Krepps v. Reiner

• Decision Date: 24 November 2008
• Docket Number: No. 07 Civ. 9884.,07 Civ. 9884.
• Citation: 588 F.Supp.2d 471
• Parties: Matthew B. KREPPS, Plaintiff, v. Edward REINER, Insead, Insead North America and Michael C. Miller, Defendants.
• Court: U.S. District Court — Southern District of New York

Page 471

588 F.Supp.2d 471

Matthew B. KREPPS, Plaintiff, v. Edward REINER, Insead, Insead North America and Michael C. Miller, Defendants.

No. 07 Civ. 9884.

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

November 24, 2008.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Matthew B. Krepps, New York, NY, pro se.

Steptoe & Johnson, LLP, by Michael C. Miller, Esq., Evan Glassman, Esq., Lenor C. Marquis, Esq., New York, NY, for Defendants, Insead, Insead North America, Inc. and Michael C. Miller.

OPINION

SWEET, District Judge.

Defendants Insead ("Insead") and Insead North America ("INA") (collectively, the "Corporate Defendants") have moved under Fed.R.Civ.P. 4(h), 12(b)(1-3), and 12(b)(5-6) to dismiss the First Amended Complaint ("FAC") of plaintiff pro se, Matthew B. Krepps ("Krepps" or the "Plaintiff"). Defendant Michael C. Miller ("Miller") has moved separately to dismiss the claims asserted against him pursuant to Fed.R.Civ.P. 12(b)(6). Upon the conclusions set forth below, the motions are granted.

Krepps, a former professor at the Massachusetts Institute of Technology ("MIT") and at Insead has prodigiously litigated his relationship with Insead, a French business school, with mixed results. From what follows it appears that the time to terminate this controversy may be near at hand.

I. PRIOR PROCEEDINGS

Krepps has initiated four actions arising out of the same nucleus of facts relating to essentially the same activity, i.e. Krepps' participation in the development of online course materials for Insead. The instant action is his fifth related civil action. In Krepps' first action, The Economist's Advocate, LLC v. Cognitive Arts Corp., No. 01 Civ. 9468(RWS), 2004 WL 728874 (S.D.N.Y.2004) (the "EA Action"), the Economists Advocate ("EA") of which Krepps was the president and sole shareholder, won a jury verdict on his claim for quantum meruit, i.e. compensation for EA's contribution to certain online course materials. Krepps v. Insead, No. 04 Civ. 3260 (the "Krepps I Action"), was dismissed without prejudice by this Court when Krepps withdrew his opposition to Insead's motion to dismiss on the grounds of forum non conveniens. See Krepps v. Insead, No. 04 Civ. 3260(RWS), 2004 WL 2066598, at *3 (S.D.N.Y. Sept. 16, 2004). Krepps v. Reiner, No. 05 Civ. 107 (the "Krepps II Action"), was dismissed by this Court on grounds of improper service and lack of personal jurisdiction over Insead. See Krepps v. Reiner, 414 F.Supp.2d 403 (S.D.N.Y.2006). Krepps filed a fourth action in the District of Massachusetts, Krepps v. Insead, No. 06 Civ. 10781 (the "Krepps III Action"), which the Honorable Rya Zobel dismissed for lack of personal jurisdiction. See Decl. of Michael C. Miller ("Miller Decl."), Ex. T.

The instant action was filed on November 8, 2007, naming Edward Reiner ("Reiner") as defendant. The FAC adding Insead, INA, and Miller was filed on February 25, 2008.

The FAC alleges federal diversity jurisdiction and federal question jurisdiction based on allegations of copyright infringement. By way of background, the FAC contains lengthy allegations describing the relationship between Krepps, Insead, and EA, including Krepps' employment by Insead from March 1997 to May 3, 2001, Krepps' negotiations with Reiner, and Insead's activities in New York. FAC ¶¶ 13-45. The FAC then alleges certain communications by Miller and Insead in 2006 and 2007, FAC ¶¶ 46-55, and ten causes of action: (1) fraud against Insead and Reiner, FAC ¶¶ 56-61; (2) copyright infringement against Reiner and Insead, FAC ¶¶ 62-66; (3) defamation against Miller and Insead, FAC ¶¶ 67-72; (4) intentional interference with business advantage and contract against Insead and Miller, FAC ¶¶ 73-79; (5) breach of contract against Insead, FAC ¶¶ 80-83; (6) unjust enrichment against Insead, FAC ¶¶ 84-87; (7) quantum meruit against Insead, FAC ¶¶ 88-89; (8) constructive discharge and breach of good faith and fair dealing against Insead, FAC ¶¶ 90-93; (9) reverse passing off and unfair competition against Insead, FAC ¶¶ 94-98; and (10) conversion against Insead. FAC ¶¶ 99-101.

The instant motions were marked fully submitted on April 30, 2008.

II. DISCUSSION

In addressing the present motion, the Court is mindful that Krepps is proceeding pro se and that his submissions are held to "less stringent standards than formal pleadings drafted by lawyers ...." Hughes v. Rowe, 449 U.S. 5, 9, 101 S.Ct. 173, 66 L.Ed.2d 163 (1980) (quoting Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972)). The courts "construe the pleadings of a pro se plaintiff liberally and interpret them to raise the strongest arguments they suggest." Fuller v. Armstrong, 204 Fed. Appx. 987, 988 (2d Cir.2006); see also Lerman v. Bd. of Elections in City of New York, 232 F.3d 135, 139-40 (2d Cir.2000) ("Since most pro se plaintiffs lack familiarity with the formalities of pleading requirements, we must construe pro se complaints liberally, applying a more flexible standard to evaluate their sufficiency than we would when reviewing a complaint submitted by counsel."). However, the courts will not "excuse frivolous or vexatious filings by pro se litigants," Iwachiw v. State Dep't of Motor Vehicles, 396 F.3d 525, 529 n. 1 (2d Cir.2005), and "pro se status `does not exempt a party from compliance with relevant rules of procedural and substantive law.'" Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 477 (2d Cir.2006) (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir.1983)).

A. The Rule 12 Standard

On a motion to dismiss pursuant to Rule 12, all factual allegations are accepted as true, and all inferences are drawn in favor of the pleader. Mills v. Polar Molecular Corp., 12 F.3d 1170, 1174 (2d Cir.1993). The issue "is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Villager Pond, Inc. v. Town of Darien, 56 F.3d 375, 378 (2d Cir.1995) (quoting Scheuer v. Rhodes, 416 U.S. 232, 235-36, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)). "[O]nce a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint." Roth v. Jennings, 489 F.3d 499, 510 (2d Cir.2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1969, 167 L.Ed.2d 929 (2007)).

B. The Action Is Dismissed as to Insead for Lack of Personal Jurisdiction

In the Krepps II Action, Insead successfully moved to dismiss for lack, of personal jurisdiction on the same grounds asserted in this action. See Krepps v. Reiner, No. 05 Civ. 107(RWS), 2005 WL 1793540 (S.D.N.Y. July 27, 2005); Krepps, 414 F.Supp.2d 403. The doctrine of collateral estoppel precludes Krepps from relitigating the same personal jurisdiction issue raised in the Krepps II Action. See Schick v. Oyer, No. 07 Civ. 629(RJA), 2008 WL 4501935, at *1 (W.D.N.Y. Sept. 29, 2008) (holding that doctrine of collateral estoppel precluded plaintiff from relitigating personal jurisdiction issue); Moscato v. MDM Group, Inc., No. 05 Civ. 10313(KMW), 2008 WL 2971674, at *3 (S.D.N.Y. July 31, 2008) (same); 1 Five O Inc. v. A. Schulman, Inc., No. 99 Civ. 354(JTE), 2000 WL 744003, at *3 (W.D.N.Y. June 5, 2000) (same); see also Pohlmann v. Bil-Jax, Inc., 176 F.3d 1110 (8th Cir.1999) (discussing application of doctrine of collateral estoppel to issue of personal jurisdiction); see generally, Ins. Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702 n. 9, 102 S.Ct. 2099, 72 L.Ed.2d 492 (1982) ("It has long been the rule that principles of res judicata apply to jurisdictional determinations-both subject matter and personal.").

"Under federal law, a party is collaterally estopped from relitigating an issue if a four-part test is met: (1) the identical issue was raised in a previous proceeding; (2) the issue was actually litigated and decided in the previous proceeding; (3) the party had a full and fair opportunity to litigate the issue; and (4) the resolution of the issue was necessary to support a valid and final judgment on the merits." Boguslavsky v. Kaplan, 159 F.3d 715, 720 (2d Cir.1998) (internal quotation marks and footnote omitted). "[U]nder New York law, collateral estoppel prevents a party from relitigating an issue .... (1) identical to an issue already decided (2) in a previous proceeding in which that party had a full and fair opportunity to litigate," and where (3) "the issue that was raised previously [is] decisive of the present action." Curry v. City of Syracuse, 316 F.3d 324, 331 (2d Cir.2003) (internal quotation marks omitted). There is "some doubt" as to whether state or federal law governs the collateral estoppel effect of a federal court's decision on a subsequent diversity action. See Indus. Risk Insurers v. Port Auth. of N.Y. & N.J., 493 F.3d 283, 288 (2d Cir.2007). However, the instant dispute does not require exposition of this delicate issue. Applying either standard, Krepps is estopped from relitigating the issue of personal jurisdiction here. See id.

In the Krepps II Action, Krepps argued that Insead was amenable to suit under New York's corporate presence doctrine and under its long arm statute. See N.Y. C.P.L.R. §§ 301, 302(a)(1). In the alternative, Krepps alleged that the Court had jurisdiction over Insead as a tortfeasor under N.Y. C.P.L.R. § 302(a)(2). In July 2005, the Court held that jurisdiction was lacking under sections 301 and 302(a)(1) because, despite his allegations that "Insead is registered to do business in New York, maintains a bank account in New York, and has sold its work product in New York," Krepps failed to provide any facts to support his allegations "that Insead conducted purposeful business activities within New York from which this suit arises ...." Krepps, 2005 WL 1793540, at *5. The Court held that jurisdiction was lacking under section 302(a)(2) because Krepps failed to make the necessary showing that Insead was physically present in New...