Iotova v. Patel
Iotova v. Patel
Opinion of the Court
Plaintiffs Issak Almaleh and Antoaneta Iotova, proceeding pro se, bring this suit against Iotova's former criminal defense attorney, Andrew Patel, alleging malpractice, fraud, and negligence. See Complaint, filed Aug. 25, 2017 (Docket # 2) ("Compl."). Patel now moves to dismiss the complaint with prejudice under the doctrine of res judicata.
I. BACKGROUND
The following facts are based on the allegations in the complaint. In addition, the Court takes judicial notice of proceedings in Iotova's criminal prosecution and Iotova's prior lawsuits against Patel and others. See Int'l Star Class Yacht Racing Ass'n v. Tommy Hilfiger U.S.A., Inc.,
The plaintiffs are currently being prosecuted in this District for bank fraud, wire fraud, and related crimes. See Indictment, United States v. Almaleh, No. 17-cr-00025 (S.D.N.Y. Jan. 11, 2017) (Docket # 2). On February 14, 2017, Patel was appointed as Iotova's counsel under the Criminal Justice Act, 18 U.S.C. § 3006A. See Disposition Sheet, Almaleh, No. 17-cr-00025 (S.D.N.Y. Feb. 14, 2017) (Docket # 7). Patel was relieved as Iotova's counsel on November 1, 2017. See Order, Almaleh, No. 17-cr-00025 (S.D.N.Y. Nov. 6, 2017) (Docket # 62).
In the meantime, on August 8, 2017, Iotova filed suit against Patel in the County Court for Broward County, Florida. See Statement of Claim, dated Aug. 8, 2017 (annexed as Ex. A to Silverman Decl.) ("Florida State Action"), at *8.
Thirteen days later, both plaintiffs filed suit against Patel in the United States District Court for the Southern District of Florida. See Complaint, dated Aug. 21, 2017 (annexed as Ex. B to Silverman Decl.) ("Florida Federal Action"), at 1-2. The complaint in the Florida Federal Action made claims against Patel for malpractice, fraud, and negligence during his representation of Iotova. Id.
On August 25, 2017, four days after filing the Florida Federal Action, the plaintiffs filed the instant action in this Court. See Compl. The complaint in this Court alleges that Patel was "trying to harass [Iotova], intimidate [Iotova] and to forcefully send [Iotova] to doctors against [Iotova's] free will" and that he "is cooperating with the malicious Prosecution [in her criminal case in this District]." Compl. at 1. It also makes numerous other claims and allegations, all of which were made in the Florida Federal Action as well. Among these are allegations that Patel "doesn't want to defend the [Iotova]" in her criminal case, because he "is taking money from the Federal government to defend her, big money," id.; that Patel "doesn't want to discuss the case with her," id.; that "[h]e [ ]
*487breached the attorney secret by telling the psychologist [Maria Huber] information that [Iotova] shared with him confidentially," id. at 2; and that he "forced her to see a psychologist, telling her a lie that there is a court order, when there was no order," id. at 1. The complaint in the current action tracks word-for-word the complaint in Florida Federal Action. Neither complaint specified how Patel harmed Almaleh.
On October 30, 2017, the district court presiding over the Florida Federal Action dismissed the complaint both as frivolous and for failure to state a claim, citing
On December 27, 2017, Patel moved to dismiss this action and asked that an order issue barring plaintiffs from future filings. See Def. Not. The plaintiffs filed a number of letters opposing this motion. See Jan. 5 Letter; Jan. 17 Letter; Feb. 1 Letter. Although these letters bear labels suggesting that they are motions for various forms of relief, we construe them to represent plaintiffs' opposition to Patel's motion to dismiss. None of them address the merits of Patel's motion.
On February 28, 2018, the district judge presiding over the plaintiffs' criminal case in this district, Judge Forrest, enjoined the defendants "from filing any lawsuits against any counsel, court officer, or judicial officer connected to the criminal proceedings during its pendency." See Almaleh, No. 17-cr-00025 (S.D.N.Y. Feb. 28, 2018) (Docket # 108) ("Judge Forrest Injunction"). Because the instant lawsuit was filed before the Judge Forrest Injunction, we do not view its mere pendency as violating that order.
II. DISCUSSION
A. Res Judicata
A res judicata challenge "may properly be raised via a motion to dismiss for failure to state a claim under Rule 12(b)(6)." Thompson v. Cty. of Franklin,
The instant lawsuit meets all the elements of res judicata. The Florida Federal Action was dismissed with prejudice under the federal in forma pauperis statute,
B. Motion for Sanctions
Patel has requested that the Court enter either a litigation bar against plaintiffs or an order "warn[ing] plaintiffs that any subsequent frivolous filings against Mr. Patel, the United States Attorney, or others may result in either sanctions or imposition of a litigation bar, or both." Def. Mem. at 7.
We view a limited litigation bar as entirely appropriate. The standards for such a bar were articulated in Safir v. United States Lines, Inc.,
the district court, in determining whether or not to restrict a litigant's future access to the courts, should consider the following factors: (1) the litigant's history of litigation and in particular whether it entailed vexatious, harassing or duplicative lawsuits; (2) the litigant's motive in pursuing the litigation, e.g., does the litigant have an objective good faith expectation of prevailing?; (3) whether the litigant is represented by counsel; (4) whether the litigant has caused needless expense to other parties or has posed an unnecessary burden on the courts and their personnel; and (5) whether other sanctions would be adequate to protect the courts and other parties.
These five factors strongly support such a bar here. As noted in the Florida Federal Action, plaintiffs have together filed 14 lawsuits (15 including the Florida Federal Action) that have been dismissed sua sponte by the United States District Court for the Southern District of Florida. That list should now be supplemented by the instant lawsuit as well as a number of additional lawsuits filed in this Court or in other district courts by plaintiffs that have now been dismissed under
*489Accordingly, an injunction should issue barring plaintiffs from filing any further lawsuit against Patel or his firm based on any conduct occurring prior to the date of the injunction. See, e.g., Moore v. T-Mobile USA, Inc.,
III. CONCLUSION
For the foregoing reasons, the motion to dismiss (Docket # 13) should be granted. Also, an injunction should issue barring plaintiffs from filing any further lawsuit against Patel or his firm based on any conduct occurring prior to the date of the injunction.
PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to
Notice of Defendant's Motion to Dismiss, filed Dec. 27, 2017 (Docket # 13) ("Def. Not."); Memorandum of Law in Support of Defendant's Motion to Dismiss, filed Dec. 27, 2017 (Docket # 14) ("Def. Mem."); Declaration of Benjamin Silverman in Support of Defendant's Motion to Dismiss, filed Dec. 27, 2017 (Docket # 15) ("Silverman Decl."); Letter from Antoaneta Iotova, filed Jan. 5, 2018 (Docket # 20) ("Jan. 5 Letter"); Letter from Benjamin Silverman, filed Jan. 11, 2018 (Docket # 21); Letter from Antoaneta Iotova, filed Jan. 17, 2018 (Docket # 22) ("Jan. 17 Letter"); Letter from Antoaneta Iotova, filed Feb. 1, 2018 (Docket # 25) ("Feb. 1 Letter").
Page numbers listed as "*__" refer to the pagination system provided by the Court's ECF system.
While the copy of the Florida State Action complaint annexed to the Silverman Declaration appears incomplete, it is not necessary to rectify this error inasmuch as the complete complaint is not necessary for the resolution of the instant motion.
Reference
- Full Case Name
- Antoaneta IOTOVA, Issak Almaleh v. Andrew PATEL
- Cited By
- 4 cases
- Status
- Published