von Bulow By Auersperg v. Von Bulow, 86 Civ. 7558 (JMW).

• Citation: 657 F. Supp. 1134
• Decision Date: 10 April 1987
• Docket Number: No. 86 Civ. 7558 (JMW).,86 Civ. 7558 (JMW).
• Parties: Martha von BULOW, by her next friends Alexander AUERSPERG and Annie Laurie Auersperg Kneissl, Plaintiff, v. Claus von BULOW, Defendant. Claus von BULOW, Plaintiff, v. Alexander AUERSPERG, Defendant.
• Court: U.S. District Court — Southern District of New York

657 F. Supp. 1134

Martha von BULOW, by her next friends Alexander AUERSPERG and Annie Laurie Auersperg Kneissl, Plaintiff, v. Claus von BULOW, Defendant.

Claus von BULOW, Plaintiff, v. Alexander AUERSPERG, Defendant.

No. 86 Civ. 7558 (JMW).

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

April 10, 1987.

David M. Simon, Michael F. Armstrong, Frederic W. Parnon, Carol Quackenbos, Barrett, Smith, Schapiro, Simon & Armstrong, New York City, for plaintiff.

Harold R. Tyler, Jr., Michael B. Mukasey, Patterson, Belknap, Webb & Tyler, New York City, for defendant.

OPINION

WALKER, District Judge:

I. INTRODUCTION

On October 2, 1986, Plaintiff Claus von Bulow ("von Bulow") filed the instant action against Defendant Alexander Auersperg ("Auersperg"). Plaintiff's complaint, as amended on October 3, 1986, alleges causes of action sounding in malicious prosecution and fraud.

Defendant moves to dismiss plaintiff's claims, and to strike portions of plaintiff's complaint from the public record. Plaintiff cross-moves to amend his complaint by adding a cause of action arising under the federal Racketeering Influenced Corrupt Organizations Act, 18 U.S.C. § 1961, et seq. ("RICO").¹

Defendant's motion to dismiss plaintiff's state law claims is granted. Plaintiff's motion to amend his complaint is denied. Defendant's motion to strike portions of the complaint is denied.

II. STATEMENT OF FACTS

The instant complaint is part of a continuing court battle which began when Martha von Bulow lapsed into a coma on December 21, 1980. Martha von Bulow remains in a coma today, more than six years later, and doctors agree that this coma is almost certainly irreversible. The cause of Martha von Bulow's coma has not been determined with certainty, although some medical experts have contended that the injection of a drug overdose, possibly including the medications insulin, amobarbital, and/or valium, resulted in her comatose condition.

On July 6, 1981, a Newport County, Rhode Island grand jury handed down an indictment charging Claus von Bulow ("von Bulow"), Martha von Bulow's husband and plaintiff in the instant action, with two counts of assault with intent to murder his wife. At von Bulow's first criminal trial, which commenced February 2, 1982, the prosecution argued that von Bulow had attempted to kill his wife by injecting her with a dose of insulin, which caused her current comatose state. On March 16, 1982, after a six-week trial and six days of deliberations, the jury found von Bulow guilty on both counts.

The Rhode Island Supreme Court subsequently vacated von Bulow's conviction and remanded the case for a new trial. State v. von Bulow, 475 A.2d 995 (R.I.1984). In an opinion dated April 27, 1984, the Rhode Island Supreme Court held that the trial court should have ordered the prosecution to disclose various documents to von Bulow. Id. at 1011-12. The State Supreme Court also held that one of the trial judge's evidentiary rulings was in error, requiring reversal of von Bulow's conviction and a new trial. Id. at 1018-20. The trial judge had allowed the prosecution to introduce evidence obtained from police laboratory tests, conducted without a warrant, which showed that a black bag allegedly found in von Bulow's closet contained a number of drugs, including amobarbital, valium, and morphine. Id. at 1014 n. 9.

On April 25, 1985, von Bulow's second Rhode Island criminal trial began. On June 10, 1985, the jury returned a verdict of not guilty.

On July 19, 1985, Martha von Bulow's children by a previous marriage, Alexander Auersperg ("Auersperg") and Annie Laurie Auersperg Kneissl ("Kneissl") filed a civil action in this Court against Claus von Bulow ("the 1985 civil action"). Auersperg and Kneissel brought this action as next friends on behalf of Martha von Bulow. The next friends alleged that Claus von Bulow surreptitiously injected his wife Martha with insulin and other drugs, placing her in a permanent coma.

The next friends' complaint alleged claims sounding in common law tort, common law fraud, and RICO. In a May 5, 1986 opinion, this Court denied von Bulow's motion to dismiss the next friends' action. Von Bulow v. Von Bulow, 634 F.Supp. 1284 (S.D.N.Y.1986).² The parties to the next friends' suit currently are engaged in the process of discovery, which has necessitated several rulings from this Court. See Von Bulow v. Von Bulow, 114 F.R.D. 71 (S.D.N.Y.1987); Von Bulow v. Von Bulow, 652 F.Supp. 823 (S.D.N.Y.1986), aff'd, 811 F.2d 136 (2d Cir.1987).

In May 1986, Attorney Alan Dershowitz, who argued von Bulow's successful appeal following the first Rhode Island trial and who served as a consultant during von Bulow's second criminal trial, published a book entitled Reversal of Fortune: Inside the von Bulow Case. The book makes out the case for von Bulow's innocence, which Dershowitz came to accept during his work as a defense attorney for von Bulow. One chapter, titled Suitable for Framing, speculates that Auersperg and Kneissl, among others, may have attempted to "frame" von Bulow for murder, planting drugs and/or other evidence among von Bulow's possessions after Martha von Bulow had lapsed into her irreversible coma. Reversal of Fortune, supra, at 247-52. As Dershowitz writes:

Shortly after I entered the case I began to suspect that evidence might have been tampered with in an effort to enhance the likelihood of conviction. The more I learned about the case, the more my suspicions deepened that we might be dealing with a frame-up of an unusual kind.

Id. at 247.

In September 1986, the firm of Schulte, Roth & Zabel withdrew as defense counsel for von Bulow in the 1985 civil action filed by Auersperg. At this time, von Bulow retained the firm of Patterson, Belknap, Webb & Tyler, which on October 2, 1986 filed von Bulow's instant complaint against Auersperg and followed with an amended complaint on October 3, 1986.

Plaintiff von Bulow's complaint alleges that Defendant Auersperg "perpetrated a fraud of which von Bulow was the intended victim whereby Auersperg caused von Bulow to be accused of attempting to murder von Bulow's wife, Auersperg's mother, and criminally prosecuted therefor." As part of this "fraud," the complaint alleges that Auersperg locked a black bag containing various drugs and hypodermic needles inside a metal box in von Bulow's closet and "then arranged for the `discovery' of this `evidence.'"

The complaint further alleges that Auersperg committed perjury by testifying that he first "`discovered' the black bag and its contents ... in von Bulow's closet...." The complaint charges that Auersperg induced Maria Schrallhammer, Martha von Bulow's former maid, to testify falsely against Claus von Bulow. After the Rhode Island Supreme Court reversed von Bulow's conviction, according to the complaint, "Auersperg's fraudulent scheme continued at the new trial with the introduction of fabricated evidence and false testimony...."

In the concluding paragraphs, the complaint claims that Auersperg influenced his "elderly grandmother, Annie Laurie Aitken, Martha von Bulow's mother, against his half-sister, Cosima von Bulow, and led her to cut Cosima out of her will, depriving Cosima of an inheritance exceeding $30 million...." Finally, the complaint describes Auersperg's 1985 civil action as "a further part of the continuing fraud."

III. DISCUSSION

Although the amended complaint is denominated an action sounding in fraud, virtually all of it is devoted to allegations that, with malice and without probable cause, Auersperg instituted the ultimately unsuccessful criminal prosecution in Rhode Island and, failing in that forum, maliciously instituted the 1985 civil action against von Bulow. This Court's conclusion that von Bulow's complaint pleads a cause of action in malicious prosecution, as opposed to fraud, is discussed in detail below. See text at pp. 1139-1142 infra.

However, in this opinion, the Court must decide whether the amended complaint pleads malicious prosecution or fraud only if a von Bulow malicious prosecution claim is barred by the strict procedural requirements governing this cause of action. The Court finds that these procedural requirements do in fact bar a von Bulow malicious prosecution action.

A. DEFENDANT'S MOTION TO DISMISS.

1. Plaintiff's Malicious Prosecution Claims.

a. Malicious Prosecution Claims Arising Out of Plaintiff's Rhode Island Criminal Proceedings.

Paragraphs 12-32 of Plaintiff von Bulow's amended complaint allege that Defendant Auersperg was involved in various acts of malicious prosecution during von Bulow's Rhode Island criminal proceedings. These proceedings concluded on June 10, 1985, when the jury hearing von Bulow's second criminal trial returned a not guilty verdict. Auersperg moves to dismiss von Bulow's malicious prosecution claims relating to the Rhode Island proceedings as barred by New York's statute of limitations.

Under New York law,³ a malicious prosecution action must be brought within one year from the date on which the action first accrues. N.Y.Civ.Prac.L. & R. § 215(3) (McKinney 1972). A malicious prosecution action first accrues when the plaintiff receives a favorable final determination in the prior legal proceeding that forms the basis of the action. Martin v. City of New York, 627 F.Supp. 892, 900 (E.D.N.Y.1985); Pico Products, Inc. v. Eagle Comtronics, Inc., 96 A.D.2d 736, 736, 465 N.Y.S.2d 628, 629 (4th Dep't 1983), appeal dismissed, 60 N.Y.2d 559, 471 N.Y.S.2d 1027, 459 N.E.2d 195 (1983); Dailey v. Smiley, 65 A.D.2d 915, 915, 410 N.Y.S.2d 468, 469 (4th Dep't 1978).

In the instant case, plaintiff's malicious prosecution action first accrued on June 10, 1985, when the Rhode Island criminal proceedings concluded with a not guilty verdict at his second trial. Therefore, a malicious prosecution action based on those proceedings was required to have been filed no later than June 10, 1986. Plaintiff failed to file such an action within the one-year...