Zappin v. Carey Douglas Kessler & Ruby PLLC

• Docket Number: Civil Action 2:22-cv-00292
• Decision Date: 30 August 2023
• Parties: ANTHONY ZAPPIN, Plaintiff, v. CAREY, DOUGLAS, KESSLER, & RUBY, PLLC, et al., Defendants.
• Court: U.S. District Court — Southern District of West Virginia

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ANTHONY ZAPPIN, Plaintiff,
v.
CAREY, DOUGLAS, KESSLER, & RUBY, PLLC, et al., Defendants.

Civil Action No. 2:22-cv-00292

United States District Court, S.D. West Virginia, Charleston Division

August 30, 2023

MEMORANDUM OPINION AND ORDER

THOMAS E. JOHNSTON CHIEF JUDGE.

Pending before the Court is Defendants' S. Benjamin Bryant's and Carey Douglas Kessler & Ruby PLLC's (“Defendants”) Motion to Dismiss Plaintiff's Amended Complaint and for a PreFiling Injunction. (ECF No. 17.) For the reasons more fully explained below, the Court GRANTS Defendants' motion, (ECF No. 17), OVERRULES Plaintiff's objections, (ECF No. 32), ADOPTS the PF&R, (ECF No. 30), and DISMISSES this action. The Court also hereby ENJOINS Plaintiff Anthony Zappin (“Plaintiff”) from further filings in this Court against these Defendants or their counsel without first seeking prior approval by this Court.

I. BACKGROUND

A. Factual History

Plaintiff is a thrice-disbarred attorney who now proceeds pro se. Zappin v. Ramey, 3:22-cv-80, 2023 WL 1469995, at *1 (S.D. W.Va. Feb. 2, 2023). Plaintiff first lost his New York law license after he committed repeated “egregious and outrageous acts of [professional] misconduct”

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during his own divorce proceedings. Matter of Zappin, 73 N.Y.S.3d 182, 187 (N.Y.App.Div. 2018). Matters only worsened from there. Upon learning of his New York disbarment, the West Virginia Office of Disciplinary Counsel initiated reciprocal disciplinary proceedings against Plaintiff. (ECF No. 16 at 26, ¶ 33.) The West Virginia Supreme Court heard the evidence and annulled Plaintiff's West Virginia law license, too. Law. Disciplinary Bd. v. Zappin, No. 180250, 2021 WL 595869 (W.Va. Feb. 16, 2021) (memorandum decision).

These disbarments have brought out Plaintiff's litigious side. In fact, since his divorce, he has sued nearly everyone affiliated with his disbarments, even those remotely connected. See, e.g., Zappin v. Hamilton, 3:20-cv-00209 (S.D. W.Va. Mar. 23, 2020) (Plaintiff's counsel from New York disbarment proceedings); Zappin v. Supple, 3:20-cv-00210 (S.D. W.Va. Mar. 23, 2020) (same); Zappin v. Cipoletti, 2:21-cv-00119, 2021 WL 4392043 (S.D. W.Va. Sept. 24, 2021), reconsideration denied, 2021 WL 5989067 (S.D. W.Va. Dec. 17, 2021), aff'd, No. 22-1065, 2022 WL 2914729 (4th Cir. July 25, 2022) (all five Justices of the West Virginia Supreme Court, Clerk of that Court, West Virginia disciplinary board lawyer, and disciplinary panel members that recommended Plaintiff's disbarment); Ramey, 2023 WL 1469995, at *4 (defense counsel in Cipoletti); Zappin v. Cooper, 16 Civ. 5985, 2018 WL 708369, at *1 (S.D.N.Y. Feb. 2, 2018), reconsideration denied, 2018 WL 2305562 (S.D.N.Y. May 18, 2018), aff'd, No. 18-1545, 768 Fed.Appx. 51 (2d Cir. May 15, 2019) (New York judge that found Plaintiff had committed professional misconduct); Zappin v. Daily News, L.P., 16 Civ. 8762, 2017 WL 3425765 (S.D.N.Y. Aug. 9, 2017) (news outlet that reported on Plaintiff's divorce proceedings); Zappin v. Doyle, 17 Civ. 8837, 2018 WL 2376502 (S.D.N.Y. Apr. 10, 2018) (New York disciplinary counsel and New York judges that presided over Plaintiff's divorce).

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Defendants are his latest target. Plaintiff alleges they committed malpractice during the brief stint they represented him in the reciprocal disciplinary proceedings. (See generally ECF No. 16.) However, before wading into this latest installment of Zappin-litigation, the Court will briefly recount the oft-told facts of Plaintiff's disbarments.

1. New York Disbarment

This all began during Plaintiff's New York divorce proceedings. There, he appeared pro se and “d[id] everything in his power to undermine the legal process and use his law license as a tool to threaten, bully, and intimidate.” Zappin v. Comfort, 26 N.Y.S.3d 217, 2015 WL 5511519, at *1 (N.Y. Sup. Ct. Sept. 18, 2015), aff'd. 49 N.Y.S.3d 6 (N.Y.App.Div. 2017). The presiding judge cautioned Plaintiff that his “continuing . . . campaign of harassment and abuse” “call[ed] into question his fitness to practice law.” Id. at *1, 14. Yet Plaintiff carried on. When it was all said and done, the judge found that Plaintiff

had repeatedly perpetrated acts of domestic violence against his wife; had testified falsely at a custody trial; had knowingly introduced falsified evidence during the proceedings in the form of altered text messages; had presented misleading testimony through his expert witnesses had . . . engaged in acts that repeatedly demonstrated disrespect for the court and counsel, by, inter alia flouting the judicial directives of three judges . . ., setting up a fake website about the attorney for the child by registering her name as a domain name and posting derogatory messages about her on it, and baselessly filing a disciplinary complaint against a court-appointed psychiatric expert witness.

Matter of Zappin, 73 N.Y.S.3d at 183-84. The judge also found that Plaintiff

had sent text messages to his wife, an attorney, threatening her with loss of her license to practice law and professional ruin; had made grossly offensive remarks during cell phone conversations with his then three-month-old son in which he baselessly accused his father-in-law of being a child sexual abuser who could harm the child; had engaged in frivolous and abusive litigation against his wife, her parents, and her attorneys; and had attempted to publicly defame the attorney for the child.

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Id. at 184.

These findings proved problematic for Plaintiff. New York bar authorities soon charged him with professional misconduct based on the judge's findings. Id. at 183-84. Plaintiff fought the allegations tooth and nail, but his efforts were in vain. See id. at 183. The New York courts held that Plaintiff was collaterally estopped from challenging the judge's misconduct findings and thus disbarred him. Id. at 183, 189.

2. West Virginia Disbarment

At the time, Plaintiff also had a West Virginia law license. He promptly notified the Office of Disciplinary Counsel (“ODC”) of his New York disbarment,^[1]and the ODC immediately filed a reciprocal disciplinary action against him. (ECF No. at 26, ¶ 33.)

Plaintiff hired Defendants to represent him in these proceedings.^[2](See generally ECF No 16; see also ECF No. 32 at 10.) Plaintiff, presumably acting through Defendants, requested a formal hearing before a Hearing Panel Subcommittee (“HPS”) in hopes of avoiding reciprocal discipline.^[3]Zappin, 2021 WL 595869, at *4 n.10. In the lead up to the hearing, “Defendants filed motions . . . on Plaintiff's behalf requesting that reciprocal discipline not be imposed” for a handful of reasons. (ECF No. 32 at 10.) At the subsequent two-day hearing, Plaintiff alleges that he and Defendants “meticulously walked through and presented evidence” showing that reciprocal discipline was unwarranted. (ECF No. 16 at 35, ¶ 47.) Nevertheless, the HPS recommended that the West Virginia Supreme Court annul Plaintiff's law license, and Defendants

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withdrew as Plaintiff's counsel not long after. Zappin, 2021 WL 595869, at *4. Plaintiff-by then appearing pro se-argued his case to the West Virginia Supreme Court, repeating the arguments he and Defendants made before the HPS. Id. at *5-6. These efforts were also futile- the West Virginia Supreme Court relied on the New York courts' misconduct findings and disbarred Plaintiff. Id.

B. Procedural History

Plaintiff now blames Defendants for his West Virginia disbarment. He filed suit in this Court on July 19, 2022, invoking this Court's jurisdiction under 28 U.S.C. § 1332. (ECF No. 1.) Plaintiff's single-count complaint alleges Defendants committed legal malpractice during his reciprocal disciplinary proceedings. (Id.)

On November 29, 2022, Defendants filed a motion to dismiss and for a pre-filing injunction against Plaintiff. (ECF No. 11.) Plaintiff thereafter filed an Amended Complaint (without leave to do so) on December 27, 2022.^[4] (ECF No. 16.) Defendants then filed a second motion to dismiss and again sought a pre-filing injunction on December 29, 2022. (ECF No. 17.) Plaintiff filed a timely response on February 10, 2023, (ECF No. 26), to which Defendants replied on February 16, 2023, (ECF No. 28). Once ripe, Magistrate Judge Aboulhosn entered a proposed findings and recommendation for disposition (“PF&R”), wherein he recommended that this Court (1) dismiss the Amended Complaint for failure to state a claim and (2) enter a pre-filing injunction against Plaintiff. (ECF No. 30.) Plaintiff filed timely objections on March 30, 2023. (ECF No. 32.)

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II. LEGAL STANDARD

A. Review of Magistrate Judge's Findings and Recommendations

The Court is required to “make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1)(C). However, the Court is not required to review, under a de novo or any other standard, the factual or legal conclusions of the magistrate judge as to those portions of the findings or recommendation to which no objections are addressed. Thomas v. Arn, 474 U.S. 140, 150 (1985). In addition, this Court need not conduct a de novo review when a plaintiff “makes general and conclusory objections that do not direct the Court to a specific error in the magistrate's proposed findings and recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). Although courts generally construe pro se filings liberally, see Estelle v. Gamble, 429 U.S. 97, 106 (1976), that leniency is not afforded “to lawyers who file pro se.” Ramey, 2023 WL 1469995, at *6 (italics added).

B. Motion to Dismiss Standard

A motion to dismiss for failure to state a claim upon which relief may be granted tests the legal sufficiency of a civil complaint. Fed.R.Civ.P. 12(b)(6). A plaintiff must allege sufficient facts, which, if proven, would entitle him to relief under a...