Galu v. Attias

• Decision Date: 30 April 1996
• Docket Number: No. 94 Civ. 8761 (JES).,94 Civ. 8761 (JES).
• Citation: 923 F. Supp. 590
• Parties: Deborah GALU, Plaintiff, v. Amy ATTIAS, Esq., Defendant.
• Court: U.S. District Court — Southern District of New York

923 F. Supp. 590

Deborah GALU, Plaintiff, v. Amy ATTIAS, Esq., Defendant.

No. 94 Civ. 8761 (JES).

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

April 30, 1996.

Deborah Galu, Plaintiff, Pro Se.

Amy Attias, Defendant, Pro Se.

MEMORANDUM OPINION AND ORDER

SPRIZZO, District Judge.

Pursuant to 28 U.S.C. § 1332, plaintiff Deborah Galu, acting pro se, brings the instant action against her former attorney Amy Attias, also acting pro se, asserting claims of legal malpractice and negligent and intentional infliction of emotional distress arising out of Attias's representation of Galu on criminal charges. Pursuant to Federal Rule of Civil Procedure 56(c), Attias moves for summary judgment. Pursuant to Federal Rule of Civil Procedure 56(g), Galu cross-moves for summary judgment on the ground that Attias filed affidavits in support of her motion in bad faith. For the reasons that follow, Attias's motion is granted, and Galu's cross-motion is denied.

BACKGROUND

On July 4, 1985, Deborah Galu, an American citizen and resident alien of France, was seized and forcibly deported from Switzerland, where she had been employed by the United Nations High Commissioner for Refugees. See Memorandum of Law in Support of Plaintiff's Motion for Summary Judgment dated January 25, 1995, Off. Doc. 9 at 29-30;¹ Galu v. Swissair, 873 F.2d 650, 651 (2d Cir. 1989). Since her deportation, Galu has been involved in protracted civil and criminal litigation arising out of her deportation.² See "Affirmation" of Deborah Galu sworn to January 25, 1995, Off. Doc. 9 ("Second Galu Aff.") ¶ 2, at 10.

Galu, who has suffered from psychological problems for many years, alleges that during the course of this litigation her attorneys, her opponents' attorneys, the United States Attorney and various presiding judges subjected her to "years of litigation-abuse" by conspiring to defeat her civil litigation. Id. ¶¶ 10, 15, 18, 23, at 14, 20, 23, 27. Specifically, Galu claims, inter alia, that the succession of attorneys representing her before the district and circuit courts in Galu v. Swissair, 873 F.2d 650 (2d Cir.1989), accepted bribes to "mis-advise" her. See First Amended Complaint, Off. Doc. 8 ("First Am. Compl.") ¶ 4.

Thereafter, while proceeding pro se in the same litigation, Galu encountered considerable difficulty pleading her cause of action properly. Galu claims that, in an effort to stymie her litigation success, the opposing attorneys, insurers and judges conspired to "conceal 49 USC § 1502" from her, which she alleges contained the cause of action crucial to her pleadings, by hiding that volume from her in the law library. See First Am. Compl. ¶ 4. Galu further claims that the presiding district court judge was aware of this conspiracy but refused to remedy the problem. Id. ¶ 8.

As a result of her frustrations, Galu mailed letters to the district court judge presiding over one of her civil actions threatening to physically harm, inter alia, the district court judge and the Chief Justice of the United States Supreme Court. See Second Galu Aff. ¶ 3, at 11 and Exh. 4. On May 13, 1994, Deborah Galu was arrested and surrendered to pre-trial custody on federal criminal charges of threatening a judge, in violation of 18 U.S.C. § 877. See First Am. Compl. ¶ 2; United States v. Galu, 94 Cr. 911 (CBB).

At her initial appearance held the same day, the government moved pursuant to 18 U.S.C. §§ 4241 and 4247 to have Galu examined for competency to stand trial, and Galu, acting pro se, cross-moved to dismiss the indictment.³See First Am. Compl. ¶ 3. At the initial appearance, the court granted the motion for a competency examination and denied Galu's cross-motion. Id. ¶ 4. Pursuant to the Criminal Justice Act, 18 U.S.C. § 3006(a), the court appointed Amy Attias to represent Galu at the competency hearing. See id. ¶ 4; Memorandum of Law in Support of Defendant's Motion for Summary Judgment, Off. Doc. 17 ("Attias Mem.") at 1. Attias is a sole practitioner who has practiced criminal defense law for many years. See Attias Mem. at 6-7; "Affirmation" of Deborah Galu sworn to January 4, 1995, Off. Doc. 19 ("First Galu Aff.") ¶ 8.

At the initial appearance and thereafter, Attias discussed the pending criminal charges with Galu. See Affidavit of Amy M. Attias Sworn to February 24, 1995, Off. Doc. 14 ("Attias Aff.") ¶¶ 4-6. From the outset, Galu insisted that Attias pursue the following defense strategy. Attias should "re-oppose" the motion for a competency examination and proceed directly to trial without any determination of Galu's competency to stand trial. Id. ¶ 3; First Am. Compl. ¶ 4. At trial, Attias should prove that as a result of the "litigation abuse" suffered at the hands of attorneys and judges throughout the various litigations, Galu was driven insane. First Am. Compl. ¶ 5. Galu claims that once Attias established at trial this and numerous other conspiracies against her,⁴ Galu would inevitably be found not guilty by reason of insanity. See id. ¶¶ 5,6; Second Galu Aff. ¶ 6, at 12.

Based upon her initial meetings with Galu, Attias believed that Galu's psychological infirmities made her incompetent to assist in her own defense. See Attias Mem. at 6; Attias Aff. ¶ 9. Thereafter, Attias met with Galu several times, during which Galu elaborated on her conspiracy theories regarding her civil cases. Attias Aff. ¶ 4. However, Galu refused to discuss the merits of what she termed the "meaningless" criminal charges. Id. ¶ 5. Rather, Galu believed that the charges "should be viewed simply as a means by which she could get the attention of the Court to help her with her civil case." Id. ¶ 5.

Attias communicated to Galu her concerns about Galu's competence and the feasibility of Galu's conspiracy defense strategy. Id. ¶ 7. Thereafter, Attias, with Galu's knowledge, began investigating possible treatment alternatives to sentencing. Id. Galu agreed with Attias that she needed serious psychological care but indicated that she preferred civil institutional care rather than criminal psychiatric treatment.⁵Id. Attias agreed that psychological care in the context of civil proceedings, rather than criminal, was a preferable course of treatment for Galu. Id. at 4. Attias believed that if Galu was found incompetent, the charges may be dropped and civil institutional care could be arranged. Id. ¶ 7. For these reasons, Attias did not move for reconsideration of the court's order for an incompetency evaluation. At some unspecified point thereafter, Galu informed the court that she intended to sue Attias for malpractice, and the court relieved Attias of her representation of Galu. Id. ¶ 8.

On June 2, 1994, the Metropolitan Corrections Center issued an evaluation which concluded that Galu suffered from a "vast delusional belief system" regarding the conspiracies against her and recommended a finding of Galu's incompetency. See First Am. Compl. ¶ 8; Pltff. 3(g) Stmt. ¶ 2. On June 23, 1994, the court found Galu to be incompetent. First Am. Compl. ¶ 8. Thereafter, Galu was transferred to a prison psychiatric ward in Kentucky for an evaluation of dangerousness. Id. A psychiatric report dated October 5, 1994 concluded that Galu was not dangerous. Second Galu Aff., Exh. 4. Based upon the psychiatric report and the government's representation that it no longer intended to seek an indictment against Galu, the court dismissed the criminal complaint and released Galu from custody. Second Galu Aff., Exhs. 3, 4.

On December 5, 1995, Galu filed the instant diversity action against Attias, a New York resident. Galu claims Attias committed legal malpractice by failing to "re-oppose" the government's motion for a competency exam. First Am. Compl. ¶¶ 6, 7. Galu also claims that Attias negligently and intentionally inflicted emotional distress suffered while in pre-trial incarceration undergoing a competency exam.⁶ Id. ¶¶ 5, 7. Galu seeks $35 million in damages resulting from her pre-trial incarceration. Id. ¶ 8.

Pursuant to Federal Rule of Civil Procedure 56(c), Attias moves for summary judgment on the grounds that 1) the Court lacks subject matter jurisdiction under the diversity statute, 2) the Court lacks jurisdiction over Attias's person, and 3) Galu's claims of negligence and infliction of emotional distress fail as a matter of law. Thereafter, Attias withdrew her objection to any defects in personal and subject matter jurisdiction. See Attias Mem. at 2. Pursuant to Federal Rule of Civil Procedure 56(g), Galu cross-moves for summary judgment on the ground that Attias filed affidavits in support of her motion in bad faith. See First Galu Aff. ¶¶ 1, 6, at 1, 5.

DISCUSSION

As a preliminary matter, because defects in subject matter jurisdiction cannot be waived, the Court must determine the existence of jurisdiction. See Commodity Futures Trading Comm'n v. Schor, 478 U.S. 833, 851, 106 S.Ct. 3245, 3256-57, 92 L.Ed.2d 675 (1986). Because Galu has failed to establish diversity of citizenship within the meaning of the diversity statute, 28 U.S.C. § 1332(a)(1), the Amended Complaint must be dismissed. A plaintiff suing in diversity must establish that he is a citizen of one state suing a citizen of another state, or a citizen of a foreign country suing a citizen of a state. See 28 U.S.C. § 1332(a)(1)(2); see also Sadat v. Mertes, 615 F.2d 1176, 1180 (7th Cir.1980). However, it is well-established that no diversity jurisdiction exists in an action brought by an American citizen domiciled abroad who is not a citizen of any particular state. See id.; Smith v. Carter, 545 F.2d 909, 911-12 (5th Cir.), cert. denied, 431 U.S. 955, 97 S.Ct. 2677, 53 L.Ed.2d 272 (1977); Vidal v. South American Securities Co., 276 F. 855, 875 (2d Cir.1922); Gefen v. Upjohn Co., 885 F.Supp. 123, 125-26 (E.D.Pa.1995); Willis v. Westin Hotel, 651 F.Supp. 598, 602 (S.D.N.Y.1986); Simmons v. Rosenberg, 572 F.Supp. 823, 824 (E.D.N.Y.1983); Berhalter v. Irmisch, 75 F.R.D. 539, 541 (W.D.N.Y.1977); Mohr v. Allen, 407...