Polur v. Raffe
| Citation | 912 F.2d 52 |
| Decision Date | 22 August 1990 |
| Docket Number | D,No. 1048,1048 |
| Parties | Sam POLUR, Plaintiff-Appellant, v. Hyman RAFFE, Ira Postel, A.R. Fuels, Inc., Feltman, Karesh, Major & Farbman, Esqs., Donald F. Schneider, Esq., Alvin F. Klein, Justice of the Supreme Court, State of New York, County of New York, David H. Edwards, Jr., Justice of the Supreme Court, State of New York, County of New York, Donald F. Diamond, Special Referee of the Supreme Court, State of New York, County of New York, Defendants-Appellees. ocket 89-9003. |
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
Sam Polur, New York City, for plaintiff-appellant.
Howard M. Bergson, Hauppauge, N.Y. (Bergson & Samuels, Hauppauge, N.Y., of counsel), for defendants-appellees Hyman Raffe and A.R. Fuels, Inc.
Edward Weissman, New York City (Donald F. Schneider, Feltman, Karesh, Major & Farbman, New York City, of counsel), for defendants-appellees Donald F. Schneider and Feltman, Karesh, Major & Farbman.
Before LUMBARD, KEARSE and MINER, Circuit Judges.
Plaintiff-appellant Sam Polur appeals from a judgment entered on July 24, 1989, in the United States District Court for the Southern District of New York (Stanton, J.) dismissing his complaint in part on res judicata and collateral estoppel grounds and in part for failure to state a claim upon which relief may be granted. In the complaint, Polur alleged that defendants-appellees conspired to deprive him of his constitutional rights in violation of 42 U.S.C. Sec. 1983 (1982) and engaged in a pattern of racketeering in violation of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. Secs. 1961-1968 (1988), by wrongfully obtaining and enforcing a state criminal contempt order and sanctions judgment against him. Polur also appeals from that portion of the judgment enjoining him from filing in the federal courts, against certain of the defendants, further suits arising out of any matter relating to the instant litigation. See Polur v. Raffe, 727 F.Supp. 810 (S.D.N.Y.1989).
On appeal, Polur contends that the district court erred in dismissing the complaint. He also contends that the injunction is improper. We affirm the dismissal of the complaint substantially for the reasons adopted by Judge Stanton; however, we modify the injunction as provided herein.
This appeal represents another, and hopefully final, chapter of the tortured litigation surrounding the dissolution of Puccini Clothes, Ltd. ("Puccini"). In 1980, the estate of a Puccini shareholder petitioned the New York State Supreme Court for dissolution of the company. Defendant-appellee Hyman Raffe, another Puccini shareholder, moved to have himself appointed as the receiver of the company. The court denied Raffe's motion and disqualified his attorney, George Sassower, from representing Raffe due to a conflict of interest that Sassower had with other Puccini Polur, who was substituted as Raffe's counsel of record, filled Sassower's shoes by commencing actions in state and federal court against FKMF and defendant-appellee Lee Schneider, an attorney with FKMF. In conjunction with an action pending in New York State Supreme Court, FKMF and Schneider filed a motion seeking to hold Polur in contempt for violating the Gammerman injunction. Polur was found in contempt by defendant-appellee Justice Klein of the supreme court, sentenced to a term of imprisonment of 30 days and fined $250. The Appellate Division affirmed the order. Raffe v. Riccobono, 113 A.D.2d 1038, 493 N.Y.S.2d 70 (1st Dep't) (Riccobono I ), appeal dismissed, 66 N.Y.2d 915, 489 N.E.2d 773, 498 N.Y.S.2d 1027 (1985), cert. denied, 480 U.S. 932, 107 S.Ct. 1570, 94 L.Ed.2d 762 (1987).
shareholders. Sassower ignored the court order and commenced a barrage of lawsuits against the court-appointed receiver, Lee Feltman, and his law firm, defendant-appellee Feltman, Karesh, Major & Farbman ("FKMF"). In 1985, Justice Gammerman of the New York State Supreme Court enjoined Sassower, Raffe, and those acting in cooperation with them, from filing "in any court, tribunal, agency or other forum of [New York] State" any lawsuit against FKMF and its attorneys relating to the Puccini dissolution and receivership. In re Barr, No. 1816/80 (N.Y.Sup.Ct. Jan. 23, 1985) ("Gammerman injunction").
Polur also sought, and was denied, relief from enforcement of the contempt order in a proceeding under Article 78 of the New York Civil Practice Law and Rules. Raffe v. Klein, 113 A.D.2d 1033, 493 N.Y.S.2d 676 (1st Dep't), appeal dismissed, 66 N.Y.2d 914, 489 N.E.2d 772, 498 N.Y.S.2d 1026 (1985). Two petitions for a writ of habeas corpus were denied by state courts. New York ex rel. Polur v. Sheriff of the City of New York, No. 16595/85 (N.Y.Sup.Ct. July 17, 1985); New York ex rel. Sassower v. Cunningham, 112 A.D.2d 119, 492 N.Y.S.2d 608 (1st Dep't) (mem.), appeal dismissed, 66 N.Y.2d 914, 489 N.E.2d 772, 498 N.Y.S.2d 1026 (1985). A petition filed in federal court for a writ of habeas corpus also was denied. In re Raffe, No. 85 Civ. 5112 (MJL) (S.D.N.Y. July 29, 1985).
In the meantime, Justice Klein appointed defendant-appellee Donald F. Diamond as special referee to calculate attorney's fees as a sanction against Polur. Diamond assessed the fees in the sum of $12,500. Polur brought an Article 78 proceeding on the ground that the sanctions judgment was invalid, but his application was denied. Polur v. Diamond, No. 1816/80 (N.Y.Sup.Ct. Apr. 15, 1986), application denied, 120 A.D.2d 992, 502 N.Y.S.2d 315 (1st Dep't 1986).
In August 1986, Polur commenced a state court action against FKMF, Schneider, Justice Klein and others, alleging that they had conspired to convict him of contempt. The action was dismissed by defendant-appellee Justice Edwards, who found the suit barred by the Gammerman injunction. Polur v. Feltman, Karesh, Major & Farbman, No. 17481/86 (N.Y.Sup.Ct. Dec. 7, 1987) (FKMF I ).
On December 9, 1987, Polur filed an action under 42 U.S.C. Sec. 1983 in federal court against the same defendants as in FKMF I. The gravamen of the complaint was that the defendants had conspired to deprive him of his civil rights by wrongfully convicting him of contempt and attaching certain bank accounts to satisfy the sanctions judgment. Judge Lowe dismissed the action as barred by collateral estoppel and awarded sanctions against Polur under Federal Rule of Civil Procedure 11. Polur v. Feltman, Karesh, Major & Farbman, No. 87 Civ. 8700 (MJL) (S.D.N.Y. June 26, 1989) (FKMF II ), aff'd mem., 895 F.2d 1411 (2d Cir.1989).
Polur commenced the instant action on April 8, 1988, seeking damages on section 1983 and RICO claims. In claims one through four of the complaint, Polur alleged that the appellees conspired to deprive him of his constitutional rights in violation of section 1983. He asserted in the first claim that FKMF, Schneider and Justice Klein conspired to convict him of criminal contempt. In the third claim, Polur alleged that FKMF, Schneider and Diamond conspired to impose an invalid sanctions Polur's second claim involved allegations that Raffe, Justice Klein and Ira Postel, an attorney who allegedly was retained by Raffe without Polur's knowledge, conspired to convict Polur of criminal contempt in order to interfere with his attorney/client relationship with Raffe. In the fourth claim, Polur averred that FKMF, Schneider and Justice Edwards conspired to deprive him of access to the courts. The district court dismissed the claims against Justices Klein and Edwards on the ground of judicial immunity. After concluding that private persons may not be held liable for an alleged conspiracy with a judge entitled to immunity, Judge Stanton also dismissed the claims against FKMF, Schneider, Postel and Raffe. Id. at 816.
judgment against him. Judge Stanton dismissed these claims as barred by res judicata and collateral estoppel. 727 F.Supp. at 815.
The gravamen of the RICO claims was that the defendants engaged in a pattern of racketeering by committing certain predicate acts through the enterprise of the New York State Supreme Court. Judge Stanton dismissed the RICO claims as barred by collateral estoppel. Id. at 815. He also enjoined Polur from filing further suits in the federal courts against Schneider and FKMF relating to the dissolution of Puccini, but he denied the other defendants' application for similar relief. Id. at 816-17.
Polur raises a welter of contentions challenging the validity of the contempt order and the sanctions judgment. Because we affirm substantially for the reasons that Judge Stanton adopted in dismissing the complaint, we find it unnecessary to address all of Polur's contentions.
The district court dismissed the first claim--the FKMF, Schneider and Justice Klein conspiracy--and the third claim--the FKMF, Schneider and referee Diamond conspiracy--as barred by the principles of res judicata and collateral estoppel. Id. at 815. "[A] federal court must give to a state-court judgment the same preclusive effect as would be given that judgment under the law of the State in which the judgment was rendered." Migra v. Warren City School Dist. Bd. of Educ., 465 U.S. 75, 81, 104 S.Ct. 892, 896, 79 L.Ed.2d 56 (1984); see Benjamin v. Coughlin, 905 F.2d 571, 575 (2d Cir.1990). The doctrine of collateral estoppel, or issue preclusion, prevents relitigation of an issue which is identical to one necessarily decided in a prior action and which the parties were afforded a full and fair opportunity to contest in that prior proceeding. Halyalkar v. Board of Regents, 72 N.Y.2d 261, 266, 527 N.E.2d 1222, 1224, 532 N.Y.S.2d 85, 87 (1988); see In re The Am. Tobacco Co., 880 F.2d 1520, 1527 (2d Cir.1989). We agree with Judge Stanton that Polur is collaterally estopped from adjudicating the first and third claims, and we therefore do not address appellees' res judicata argument.
Here, Polur seeks to relitigate the validity of...
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