Crown Heights Jewish Community Council v. Fischer

• Decision Date: 10 August 1999
• Docket Number: No. 92 CV 3123(NG)SMG.,92 CV 3123(NG)SMG.
• Citation: 63 F.Supp.2d 231
• Parties: CROWN HEIGHTS JEWISH COMMUNITY COUNCIL, INC. and Chevra Machziket H' Shechuna, Inc., Plaintiffs, v. David FISCHER, et al., Defendants.
• Court: U.S. District Court — Eastern District of New York

63 F.Supp.2d 231

CROWN HEIGHTS JEWISH COMMUNITY COUNCIL, INC. and Chevra Machziket H' Shechuna, Inc., Plaintiffs, v. David FISCHER, et al., Defendants.

No. 92 CV 3123(NG)SMG.

United States District Court, E.D. New York.

August 10, 1999.

COPYRIGHT MATERIAL OMITTED

Peter A. Joseph, Weinstock, Joseph, Klatsky, Nisonoff & Schwartz, LLP, for plaintiffs.

Eli Feit, Heller, Horowitz & Feit, P.C., for Fischer defendants.

ORDER

GERSHON, District Judge.

In this action brought under the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. §§ 1961 et seq., and New York State law, the Fischer defendants¹ ("defendants") and the plaintiffs seek summary judgment. Their motions were referred to the Honorable Steven M. Gold, Magistrate Judge, for report and recommendation. Judge Gold, who has a thorough familiarity of this case through his supervision of lengthy pretrial proceedings and involvement in prior motions, has now filed a Report recommending that defendants' motion be granted. Judge Gold found that plaintiffs have failed to identify admissible evidence sufficient to raise genuine questions of fact for trial with respect to their claims that defendants violated RICO and that the remaining claims, brought under the court's supplemental jurisdiction, should be dismissed without prejudice. For the reasons stated below, the Report and its recommendations are adopted in their entirety.

Before the magistrate judge plaintiffs principally relied on summaries and purported quotations from depositions set forth by their attorney, Peter A. Joseph, Esq., in a 134-page affidavit. They did not present to Judge Gold the depositions themselves; nor did they submit the central documents upon which they rely, with authenticating affidavits. Despite plaintiffs' unfounded claims to the contrary, the materials submitted to Judge Gold, are, for the most part, without evidentiary value and are insufficient under Rule 56 of the Federal Rules of Civil Procedure to defeat what Judge Gold correctly found to be the evidentiary showing made by the defendants that a RICO claim could not be established. Judge Gold set forth the applicable law with clarity and then carefully and exhaustively analyzed the plaintiffs' contentions that there is an evidentiary basis for their RICO claims which requires a trial. Indeed, even though the plaintiffs are proceeding with counsel, and not pro se, Judge Gold has given them every possible opportunity to meet the showing made by the defendants. For example, he allowed them to answer the motion some nine months after it was brought, and he reviewed transcripts of depositions which plaintiffs claim support them, even though the plaintiffs had failed to submit those transcripts.

Judge Gold properly rejected plaintiffs' claim that his rulings on discovery excused them from submitting deposition transcripts. Plaintiffs claim that defendants had the burden of submitting accurate copies of the deposition transcripts upon which plaintiffs rely. Such a claim has no basis in law, nor in any of the rulings made by Judge Gold to accommodate the plaintiffs by requiring the defendants to make available to plaintiffs any transcripts upon which defendants were relying.

Turning to the merits, Judge Gold found that:

This Court's concern with plaintiffs' failure to support their opposition to summary judgment with deposition transcripts is substantive as well as procedural. To the limited extent that, although not submitted by plaintiffs, the actual transcripts of the testimony cited in the Joseph affidavit have been made available to the Court, comparisons between the testimony "quoted" in the Joseph affidavit and the original transcripts reveals that significant words have been omitted, sentences have been quoted out of order, and statements have been taken out of context.

Report at 19. Judge Gold then proceeded to analyze each of plaintiffs' claims in detail, noting that either there is a total failure of proof or that the claimed proof, upon examination, does not support the plaintiffs' position. Among other things, he correctly found that findings in other cases which plaintiffs claim are usable against the defendants under the doctrines of res judicata or collateral estoppel are not determinative of the issues presented in this case.

In plaintiffs' objections to the Report, they continue to rely on the inadmissible Joseph affidavit's hearsay allegations as to the content of depositions. As before, plaintiffs rely on unsupported allegations of fact, proffer as facts grossly misleading characterizations of the evidence, challenge the credibility of witnesses whose depositions are relied upon by the defendants without offering countervailing admissible proof, and refer to still further inadmissible evidence such as newspaper articles.

In addition, they now point to what they claim is additional evidence of the defendants' wrongdoing and ask the court to consider it even though it was not presented to Judge Gold. Plaintiffs claim that they should be permitted to supplement the record and, finally, offer what they assert will be evidentiary facts to defeat the summary judgment motion. They offer no sound basis in support of supplementation. For example, they suggest that, since the complaint refers the court to "the public record" of various deeds and mortgages, they "were uncertain whether or not the Magistrate in such an instance, would appoint a master to investigate the records in question," see Letter of Peter A. Joseph, Esq., dated December 11, 1998, and use this as an excuse for why they did not previously produce the deeds and mortgages themselves. Their claim that they were prejudiced by Judge Gold's failure to rule on a contempt motion for sanctions against the defendants and other parties and non-parties made in early 1997 is equally meritless. Even assuming arguendo that the motion was not fully resolved (but see Docket Entry # 185 of April 10, 1997), its lack of resolution was never presented to Judge Gold as a basis for denying defendants' motion for summary judgment. That is, plaintiffs neither claimed that resolution of the contempt motion for sanctions was necessary to their ability to respond to the motion for summary judgment, nor did they claim that the absence of particular discovery prejudiced their ability to respond to the motion. On the contrary, plaintiffs themselves moved for summary judgment on the ground that the facts prove defendants' liability.

Given the history of this case, it would be an abuse of the invaluable role played by magistrate judges in reviewing dispositive motions to reopen the record to give plaintiffs yet another opportunity to fulfill their obligation to submit admissible evidence. This court's review of a magistrate judge's report and recommendation is de novo, and the court is permitted, in its discretion, to accept supplemental evidence. See 28 U.S.C. § 636(b)(1); Fed. R.Civ.P. 72(b); Hynes v. Squillace, 143 F.3d 653, 656 (2d Cir.1998), cert. denied, ___ U.S. ___, 119 S.Ct. 246, 142 L.Ed.2d 202 (1998). But it is well established that the court may also decline to exercise its discretion to allow such supplementation. Thus, the Second Circuit in Hynes noted that:

[W]e have upheld the exercise of the district court's discretion in refusing to allow supplementation of the record upon the district court's de novo review. See, e.g., Paddington Partners v. Bouchard, 34 F.3d 1132, 1137-38 (2d Cir. 1994) (finding no abuse of discretion in district court's refusal to consider supplemental evidence); Pan American World Airways, Inc. v. International Bhd. of Teamsters, 894 F.2d 36, 40 n. 3 (2d Cir.1990) (holding that district court did not abuse its discretion in denying plaintiff's request to present additional testimony where plaintiff "offered no justification for not offering the testimony at the hearing before the magistrate"); see also Wallace v. Tilley, 41 F.3d 296, 302 (7th Cir.1994) ("It is not in the interests of justice to allow a party to wait until the Report and Recommendation or Order has been issued and then submit evidence that the party had in its possession but chose not to submit. Doing so would allow parties to undertake trial runs of their motion, adding to the record in bits and pieces depending upon the rulings or recommendation they received.") (internal quotation marks and citations omitted).

143 F.3d at 656. As similarly noted in Paterson-Leitch Co. v. Massachusetts Mun. Wholesale Elec. Co., 840 F.2d 985 (1st Cir.1988):

Systemic efficiencies would be frustrated and the magistrate's role reduced to that of a mere dress rehearser if a party were allowed to feint and weave at the initial hearing, and save its knockout punch for the second round. In addition, it would be fundamentally unfair to permit a litigant to set its case in motion before the magistrate, wait to see which way the wind was blowing, and — having received an unfavorable recommendation — shift gears before the district judge.

840 F.2d at 991. Here, plaintiffs offer no sound basis for reopening the record. The request to reopen is denied.

CONCLUSION

For the above-stated reasons, I adopt Magistrate Judge Gold's Report and Recommendation in its entirety and direct that the Complaint against the Fischer defendants be dismissed.

SO ORDERED.

REPORT AND RECOMMENDATION

GOLD, United States Magistrate Judge.

Introduction

Plaintiffs, the Crown Heights Jewish Community Council, Inc. (the "Council") and Chevra Machziket H'Shechuna, Inc. ("CMH"), bring this action pursuant to the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1961 et seq., alleging that, together with others, defendant David Fischer engaged in a scheme to defraud plaintiffs in connection with various real estate transactions involving property in the Crown Heights section of Brooklyn, New York.¹ Plaintiffs also claim, pursuant to New York State law, that defendant Fischer...