Barth v. Kaye

178 F.R.D. 371, 1998 U.S. Dist. LEXIS 2098, 1998 WL 88513
CourtDistrict Court, N.D. New York
DecidedFebruary 24, 1998
DocketNo. 97-CV-1064
StatusPublished
Cited by3 cases

This text of 178 F.R.D. 371 (Barth v. Kaye) is published on Counsel Stack Legal Research, covering District Court, N.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Barth v. Kaye, 178 F.R.D. 371, 1998 U.S. Dist. LEXIS 2098, 1998 WL 88513 (N.D.N.Y. 1998).

Opinion

MEMORANDUM-DECISION & ORDER

McAVOY, Chief Judge.

I. BACKGROUND

The instant civil rights Complaint contains twenty-eight causes of action alleging violations of Plaintiff’s constitutional rights to interstate travel, due process, and equal protection, as well as RICO violations, conspiracy, injury to reputation, breach of contract, malicious prosecution, intentional infliction of emotional distress, negligence, and antitrust violations. Plaintiff seeks damages “in an amount not less than seven billion dollars.”

A. Procedural Background

As this Court stated in a prior decision in this action, “[t]his bizarre civil rights ease has a long a convoluted history.” December 12, 1997 Memorandum-Decision & Order at 2. In light of Plaintiff’s propensity for litigating and relitigating these issues, the present decision will undoubtedly only add another chapter to the story.

Plaintiff, a graduate of Seton Hall University School of Law (“Seton Hall”), penned the first chapter of this tale in August 1993, by suing Michael Zimmer, Associate Dean of Seton Hall, for defamation. On June 30, 1994, the Superior Court of New Jersey granted Zimmer summary judgment. Plaintiff appealed that judgment, which was affirmed. See Barth v. Zimmer, No. A-6632-93T2 (N.J.Super.Ct.App.Div. March 24, 1995).

Chapter two was penned in 1994, when Plaintiff filed a twenty-five count complaint in the Southern District of New York against many of the same defendants named here. On October 19, 1995, Judge Keenan dismissed the action before him as against Judges Kaye, Bellaeosa, Ciparick, Levine, Simons, Smith, and Titone for improper venue. See Anonymous v. Kaye, 1994 WL 389157, at *1 (S.D.N.Y.1994). Judge Keenan also dismissed Plaintiffs complaint against Justices Wilentz, Clifford, Handler, Pollock, O’Hem, Garibaldi, and Stein of the New Jersey Supreme Court for lack of personal jurisdiction and against Seton Hall and Dean Ronald R. Riccio on res judicata grounds. Id. Plaintiff appealed the judgment, which was affirmed via summary order. Anonymous v. Kaye, 104 F.3d 355 (2d Cir.1996), cert. denied, — U.S. -, 118 S.Ct. 692, 139 L.Ed.2d 637 (1998).

Chapter three began on January 29, 1996, when Plaintiff filed a twenty-five count complaint (essentially the same complaint filed [375]*375here and in the Southern District) in the District of New Jersey. On September 4, 1996, Chief Judge Thompson dismissed Plaintiff’s complaint on the merits, finding, inter alia, that Rooker-Feldman and New Jersey’s Entire Controversy doctrine prevented the re-litigation of Plaintiffs claims. See Anonymous v.. Wilentz, No. 96-452 (D.N.J. Sept. 11, 1996). Plaintiffs appeal to the Third Circuit was dismissed on jurisdictional, grounds. See Anonymous v. Wilentz, No. 96-5403 (3d Cir. May 5, 1997).

Chapter four sees this Court’s introduction into the story. On July 25, 1997, Plaintiff filed the instant twenty-eight count Complaint. The Court previously dismissed Plaintiffs Complaint on the merits as to Chief Judge Kaye, Associate Judges Bellacosa, Ciparick, Levine, Simons, Smith, and Titone, the New York Board of Law Examiners, the members of the New York Board of Law Examiners, the New York Rules for Admission to the Bar 22 N.Y.C.R.R. 520 et seq., and the Rules of the New York State Board of Law Examiners § 6000 et seq. See December 12,1997 Memorandum-Decision & Order at 13.

Presently before the Court are motions to dismiss brought by the American Bar Association and former New Jersey Attorney General Deborah Poritz, as well as Plaintiffs cross motion seeking the Court’s recusal, denial of attorney Catinello’s Pro Hac Vice motion, default, a Subpoena Duces Tecum, a stay pending appeal, and reconsideration of the Court’s prior decision dismissing the New York State Defendants.

B. Factual Background

Plaintiff is a New Jersey resident who has sought to take the New York State Bar Exam. The New York State Board of Law Examiners denied Plaintiffs application to take the New York Bar Exam because Plaintiff’s law school refused to forward a “Law School Certificate of Attendance” and a certification of the applicant’s handwriting, which are required to take the exam. Seton Hall allegedly refused to provide the necessary certifications because Plaintiff failed to satisfy the residency requirements of the school for graduation.

Plaintiff was a night student at Seton Hall. In the summer of 1992, a Seton Hall Professor determined that Plaintiff had plagiarized on a take-home final exam. The Professor reported the plagiarism to Associate Dean Michael J. Zimmer. Zimmer met with Plaintiff and determined that Plaintiff would receive a failing grade in the class and be suspended from the law school for one year. Plaintiff appealed to the law school’s Probation and Grievance Committee, which upheld the determination that Plaintiff had plagiarized but recommended that the suspension be re-examined. Dean Riccio decided not to implement the suspension.

In August of 1993, Plaintiff sued Zimmer for defamation in the Superior Court of New Jersey, alleging that Zimmer’s letter to Plaintiff, stating the findings of plagiarism, was defamatory. Plaintiffs lawsuit was based on the premise that Plaintiff should not have been disciplined for plagiarism. Plaintiff did not sue Dean Riccio or Seton Hall at that time. The Superior Court granted Zimmer summary judgment on his claims, which was affirmed. See Barth v. Zimmer, No. A-6632-93T2 (N.J.Super.Ct.App.Div. March 24, 1995).

In 1994, Plaintiff again brought suit, this time in the Southern District of New York. On July 25, 1994, Judge Keenan denied Plaintiff’s motion for injunctive relief, which would have allowed him to take the July 1994 New York Bar exam. See Anonymous v. Kaye, 1994 WL 389157, at *1. Judge Keenan subsequently dismissed Plaintiff’s case in its entirety. Anonymous v. Kaye, 1995 WL 617795, at *6. In affirming the dismissal, the Second Circuit stated:

The claims that appellant asserted against Seton Hall in the district court action arise out of appellant’s plagiarism and subsequent disciplinary proceedings. Under the entire controversy doctrine, therefore, appellant should have included those claims in the lawsuit instituted in New Jersey Superior Court. Because appellant failed to include Seton Hall in that lawsuit, the district court is barred from hearing those claims. [376]*376Anonymous v. Kaye, 104 F.3d 355, 1996 WL 734074, at *2 (2d Cir.1996) (citations omitted).

Not content to fight his battle on only one front, Plaintiff filed, while his appeal to the Second Circuit was pending, a lengthy complaint in New Jersey federal court. In her decision, Chief Judge Anne Thompson of the District of New Jersey observed that “Plaintiff’s amended complaint [filed in the Southern District of New York] contained twenty-five counts, substantially identical to the counts in the present action.” Anonymous v. Wilentz, No. 96-452, slip at 4 (D.N.J. Sept. 11, 1996).

Judge Thompson dismissed Plaintiff’s complaint in its entirety, noting that

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Javier H. v. Garcia-Botello
211 F.R.D. 194 (W.D. New York, 2002)
Doe v. City of New York
201 F.R.D. 100 (S.D. New York, 2001)
St. Pierre v. Dyer
21 F. Supp. 2d 138 (N.D. New York, 1998)

Cite This Page — Counsel Stack

Bluebook (online)
178 F.R.D. 371, 1998 U.S. Dist. LEXIS 2098, 1998 WL 88513, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barth-v-kaye-nynd-1998.