MATSUMOTO, District Judge:
In a fifty-eight page, two hundred and sixty paragraph amended complaint attaching one hundred fifty-four pages of exhibits, Curtis & Associates, P.C. (the "Curtis Law Firm"), and W. Robert Curtis, Sc.D., J.D. ("Curtis"), (together, "plaintiffs"), bring seventeen causes of action against The Law Offices of David M. Bushman, Esq., David M. Bushman, Attorney at Law, and David M. Bushman, Esq. (collectively, the "Bushman defendants"); Jeffrey Levitt, Esq. and Jeffrey Levitt, Attorney at Law, (collectively, the "Levitt defendants"); Herbert Monte Levy, Esq. and Law Offices of Herbert Monte Levy, Esq. (collectively, the "Levy defendants"); Eileen DeGregorio ("DeGregorio"), Janet Turansky Callaghan ("Turansky"); and Stevi Brooks Nichols ("Nichols");
The Bushman defendants, the Levitt defendants, the Levy defendants, DeGregorio, Turansky, and Nichols each move separately to dismiss the amended complaint on a variety of grounds, including for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6) ("Rule 12(b)(6)"), and plaintiffs oppose. Additionally, after defendants' various motions to dismiss had been fully briefed and were pending before the court, plaintiffs sought and received permission from the court to move to amend/correct/supplement the complaint, plaintiffs so moved, and defendants all opposed. Plaintiffs also move to disqualify Herbert Monte Levy, Esq. ("Levy") as counsel for defendant DeGregorio, and Jeffrey Levitt, Esq. ("Levitt") as counsel for defendant Turansky, and Levy and Levitt oppose. Finally, defendants Levitt and Turansky move for sanctions against plaintiffs pursuant to Federal Rule of Civil Procedure 11 ("Rule 11").
For the reasons that follow, the motions to dismiss are granted in their entirety as to the federal RICO causes of action and the court declines to exercise supplemental jurisdiction with respect to the state law causes of action. The motion to amend or supplement the complaint is denied as futile, the motions to disqualify Levitt and Levy as counsel are denied as moot, and the motion for sanctions is denied.
A court considering a motion to dismiss pursuant to Rule 12(b)(6) must accept all well-pleaded factual allegations of a complaint as true, but need not give any effect to legal conclusions couched as factual allegations. Starr v. Sony BMG Music Entm't, 592 F.3d 314, 321 (2d Cir.2010). The factual allegations
Plaintiff Curtis is an attorney licensed in the State of New York and the principal of the Curtis Law Firm, a New York professional corporation with an office in Manhattan.
DeGregorio, Turansky, and Nichols are each former clients of the Curtis Law Firm. (Id. ¶¶ 12-14.) Bushman, Levitt, and Levy, are attorneys licensed to practice in the State of New York. (Id. ¶¶ 11, 15, 16.) Bushman practices law in Nanuet, New York through entities named the Law Offices of David M. Bushman, Esq. and David M. Bushman, Attorney At Law (id. ¶¶ 9-10), Levitt practices law in Amityville, New York through an entity named Levitt Attorney at Law (id. ¶ 15), and Levy practices law in Manhattan through an entity named Law Offices of Herbert Monte Levy (id. ¶ 16).
Tracing the evolution of DeGregorio, Turansky, and Nichols from Curtis Law Firm client to adversary, the Complaint organizes its allegations under headings "The Corruption of Defendant DeGregorio," "The Corruption of Defendant [Turansky]," and "The Corruption of Stevi Brooks Nichols." This discussion follows that organization.
In December 2001, DeGregorio retained the Curtis Law Firm on an hourly fee basis to prosecute legal malpractice claims against her former divorce attorneys ("matrimonial malpractice claims"). (Compl. ¶ 43.) The Curtis Law Firm also appeared on DeGregorio's behalf in her ongoing matrimonial case. (Id. ¶ 45.) Despite a few early victories by the Curtis Law Firm, ultimately all of DeGregorio's matrimonial malpractice claims were dismissed on appeal. (Id. ¶¶ 46-47.)
At the time of this dismissal, DeGregorio had an outstanding legal bill with the Curtis Law Firm for $120,000. (Id. ¶ 48.) The Curtis Law Firm offered to settle DeGregorio's bill for $60,000 but DeGregorio rejected the settlement offer. (Id.)
The Curtis Law Firm notified its insurance carrier of this malpractice claim. (Id. ¶ 52.) In addition, the Curtis Law Firm counterclaimed against DeGregorio for legal fees. (Id. ¶ 57.) The Curtis Law Firm also made a separate motion for a quantum meruit hearing to "determine the fair and reasonable value of the legal services rendered to" DeGregorio by the Curtis Law Firm while litigating the matrimonial malpractice claims. (Id. ¶ 66); see also DeGregorio v. Bender, 52 A.D.3d 645, 646, 860 N.Y.S.2d 193 (N.Y.App.Div. 2d Dep't 2008) (describing history of fee dispute in DeGregorio's matrimonial malpractice action). Following that hearing, the state court awarded the Curtis Law Firm legal fees in the sum of $94,017.70. Bender, 52 A.D.3d at 646, 860 N.Y.S.2d 193. On appeal, however, the Second Department reversed, finding that the hearing court had "failed to consider and give appropriate weight to all the relevant factors involved in valuing legal services, including the court's own finding of ethical violations committed by Curtis." Id.
In the course of prosecuting DeGregorio's "phony" malpractice claim against the Curtis Law Firm and defending against the Curtis Law Firm's fee claims, the Bushman Law Offices, Bushman Attorney at Law, and DeGregorio engaged in various "litigation activities." (Compl. ¶¶ 58, 60.) According to the complaint, these "litigation activities," constitute mail fraud. (Compl. ¶¶ 58, 60.) Specifically, in order to advance the "scheme to litigate" DeGregorio's alleged "fee obligation" to the Curtis Law Firm, the Bushman defendants allegedly committed mail fraud by mailing to the court, other parties, witnesses, or counsel: (1) a Reply to the Counterclaims asserted by the Curtis Law Firm on February 9, 2007; (2) a Notice for Discovery on February 9, 2007; (3) a Cross-Notice to Take Deposition on February 9, 2007; (4) a Verified Bill of Particulars on February 22, 2007; (5) a letter regarding a subpoena served on a witness on June 14, 2007; (6) an Affirmation in Opposition to the Curtis Law Firm's Motion to Disqualify Bushman on March 17, 2007; (7) an Affirmation in Opposition to a Cross-Motion dated March 28, 2005; (8) a cover letter for Respondent's Post-Trial Brief dated September 15, 2006; (9) a cover letter transmitting Respondent's Proposed Counter-Judgment and Affirmation in Support dated October 13, 2006; (10) a letter to the court requesting a 90-day extension of time dated October 21, 2005; (11) a letter regarding service by fax dated November 9, 2006; and (12) a letter regarding DeGregorio's ability to satisfy any potential judgment dated December 29, 2006.
After the Curtis Law Firm successfully moved to disqualify Bushman in DeGregorio's malpractice action against the Curtis Law Firm, the Levy Law Offices was substituted as DeGregorio's counsel. (Id. ¶¶ 59, 61-62.) The Levy Law Offices then
Turansky retained the Curtis Law Firm in June of 2002 to represent her in her divorce case. (Id. ¶ 89.) Turansky then retained the Curtis Law Firm to represent her in a quantum meruit hearing demanded by one of her former divorce attorneys to address his $28,000 retaining and charging lien. (Id. ¶¶ 90-93.) The twenty-eight day quantum meruit hearing was terminated by the court's issuance of a directed verdict in Turansky's favor on February 7, 2004. (Id. ¶¶ 97, 102.) Turansky then authorized the Curtis Law Firm to represent her in opposing the appeal of that directed verdict. (Id. ¶¶ 98-99.)
During the course of the earlier quantum meruit hearing, Turansky stopped paying her legal fees to the Curtis Law Firm, which then totaled $282,829.52. (Id. ¶ 96.) On November 29, 2004, on the same day that the Curtis Law Firm completed oral argument at the Second Department regarding the appeal from the directed verdict, Turansky terminated the Curtis Law Firm "for cause." (Id. ¶ 101.) Turansky terminated the Curtis Law Firm allegedly after conferring with Bushman, who advised her that she could avoid paying the Curtis Law Firm's legal fees if she made the termination "for cause" and sued the Curtis Law Firm for malpractice. (Id. ¶ 102-103.) Bushman also allegedly offered to represent Turansky for a "nominal fee" to defend any fee claims against her by the Curtis Law Firm and on a contingent basis to prosecute a malpractice action against the Curtis Law Firm. (Id.)
Turansky retained Bushman and filed a legal malpractice complaint containing "knowingly false allegations" against the Curtis Law Firm in December 2004. (Id. ¶¶ 104, 106.) The Curtis Law Firm notified its carrier of this malpractice action
By prosecuting Turansky's legal malpractice action against the Curtis Law Firm and defending Turansky against the Curtis Law Firm's fee claims, Bushman engaged in certain "litigation activities" which plaintiffs allege constitute mail fraud. (Id. ¶ 113.) Specifically, the Complaint alleges that Bushman committed mail fraud by mailing to the court, parties, or counsel: (1) an Affirmation in Opposition to Motion to Dismiss dated February 17, 2005; (2) an Affirmation in Opposition to Motion to Dismiss dated March 24, 2005; (3) a Verified Bill of Particulars dated July 26, 2005; (4) a Supplemental Verified Bill of Particulars dated October 4, 2005; (5) an Affirmation in Opposition to Motion for Summary Judgment dated February 7, 2006; (6) an Affirmation in Opposition to total Disqualification dated February 13, 2006; and (7) a Motion to Dismiss Third-Party Complaint dated August 7, 2006. (Id. ¶ 113.) Additionally, Turansky allegedly engaged in mail and wire fraud by: (1) mailing a letter on February 26, 2007 to the Court regarding her preference to have Bushman represent her in defending against plaintiffs' fees counterclaims; (2) making "repeated phone calls" from Connecticut to Bushman in New York during several days prior to February 26, 2007; (3) mailing "upon information and belief, numerous letters" to Bushman; (4) presenting a "completely false affidavit" within a Notice of Motion dated February 22, 2009 and mailed by Levitt; and (5) committing "numerous other" unspecified acts of mail and wire fraud. (Id. ¶¶ 113(H), 115(A)-(C), 124(E).)
The Curtis Law Firm succeeded in obtaining summary judgment in Turansky's malpractice action against Curtis, but lost its fee action against Turansky when the judicial hearing officer determined that Turansky owed no fees to the Curtis Law Firm. (Id. ¶¶ 114, 116.) According to plaintiffs, the judicial hearing officer's determination relied upon "false testimony" by Turansky which tracked the "false claims" contained in Turansky's malpractice action against the Curtis Law Firm. (Id. ¶ 116.) After the judicial hearing officer's determination, the charging lien by the Curtis Law Firm on Turansky's equitable distribution was released by court order and Turansky allegedly invested the funds in a property in Connecticut.
After Bushman was disqualified as Turansky's attorney, Bushman allegedly recruited Levitt to substitute as the attorney for Turansky at the Second Department and for the rehearing. (Id. ¶¶ 112, 120, 124.) Levitt, allegedly with the assistance of Bushman, also committed mail and wire fraud in the course of representing Turansky by mailing: (1) a Notice of Motion and request for jury trial dated June 14, 2008; and (2) an Omnibus Notice of Motion dated February 22, 2009 seeking to preclude or delay a deposition and containing both an Amended Reply to Counterclaims and an
Nichols became a client of the Curtis Law Firm on a contingency fee basis by a written agreement dated October 14, 1998. (Id. Ex. 20 at 1.) Nichols disputed $150,000 in fees allegedly earned by the Curtis Law Firm. (Id. ¶ 128.) On December 3, 2003, Nichols discharged the Curtis Law Firm allegedly for cause, and proceeding pro se, thereafter commenced a legal malpractice action against plaintiffs and others by a verified complaint dated January 9, 2009. (Id. ¶ 125, Ex. 19 at ¶ 14, Ex. 20 at 3.) The Curtis Law Firm notified its malpractice insurer of this new claim. (Id. ¶ 126.)
Plaintiffs allege that Nichols has committed mail and wire fraud by mailing her verified complaint from Colorado, where she resides, to the New York Courts, as well as by mailing and faxing letters dated February 6, 17, 23, and 24, 2009 to various New York State judges and others. (Id. ¶¶ 14, 130(A)-(F).) Because Nichols is currently defending a motion to dismiss her complaint, plaintiffs allege that this "mail and wire fraud is ongoing." (Id. ¶ 130(G).)
Moreover, plaintiffs allege that "[u]pon information and belief, Bushman has counseled and guided Nichols through her false and extreme accusations of wrong-doing" against the Curtis Law Firm. (Id. ¶ 127.) Plaintiffs conclusorily maintain that the "contents" of the various letters and pleadings mailed and faxed by Nichols "disclose[] a participation and association [on the part of Nichols] with the Bushman Law Office in the fraudulent schemes devised by Bushman." (Id. ¶¶ 127, 130.)
Plaintiffs also allege that three other non-parties were "corrupted" by Bushman and stopped paying for legal fees owed to the Curtis Law Firm. (See id. ¶¶ 17-19.)
First, Fred Lorentzen ("Lorentzen"), a former Curtis Law Firm client who had signed an hourly retainer, stopped paying the Curtis Law Firm for his legal services in 1996 when he owed it $50,000. (Id. ¶ 20.) Bushman then commenced an action on behalf of Lorentzen against Curtis and others ("Lorentzen action"). (Id. ¶ 22.) The Curtis Law Firm's insurance carrier paid more than $300,000 in defense costs prior to the settlement of the Lorentzen action, purportedly for a $25,000 payment to Lorentzen by Bushman's carrier. (Id. ¶¶ 26-27.)
Similarly, Katheryn Boone ("Boone") retained the Curtis Law Firm under an hourly retainer agreement to represent her in a malpractice action against her former matrimonial attorney. (Id. ¶¶ 30-31.) In 2004, Boone stopped paying the Curtis Law Firm for legal services when she owed approximately $25,000 in fees. (Id. ¶ 31.) After the Curtis Law Firm was granted leave to withdraw, Bushman became
Finally, Edward King ("King") retained the Curtis Law Firm in 1997 under an hourly retainer agreement to represent him in a malpractice action against his former entertainment attorney. (Id. ¶¶ 35-39.) King stopped paying the Curtis Law Firm for legal services in 2005 when he owed it approximately $80,000 in fees. (Id. ¶ 39.) Bushman allegedly appeared "informally" as a legal malpractice attorney on behalf of King at a quantum meruit hearing regarding King's allegedly owed fees. (Id. ¶ 40.) During that hearing, Bushman "guided King through articulating false claims of malpractice on the record" and "counsel[ed]" King on how to testify "untruthfully." (Id. ¶ 40.) The court ultimately reduced the amount of fees King owed to the Curtis Law Firm but found that King had not terminated the Curtis Law Firm "for cause." (Id. ¶ 41, Ex. 3.) The Curtis Law Firm notified its insurance carrier of a potential malpractice action involving King. (Id. ¶ 42.)
Broadly, and as summarized in a section of the Complaint entitled "Summary of the Repeated Corruption of the Corruptible," plaintiffs allege that Bushman enlisted two other lawyers, co-defendants Levitt and Levy, and they together "corrupt[ed]" six or seven "corruptable" [sic] former Curtis Law Firm clients to engage in "several fraudulent, interconnected schemes" to defraud plaintiffs. (Id. at 33, id. ¶¶ 141, 146.) Allegedly in violation of RICO, defendants used mail and wire transmittals to complete these schemes of: (i) disputing the Curtis' Law Firm's "right" to legal fees from its former clients based on "phony" malpractice claims; (ii) prosecuting "knowingly false legal malpractice claims [against the Curtis Law Firm] with suborned perjury and deceit of courts;" (iii) "providing legal advice [to clients] on how to protect and convey assets so that any judgment eventually obtained by the Curtis Law Firm" would be uncollectible; and (iv) "delaying and hindering" the Curtis Law Firm, a "future creditor," from obtaining judgments against its former clients because of "frivolous litigation." (Id. ¶ 142.)
In simpler terms, plaintiffs allege that defendants, who are former Curtis Law Firm clients, together with their new counsel, have committed mail and wire fraud through "frivolous litigation" by defending against the fee claims initiated by plaintiffs themselves, and by counter-claiming or separately bringing "phony" malpractice claims against plaintiffs in the course of such defenses. (See id. ¶¶ 142-143.) Because plaintiffs allege that they will ultimately prevail in the underlying state court fee claims, plaintiffs allege that they are "future creditors" of defendants who have been "delayed and hindered" by defendants' "frivolous litigation" and "fraudulent conveyance" of assets. (Id.)
Plaintiffs further allege that the "fraudulent and frivolous law suits" commenced and defended by the Bushman defendants and now continued by the Levitt and Levy defendants on behalf of the "corruptible" former clients of the Curtis Law Firm have created a claims history for the Curtis Law Firm which prevents it from obtaining malpractice insurance. (Id. ¶¶ 133-138.) Without malpractice insurance,
The Curtis Law Firm has been damaged by the lost income from the "earned fees" disputed by defendants, which has required it to go into debt in order to support the continued operations of its existing case load. (Id. ¶ 137.) Additionally, the Curtis Law Firm has been damaged by the need to divert resources away from billable work and toward the non-billable work of defending the fee disputes, malpractice claims, and fraudulent conveyances by the three former clients DeGregorio, Turansky, and Nichols, with the assistance of, variously, the Bushman defendants, Levitt defendants, and Levy defendants. (Id. ¶¶ 138-139.)
The Bushman defendants,
Rule 12(b)(6) provides for the dismissal of a complaint containing allegations which fail "to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). Thus, in order "[t]o survive a motion to dismiss under [Rule 12(b)(6) ], a complaint must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). In assessing plausibility on a Rule 12(b)(6) motion to dismiss, a court must "assume [the] veracity" of all well-pleaded factual allegations contained in the complaint, Iqbal, 129 S.Ct. at 1950, and afford the plaintiff every reasonable inference, see Zinermon v. Burch, 494 U.S. 113, 118, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990). However, allegations must consist of more than mere labels, legal conclusions, or a "formulaic recitation of the elements of a cause of action," and bare legal conclusions are "not entitled to the assumption of truth." Iqbal, 129 S.Ct. at 1949-50.
The facial plausibility standard is met when "the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S.Ct. at 1949. This does not require a showing of a "probability" of misconduct, but it does demand more than "a sheer possibility that a defendant has acted unlawfully." See id. Thus, "where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct," dismissal is appropriate. Starr, 592 F.3d at 321 (quoting Iqbal, 129 S.Ct. at 1950); see also Twombly, 550 U.S. at 570, 127 S.Ct. 1955 (where "plaintiffs... have not nudged their claims across the line from conceivable to plausible, their complaint must be dismissed"). Indeed, when "however true," the allegations in a complaint "could not raise a claim of entitlement to relief, this basic deficiency should be exposed at the point of minimum expenditure of time and money by the parties and the court." See Twombly, 550 U.S. at 558, 127 S.Ct. 1955.
Although civil RICO actions generally need not do more than meet the routine pleading requirements outlined above, courts are particularly mindful of these standards in the context of a civil RICO claim, the assertion of which often has "an almost inevitable stigmatizing effect on those named as defendants." World Wrestling Entm't, Inc. v. Jakks Pac., Inc., 530 F.Supp.2d 486, 495-96 (S.D.N.Y.2007) (internal quotation and citation omitted); see also Nichols v. Mahoney, 608 F.Supp.2d 526, 536 (S.D.N.Y.
Moreover, where, as here, a plaintiff alleges RICO predicate acts based upon fraudulent activities such as mail or wire fraud, a plaintiff must additionally satisfy the particularity requirements of Federal Rule of Civil Procedure 9(b) ("Rule 9(b)"). See City of New York v. Smokes-Spirits.com, Inc., 541 F.3d 425, 446 (2d Cir.2008), rev'd on other grounds sub nom. Hemi Group, LLC v. City of New York, ___ U.S. ___, 130 S.Ct. 983, 175 L.Ed.2d 943 (2010) ("Allegations of mail or wire fraud must be made with the particularity required by Federal Rule of Civil Procedure 9(b)." (citation omitted)). The court will thus examine below the mail and wire fraud allegations in the context of Rule 9(b)'s particularity requirements.
The RICO statute, 18 U.S.C. Section 1964(c), provides a private right of action to any person injured in its business or property by reason of a violation of Section 1962. See 18 U.S.C. §§ 1961-1968. RICO generally provides for harsh criminal and civil penalties and in the context of a private RICO action, any defendant found liable under Section 1964(c) faces the "drastic" penalties of "treble damages, costs and attorneys fees." See H.J., Inc. v. Nw. Bell Tel. Co., 492 U.S. 229, 233, 109 S.Ct. 2893, 106 L.Ed.2d 195 (1989) (citing 18 U.S.C. §§ 1963 and 1964(c)).
In order to recover under Section 1964(c), a private plaintiff must plead "(1) the defendant's violation of [18 U.S.C] § 1962, (2) an injury to the plaintiff's business or property, and (3) causation of the injury by the defendant's violation." Lerner v. Fleet Bank, N.A., 459 F.3d 273, 283 (2d Cir.2006) (quoting Commercial Cleaning Servs., L.L.C. v. Colin Serv. Sys., Inc., 271 F.3d 374, 380 (2d Cir.2001)). A showing under the first element, the defendant's violation of 18 U.S.C. § 1962, may be made in any one of four ways. Specifically, "any person" may be liable for violating 18 U.S.C. § 1962 who: (i) uses or invests income derived "from a pattern of racketeering activity" to acquire an interest in or to operate an enterprise engaged in interstate commerce, § 1962(a); (ii) "acquire[s] or maintain[s], directly or indirectly, any interest in or control of" such an enterprise "through a pattern of racketeering activity," § 1962(b); (iii) by being "employed by or associated with" such an enterprise, "conduct[s] or participate[s], directly or directly, in the conduct of such enterprise's affairs through a pattern of racketeering activity," § 1962(c); or (iv) conspires to violate the substantive provisions of § 1962(a), (b), or (c), § 1962(d). See H.J., 492 U.S. at 232-33, 109 S.Ct. 2893.
Significantly, in order to adequately allege a violation of any one of the substantive provisions of the RICO Act, 18 U.S.C. § 1962(a)-(c), a plaintiff must plead a "pattern of racketeering activity." See 18 U.S.C. § 1962(a)-(c). Further, an underlying substantive violation must be shown in order to establish a conspiracy
Here, plaintiffs have alleged in Counts One through Five of the Complaint that defendants committed substantive RICO violations in violation of 18 U.S.C. Section 1962(a), (b), and (c). However, because plaintiffs have failed as a matter of law to plead any underlying predicate acts which could form the basis for a "pattern of racketeering activity," the substantive RICO violations alleged in Counts One through Five cannot survive defendants' motions to dismiss. Moreover, the claims must fail because they fail to meet the heightened pleading requirements for fraud under Rule 9(b).
First, plaintiffs' RICO claims fail as a matter of law because the claims fail to plead any RICO predicate acts. The RICO statutory scheme defines "racketeering activity" to include "a host of criminal offenses, which are in turn defined by federal and state law." Cofacredit, S.A. v. Windsor Plumbing Supply Co. Inc., 187 F.3d 229, 242 (2d Cir.1999) (citing 18 U.S.C. § 1961(1)). Specifically, the RICO statute defines "racketeering activity" as including any "act" indictable under various specified federal statutes, including the mail and wire fraud statutes. See 18 U.S.C. § 1961(1) (defining "racketeering activity" to include offenses indictable under 18 U.S.C. §§ 1341 (relating to mail fraud) and 1343 (relating to wire fraud)); see also Smokes-Spirits.com, 541 F.3d at 434 n. 9 ("Mail fraud and wire fraud are forms of `racketeering activity' for purposes of RICO.") (citation omitted). "Pattern" is defined by the statute as "at least two acts of racketeering activity" within a ten-year period. 18 U.S.C. § 1961(5).
To state a claim for mail and wire fraud, a plaintiff must allege: "(1) the existence of a scheme to defraud, (2) the defendant's knowing participation in the scheme, and (3) the use of wire, mail, or television communications in interstate commerce in furtherance of the scheme." Chanayil v. Gulati, 169 F.3d 168, 170-71 (2d Cir.1999). To prove mail or wire fraud, the plaintiff need not show that a defendant personally mailed or wired anything themselves, but that they "caused it to be done." Smokes-Spirits.com, 541 F.3d at 446 (citation omitted). The "gravamen" of the mail fraud offense is the "scheme to defraud," and "any mailing that is incident to an essential part of the scheme satisfies the mailing element ... even if the mailing itself contains no false information." Bridge v. Phoenix Bond & Indemnity Co., 553 U.S. 639, 647, 128 S.Ct. 2131, 170 L.Ed.2d 1012 (2008) (internal quotations and citations omitted).
In the Complaint, plaintiffs purport to allege various predicate acts of mail and wire fraud allegedly committed by defendants in the course of "defend[ing] fee claims" and "commenc[ing] and litigat[ing]
Plaintiffs themselves succinctly and accurately summarize these alleged predicate acts as consisting of "litigation activities." (See, e.g., id. ¶¶ 58, 60, 68, 72, 88, 113.) Plaintiffs further characterize these "litigation activities" as "multiple instances of mail fraud in violation of 18 U.S.C. § 1341." (Id. ¶¶ 156, 166, 172, 178, 184, 192, 202, 208, 214, 219.) Additionally, plaintiffs portray the alleged "numerous" phone calls from Turansky in Connecticut to Bushman in New York (id. ¶¶ 113(H), 115(A)) and Nichols' use of wire transmissions to fax copies of letters to various New York State Court judges and other counsel (id. ¶ 130(A-F)) as "multiple instances of wire fraud in violation of 18 U.S.C. § 1343" (id. ¶¶ 156, 166, 172, 178, 184, 192, 202, 208, 214, 219). These allegations fail to state a claim upon which relief may be granted for several reasons.
Even a cursory review of the predicate acts alleged in the Complaint reveals that plaintiffs' summary of these actions as "litigation activities" is apt.
This understanding—that the alleged RICO predicate acts are no more than "litigation activities" alone—brings into focus plaintiffs' rather striking theory of the case. Plaintiffs essentially allege that any client with the impudence to contest the Curtis Law Firm's legal fees, and further, to litigate in court that client's obligation to pay those fees or challenge through a malpractice action the professional conduct of the Curtis Law Firm, and any attorney who represents such a client, is a racketeer and liable for treble damages. The gravamen of the Complaint is thus that defendants' have violated RICO by defending against plaintiffs' fee claims or initiating malpractice actions against plaintiffs and thereby forcing plaintiffs to litigate allegedly "phony" and "frivolous" lawsuits in state court. This theory cannot withstand a motion to dismiss because it fails to state a claim upon which relief may be granted.
First, persuasive authority in this and other jurisdictions suggests that the litigation activities alleged in this Complaint cannot properly form the basis for RICO predicate acts. See, e.g., Gunn v. Palmieri, No. 87-cv-1418, 1989 WL 119519, at *1 (E.D.N.Y. Sept. 29, 1989), aff'd, 904 F.2d 33 (2d Cir.1990), cert. denied, 498 U.S. 1049, 111 S.Ct. 758, 112 L.Ed.2d 777 (1991) (rejecting "untenable" interpretation of RICO which would permit litigation activities to be construed as RICO predicate acts). Thus, on similar facts, a number of courts have found that allegations such as those here more properly may be classified as claims sounding in abuse of process
Similarly, here, although plaintiffs have styled their allegations as mail and wire fraud, plaintiffs' allegations in fact focus entirely upon the "litigation activities" involved in defendants' allegedly "phony" and "frivolous" litigation with plaintiffs. Plaintiffs' allegations thus loosely track the elements for a malicious prosecution claim in that (1), plaintiffs allege an action against plaintiffs, (plaintiffs allege defendants' commencement of various malpractice actions (id. ¶ 1(C)), (2) begun with malice (plaintiffs allege prosecution of such actions by "acts of champerty," "corruption" and "deceitful" schemes employing "suborned perjury and deceit of the court" (id. ¶ 141-142)), and (3) without probable cause (plaintiffs allege defendants' prosecution of "knowingly false legal malpractice claims" and challenge of "the right to earned legal fees" (id. ¶ 142)). See Engel, 145 F.3d at 502.
However, plaintiffs fail to allege that the state court litigation underlying their allegations has terminated in plaintiffs' favor, or even terminated at all, a required element of any malicious prosecution claim. See id. Indeed, to the contrary, plaintiffs affirmatively allege that the fee disputes are ongoing. (See Compl. ¶¶ 88(E), 124(F), and 130(G).) Further, plaintiffs fail to allege any special injury. See Engel, 145 F.3d at 502. Thus, despite plaintiffs' creative attempts to plead mail and wire fraud, the court finds that plaintiffs' incomplete allegations at best attempt to make out a malicious prosecution claim.
Without more, such allegations that the state court litigation is frivolous, fraudulent, or baseless—essentially claims of malicious prosecution—without more, cannot constitute a viable RICO predicate act. See, e.g., Daddona, 156 F.Supp.2d at 162 ("Attempts to characterize abuse of process or malicious prosecution claims as mail and wire fraud violations for RICO purposes have been scrutinized by the courts, and have been rejected where the only allegedly fraudulent conduct relates to the filing of documents in litigation."); see also Park South Assocs. v. Fischbein, 626 F.Supp. 1108, 1114 (S.D.N.Y.1986), aff'd, 800 F.2d 1128 (2d Cir.1986) (rejecting plaintiffs' RICO claims on various grounds including that plaintiff "has not pled" a RICO predicate act although "[p]laintiffs' allegations may make out a state court action for abuse of process").
Further, and even more compelling than the persuasive authority discussed above, plaintiffs' claims must be rejected because finding otherwise—and allowing malicious prosecution claims such as those attempted to be alleged here to suffice as RICO
Additionally, this absurd result would chill litigants and lawyers and frustrate the well-established public policy goal of maintaining open access to the courts. See Engel v. CBS, Inc., 182 F.3d 124, 129 (2d Cir.1999) (noting generally "strong public policy of open access to the courts for all parties and [need] to avoid ad infinitum [litigation] with each party claiming that the opponent's previous action was malicious and meritless") (internal quotation and citation omitted). If any litigant's or attorney's pleading and correspondence in an unsuccessful lawsuit could lead to drastic RICO liability in a private right of action, litigants might hesitate to avail themselves of the courts and available legal remedies or be unable to find representation to help vindicate their rights. See Morin, 711 F.Supp. at 105 ("Congress could not have intended that the mail and wire fraud statute sweep up correspondence between attorneys, dealing at arm's length on behalf of their parties, concerning an issue in pending litigation .... Subjecting [such] letter[s] ... to the mail fraud statute would chill an attorney's efforts and duty to represent his or her client in the course of pending litigation.") (internal quotation and citation omitted).
Moreover, allowing the federal RICO statute to usurp underlying legitimate state court litigation as proposed by plaintiffs here would inappropriately bypass the state tribunal where the action is pending and which properly controls that proceeding. Should plaintiffs' vague allegations of "phony" and "frivolous" litigation, "suborned perjury" and "deceit of court" have merit, plaintiffs' should direct such claims to the state courts where these acts are
Finally, the Congressional intent in enacting RICO does not square with the absurd consequences and contraventions of well-settled public policy which would inevitably result from allowing RICO predicate acts to be based upon the type of malicious prosecution claims alleged here. Certainly, "RICO is to be read broadly." Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 497-98, 105 S.Ct. 3275, 87 L.Ed.2d 346 (1985) (noting that "the lesson" of RICO's broad interpretation is evident "not only [from]... Congress' self-consciously expansive language and overall approach, but also... [from] its express admonition that RICO is to `be liberally construed to effectuate its remedial purposes'") (internal citation omitted). However, there can be no dispute that "Congress did not intend to effect a wholesale preemption of state civil law in its enactment of RICO." von Bulow, 657 F.Supp. at 1143. Permitting the "litigation activities" alleged here to serve as RICO predicate acts would lead to just such an absurd result, in contravention of RICO's admittedly broad remedial purpose. See United States v. Eisen, 974 F.2d 246, 254 (2d Cir.1992) (noting the "understandable reluctance" on the part of Congress "to use federal criminal law as a back-stop for all state court litigation").
For all of these reasons, this court joins a long line of cases in finding, as a matter of law, that the "litigation activities" pleaded in the Complaint cannot constitute predicate acts for the purposes of RICO. See, e.g., DirecTV, Inc. v. Lewis, No. 03-cv-6241, 2005 WL 1006030, at *8, 2005 U.S. Dist. LEXIS 8187, at *22 (W.D.N.Y. Apr. 29, 2005) ("courts have held that serving litigation documents by mail cannot be a predicate act to establish mail fraud under the RICO statute"); Kashelkar, 97 F.Supp.2d at 393 ("soundly" rejecting "contention that" "legitimate conduct of attorneys representing their clients in pending litigation" can "constitute mail or wire fraud"); Daddona, 156 F.Supp.2d at 162 ("Courts have found that allegations of malicious prosecution or abuse of process do not, on their own, suffice as predicate acts for a RICO violation."); Nakahara, 1998 WL 35123, at *7 n. 7, 1998 U.S. Dist. LEXIS 825, at *24 n. 7 ("The core conclusion... that the threat of litigation or the initiation of unjustified lawsuits constituting malicious prosecution cannot alone form a predicate act for purposes of RICO has been reached by numerous courts ... in this jurisdiction and others.") (collecting cases); Sundwall v. Weinstein & Assocs., No. 3:97-cv-405, 1997 WL 507724, at *2, 1997 U.S. Dist. LEXIS 12702, at *4
Plaintiffs' response to the Bushman Memorandum's discussion of these multiple persuasive authorities (see Bushman Mem. at 10-12) amounts to simply alleging that even legitimate legal documents can amount to mail fraud because to prove mail fraud, a plaintiff need not show that the mailings themselves were fraudulent if the mailings were part of an overall scheme to defraud. (See Pl. Bushman Mem. at 23-31.) Certainly, this is a correct statement of the law. See, e.g., Bridge, 553 U.S. at 647, 128 S.Ct. 2131 (noting that any mailing that is incident to an essential part of an overall scheme to defraud "satisfies the mailing element [for mail fraud] ... even if the mailing itself contains no false information") (internal quotations and citations omitted). However, this argument does nothing to address the weight of authority discussed above. Indeed, notwithstanding plaintiffs' lengthy recitation of the elements and components of the two different alleged schemes to defraud here, plaintiffs' memoranda in opposition to defendants' motions to dismiss fail to discuss a single case contrary to the long line of cases finding that defendants' "litigation activities" alone, cannot, as a matter of law, suffice as predicate acts to support a RICO claim.
Finally, in a footnote to plaintiffs' reply memorandum in support of plaintiffs' motion to again amend the Complaint, plaintiffs seek to respond to this authority by citing to a single Second Circuit case, United States v. Eisen, for the proposition that litigation activities can indeed rise to the level of RICO predicate acts and constitute a "pattern of racketeering activity" as required by the RICO statutes. (See ECF No. 185, Reply Mem. in Further Support of Pl. Mot. for Leave to Amend at 5 n. 2 (citing Eisen, 974 F.2d 246 (2d Cir. 1992).) However, Eisen is inapposite here. First, the holding in Eisen did not reach the issue here regarding whether litigation activities alone can suffice as RICO predicate acts of mail and wire fraud. Second, the facts of Eisen are plainly distinguishable from the facts here and therefore provide no support for plaintiffs' position.
Eisen involved the criminal prosecution of seven attorneys, investigators, and office personnel of a Manhattan law firm ("the Eisen Firm") which specialized in bringing personal injury suits on behalf of plaintiffs. Eisen, 974 F.2d at 251. The evidence at trial in that case showed that the defendants conducted the affairs of the Eisen Firm through a "pattern of mail fraud and witness bribery by pursuing counterfeit claims" by, among other things "pressuring accident witnesses to testify falsely, paying individuals to testify falsely..., paying unfavorable witnesses not to testify, and creating false ... evidence for use before and during trial." Id. Thus, in Eisen, the defendant attorneys "went well beyond their capacities as legal representatives" in conducting their fraudulent scheme. See Morrow v. Blessing, No. 04-cv-1161, 2004 WL 2223311, at *5, 2004 U.S. Dist. LEXIS 20318, at *16 (E.D.Pa. Sept. 20, 2004).
Plaintiffs' arguments are thus unavailing, and this court finds that as a matter of law, the allegations in the Complaint are insufficient to plead a pattern of racketeering activity, and therefore the substantive RICO claims should be dismissed. See Spool, 520 F.3d at 183 ("[U]nder any prong of § 1962, a plaintiff in a civil RICO suit must establish a `pattern of racketeering activity'" and adequately allege such "pattern of racketeering activity" in the complaint in order to withstand a motion to dismiss).
Moreover, even assuming, arguendo, that plaintiffs' allegations do not fail to state RICO predicate acts as a matter of law, plaintiffs' RICO claims fail because the allegations of mail and wire fraud do not meet the heightened pleading requirements of Rule 9(b). Rule 9(b) requires that RICO allegations of mail and wire fraud be pleaded with particularity. See Fed.R.Civ.P. 9(b) ("In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake."); see also Moore v. PaineWebber, Inc., 189 F.3d 165, 172 (2d Cir. 1999) (Rule 9(b) "applies to RICO claims for which fraud is the predicate illegal act").
Typically, to meet the heightened Rule 9(b) pleading standard, where a plaintiff claims that specific communications were themselves fraudulent or misleading the plaintiff must identify the fraudulent communications, their contents, who made the communications, where and when the communications were made, and why the communications were fraudulent. See Moore, 189 F.3d at 173 ("In the RICO context, Rule 9(b) calls for the complaint to specify the statements it claims were false or misleading, give particulars as to the respect in which plaintiffs contend the statements were fraudulent, state when and where the statements were made, and identify those responsible for the statements. The plaintiffs must also identify the purpose of the mailing within the defendant's
Here, plaintiffs' bare allegations that defendants mailed various litigation-related documents on or about certain specified dates plainly fall short of these heightened pleading requirements. The allegations both fail to identify any allegedly fraudulent or misleading statements by defendants or to adequately plead the existence of an overall scheme to defraud.
First, plaintiffs fail to allege which, if any, statements by the defendants, whether within the litigation-related documents identified in the Complaint or otherwise, were allegedly false or misleading. Nor do plaintiffs particularize "the respect in which plaintiffs contend the statements were fraudulent." See Moore, 189 F.3d at 173; see also Anatian v. Coutts Bank (Switz.) Ltd., 193 F.3d 85, 88 (2d Cir.1999) (affirming dismissal of RICO claims for "failure to plead fraud with particularity" and noting that "[e]ven if we were to find that the time and content of [the pleaded] communications met the Rule 9(b) standard, plaintiffs' claim must be dismissed because they failed to allege how those statements were fraudulent").
Rather, plaintiffs themselves appear at times to acknowledge that the mailings identified in the Complaint are not fraudulent or misleading. (See generally Pl. Bushman Mem. at 23-31 (asserting that Rule 9(b) can be satisfied even absent allegations that the litigation-related mailings themselves were fraudulent).) Yet even after acknowledging as much, and notwithstanding plaintiffs' vague and conclusory allegations of defendants' "Big Lie[s]," (see Compl. at ¶¶ 70-71, 124(B)), plaintiffs fail to isolate any other statements by defendants which are allegedly fraudulent. (See generally Compl.) Thus, in complete contravention of Rule 9(b)'s pleading standard, plaintiffs fail to identify what misrepresentations were made by defendants, to whom the statements were made, when or where the statements were made, or how these statements were fraudulent or misleading. See Moore, 189 F.3d at 173.
Moreover, plaintiffs make no attempt to "identify the purpose of the mailing[s] within" the defendants' overall alleged "fraudulent scheme" and further fail to adequately plead the existence of any scheme to defraud. See id. A "scheme to defraud" requires "fraudulent
Here, in light of plaintiffs' failure to identify or articulate the nature of any fraudulent statements, and setting aside plaintiffs' conclusory allegations of meritless state court litigation, plaintiffs fail to allege any scheme to defraud involving the required element of deception. See id. at 192 ("An allegation of wrongful conduct... is insufficient since not every use of the mails or wires in furtherance of an unlawful scheme to deprive another of property constitutes mail or wire fraud. The mail fraud statute requires some element of deception.") (internal quotations and citations omitted). Plaintiffs conclusorily allege that defendants' state court pleadings are "false" or "frivolous" and thereby indirectly and improperly seek to re-litigate such state claims (discussed supra n. 23). Plaintiffs also conclusorily allege defendants' use of fraudulent conveyances (discussed supra n. 20). Thus, even generously construing the allegations in the Complaint, plaintiffs fail to allege the existence of a scheme to defraud involving some element of deception. Indeed, the court is at a loss to even decipher whom plaintiffs allege as the intended target of the ambiguously alleged schemes to defraud, whether plaintiffs themselves (see Pl. Bushman Mem. at 25 n. 16 ("the intended victims of the scheme are Curtis and its insurer")), plaintiffs' malpractice insurer (see id.), the New York courts (see id. at 23 n. 12 (noting "it is the courts" "who are deceived" by the scheme)), or the "corruptible" former clients of the Curtis Law Firm (see id. at 21 ("seven vulnerable but greedy, [former clients of plaintiffs], who become victims again")).
In an attempt to save their amorphously alleged claims of mail and wire fraud, plaintiffs rely on United States v. Trapilo, 130 F.3d 547 (2d Cir.1997), for the proposition that they may adequately allege a scheme to defraud even without alleging any "affirmative allegations of misrepresentations." (See Pl. Bushman Mem. at 28 (citing Trapilo, 130 F.3d at 550).) While certainly correct that a scheme to defraud may involve mailings which are not themselves fraudulent, see Bridge, 553 U.S. at 647, 128 S.Ct. 2131, plaintiffs err
Because plaintiffs' pleadings contain no allegations of fraud sufficient to withstand scrutiny under Rule 9(b), the RICO claims must also be dismissed under that Rule. See S.Q.K.F.C. Inc. v. Bell Atl. Tricon Leasing Corp., 84 F.3d 629, 634-36 (2d Cir.1996) (affirming district court dismissal of RICO claims for failure to plead fraud with particularity as required by Rule 9(b)).
While defendants additionally argue a host of other—potentially valid—alleged infirmities with the Complaint, the court need not reach those arguments here, for absent any pattern of racketeering activity or sufficiently pleaded allegations of fraud, the substantive RICO violations alleged in Counts One through Five must be dismissed. See Spool, 520 F.3d at 183 (dismissal of RICO claims appropriate where plaintiffs fails to adequately allege a "pattern of racketeering activity"); see also S.Q.K.F.C., 84 F.3d at 634-36 (dismissal of RICO claims appropriate where allegations are deficient under Rule 9(b)).
Because plaintiffs' substantive RICO claims are deficient and cannot survive a
The federal RICO claims—the basis for this court's federal question jurisdiction—having been dismissed, the court is left with a discretionary choice as to whether it will retain supplemental jurisdiction over the Complaint's state law claims. 28 U.S.C. § 1367(c)(3). The court declines to exercise its supplemental jurisdiction over the Complaint's state law claims and those claims are therefore dismissed without prejudice. See id.; see also Sadallah v. City of Utica, 383 F.3d 34, 40 (2d Cir.2004) ("[B]ecause plaintiffs no longer have any viable federal claim, any remaining state law claims belong in state, rather than federal, court. The district court should therefore decline supplemental jurisdiction over any state law claims.") (citing United Mine Workers of America v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966) ("Certainly, if the federal claims are dismissed before trial,... the state claims should be dismissed as well.") (additional internal citation omitted)).
Under the Federal Rules of Civil Procedure, a court should "freely give leave [to amend the pleadings] when justice so requires." Fed.R.Civ.P. 15(a)(2). The rationale underlying this rule is that "[i]f the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, [the plaintiff] ought to be afforded an opportunity to test his claim on the merits" through an amended pleading. Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962). Conversely, however, where the underlying facts and circumstances could never be a "proper subject of relief," denial of leave to amend is within a court's discretion. See id.; see also Burch v. Pioneer Credit Recovery, Inc., 551 F.3d 122, 126 (2d Cir. 2008) ("While Federal Rule of Civil Procedure 15(a) states that leave to amend should be granted `when justice so requires,' motions to amend should generally be denied in instances of futility, undue delay, bad faith or dilatory motive, repeated failure to cure deficiencies by amendments previously allowed, or undue prejudice to the nonmoving party.") (citing Foman, 371 U.S. at 182, 83 S.Ct. 227). Thus, "[i]t is well established that leave to amend a complaint need not be granted where amendment would be futile." Ellis v. Chao, 336 F.3d 114, 127 (2d Cir.2003).
Having thoroughly reviewed plaintiffs' seventy-page proposed second amended complaint and sixty-one proposed accompanying exhibits,
Moreover, prior to making their proposed amendments, plaintiffs had the benefit of reviewing defendants' fully briefed motions to dismiss the Complaint which detailed the grounds upon which defendants attacked the pleadings—including the very basis relied upon by this court for dismissal. Despite this fair notice of the deficiencies in the Complaint, plaintiffs' proposed amendments fail to correct these issues. Under such circumstances, further leave to amend is inappropriate. See, e.g., Curtis v. Citibank, N.A., 204 Fed.Appx. 929, 932 (2d Cir.2006) (finding dismissal with prejudice proper where plaintiff has notice of complaint's deficiencies and fails to correct them) (citing Denny v. Barber, 576 F.2d 465, 471 (2d Cir.1978) ("This is not a case . . . where the appellant was unaware of the deficiencies in his complaint when he first amended it. Here [the district court], in dismissing the initial complaint, had put plaintiff's counsel on the plainest notice of what was required.") (internal footnote omitted)); see also Midwest Grinding Co., Inc. v. Spitz, 976 F.2d 1016, 1021 (7th Cir.1992) (finding district court's denial of leave to amend justified where plaintiffs "had fair notice of its pleading deficiencies from the defendants' motion to dismiss, but it chose to ignore that warning").
The federal RICO causes of action in Counts One through Ten are therefore dismissed with prejudice and plaintiffs' motion to amend the pleadings is denied.
Plaintiffs move to disqualify both Levy as counsel to DeGregorio
The Levitt defendants and Turansky seek sanctions against plaintiffs under Rule 11. Under the sanctions regime prescribed by Rule 11, if the court determines that an attorney, law firm, or party has "violated Rule 11(b) by making false, misleading, improper, or frivolous representations to the court," a court may impose sanctions either upon a motion for sanctions (Fed.R.Civ.P. 11(c)(2)), or upon the court's own initiative (Fed.R.Civ.P. 11(c)(3)). Williamson v. Recovery L.P., 542 F.3d 43, 51 (2d Cir.2008) (citing Fed. R.Civ.P. 11). Having failed to make a motion "separately from any other motion. . . [which] describe[s] the specific conduct that allegedly violates Rule 11(b)" in accordance with the requirements of Rule 11(c)(2), the Levitt defendants and defendant Turansky urge the court to "take action on its own" to sanction plaintiffs. (Levitt Mem. at 24, see also Levitt Reply Mem. at 8-9.)
Because the Levitt defendants and Turansky have failed to comply with Rule 11's procedural requirements, the court denies the defendants' application for attorneys' fees, costs, and damages pursuant to Rule 11(c)(2). See, e.g., Williamson, 542 F.3d at 51-52 (affirming district court's denial of Rule 11 sanctions where defendants "failed to meet the procedural requirements of Rule 11(c)).
Additionally, the court declines to exercise its authority to sanction plaintiffs sua sponte pursuant to Rule 11(c)(3). However, given the weight of authority discussed at length above, the long history of litigation between some of the parties in this case, and the currently ongoing state court litigation involving many of these same parties, the court notes its serious concerns with the apparent motivations for plaintiffs' initiation of this action.
For the reasons explained above, the federal RICO claims are dismissed in their entirety, with prejudice, and against all defendants, for failure to state a claim upon which relief can be granted. Fed. R.Civ.P. 12(b)(6). The court declines to exercise its supplemental jurisdiction over plaintiffs' state law claims, which are dismissed without prejudice. 28 U.S.C. § 1367(c)(3). The motion to amend or supplement the complaint is denied as futile. The motions to disqualify Levitt and Levy as counsel are denied as moot. The motion for sanctions is denied, and the court further declines to sua sponte issue sanctions.
The Clerk of the Court is respectfully requested to enter judgment in favor of defendants, to mail a copy of this memorandum and order to pro se defendant Nichols, and to close this case.
