Reddy v. Abitbol
| Decision Date | 07 January 2020 |
| Docket Number | 5:19-CV-1493 (MAD/ATB) |
| Parties | DEEPIKA REDDY, Plaintiff, v. GILLES R. R. ABITBOL, ESQ., et al., Defendants. |
| Court | U.S. District Court — Northern District of New York |
DEEPIKA REDDY, Plaintiff, pro se
Presently before the court is a pro se complaint which was transferred from the Southern District of New York. (Complaint ("Compl.")) (Dkt. No. 1, 2, 19, 20). Plaintiff has paid the filing fee. Plaintiff brings this action pursuant to the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1961 et seq. and various state law causes of action. Defense counsel has appeared for three of the defendants.
On December 6, 2019, Arthur J. Siegel, Esq., counsel for Douglas M. McRae, Esq. requested an extension of time to respond or otherwise move in opposition to the complaint. (Dkt. No. 23). On December 10, 2019, the court granted all defendants an extension of time to respond to the complaint until January 20, 2020. (Dkt. No. 25). In his December 6, 2019 letter-motion, Attorney Siegel also requested that this court undertake an initial review of the plaintiff's complaint. (Id.) Paul G. Ferrara, Esq., counsel for defendant Joseph M. Finnerty, Esq., subsequently joined in Attorney Siegel's motion. (Dkt. No. 28).
Although the court has a duty to show liberality toward pro se litigants, and must use extreme caution in ordering sua sponte dismissal of a pro se complaint before the adverse party or parties have been served and have had an opportunity to respond, the court still has a responsibility to determine that a claim is not frivolous before permitting a plaintiff to proceed, notwithstanding payment of the filing fee. Fitzgerald v. First East Seventh St. Tenants Corp., 221 F.3d 362, 363 (2d Cir. 2000) (). In determining whether an action is frivolous, the court must consider whether the complaint lacks an arguable basis in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). Dismissal of frivolous actions is appropriate to prevent abuses of court process as well as to discourage the waste of judicial resources. Neitzke, 490 U.S. at 327; Harkins v. Eldridge, 505 F.2d 802, 804 (8th Cir. 1974).
To survive dismissal for failure to state a claim, the complaint must contain sufficient factual matter, accepted as true, to state a claim that is "plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (citing Bell Atl. Corp., 550 U.S. at 555). The court will now turn to a consideration of the plaintiff's complaint under the above standards.
In a very lengthy1 and confusing complaint, plaintiff alleges that the defendants, together with non-defendant conspirators, committed various types of crimes, to cause plaintiff injury to her and her business. (Compl. generally). The entire complaint centers around plaintiff's claim that defendant attorney Gilles Abitbol, Esq. was an "illegal alien" at the time that he represented her on various New York State and Federal Court actions, resulting, inter alia, in those actions becoming "null and void." (Compl. Count I, ¶¶ 321-25). In addition to damages, plaintiff requests a declaratory judgment, declaring those "cases" null and void. (Id.) (citing 28 U.S.C. § 2201, 2202).
In order to better understand plaintiff's claims in this action, I will undertake a short description of the procedural background that has resulted in the present case. Many of the background facts are clearer when read together with Judge D'Agostino's March 31, 2015 decision in Reddy v. Catone, No. 5:13-CV-707, 2015 WL 11023213 (N.D.N.Y. Mar. 31, 2015), aff'd, 630 F. App'x 120 (2d Cir. 2015).2 I have done so, and have included those facts as appropriate.
Plaintiff, a dentist, licensed to practice in New York State, brought an action inthe Northern District of New York 2013,3 in which she sued various state officials in connection with complaints brought against her by some of her patients.4 She was represented in her 2013 federal action by defendant Attorney Gilles Abitbol. Judge D'Agostino dismissed plaintiff's complaint, finding, inter alia, that she was not denied due process by the New York State defendants, and that the individual defendant dentists did not conspire to violate her constitutional rights. 2015 WL 11023213, at *14-20. The dismissal of 13-CV-707 was affirmed by the Second Circuit. Reddy v. Catone, supra. Plaintiff moved to "vacate" the district court's decision after the Second Circuit had affirmed. However, Judge D'Agostino denied plaintiff's motion. Reddy v. Catone, No. 13-CV-707, 2016 WL 6471226 (N.D.N.Y. Nov. 1, 2016).
Plaintiff also brought various New York State lawsuits. In this RICO complaint, plaintiff states that Attorney Abitbol "represented [plaintiff] in multiple State Court Proceedings, including a defamation claim against a local television station for reporting on Plaintiff's confidential disciplinary proceedings . . . , [and] in a malpractice suit against Plaintiff's former attorneys in the defamation case and in an Eviction andSettlement proceeding[] against Igor Melnik a dentist who purchased Plaintiff's dental practice." Compl. at 2.
Now, unhappy with Attorney Abitbol's performance in the above-mentioned law suits, and unhappy with the outcome of the cases in which he represented her, plaintiff has seized upon defendant Abitbol's alleged illegal immigrant status to file this RICO claim. She argues that all the prior law suits in which she was represented by this attorney are "null and void." As defendants in this lawsuit, in addition to Attorney Gilles Abitbol, plaintiff has named Attorney Abitbol's brother and sister-in-law (both attorneys),5 who allegedly helped defendant Gilles Abitbol obtain a visa in 2002 and allegedly made false representations to the Department of Labor with respect to Attorney Gilles Abitbol from 2004 until 2007. (Compl. at 3). Plaintiff has sued Douglas M. McRae, Esq. and his law office of Bond, Shoeneck, & King for representing defendant Gilles Abitbol in a New York State Court action brought against him by the plaintiff. (Compl. ¶¶ 195-289). Plaintiff has also named Joseph Finnerty, Esq.,6 who apparently represented WSYR, the radio station, sued by plaintiff in New York State Court while she was represented by defendant Gilles Abitbol. (Compl. ¶¶ 128-94). The caption of the complaint also names "Does 1-10" and Corporations X and Y. However, there are no facts alleged in the complaint with respect to these unidentified defendants.
Plaintiff has also named a variety of "Non-Party Government Entities," including the Supreme Court, Appellate Division, Fourth Department; the Fifth Judicial District Grievance Committee; the Supreme Court in Onondaga County; and the United States District Court for the Northern District of New York. (Compl. ¶¶ 11-14).
The RICO statute provides a private right of action to any person injured in her business or property by reason of a violation of Title 18 United States Code, section 1962. Lerner v. Fleet Bank, N.A., 459 F.3d 273, 283 (2d Cir. 2006) (citing 18 U.S.C. § 1964(c)). In order to establish a civil RICO claim, the plaintiff must plead the conduct of an enterprise through a pattern of racketeering activity that causes injury to business or property as a result of the RICO violation. Lundy v. Catholic Health Systems of Long Island, Inc., 711 F.3d 106, 119 (2d Cir. 2013) (quoting Anatian v. Coutts Bank (Switz.) Ltd., 193 F.3d 85, 88 (2d Cir. 1999)). The pattern of racketeering activity must consist of two or more predicate acts of racketeering listed in 18 U.S.C. § 1961(1), (5). Id. The RICO conduct must be both the proximate and but for cause of the plaintiff's injury. Id. at 283.
RICO provides only for injury to business or property. The statute does not provide recovery for physical or emotional injuries. Kesick v. Ulloa, No. 1:10-CV-1248, 2012 WL 2873364, at *9 (N.D.N.Y. July 12, 2012) (quoting Williams v. Dow Chemical Co., 255 F. Supp. 2d 219, 225 (S.D.N.Y. 2003)); Moore v. Guesno, 485 F. Supp. 2d 300, 305 (W.D.N.Y. 2007). In addition, it is well-settled that civil RICO Gruber v. Gilbertson, No. 16-CV-9727, 2019 WL 4458956, at *5 (S.D.N.Y. Sept. 17, 2019) (quoting Katzman v. Victoria's Secret Catalogue, 167 F.R.D. 649, 655 (S.D.N.Y. 1996)) (internal quotations omitted).
This court has carefully reviewed the plaintiff's complaint and finds that, in addition to possible violations of Rule 8, plaintiff's claims are frivolous. She essentially continues to press her claim that, because defendant Abitbol is an undocumented or "illegal alien," everything that he has done, and every individual who has ever assisted him, defended him, or opposed him in a lawsuit without claiming that he was an illegal alien, has now become part of the RICO "enterprise," and has allegedly engaged in illegal activities. Every time that defendant Gilles Abitbol mailed a document in a lawsuit, purchased property, or defended himself in a lawsuit, plaintiff has determined that a "predicate act" of mail or wire fraud has occurred. Plaintiff has been unsuccessful in every tribunal in which she has attempted to raise his allegedly...
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