Kerik v. Tacopina

Decision Date02 December 2014
Docket Number14 Cv. 2374 (JGK)
PartiesBERNARD B. KERIK, Plaintiff, v. JOSEPH TACOPINA, Defendant.
CourtU.S. District Court — Southern District of New York
OPINION & ORDER

JOHN G. KOELTL, District Judge:

The plaintiff, Bernard Kerik, a former New York City Police Commissioner, brings this action alleging violations of the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1961 et seq. ("RICO"), against Joseph Tacopina, the attorney who defended Kerik in a state criminal prosecution and guilty plea. The plaintiff also brings claims under state law for breach of fiduciary duty and defamation.

Kerik alleges that Tacopina formerly defended Kerik against state criminal charges, then subsequently cooperated with federal prosecutors, assisting them in bringing federal criminal charges against Kerik. All of the claims arise from the breakdown of the parties' professional and personal relationships. The action alleges that the defendant committed various acts of wire fraud, obstruction of justice, and extortion in the course of the defendant's law practice, breached fiduciary duties to the plaintiff by cooperating withfederal authorities and defrauding the plaintiff in an unrelated transaction, and then publicly defamed the plaintiff before and after the plaintiff filed this lawsuit.

Jurisdiction is proper under 28 U.S.C. § 1332 because there is diversity of citizenship. Jurisdiction is also proper under 28 U.S.C. § 1331 because the plaintiff has asserted a claim for violation of federal law, namely RICO, 18 U.S.C. § 1961 et seq. The defendant moves to dismiss all of the claims for failure to state a claim. For the reasons explained below, the defendant's motion is granted.

I.

In deciding a motion to dismiss pursuant to Rule 12(b)(6), the allegations in the complaint are accepted as true, and all reasonable inferences must be drawn in the plaintiff's favor. McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007). The Court's function on a motion to dismiss is "not to weigh the evidence that might be presented at a trial but merely to determine whether the complaint itself is legally sufficient." Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir. 1985). The Court should not dismiss the complaint if the plaintiff has stated "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to drawthe reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While the Court should construe the factual allegations in the light most favorable to the plaintiff, "the tenet that a court must accept as true all of the allegations contained in the complaint is inapplicable to legal conclusions." Id. When presented with a motion to dismiss pursuant to Rule 12(b)(6), the Court may consider documents that are referenced in the complaint, documents that the plaintiff relied on in bringing suit and that are either in the plaintiff's possession or that the plaintiff knew of when bringing suit, or matters of which judicial notice may be taken. See Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002); see also 4 K & D Corp. v. Concierge Auctions, LLC, 2 F. Supp. 3d 525, 532-33 (S.D.N.Y. 2014).

II.

The Court accepts the plaintiff's allegations in the Amended Complaint as true for purposes of this motion to dismiss. The plaintiff, Kerik, a former New York City Police Commissioner, is a former client and former friend of the defendant, Tacopina, a partner in the law firm of Tacopina Seigel & Turano, P.C. Am Compl. ¶¶ 9, 33, 36. The plaintiff resides in New Jersey, and the defendant resides and has his office in New York. Am. Compl. ¶¶ 6, 9-10.

A.

In December 2004, President George W. Bush nominated Kerik to be Secretary of the United States Department of Homeland Security. Am. Compl. ¶ 34. Kerik subsequently withdrew his name from consideration for the post. Am. Compl. ¶ 35. The heightened attention drew increased scrutiny toward Kerik, which led to investigations by the Bronx County District Attorney and the New York City Department of Investigation of Kerik's acceptance of certain benefits while he was Commissioner of the New York City Department of Corrections. Am. Compl. ¶ 37. Beginning in December 2004, Tacopina began representing Kerik in responding to media inquiries after the nomination, and defending Kerik against the state investigation. Am. Compl. ¶¶ 36, 39-40.

On June 30, 2006, Kerik ultimately pleaded guilty in the Supreme Court, Bronx County, to two state misdemeanors of failing to report a loan and accepting a gift. Am. Compl. ¶ 44; Decl. of Judd Burstein ("Burstein Decl.") Ex. E. Although Kerik does not challenge this guilty plea, Kerik alleges that he was convinced to plead guilty as a result of false representations by the defendant. Am. Compl. ¶¶ 42-44. Kerik contends that Tacopina represented to him that once Kerik pleaded guilty, all other state and federal investigations against Kerik would be resolved. Am. Compl. ¶ 43.

Kerik's state guilty plea did not end all other investigations. In July 2006, the United States Attorney's Office for the Southern District of New York began a grand jury investigation of Kerik for financial and tax crimes. Am. Compl. ¶¶ 4, 135. In the course of the investigation, on March 12, 2007, federal prosecutors served Tacopina with a grand jury subpoena and Tacopina ceased representing Kerik. Am. Compl. ¶¶ 136-37. On June 11, 2007, Tacopina, who was also under federal investigation, began cooperating with federal prosecutors, providing information about Kerik in five separate meetings. Am. Compl. ¶ 47. Kerik alleges that Tacopina provided information that had arisen from Tacopina's representation of Kerik in the state case. Am. Compl. ¶¶49-50.

Kerik was indicted on federal charges on November 8, 2007. Am. Compl. ¶ 143. On November 15, 2007, federal prosecutors presented Kerik's attorney, Kenneth Breen, with a list of witnesses that included Tacopina. Am. Compl. ¶ 144. The federal prosecutors then requested that Breen, who had also represented Kerik in the state case, recuse himself from representing Kerik in the federal case. Am. Compl. ¶¶ 53-55. When Breen declined, Kerik alleges that on November 19, 2007, Tacopina provided information about Breen's prior representation of Kerik, enabling the federal prosecutors to move successfully to disqualify Breen. Am. Compl. ¶¶ 56-57. Kerik also allegesthat during Tacopina's proffer sessions with federal authorities, Tacopina lied regarding Tacopina's own history of personal and professional misconduct, and also enlisted an employee to lie to the prosecutors for him. Am. Compl. ¶¶ 61-62, 70-71.

During the course of the federal investigation, Kerik and Tacopina stayed in touch. Am. Compl. ¶ 141. In September 2007, Tacopina sought Kerik's assistance regarding a real estate venture in which Tacopina was representing a client, Raffaello Follieri. Am. Compl. ¶ 75. Tacopina told Kerik that if Kerik could obtain funding for this transaction ("the Follieri venture"), then Kerik and Tacopina would split a $1.5 million finder's fee. Am. Compl. ¶ 76. Kerik subsequently located an investor for the venture. Am. Comp. ¶¶ 78-79. Kerik later learned that the finder's fee agreement was for $2.5 million and had been signed on October 5, 2007. Am. Compl. ¶ 82.

On December 2, 2007, after Tacopina learned that Kerik was aware of the $1 million discrepancy, Tacopina sent an e-mail to one of Kerik's employees, assuring Kerik that the size of the fee had only recently increased and that Tacopina would split it with Kerik. Am. Compl. ¶ 86. On December 9, 2007, Tacopina called Kerik, despite being aware that Tacopina was on a no-contact list as a witness against Kerik. Am. Compl. ¶ 87. Tacopina discussed the Follieri venture with Kerik, assuringKerik that Tacopina would get the money for Kerik "no matter what," stating, "I know where his money is and I know what liens to put on things, and I'm gonna do that." Am. Compl. ¶ 88.

On November 5, 2009, Kerik pleaded guilty in this Court to federal charges of Obstructing the Administration of the Internal Revenue Law in violation of 26 U.S.C. § 7212(a), Aiding in the Preparation of a False Income Tax Return in violation of 26 U.S.C. § 7206(2), Making False Statements on a Loan Application in violation of 18 U.S.C. § 1014, and Making False Statements to the Executive Branch in violation of 18 U.S.C. § 1001. United States v. Kerik, No. 07cr1027, (S.D.N.Y. Nov. 5, 2009); Burstein Decl. Ex. D. The plaintiff was subsequently sentenced to forty-eight months imprisonment.

B.

Kerik alleges that Tacopina committed various acts of misconduct from 2008 to 2013, many of which do not directly involve Kerik. Kerik alleges that in June 2008, Tacopina received a question from an online journalist regarding Tacopina's relationship with Kerik. Am. Compl. ¶ 93. Kerik alleges that rather than responding, Tacopina threatened the journalist with a "frivolous" defamation lawsuit to prevent the journalist from writing anything unfavorable about Tacopina. Am. Compl. ¶ 95. Kerik alleges that similar events occurred inJune 2010 and in September or October 2013. Am. Compl. ¶¶ 100-102, 108-110.

In late December 2013, Kerik filed a complaint against Tacopina with the attorney disciplinary committee of the Appellate Division of the New York State Supreme Court, alleging various acts of misconduct arising from Tacopina's representation of Kerik and Tacopina's cooperation with federal authorities. See Am. Compl. Ex. C. Shortly thereafter, Tacopina and his counsel denied the accusations in a December 28, 2013 article in the New York Daily News and a December 29 New York Post article. Am. Compl. ¶ 160. In the December 28 article, Tacopina stated that he only met with the federal prosecutors "once or twice", despite Kerik's...

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