Katz v. Morgenthau
| Citation | 709 F. Supp. 1219 |
| Decision Date | 17 March 1989 |
| Docket Number | No. 86 Civ. 0067 (CBM).,86 Civ. 0067 (CBM). |
| Parties | Harry Theodore KATZ, Plaintiff, v. Robert M. MORGENTHAU, Harold Wilson, Sandra Gabrilove, Paul Giddins, Joseph Hardiman, Daniel McKenna, Joseph Cannizzarro, Joan Steproe, the City of New York, Daniel Shapiro, Paul Roth, Schulte, Roth & Zabel, Federation of Jewish Philanthropies of New York, Joyce Dubensky, William Kahn, Marilyn Lipman, United Jewish Appeal, Inc., Anita Sarno, Associated YM-YMHAs of Greater New York, Inc., Samuel Field YM-YMHA, Jay North, Noel Nathanson, Michelle Stern, Defendants. |
| Court | U.S. District Court — Southern District of New York |
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Harry Katz, Rockaway, N.Y., pro se.
Robert M. Morgenthau, Dist. Atty., New York County, New York City by Norman Barclay, Colleen Cain, Asst. Dist. Attys., for defendants Morgenthau, Asst. Dist. Attys. Wilson, Gabrilove and Giddons.
Barry, McTiernan & Moore by Michael F. Close, for defendants United Jewish Appeal, Inc. & Anita Sarno.
Fitzroy Hopkins, New York City by Fitzroy Hopkins, Corp. Counsel, for defendant The City of New York.
Wilson, Elser, Moskowitz, Edelman, & Dicker, New York City by James L. Fischer, for defendants Daniel Shapiro, Paul Roth, Schulte, Roth & Zabel, Federation of Jewish Philanthropies of New York, Joyce Dubensky, William Kahn, Marilyn Lipman, Associated YM-YWHAs of Greater New York, Inc., Samuel Field YM-YWHA, Jay Roth, Noel Nathanson, and Michelle Stern.
This action arises out of a conflict between plaintiff Harry Katz and twenty-three defendants, all of whom participated in some way in a criminal proceeding against him which ultimately resulted in his conviction of Aggravated Harassment in the Second Degree under New York Penal Law 240.25 (McKinney's Consol. 1980). Plaintiff has asked this court to render a default judgment against defendants, to order the police officers to sign a written statement waiving any objections to Corporation Counsel representation of their defense, and to award him $27 million in compensatory damages and $100 million in punitive damages with costs, interest, and a jury trial in compensation for alleged violations of his constitutional rights. Defendants have moved to dismiss this action pursuant to Federal Rules of Civil Procedure 12(b)(6). After careful review of the motions, on notice to the parties by order dated August 22, 1986, the court has converted defendants' motion to dismiss to a motion for summary judgment. That motion is granted for reasons stated below.
From January 1984 through August 1984, plaintiff Harry Katz regularly participated in volleyball games at the Samuel Field YMHA in Queens, New York. He was eventually barred from the "Y" by employee Michelle Stern, President Noel Nathanson and former Executive Director of the Federation of Jewish Philanthropies Jay Roth, for the alleged harassment of a female patron and general inappropriate behavior. Plaintiff was angered by what he perceived to be an unjust decision and by the disregard of his request to William Kahn, Executive Vice-President of the Federation, that Kahn fire Ms. Stern and permit him to confront Mr. Roth about the decision to have him barred. This anger led plaintiff to frequently call the homes of Jay Roth and Dr. Nathanson, who had just had a heart attack, even during the High Holy Days of Rosh Hashanah. Plaintiff also interviewed Dr. Nathanson's neighbors to find out about him. He followed Mr. Roth's child. He also followed Ms. Stern home from her work.
Based on these activities, coupled with the threatening tone of his phone calls, Katz was arrested on October 19, 1984, upon a warrant issued by Judge Richard Andrias, based on a felony complaint sworn to by Detective Joan Steproe (amended complaint, exhibit C). Upon his arrest, Katz's home was searched and a licensed gun and permit were taken by police officers Steproe, McKenna, and Cannizarro (amended complaint, ¶¶ 22, 68, 69). Katz was arraigned and released without bail (amended complaint, ¶ 23).
On February 26, 1985, plaintiff was tried in the Criminal Court of the State of New York, County of New York, before Justice Frank Diaz and a jury, on charges of Attempted Coercion in the Second Degree and Aggravated Harassment in the Second Degree. On March 6, 1985, the jury found plaintiff guilty of Aggravated Harassment in the Second Degree and acquitted him of Attempted Coercion in the Second Degree, New York Penal Law 110.00 (McKinney's Consol. 1980). Two other charges had been dropped prior to trial. New York Penal Law 110.00, 240.25 (McKinney's Consol. 1980). On August 7, 1985, plaintiff was sentenced to pay a $500.00 fine or to serve 90 days in jail and pay a $40 surcharge. Plaintiff paid the fine. Plaintiff's appeal of the criminal conviction was affirmed in December 1986 by the Appellate Term of the New York Supreme Court. On November 30, 1987, plaintiff's appeal to the United States Supreme Court from his criminal conviction was dismissed by the Court for want of a substantial federal question.
Although plaintiff does not deny the charges included in the original complaint made against him, he has filed this action pro se under 28 U.S.C. §§ 1331, 1332, 1343 against twenty-three defendants, charging them, inter alia with acting in conspiracy to deprive him of his freedom of speech, right to bear arms, freedom from unlawful search and seizure, liberty without due process, equal protection, and his right to be prosecuted by an impartial District Attorney (amended complaint ¶¶ 37-67). Specifically, he alleges twelve causes of action violative of his First, Second, Fourth, Sixth, Eighth, and Fourteenth Amendment rights under 42 U.S.C. §§ 1981, 1982, 1983, 1985 and 1986. He also alleges fifteen state causes of action arising from a common nucleus of operative facts.
For the sake of clarity, the twenty three defendants can be divided into three categories: 1) those who prosecuted him, including the Manhattan District Attorney Robert Morgenthau, Bureau Chief of the Consumer Protection and Complaint Bureau Harold Wilson, and Assistant District Attorneys (ADAs) Sandra Gabrilove and Paul Giddins (amended complaint, ¶¶ 33, 71, 72, 80, 82, 83, 84, 85, 86, 105, 106); 2) those who participated directly in his arrest, including officers Hardiman, McKenna, Cannizzarro, and Steproe and the City of New York (amended complaint ¶¶ 75, 104, 107, 108, 109); and 3) those who either testified against him or participated in some way in the complaint made against him, including the law firm of Shulte, Roth, and Zabel, Marilyn Lipman who works at the firm and Daniel Shapiro and Paul Roth who are partners at the firm, the United Jewish Appeal, its employee Anita Sarno, the Federation of Jewish Philanthropies, their Executive Vice-President William Kahn, their counsel Joyce Dubensky, the Associated YM-YMHAs of Greater New York, Inc., of whom the Samuel Field "Y" is a member, former Samuel Field YMHA Executive Director Jay Roth, President of the Board of Samuel Field YMHA Noel Nathanson, and employee Michelle Stern (amended complaint 31, 34, 36, 77, 78, 110-23).
Contrary to plaintiff's contention, this court does not have jurisdiction under 28 U.S.C. § 1332, a provision which, at the time plaintiff initiated the instant suit, confers jurisdiction on federal courts where there is diversity of citizenship between the parties and where the amount in controversy exceeds $10,000. It is well settled that the essential elements of diversity jurisdiction must be affirmatively alleged in the pleadings. Gates v. Osborne, 9 Wall. (76 U.S.) 567, 19 L.Ed. 748 (1870); Hodgson v. Bowerbank, 5 Cranch (9 U.S.) 303, 3 L.Ed. 108 (1809); Martin Hodas, East Coast Cinematics, Inc. v. Lindsay, 431 F.Supp. 637, 640 (S.D.N.Y.1977). Plaintiff has not done this. Jurisdiction is available, however, under 28 U.S.C. §§ 1331 and 1343.
Plaintiff Harry Katz asks the court to enter a default judgment against defendants Paul Roth, Daniel Shapiro, and the law firm Shulte, Roth and Zabel, United Jewish Appeal, Anita Sarno, District Attorney Robert Morgenthau, and assistant District Attorneys (ADAs) Giddins, Wilson and Gabrilove. Plaintiff argues that the defendants committed various procedural infractions when they filed their Motions to Dismiss with the court, including allegedly filing a motion thirty days late, failing to give proper ten day notice under Local Rule 3(c)(2) and filing a motion one day late. These infractions, plaintiff believes, were committed maliciously and violate Federal Rules of Civil Procedure 55(a).1 For reasons set forth below, that motion is denied.
The entry of a default judgment is subject to the court's discretion and is a sanction generally favored as a last, not a first resort. See e.g., Meehan v. Snow, 652 F.2d 274, 277 (2d Cir.1981) (per curiam) (); Peterson v. Term Taxi Inc., 429 F.2d 888, 891 (2d Cir. 1970) (); Hazzard v. Weinberger, 382 F.Supp. 225 (S.D. N.Y.1974), aff'd without opinion, 519 F.2d 1397 (2d Cir.1975) (). The default judgment is generally viewed:
as available only when the adversary process has been halted because of an essentially unresponsive party. In that instance,...
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