fraud on the court."
- The district court dismissed the original and amended complaints sua sponte under 28 U.S.C. § 1915(e)(2)(B)(ii)–(iii), holding that Justice Ostrager and certain defendants were immune and that the pleadings failed to state plausible claims.
- On appeal, the Second Circuit affirmed, concluding (inter alia) that judicial/quasi‑judicial immunity barred the suit, the ATS and §1983/§1985/§1988 claims were inadequately pleaded, and the "fraud on the court" allegation was not plausible. The court also denied various post-judgment motions.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether judicial/quasi-judicial immunity bars suit against Justice Ostrager (and related actors) | Ostrager is sued individually for actions related to the sealing order; Moskovits contends judicial acts violated his rights | Ostrager and others assert absolute judicial or quasi‑judicial immunity for protected judicial acts | Court: Immunity bars the suit; dismissal affirmed on immunity grounds |
| Whether claims under 42 U.S.C. §§ 1983, 1985, 1988 state a claim | Moskovits alleges conspiracy and constitutional deprivations tied to sealing and related proceedings | Defendants argue the pleadings fail to allege plausible constitutional violations or conspiracies | Court: Claims fail to state a claim; dismissal affirmed |
| Whether the Alien Tort Statute claim (based on UDHR Article 10/19) is viable | Moskovits relies on UDHR Article 10 (and later asserted Article 19) and other international-law principles under ATS | Defendants argue ATS does not cover these UDHR-based claims and pleadings are inadequate and were not properly raised below | Court: ATS claim not sufficiently pleaded or properly raised on appeal; argument rejected/not considered |
| Whether "fraud on the court" was adequately alleged | Moskovits alleges judicial and counsel misconduct amounting to fraud on the court | Defendants argue allegations do not show fraud that corrupts the judicial process or is perpetrated by court officers | Court: Allegations fail to plausibly plead fraud on the court; dismissed |
| Whether the district court could dismiss sua sponte under § 1915 even though plaintiff paid filing fee | Moskovits contends § 1915 dismissal power only applies to in forma pauperis plaintiffs | Defendants cite authority allowing sua sponte dismissal of frivolous claims even when fee paid | Court: Sua sponte dismissal of frivolous claims permitted even if the filing fee was paid; dismissal valid |
Key Cases Cited
- Hardaway v. Hartford Pub. Works Dep’t, 879 F.3d 486 (2d Cir. 2018) (de novo review of §1915 dismissals)
- Transaero, Inc. v. La Fuerza Area Boliviana, 24 F.3d 457 (2d Cir. 1994) (definition and standard for "fraud on the court")
- Kupferman v. Consol. Rsch. & Mfg. Corp., 459 F.2d 1072 (2d Cir. 1972) (fraud-on-the-court standard)
- Gleason v. Jandrucko, 860 F.2d 556 (2d Cir. 1988) (fraud-on-the-court requires conduct that undermines adjudicative integrity)
- In re Arab Bank, PLC Alien Tort Statute Litig., 808 F.3d 144 (2d Cir. 2015) (appellate principle that a court may affirm on any grounds supported by the record)
- Fitzgerald v. First E. Seventh St. Tenants Corp., 221 F.3d 362 (2d Cir. 2000) (district courts may dismiss frivolous complaints sua sponte even when filing fee paid)
- LoSacco v. City of Middletown, 71 F.3d 88 (2d Cir. 1995) (issues not argued on appeal are deemed waived)
- Greene v. United States, 13 F.3d 577 (2d Cir. 1994) (appellate courts generally will not consider issues raised first on appeal)