Davey v. DolanDavey v. Dolan
MEMORANDUM OPINION AND ORDER
Plaintiff Peter F. Davey (“plaintiff’), an attorney proceeding pro se, brings this diversity action against defendants Regina A. Dolan and Mary R. Davey. The Complaint alleges various claims for relief relating to the events surrounding his divorce. Defendants have moved separately to dismiss the Complaint for failure to state a claim upon which relief can be granted, see Fed.R.Civ.P. Rule 12(b)(6), and for reimbursement of legal fees and expenses under 28 U.S.C. § 1927.
For the reasons set forth below, the Court grants defendants’ motions [10, 13] and dismisses plaintiffs claims with prejudice. 1
BACKGROUND
The following undisputed facts are taken from plaintiffs Complaint and from prior court proceedings of which the Court may take judicial notice. Plaintiff brings this action against his former wife, defendant Mary R. Davey, and her sister, defendant Regina A. Dolan, due to events stemming from dissolution of his marriage. Plaintiff and Mary Davey were married and resided together as husband and wife until June 21,2000. (Compl.HlO.) On June 21, 2000, Mary Davey telephoned thе police to report an alleged incident of domestic violence. (See Compl. ¶¶ 41, 50.) Plaintiff was arrested as a result of this incident. (See Compl. ¶¶ 54, 56.)
As a result of this arrest, on or about July 7, 2000, Mary Davey obtained a temporary order of protection from New York Family Court excluding plaintiff from the marital household and from contact with his minor children. (See Compl. ¶ 76.) The criminal charges against plaintiff were dropped on July 10.(M)
Mary Davey instituted divorce proceedings against plaintiff on July 14, 2000.
Davey v. Davey,
N.Y. Sup.Ct. Westchester Cty. Index No. 10437/00, Complaint July 14, 2000. The issue of fault in the divorce was tried before Acting Justice Bruce E. Tolbert in a jury trial from January 29 to February 1, 2001. Justice Tolbert granted a directed verdict in Mary Davey’s favor. The decision was reversed by the Appellate Division on April 1, 2002.
Davey v. Davey,
Plaintiff alleges that Mary Davey gave contradictory testimony during the two trials and that her testimony is therefore perjurious. Plaintiff has attached the testimony in question to his Complaint as exhibits. (Compl.Exs.A, B). Mary Davey maintains that her answer at the original trial was sardonic and that plaintiff is misreading her testimony.
The remainder of the divorce action proceeded over the next several years, and on July 6, 2004, the New York Supreme Court, Acting Justice Fred L. Shapiro, entered a final judgment of divorce.
Davey v. Davey,
No. 10437/00 (New York Sup.Ct. Westchester Cty. July 12, 2004)
On November 30, 2001, while the divorce action was still pending, plaintiff filed a collateral complaint nearly identical to the instant Complaint against Mary Davey, her brother Kevin J. Dolan, her attorneys Mary F. Kelly and Bruce Bendish, and their respective law firms. Davey v. Dolan, N.Y. Sup.Ct. New York Cty. Index No. 112002/01, Complaint Nov. 30, 2001 (hereinafter, “November 2001 Action”) (Kelly Decl., Nov. 3, 2005, Ex. 3). That complaint, like the instant one, alleged that Mary Davey made false statements to police offiсers leading to plaintiffs arrest for domestic assault, that she did so in order to gain an advantage in planned divorce proceedings, and that her testimony at the two trials was contradictory and perjurious. Additionally, the complaint sought relief against Kevin Dolan for aiding Mary Davey during the incidents surrounding plaintiffs arrest and divorce and for testifying against him at trial. The complaint sought relief in the sum of two million dollars.
On April 19, 2002, the New York County Supreme Court held that Bruce Bеndish and his firm, while named in the caption, were never properly added as parties.
Davey v. Dolan,
No. 112002/01 (N.Y. Sup. Ct. New York Cty. Apr. 19, 2002) (Kelly Decl., Nov. 3, 2005, Ex. 6; Tompkins Decl., Ex. B.). The court also dismissed the claims against Kevin Dolan in the November 2001 Action, holding that there was no cognizable cause of action against Kevin Dolan for testifying against plaintiff at trial or for aiding his sister during her divorce. The court likewise dismissed plaintiffs claims against Mary Kelly and her firm for failure to state a cognizable cаuse of action. The court’s decision was affirmed by the Appellate Division on September 4, 2003.
Davey v. Dolan,
On September 15, 2003, plaintiff sued Mary Kelly, Bruce Bendish, and their firms again, this time alleging “false arrest, malicious prosecution, abuse of proсess, defamation, fraud, etc.” Davey v. Bendish, N.Y. Sup.Ct. New York Cty. Index No. 116183/03 (hereinafter “September 2003 Action”).
On December 11, 2003, plaintiff decided to try yet again against the Dolan family, filing a second collateral complaint Mary Davey’s sister Regina Dolan and his own son Keith P. Davey, and bringing additional claims against Bruce Bendish and his firm.
Davey v. Bendish,
N.Y. Sup.Ct. New York Cty. Index No. 109975/03, Complaint Dec. 11, 2003 (hereinafter “Decern-
On April 2, 2004, the Supreme Court, Justice Joan A. Madden, dismissed Regina Dolan from the December 2003 Action because of plaintiffs failure to properly serve the defendant. Davey v. Bendish, No. 109975/03 (N.Y. Sup.Ct. New York Cty. Apr. 2, 2004), appeal dismissed by Order dated May 17, 2005 (App. Div. 1st Dep’t 2005) (Tompkins Deck, Ex. D, E).
On July 12, 2004, Justice Madden dismissed Kelly and her firm from the September 2003 Action and dismissed Bruce Bendish and his firm from the December 2003 Action on res judicata and collateral estoppel grounds, citing the previous actions that plaintiff had brought against them and the complaint’s failure to state a cause of action against them. Justice Madden further ordered that plaintiff obtain permission from the court before bringing any further litigation related to this matter. Davey v. Bendish, No. 116183/03 (N.Y. Sup.Ct. New York Cty. July 12, 2004) (Kelly Deck, Ex. 9); Davey v. Bendish, No. 109975/03 (N.Y. Sup.Ct. New York Cty. July 12, 2004).
On September 8, 2004, Justice Madden dismissed Keith Davey, the sole remaining defendant in the December 2003 Action, because of plaintiffs failure to state a cause of action against Davey. Justice Madden also found that the suit against Keith Davey was barred by collateral es-toppel, noting that plaintiff had a full and fair opportunity to litigate his issues in his earlier suit against Kevin Dolan and had failed to state a cognizable cause of action then as well. Justice Madden ordered once again that plaintiff be required tо obtain leave of the court before bringing any further litigation. Davey v. Bendish, No. 109975/03 (N.Y. Sup.Ct. New York Cty. Sept. 8, 2004).
In September of 2005, in violation of the earlier order by Justice Madden barring plaintiff from bringing further litigation without leave of the court, plaintiff filed a third complaint against Mary Kelly, her law firm, and the purchaser of the Daveys’ marital residence. Davey v. Kelly, New York Sup.Ct. New York Cty. Index No. 117426/2005, Complaint Sept. 2005. The claims against Kelly and her firm alleged the same causes of action as those brought in previous suits. On March 10, 2006, the New York County Supreme Court found that the claims against Kelly and her firm were barred by res judicata and ordered a hearing to determine the amount of costs, attorneys’ fees, and sanctions to be imposed on plaintiff. Davey v. Costello, No. 602139/05 (N.Y. Sup.Ct. New York Cty. Mar. 10, 2006).
On August 12, 2005, plaintiff brought the instant suit against Regina Dolan and Mary Davey in federal court, seeking seven million dollars in damages for wrongs arising from the events surrounding his divorce. On November 4, 2005, defendants moved separately to dismiss the Complaint for failure to state a claim upon which relief can be granted, see Fed. R.Civ.P. Rule 12(b)(6), and for reimbursement of legal fees and expenses under 28 U.S.C. § 1927.
DISCUSSION
1. Plaintiff’s Claims Against Regina Dolan
Under the Federal Rules of Civil Procedure, a complaint must set out a short and plain statement of the claim showing that the pleader is entitled to relief. Fed. R.Civ.P. 8(a). Plaintiffs long and ram
Plaintiffs Complaint makes out no cognizable claim against defendant Regina Dolan. Plaintiff accuses Regina Dolan of aiding and supporting her sister, defendant Mary Davey, during the latter’s filing of criminal assault charges against plaintiff and her subsequent divorce proceedings against him. To the extent that plaintiff is bringing an action for alienation of affections, he has no claim; New York has abolished all claims for alienation of affectiоns by statute. N.Y. Civ. Rights Law § 80-a;
see also, e.g., Sahid v. Chambers,
Twice already, New York courts have already held that, even liberally construed, there is no cognizable cause of action against the relatives of Mary Davey for providing such aid and support.
Davey v. Dolan,
N.Y. Sup.Ct. New York Cty. Index No. 112002/01, Order Apr. 19, 2002,
aff'd
Under the doctrine of res judicata, 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.”
Federated Dep’t Stores, Inc. v. Moitie,
Plaintiff has been involved in long and contentious divorce proceedings against Mary Davey. A final judgment of divorce was entered on July 6, 2004 and affirmed by the Appellate Division on May 13, 2005.
Davey v. Davey,
No. M25321 (N.Y.App.Div. May 13, 2005) (Davey Reply Aff., Ex. 3). Any claims plaintiff has with regard to the sale of the marital home, Mary Davey’s role in his arrest, inconsistencies in Mary Davey’s testimony as to the cause of the divorce, and so on, were or could have been litigated as part of the divorce proceedings. “[A] final judgment of divorce issued by a court having both subject matter and personal jurisdiction has the effect of determining the rights of the parties with respect to every material issue that was actually litigated or might have been litigated.”
Rainbow v. Swisher,
Plaintiff either has litigated or could have litigated all matters against Mary Davey concerning her motives as to the divorce, the events surrounding plaintiffs arrest, her allegedly contradictory testimony as to the cause of her divorce, and the like. He cannot relitigate these issues in a different forum. As such, his claims are barred by res judicata.
3. Injunctive Order
Under the All Writs Act, 28 U.S.C. § 1651, a district court may sanction a prolific litigant who abuses the judicial process by repeatedly suing defendants on meritless grounds and enjoin him from pursuing future litigation without leave of the court.
Toro v. Depository Trust Co.,
No. 97 Civ. 5383(SAS),
In determining whether or not to restrict a litigant’s future access to the courts, the district court should consider: “(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 cоunsel; (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 v. United States Lines, Inc.,
An injunction here is proper. First, plaintiff hаs a history of vexatious litigation with respect to issues arising out of the dissolution of his marriage. Plaintiff has sued not only his ex-wife Mary Davey in a collateral proceeding: He has sued her brother, her sister, and his own son. He has sued Mary Kelly — his ex-wife’s attorney — and her firm in three separate proceedings; after the state court dismissed his second suit for failure to state a claim, he proceeded to sue them again, causing the court to order the plаintiff to obtain permission from the court before commencing any further litigation “related to this matter.” Despite this order, plaintiff sued Mary Kelly and her firm a third time, leading the judge to call the plaintiffs conduct “frivolous” and to order a hearing on costs, attorney’s fees, and sanctions. Davey v. Costello, No. 602139/05 (N.Y. Sup.Ct. New York Cty. Mar. 10, 2006). Plaintiff also sued the divorce judge and, just for completeness, sued New York State. No court has found any merit in any of plaintiffs suits.
Second, plaintiff cannot havе had an objective good faith expectation of prevailing in this case. He knew or should have known that there was a substantial likelihood that his claim against Mary Da-vey would be dismissed pursuant to the doctrine of res judicata, and, that to the extent his claim against Regina Dolan addressed issues not litigated in other forums, there was no legal basis for his complaint against her. Third, although pro se status weighs against an injunction,
see Iwachiw v. New York City Bd. of Educ.,
For the foregoing reasons, plaintiff is hereby permanently enjoined from (1) pursuing further federal litigation that in any way relates to any matter arising out of his matrimonial dispute without first obtaining the authorization of the District Court, and (2) pursuing further state litigation that in any way relates to any matter arising out of his matrimonial dispute without appending this Court’s opinion and order of injunction to his first filings.
4. Legal Fees
Both defendants have motioned for attorney’s fees and expenses pursuant to 28 U.S.C. § 1927. Section 1927 states, “Any attorney or other person admitted to conduct cases in any court of the United States or any Territory thereof who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys’ fees reasonably incurred because of such conduct.” An impositiоn of a sanction under § 1927 requires a “clear showing of bad faith” and is proper when the actions taken are so completely without merit as to require the conclusion that they must have been undertaken for some improper purpose such as delay.
Schoenberg v. Shapolsky Publishers,
Here, sanctions are appropriate because plaintiffs claims against Davey and Dolan are completely without merit. Based on thе prior dispositions of his repeated state court proceedings, plaintiff knew or should have known that he was “altogether precluded from recycling those same claims in federal court.”
Id.; see Lipin v. Nat’l Union Fire Ins. Co.,
“An attorney whom the court proposes to sanction must receive specific notice of the conduct alleged to be sanctionable and the standard by which that conduct will be assessed, and an opportunity to be heard on that matter, and must be forewarned of the authority under whiсh sanctions are being considered, and given a chance to defend himself against specific charges.”
Sakon v. Andreo,
Given the utter lack of merit of plaintiffs claims, his vexatious litigation history, and the fact that he has continually and continues to file repetitive suits despite prior court orders, the Court can only reasonably conclude that his actions were “undertaken for some improper purpose,” namely to continually harass the defendants. Accordingly, pursuant to 28 U.S.C. 1927 and its inherent authority, the Court orders plaintiff to pay the reasonable costs, expenses, and attorneys’ fees incurred by the defendants in responding to this action.
CONCLUSION
For the reasons noted, the Court grants defendants’ motions [10, 13] and dismisses plaintiffs claims with prejudice. The Clerk is requested to close this case.
Plaintiff if hereby permanently enjoined from (1) pursuing further federal litigation that in any way relates to any matter arising out of his matrimonial dispute without first obtaining the authorization of the District Court, and (2) pursuing further state litigation that in any way relates to any matter arising out of his matrimonial dispute without appending this Court’s opinion and order of injunction to his first filings.
Furthermore, plaintiff is subject to sanctions pursuant to 28 U.S.C. § 1927. To facilitate the court’s determination of the proper amount of sanctions plaintiff must pay, defendants are directed to submit affidavits setting forth the reasonable expenses incurred by them in defending this action, including reasonable attorney’s fees, within twenty (20) days of this order, keeping in mind that an assessment of attorney’s fees “requires more than simply a report of the number of hours spent and the hourly rate.”
McGuire v. Russell Miller, Inc.,
SO ORDERED.
Notes
. Because the Court is dismissing this action with prejudice, it is not necessary for the Court to address the defendants’ motion to strike plaintiff's so-called "Amended Complaint,” filed with his opposition papers on December 8, 2005. The Court notes, however, that plaintiff has not received leave from this Court to amend his complaint, see Fed. R. Civ. Proc. 15(a), and thus his submission of an amended complaint was improper.