Fagan v. Dist. Court for Southern Dist. of N.Y., 09 Civ. 0042(VM).

CourtUnited States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
Citation644 F.Supp.2d 441
Docket NumberNo. 09 Civ. 0042(VM).,09 Civ. 0042(VM).
Decision Date11 August 2009

Edward D. Fagan, New York, NY, pro se.

Joseph Anthony Pantoja, U.S. Attorney's Office, Bruce Harvey Schneider, Stroock & Stroock & Lavan LLP, Richard Henry Dolan, Schlam Stone & Dolan LLP, New York; NY, for Defendants.


VICTOR MARRERO, District Judge.


Plaintiff Edward D. Fagan ("Fagan") brought this action seeking access to certain judicial files and documents and other equitable relief, as well as fees and costs, related to litigation in a case before this Court presided over by Judge Shirley Wohl Kram involving restitution to Holocaust victims.

By Order dated July 24, 2009, Magistrate Judge Andrew Peck, to whom this matter had been referred for supervision of pretrial proceedings, issued a Report and Recommendation (the "Report"), a copy of which is attached and incorporated herein, recommending that the motions of various defendants to dismiss the complaint be granted in their entirety. Fagan did not file objections to the Report by the deadline of August 10, 2009, nor has he sought any extension to do so. For the reasons stated below, the Court adopts the recommendations of the Report in their entirety.


A district court evaluating a Magistrate Judge's report may adopt those portions of a report and recommendation to which no specific written objection is made, as long as the factual and legal bases supporting the findings and conclusions set forth in those sections are not clearly erroneous or contrary to law. Fed.R.Civ.P. 72(b); Thomas v. Arn, 474 U.S. 140, 149, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Greene v. WCI Holdings Corp., 956 F.Supp. 509, 513 (S.D.N.Y.1997). The Court is not required to review any portion of a Magistrate Judge's report that is not the subject of an objection. See Thomas, 474 U.S. at 149, 106 S.Ct. 466. A district judge may accept, set aside, or modify, in whole or in part, the findings and recommendations of the Magistrate Judge. See Fed.R.Civ.P. 72(b); DeLuca v. Lord, 858 F.Supp. 1330, 1345 (S.D.N.Y.1994).


Having conducted a review of the full factual record in this litigation, including the pleadings, and the parties' respective papers submitted in connection with the underlying motions, as well as the Report and applicable legal authorities, the Court concludes that the findings, reasoning, and legal support for the recommendations made in Report are not clearly erroneous or contrary to law and are thus warranted. Accordingly, for substantially the reasons set forth in the Report the Court adopts the Report's recommendations that Fagan's complaint be dismissed in its entirety.


For the reasons discussed above, it is hereby

ORDERED that the Report and Recommendation of Magistrate Judge Andrew Peck dated July 24, 2009 (Docket No. 68) is adopted in its entirety, and the motions of defendants herein (Docket Nos. 24, 32 and 42) to dismiss the complaint of plaintiff Edward D. Fagan with prejudice are GRANTED.

The Clerk of Court is directed to withdraw any pending motions and to close this case.



ANDREW J. PECK, United States Magistrate Judge:

To the Honorable Victor Marrero, United States District Judge:

Pro se plaintiff Edward D. Fagan, a disbarred attorney,1 brings this action against, among others, the United States District Court for the Southern District of New York (Judge Kram), court-appointed Special Master Howard Zifkin, other court appointed special masters and their counsel, Claims Committee counsel, and others involved in Holocaust victim restitution cases2 in which Fagan served as plaintiffs' counsel. (See Dkt. No. 1: Compl.; Dkt. No. 56: Fagan Cross-Mot. Ltr. Br. at 2-4.) Fagan seeks access to various documents and electronically stored information arising from the Austrian Banks and AHVRAM cases, certain injunctive relief, fees and costs, and asks this Court to "void[ ] the 2005 Orders in The AHVRAM Case" and to reinstate the "AHVRAM Claims." (Compl. ¶¶ 172-75, 185-95, 236-49, 265-71.)3

Presently before the Court are defendants' motions to dismiss the complaint pursuant to Rules 12(b)(1) & 12(b)(6) of the Federal Rules of Civil Procedure (Dkt. No. 24: Stroock Defs. Notice of Motion; Dkt. No. 32: Dolan/Wachter Defs. Notice of Motion; Dkt. No. 42: Gov't Notice of Motion), on the grounds, inter alia, that: (1) the United States District Court for the Southern District of New York is immune from suit under the doctrine of sovereign immunity (Dkt. No. 43: Gov't Br. at 8-10; Dkt. No. 61: Gov't Reply Br. at 2); (2) Special Master "Zifkin is absolutely immune ... predicated on Zifkin's official acts as a court-appointed special master" (Gov't Br. at 11-14; Gov't Reply Br. at 1-2); (3) "this action should be dismissed because the same allegations are at issue" in Fagan's Fed.R.Civ.P. 60(b) motion "before another judge of this Court," i.e., Judge Kram (Dkt. No. 26: Stroock Defs. Br. at 4-8; Dkt. No. 60: Stroock Defs. Reply Br. at 2); and (4) as a disbarred lawyer, Fagan has no standing to "seek[] to vacate the AHVRAM judgment" (Stroock Defs. Br. at 19-21).

For the reasons set forth below, defendants' motions to dismiss (Dkts. No. 24, 32, 42) should be GRANTED.


In the mid-1990s, Fagan—then a licensed attorney—began representing "Holocaust victims and persons with Holocaust Era and/or restitution claims .... to achieve restitution and damages" from the Austrian government and Austrian financial institutions "that profited from collaboration with the Nazis." (Dkt. No. 1 Compl. ¶¶ 4, 16-17.) In 2000, Judge Kram certified a settlement class and approved a settlement between Fagan's clients, among others, and the defendant banks in the Austrian Banks case. See In re Austrian & German Bank Holocaust Litig., 80 F.Supp.2d 164, 180 (S.D.N.Y.2000), aff'd sub nom. D'Amato v. Deutsche Bank, 236 F.3d 78 (2d Cir.2001).

In 2004, Fagan commenced the AHVRAM action against Bank Austria. (See Compl. App. pp. 517-63.) Judge Kram dismissed AHVRAM for lack of subject matter jurisdiction, finding that AHVRAM was "little more than an end run around the Bank Austria Settlement" in the Austrian Banks case. See Ass'n of Holocaust Victims for Restitution of Artwork & Masterpieces v. Bank Austria Creditanstalt Ag, 04 Civ. 3600, 2005 WL 2001888 at *1-2 (S.D.N.Y. Aug. 19, 2005). Judge Kram also imposed sanctions on Fagan under Fed.R.Civ.P. 11 and 28 U.S.C. § 1927 for "a lack of preparation and lack of professionalism[,] .... glaringly inadequate filings, utter disregard for the court, its schedule, and the rules of procedure," and for "obvious[ly] ... misrepresent[ing] critical facts." 2005 WL 2001888 at *4. Judge Kram held that Fagan brought claims "entirely without color" and in "bad faith," inappropriately circumvented the Austrian Banks settlement, and "attempt[ed] to profit by buying into the litigation." Id. at *5. Judge Kram fined Fagan $5,000 payable to the Clerk of Court and ordered him to pay all "Bank Austria's reasonable litigation costs and fees in connection with this [AHVRAM] action." Id. at *6.

On November 17, 2005, Judge Kram denied reconsideration of her August 19, 2005 Order dismissing the AHVRAM action and imposing sanctions on Fagan, and established the costs and fees due to Bank Austria ($345,520.64) and ordered Fagan to immediately pay his fine to the Court. See Ass'n of Holocaust Victims for Restitution of Artwork & Masterpieces v. Bank Austria Creditanstalt Ag, 04 Civ. 3600, 2005 WL 3099592 (S.D.N.Y. Nov. 17, 2005). In addressing the necessity of sanctions, Judge Kram commented that Fagan's "blatant disregard of procedural rules and careless abdication of his duties as a lawyer is characteristic of Mr. Fagan's conduct throughout this litigation" and that "[i]t is apparent to this Court that a heavy sanction is needed to deter Mr. Fagan from the conduct described in the August 19 Order." Id., 2005 WL 3099592 at *8.

In September 2005, Fagan appealed Judge Kram's 2005 order to the Second Circuit, (See Dkt. No. 25: Schneider Aff. Exs. D & E.) The Second Circuit dismissed Fagan's appeal on December 8, 2005 for failing to comply with the Second Circuit's Civil Appeals Management Plan. (See Schneider Aff. Ex. F: 12/8/05 Order & Dismissal.)

On October 8, 2008, Judge Kram granted Fagan's application for leave to file a new Rule 60(b) motion for reconsideration of her August 19, 2005 Order dismissing AHVRAM and imposing sanctions on Fagan. (04 Civ. 3600, Dkt. No. 41: 10/8/08 Kram Order.) Fagan filed the Rule 60(b) motion on November 14, 2008. (See Compl. App. pp. 603-58: Fagan 11/14/08 Rule 60(b) pleadings.) Fagan also filed a motion for recusal or expedited hearing. (Compl. App. pp. 647-58: 11/14/08 Fagan Recusal Aff.) Pagan's Rule 60(b) motion and recusal motion remain pending before Judge Kram. (See Compl. ¶ 20.)

On December 11, 2008, the First Department disbarred Fagan from the practice of law in New York based upon disciplinary proceedings arising from Fagan's actions in AHVRAM and upon Judge Kram's 2005 Orders. See In Re Fagan, 58 A.D.3d 260, 266, 869 N.Y.S.2d 417, 421 (1st Dep't 2008), appeal denied, 12 N.Y.3d 813 881 N.Y.S.2d 20, 908 N.E.2d 928 (table)(Apr. 28, 2009). The First Department found that Fagan's "conduct before Judge Kram was dishonest and prejudicial to the administration of justice," that Fagan "made deliberate misrepresentations to [the] court," and "repeatedly violated court rulings and procedures and failed .... to pay sanctions and fees imposed." In Re Fagan, 58 A.D.3d at 266, 869 N.Y.S.2d at 421. The First Department also noted that despite having obtained extensions, Fagan "never submitted any new evidentiary materials in support of his position." In Re Fagan, 58 A.D.3d at 265, 869 N.Y.S.2d at 420...

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