Yosef v. Passamaquoddy Tribe

• Decision Date: 26 May 1989
• Docket Number: D,No. 1005,1005
• Citation: 876 F.2d 283
• Parties: Tuvia Ben Shmuel YOSEF, Plaintiff-Appellant, v. The PASSAMAQUODDY TRIBE, The Penobscot Nation, The Houlton Band of Maliseet Indians, and the Shawmut Bank of Boston, Defendants-Appellees. ocket 88-6201.
• Court: U.S. Court of Appeals — Second Circuit

Page 283

876 F.2d 283

13 Fed.R.Serv.3d 801

Tuvia Ben Shmuel YOSEF, Plaintiff-Appellant, v. The PASSAMAQUODDY TRIBE, The Penobscot Nation, The Houlton Band of Maliseet Indians, and the Shawmut Bank of Boston, Defendants-Appellees.

No. 1005, Docket 88-6201.

United States Court of Appeals Second Circuit.

Argued May 5, 1989.

Decided May 26, 1989.

Tuvia Ben Shmuel Yosef, Forest Hills, N.Y., pro se.

James B. Weber, (Tureen & Margolin, Portland, Me.) submitted a brief, for defendants-appellees.

Before KAUFMAN, FEINBERG and NEWMAN, Circuit Judges.

IRVING R. KAUFMAN, Circuit Judge:

We are asked to decide whether a party who initiates suit in federal court loses the right to unilaterally dismiss his action when, more than nine months before, the defending parties challenged the sufficiency of his complaint in a motion to dismiss for failure to state a claim and also sought the imposition of penalties. Despite appellant's attempted dismissal, the district court adjudicated the motion and found that the claims were meritless and imposed penalties. Because we believe the motion could have been treated as a request for summary judgment and granted, sanctions were properly imposed. We affirm.

Tuvia Ben Shmuel Yosef, formerly a member of the Maine bar and then known as Don Gellers, brought this pro se action against the Secretary of the Interior ("the Secretary"), ¹ the Passamaquoddy Tribe, the Penobscot Nation and the Houlton Band of the Maliseet Indians ("the Tribes"), the Shawmut Bank of Boston ("the Bank"), and Thomas Tureen, claiming that his legal work resulted in the passage of the Maine Indian Claims Settlement Act of 1980, P.L. 96-420, 94 Stat. 1785, 25 U.S.C. Secs. 1721-1735. ²

Appellant asserts that the passage of the Act gave him the right to recover $27 million dollars in quantum meruit from the $81.5 million dollar fund created by the Act, pursuant to an alleged contingency fee agreement he had with the Passamaquoddy Indians. He claims appellee Tureen caused a large part of the funds awarded the Indians to come into the hands of the Bank, and alleges the Bank had a duty to avoid acquisition of the funds.

Yosef apparently served as an attorney for the Passamaquoddy tribe from 1964 to 1971, under a Claims Attorney Contract pursuant to 25 U.S.C. Sec. 81. The contract provided that it would continue in force for ten years from the date of its approval by the Secretary of the Interior. On September 7, 1967, appellant submitted the contract to the Department of the Interior for approval as required by Sec. 81. The Secretary declined to approve it because he believed the Passamaquoddies were not, at that time, a federally recognized tribe.

Despite this development, appellant continued to represent the tribe until 1971, when he was convicted of possession of marijuana and fled from Maine to Israel. There, Gellers adopted the name Tuvia Ben Shmuel Yosef. He was subsequently disbarred by the State of Maine. Although in his absence appellee Tureen became the Claims Attorney for the Passamaquoddies, Yosef resubmitted his contract with the tribe to the Secretary of the Interior in 1979. This time the Secretary declined to accept the agreement because the tribe would not ratify it. Appellant concedes he did not have any contractual arrangement with the Penobscot Nation or the Houlton Band of the Maliseets.

Yosef filed this action in the Eastern District of New York on December 15, 1986. Appellees were not served until April 1987. This was beyond the 120 day period mandated by Fed.R.Civ.P. 4(j). In addition to a motion to dismiss for failure to complete service of process within the time period mandated by Rule 4(j), appellees filed motions to dismiss on various other grounds including absence of federal question jurisdiction, diversity jurisdiction, personal jurisdiction, and lack of standing. They also moved, pursuant to Fed.R.Civ.P. 12(b)(6), for dismissal on the ground that the complaint failed to state a claim upon which relief could be granted because the statute of limitations had expired. Shortly thereafter, the Tribes and the Bank moved for sanctions under Fed.R.Civ.P. 11. In opposing the Rule 12(b)(6) motion, appellant presented an "affirmation" and new exhibits to the court. Appellees were then permitted to file reply memoranda.

In December 1987, the parties stipulated that all papers relating to the motion to dismiss would be filed and served by appellant no later than January 11, 1988. Nonetheless, on February 8, 1988, Yosef filed a motion for an enlargement of time, claiming that there was good cause for his failure to timely complete service of process.

More than eight months after appellees moved to dismiss, and before Chief Judge Platt rendered his decision, appellant asked for dismissal of the action pursuant to Fed.R.Civ.P. 41(a)(1)(i). The court then filed a memorandum and order finding all of his claims meritless and imposing sanctions directing him to pay $4,000 to the attorneys for the Tribes, Bank, and Tureen, and $1,000 in costs and expenses. Chief Judge Platt determined that diversity jurisdiction did not exist for the claims against the Tribes and that no personal jurisdiction existed over the Tribes, Tureen or the Bank. On appeal, Yosef urges us to reverse these findings on the theory that, following his effort to voluntarily dismiss the suit, the district court lacked authority to impose sanctions.

This court has liberally construed Rule 41(a)(1)(i), which allows plaintiffs to voluntarily dismiss an action. We have generally held that a valid dismissal deprives a court of authority to adjudicate any matters subsequently presented including sanctions, Johnson Chemical Co. v. Home Care Products, 823 F.2d 28 (2d Cir.1987) and attorney's fees, Santiago v. Victim Services Agency, 753 F.2d 219 (2d Cir.1985). ³ But, we recognized a limit. We noted that a defendant may cutoff a plaintiff's right to terminate an action by filing an answer or moving for summary judgment. See Johnson, at 30, citing Santiago. We believe appellees' motion to dismiss was transformed into a request for summary judgment which Chief Judge Platt granted, and that he therefore retained the power to impose a fine.

Among other things, Rule 12(b)(6) provides that if, on a motion to dismiss for failure to state a claim, matters outside the pleadings are presented to the court and not excluded, the motion "shall be treated as one for summary judgment." The Advisory Committee Notes on the Rules recognize numerous cases where district courts have permitted the introduction of matter beyond the pleadings to support or resist a motion to dismiss for failure to state a claim, and then converted the motion to one for summary judgment. E.g., Samara v. United States, 129 F.2d 594 (2d Cir.), cert. denied, 317 U.S. 686, 63 S.Ct. 258, 87 L.Ed. 549 (1942); see National Cement Inc. v. Mead Corp., 80 F.R.D. 703 (S.D.N.Y.1978).

In the district court, appellees submitted affidavits supplementing their motion to dismiss. The additional submissions supported their contention that they had not been properly served within the applicable limitations period. Additionally, Yosef appended an exhibit, titled "Advice of Allotment," to support his claim that the date from which the statute of limitations should run was January 7, 1981. Moreover, in the portion of his "Affirmation" that responded to appellees' statute of limitations arguments, Yosef referred to various letters he had sent to an official of the Bureau of Indian Affairs. These submissions were not excluded by the court and have become a part of the record on appeal. Accordingly, it is appropriate to treat the motion to dismiss under Rule 12(b)(6) as one for summary judgment. See Carter v. Stanton, 405 U.S. 669, 671, 92 S.Ct. 1232, 1234, 31 L.Ed.2d 569 (1972).

Rule 41(a)(1)(i) provides that service of an answer or summary judgment motion marks the point at which the plaintiff's unilateral right to dismiss the action terminates. Consequently, where a 12(b)(6) motion ripens into one for summary judgment, the right to voluntary...