Vasile v. Dean Witter Reynolds Inc.
| Decision Date | 14 September 1998 |
| Docket Number | No. 97-CV-7241(JS).,97-CV-7241(JS). |
| Citation | 20 F.Supp.2d 465 |
| Parties | Carmine VASILE, Plaintiff, v. DEAN WITTER REYNOLDS INC., Norman P. Weiss, Esq., Hon. Alan D. Oshrin, and Hon. William L. Underwood Jr., individually and in their official capacities, Defendants. |
| Court | U.S. District Court — Eastern District of New York |
Carmine Vasile, Patchogue, NY, pro se.
Presently before the Court are fourteen pending motions. To ensure completeness and clarity, and for administrative purposes, it is necessary to identify in summary fashion each pending motion.1
Plaintiff commenced the instant action on December 9, 1997, alleging the following claims:
1. Against Defendant Dean Witter Reynolds, Inc., ("Dean Witter"), for interstate fraud, conspiracy, violations of a fiduciary duty, criminal enterprise, money laundering, racketeering, mail fraud, and embezzlement, stemming from Dean Witter's alleged failure to obey a state court injunction and its subsequent release via embezzlement in May, 1990, of plaintiff's commingled marital assets in account number 201-3884, valued in excess of $170,000.00. As against Defendant Dean Witter, Vasile prays to recover $1,000,000.00 in compensatory damages and $1,000,000.00 in punitive damages;
2. Against Defendant Norman P. Weiss, Esq., for interstate fraud, criminal enterprise, malicious abuse of legal process, slander, money laundering, and the intentional infliction of emotional distress, for his role in wrongly accusing plaintiff of embezzling the assets of Robyn Enright, before they were embezzled by others. As against Defendant Weiss, Vasile prays to recover $6,000,000.00 in compensatory damages and $6,000,000.00 in punitive damages;
3. Against Defendant Justice Alan D. Oshrin, for breaching a ministerial duty, civil rights violations, due process violations, conspiracy, obstruction, malicious abuse of legal process, and subornation. As against Defendant Justice Oshrin Vasile prays to recover $1,000,000.00 in compensatory damages and $1,000,000.00 in punitive damages;
4. Against Defendant Justice William L. Underwood, for breaching a ministerial duty, civil rights violations, due process violations, conspiracy, and subornation. As against Defendant Justice Oshrin Vasile prays to recover $1,000,000.00 in compensatory damages and $1,000,000.00 in punitive damages.
A district court should grant a motion to dismiss under Fed.R.Civ.P. 12(b)(6) for failure to state a claim only if "`it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.'" H.J. Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 249-50, 109 S.Ct. 2893, 2906, 106 L.Ed.2d 195 (1989) (quoting Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984)); Annis v. County of Westchester, N.Y., 36 F.3d 251, 253 (2d Cir.1994).
In applying this standard, a district court must "read the facts alleged in the complaint in the light most favorable" to the plaintiff, and accept these allegations as true. H.J. Inc. at 249, 109 S.Ct. at 2906; Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974); Christ Gatzonis Elec. Contractor, Inc. v. New York City Sch. Constr. Auth., 23 F.3d 636, 639 (2d Cir.1994); see also Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 165, 113 S.Ct. 1160, 1163, 122 L.Ed.2d 517 (1993) ().
The court's duty merely is "to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof." Geisler v. Petrocelli, 616 F.2d 636, 639 (2d Cir.1980); accord Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir.1985). The appropriate inquiry, therefore, is not "whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Scheuer, 416 U.S. at 236, 94 S.Ct. at 1686; Ricciuti v. New York City Transit Auth., 941 F.2d 119, 124 (2d Cir.1991) ().
Additionally, it is not required that a claimant set out in detail the facts upon which he or she bases a claim, but only a statement of his or her claim that will give defendant "fair notice of what [the] claim is and the grounds upon which it rests." Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 103, 2 L.Ed.2d 80 (1957). Therefore, where a complaint is filed that charges each element necessary to recover, dismissal of the case for failure to set out evidential facts can seldom be warranted. United States v. Employing Plasterers' Ass'n of Chicago, 347 U.S. 186, 188-89, 74 S.Ct. 452, 98 L.Ed. 618 (1954). Individual allegations, however, that are so baldly conclusory that they fail to give notice of the basic events and circumstances of which the plaintiff complains are meaningless as a practical matter and, as a matter of law, insufficient to state a claim. Barr v. Abrams, 810 F.2d 358, 363 (2d Cir.1987).
When deciding a Rule 12(b)(6) motion, courts are directed to treat the motion as one for summary judgment if matters outside the pleading are presented to and not excluded by the court. Sua sponte conversion of a motion to dismiss into a motion for summary judgment is appropriate where "the losing party is not taken by surprise by the court's action." Blassingame v. Secretary of Navy, 811 F.2d 65, 74 (2d Cir.1987). In the instant action, the Plaintiff Carmine Vasile has moved for summary judgment presenting an abundance of extrinsic evidence, therefore, the Court will consider all the pending motions to dismiss as motions for summary judgment.
Pursuant to Federal Rule of Civil Procedure 56(c), courts may not grant a motion for summary judgment unless "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The burden of proof is on the moving party to show that there is no genuine issue of material fact, Gallo v. Prudential Residential Servs., L.P., 22 F.3d 1219, 1223 (2d Cir.1994) (citing Heyman v. Commerce & Indus. Ins. Co., 524 F.2d 1317, 1320 (2d Cir.1975)), and "all ambiguities must be resolved and all inferences drawn in favor of the party against whom summary judgment is sought." Id. (citing Eastway Constr. Corp. v. City of New York, 762 F.2d 243, 249 (2d Cir.1985), cert. denied, 484 U.S. 918, 108 S.Ct. 269, 98 L.Ed.2d 226 (1987)). "Factual disputes that are irrelevant or unnecessary will not be counted." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986) (citing 10A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 2725, at 93-95 (1983)).
A party opposing a motion for summary judgment "`may not rest upon the mere allegations or denials of his pleading, but ... must set forth specific facts showing that there is a genuine issue for trial.'" Id. at 248, 106 S.Ct. at 2510 (quoting First Nat'l Bank of Arizona v. Cities Serv. Co., 391 U.S. 253, 288-89, 88 S.Ct. 1575, 1592, 20 L.Ed.2d 569 (1968)). Under the law of the Second Circuit, "[w]hen no rational jury could find in favor of the nonmoving party because the evidence to support its case is so slight, there is no genuine issue of material fact and a grant of summary judgment is proper." Gallo, 22 F.3d at 1224 (citing Dister v. Continental Group, Inc., 859 F.2d 1108, 1114 (2d Cir.1988)). It is within this framework that the Court addresses the instant motions.
As an initial matter, many of Vasile's claims involve allegations of criminal activity. It is an elementary concept inherent in this nation's governmental structure and rooted in separation of powers principles that the investigation and prosecution of criminal laws is delegated to the executive branch and the appropriate law enforcement agency; agency determination depends upon the jurisdiction and the crime involved. In reviewing the numerous submissions of Carmine Vasile over the past year, it is clear that he has presented his claims to practically every federal and state law enforcement agency for review and consideration. It is not the Court's role to sit in judgment of those agencies' decisions.
It is also a general precept of criminal law that unless the statute specifically authorizes a private right of action, none exists. See Thompson v. Thompson, 484 U.S. 174, 179, 108 S.Ct. 513, 516, 98 L.Ed.2d 512 (1988); Cort v. Ash, 422 U.S. 66, 79, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975) (); Nashville Milk Co. v. Carnation Co., 355 U.S. 373, 78 S.Ct. 352, 2 L.Ed.2d 340 (1958). One of the difficulties the Court faces, as is common in many pro se cases, is understanding the claims alleged, and associating the allegations, if possible, with viable claims. For example, Vasile accuses Defendant Dean Witter of, inter alia, interstate fraud, conspiracy to embezzle, obstruction of justice, mail fraud, violation of an injunction, and delaying discovery, while accusing Defendant Weiss of fraud, criminal enterprise, malicious abuse of legal process, and lying to a United States Department of Defense Investigator. The Justices are accused of breaching ministerial duties, and conspiracy to violate plaintiff's civil...
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