                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA


P. STEPHEN LAMONT,

                       Plaintiff,
                                                     Civil Action No. 11-0949 (BJR)
               v.
                                                     MEMORANDUM OPINION
PROSKAUER ROSE, LLP, et al.,

                       Defendant.



  DENYING PLAINTIFF’S MOTION TO DISQUALIFY THE REPRESENTATIVE CAPACITY OF NEW
    YORK STATE ATTORNEY GENERAL; GRANTING DEFENDANTS’ MOTIONS TO DISMISS;
  DENYING PLAINTIFF’S MOTION FOR LEAVE TO FILE AN AMENDED COMPLAINT; DENYING
PLAINTIFF’S MOTION TO AMEND HIS MOTION FOR LEAVE TO FILE AN AMENDED COMPLAINT;
 DENYING AS MOOT PLAINTIFF’S MOTION TO REQUIRE UNITED STATES MARSHALS SERVICE
  TO SERVE SUMMONS & COMPLAINT; DENYING PLAINTIFF’S MOTION TO REQUIRE UNITED
   STATES MARSHALS SERVICE TO SERVE TWO NEW YORK STATE DEFENDANTS AND FOR
   SANCTIONS ON THE OFFICE OF THE NEW YORK STATE ATTORNEY GENERAL’S OFFICE;
     DENYING AS MOOT PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION AGAINST
     DEFENDANT TIME WARNER; DENYING PLAINTIFF’S MOTION TO FILE A SURREPLY

                                       I. INTRODUCTION

       It is a rare event indeed when a court can resolve a truly voluminous case in a succinct,

laborsaving manner; fortunately, this case is one in which that rare event will occur. The various

Defendants 1 in this case have filed respective motions to dismiss, raising similar, if not identical,

1
       Plaintiff has filed suit against twenty-three named defendants. Three of these defendants – Brian
       G. Utley; Michael A. Reale; Raymond T. Hirsch – have not yet been served and have not had
       counsel enter an appearance in this matter. See supra n.9. Hereinafter, “Defendants” refers to
       those named defendants who have been served and are represented by counsel in this matter.
       Plaintiff has additionally filed suit against John & Jane Does and John Doe Companies.
       Defendants have self-categorized into the following six groups, each of which has filed a
       respective motion to dismiss: (1) the “Proskauer Defendants” include: Proskauer Rose, LLP;
       Kenneth Rubenstein; Christopher Wheeler; Steven C. Krane (2) the Metlzer Defendants include:
       Meltzer, Lippe, Goldstein & Breistone, LLP; Lewis S. Meltzer; (3) the Foley Defendants
       include: Foley & Lardner, LLP; William J. Dick; Douglas A. Boehm; Steven C. Becker; (4) the
       New York Defendants include: the State of New York; Thomas J. Cahill; Martin R. Gold;
       Richard T. Andrias; David B. Saxe; Lawrence DiGiovanna; Diana Maxfield Kearse; James E.
arguments. Among their arguments, Defendants assert that pro se Plaintiff, Mr. P. Stephen

Lamont, previously litigated these claims and that they were ruled upon by the United States

District Court for the Southern District of New York. The court agrees, and dismisses Plaintiff’s

sole federal claim under the doctrine of res judicata. Accordingly, the court grants defendants’

motions to dismiss. Additionally, the court denies the following motions filed by Plaintiff:

motion to disqualify the representative capacity of the New York State Attorney General; motion

for leave to file an amended complaint; motion to amend the motion for leave to file an amended

complaint; motion to file a surreply; motion to require the United States Marshals Service to

serve summons and complaint; motion to require United States Marshals Service to Serve Two

New York State Defendants and for Sanctions; and motion for a preliminary injunction.

                                       II. BACKGROUND

                                     A. Factual Background

       The following alleged facts are presumed true for purposes of this order. Plaintiff,

proceeding pro se, alleges that in the fall of 1998, three individuals (none of whom are Plaintiff)

“stumbled upon” new technologies that would allow superior digital video. Compl. ¶ 32.

According to Plaintiff, these technologies allow for the “encoding and transmission of digital

video across all transmission networks,” allow the digital zoom feature “on all video capture

devices,” and, lastly, allow the remote control of video devices. Id. ¶ 5. The three inventors

soon formed a company called Iviewit, of which Plaintiff is currently the Chief Executive

Officer. Id.

       Sometime after 2000, Iviewit presented this new technology to Time Warner, Corp. and

that company began to utilize the new technologies pursuant to specific agreements. Id. ¶ 47. In


       Petlzer; (5) Defendant Time Warner, Inc.; (6) Raymond A. Joao. For ease, these categories will
       be used throughout this memorandum opinion.


                                                  2
the summer of 2001, however, Plaintiff alleges that Time Warner began using the technologies in

unauthorized ways. Id. ¶ 49. Indeed, Plaintiff claims that Time Warner continues such

unauthorized use, id. ¶ 1, and he has recently filed a preliminary injunction to halt this behavior,

see generally Pl.’s Mot. for Preliminary Inj. 2

         In 2002, Iviewit discovered that the patent applications filed on its behalf with the United

States Patent and Trademark Office (“USPTO”) were “facially defective.” Id. ¶ 50. Plaintiff

believes that patent attorneys from the law firms of Proskauer Rose, LLP; Meltzer, Lippe,

Goldstein & Breistone, LLP; and Foley Lardner, LLP committed fraud by filing such faulty

applications and, in the case of Proskauer Rose, LLP, by representing Iviewit when there was a

conflict of interest with another client, MPEGLA LLC. Id. ¶ 1, 62-65. As a result, Iviewit

lodged a flurry of grievance complaints against these patent attorneys with the appropriate New

York state disciplinary committees and the United States Patent and Trademark Office. Id. ¶¶

50-57.

         In 2011, Plaintiff commenced suit against Iviewit’s prior patent lawyers and their

respective law firms, the State of New York and several of its officials, past officers of Iviewit,

Time Warner, and Jane and John Does and John Doe companies. 3 See supra n.1 ; Compl. ¶¶ 5-

30. Plaintiff asserts that all of the defendants, with the sole exception of Time Warner, violated

42 U.S.C. § 1983. Additionally, Plaintiff invokes the court’s supplemental jurisdiction to raise

claims for fraud, conspiracy to commit fraud, breach of contract, and legal malpractice. Plaintiff

demands that he is entitled to damages because he has suffered “more than twelve years of

unpaid royalties on the [unauthorized use of these] technologies” and the “loss of value in the
2
         As elaborated herein, the court determines that Plaintiff’s case should be dismissed, and therefore
         denies as moot Plaintiff’s motion for a preliminary injunction.
3
         This case was transferred to the undersigned judge on April 3, 2012.



                                                     3
capital shares held by shareholders.” Id. ¶ 79. Defendants now move to dismiss Plaintiff’s

complaint.

             B. Plaintiff’s Prior Case in the United States District Court for the
                                Southern District of New York

       In 2007, Plaintiff, proceeding pro se, along with Eliot Bernstein, one of the inventors of

the technology at issue, filed suit in the Southern District of New York against hundreds of

defendants, including the majority of defendants being sued before this court. 4 See generally

Bernstein v. State of New York, 591 F. Supp. 2d 448 (S.D.N.Y. 2008). In rendering a 2008

memorandum opinion dismissing the case, Judge Scheindlin labored through a 1,000 paragraph

complaint and summarized in great detail Plaintiff and Bernstein’s factual allegations. See id. at

452-58.

       In that case, as here, Plaintiff alleged that Bernstein and others had invented video

technologies that would allow one to “zoom almost infinitely on a low resolution file with

clarity,” and that those technologies became incorporated into “almost every digital camera and

present screen display device.” Id. at 453. The Bernstein complaint further asserts that

Proskauer partner Christopher C. Wheeler put Bernstein in touch with another Proskauer

attorney, Kenneth Rubenstein and an attorney from Meltzer Lippe Goldstein Wolf & Schlissel,

P.C., Raymond Joao. Id. Rubenstein and Joao then performed trademark, trade secret, and

copyright work for Iviewit, notwithstanding that Rubenstein was also counsel to MPEGLA LLC,


4
       In the instant case, only the following five defendants were not named defendants in Plaintiff’s
       previous litigation: Proskauer partner, Christopher Wheeler; Time Warner, Inc.; Iviewit’s former
       President and CEO, Brian G. Utley; Iviewit’s former Vice President of Operations, Michael A.
       Reale; and Iviewit’s former financial officer, Raymond Hirsch. Although not named defendants
       in the previous case, Wheeler, Utley, and Reale were referred to by name and their role in the
       alleged conspiracy was discussed in Judge Scheindlin’s 2008 order. See Bernstein, 591 F. Supp.
       2d at 453-55.




                                                  4
one of the largest users of the invented technology. Id. at 453-454. According to the Bernstein

complaint, Rubenstein and Joao schemed to steal the new technologies, filing defective patents

for Iviewit while creating illegitimate companies with names similar to Iviewit’s and filing valid

patent applications in those companies’ names. Id.

       The Bernstein complaint also details how Iviewit then obtained the services of Foley

Larner LLP, who Plaintiff and Bernstein also alleged filed false patent applications. Id. at 454.

At this point, Brian Utley and Michael Reale allegedly threatened Bernstein, stole Iviewit’s

equipment, and blew up Bernstein’s car. Id.

       Bernstein and Plaintiff contacted the New York Attorney General’s Office and requested

that the Attorney General and the New York State Disciplinary Committee investigate these

attorneys’ actions. Id. at 456. According to Plaintiff, Proskauer arranged for one of its partners,

Steven C. Krane, to have the disciplinary complaints delayed and dismissed. New York judges

of the First and Second Department Disciplinary Committee and the Court of Appeals were also

allegedly part of the conspiracy. Id.

       Based on these allegations, Plaintiff and Bernstein brought several federal claims,

including, of particular note, a claim that defendants violated 42 U.S.C. § 1983 by “engag[ing] in

a massive conspiracy to violate their civil rights.” Id. at 452. Plaintiffs also brought a litany of

state law claims, including fraud, breach of contract, and legal malpractice. Id. at 457.    On

August 8, 2008, Judge Scheindlin dismissed the § 1983 claims on statute of limitations grounds,

defendants’ immunity from suit, and the plaintiffs’ failure to allege any wrongdoing. Id. at 464-

68. She declined to exercise supplemental jurisdiction on the state claims. Id. at 469. In

denying leave to replead, Judge Scheindlin found that there was “no reason to believe [that




                                                  5
Plaintiff and Bernstein] would ever be able” to state “a legally cognizable federal claim against a

single defendant.” Id.

         Immediately thereafter, Plaintiff and Bernstein moved for reconsideration, but Judge

Scheindlin declined to grant them such relief because the federal court system was “not the

appropriate forum for plaintiffs to seek redress of these grievances.” Order, Bernstein v. State of

New York, Civ. No. 07-11196 at 3 (S.D.N.Y. Aug. 19, 2008). The Bernstein plaintiffs appealed

and, on February 5, 2010, the Second Circuit dismissed their appeal as frivolous. Mandate, filed

February 5, 2010, Bernstein v. State of New York, Civ. No. 07-11196.

       On October 5, 12, 2010, Plaintiff, “individually, and on behalf of shareholders of Iviewit”

moved to re-open the case. Pl. Lamont’s Mot. to Reopen, filed Oct. 12, 2010, Bernstein v. State

of New York, Civ. No. 07-11196. Judge Scheindlin denied this request. See Order, filed Dec. 15,

2010, Bernstein v. State of New York, Civ. No. 07-11196. Plaintiff again appealed and, on May

5, 2011, the Second Circuit dismissed the appeal as “lack[ing] an arguable basis in law or fact.”

See Mandate, filed May 5, 2012, Bernstein v. State of New Yorkl, Civ. No. 07-11196.

                                         III. ANALYSIS

 A. The Court Denies Plaintiff’s Motion to Disqualify the Representative Capacity of the
                          New York State Attorney General

       As a threshold matter, Plaintiff moves to disqualify the Office of the New York Attorney

General from representing current or former New York State officials that have been named as

defendants in this case. See generally Pl.’s Mot. to Disqualify. Plaintiff argues that a conflict of

interests exists because Plaintiff previously requested that the New York Attorney General

prosecute the defendants in the instant action. Id. at 2.

       As far as the court is aware, the New York Attorney General has not actually prosecuted

any of the New York defendants, notwithstanding Plaintiff’s requests to do so. For this same



                                                  6
reason, Judge Scheindlin previously denied Plaintiff’s identical request to disqualify the New

York Attorney General’s representation in the case before her. See N.Y. Defs.’ Opp’n to Pl.’s

Mot. to Disqualify, Judge Scheindlin’s Ex. 1 (concluding that “the Attorney General does not

face an improper conflict of interest in representing the State Defendants”). Accordingly,

Plaintiff’s motion to disqualify the Office of the New York Attorney General is denied.

    B. The Court Grants Defendants’ Motions to Dismiss Based on Res Judicata Grounds 5

                                 1. Legal Standard – Res Judicata

        “[T]he doctrine of res judicata holds that a judgment on the merits in a prior suit bars a

second suit involving identical parties or their privies based on the same cause of action.”

Apotex, Inc. v. Food & Drug Admin., 393 F.3d 210, 217 (D.C. Cir. 2004). “Res judicata plays a

central role in advancing the ‘purpose for which civil courts have been established, the

conclusive resolution of disputes within their jurisdictions.’” Id. (emphasis added) (quoting

Montana v. United States, 440 U.S. 147, 153 (1979)). “To preclude parties from contesting

matters that they have had a full and fair opportunity to litigate protects their adversaries from

the expense and vexation attending multiple lawsuits, conserves judicial resources, and fosters




5
        On August 6, 2012, Plaintiff moved for leave to file a surreply as to Defendants’ motions to
        dismiss and Defendants’ motions for sanctions. See generally Pl.’s Mot. for Surreply. Plaintiff
        wishes to bring to the court’s attention an “emergency motion” purportedly filed on July 27, 2012
        by Bernstein in the case in the Southern District of New York. See id., Ex. 1 (“Proposed
        Surreply”). According to Plaintiff, through this emergency motion, Bernstein now seeks to
        convert Plaintiff into a co-defendant in the Bernstein matter, notwithstanding that the matter has
        been closed since 2008. As of this writing, the purported emergency motion is not on the
        Southern District of New York’s electronic docket. Nevertheless, the allegation that Bernstein
        now wants to sue Plaintiff in the Bernstein litigation is of no moment to the court’s determination
        that res judicata applies. Because the decision to grant or deny leave to file a surreply is
        committed to the sound discretion of the court, see Am. Forest & Paper Ass’n, Inc. v. Envtl. Prot.
        Agency, 1996 WL 509601, at *3 (D.D.C. Sept. 4, 1996), and because the proposed surreply
        would add nothing to the court’s analysis, the court denies Plaintiff’s motion for leave to file a
        surreply.



                                                    7
reliance on judicial action by minimizing the possibility of inconsistent decisions.” Montana,

440 U.S. at 153-55.

       Two distinct applications of res judicata exist: claim preclusion and issue preclusion.

NextWave Pers. Commc’ns, Inc. v. Fed. Commc’ns Comm’n, 254 F.3d 130, 142 (D.C. Cir.

2001). Under the claim preclusion, “a final judgment forecloses ‘successive litigation of the very

same claim, whether or not relitigation of the claim raises the same issues as the earlier suit.’”

Taylor v. Sturgell, 553 U.S. 880, 892 (2008). “Issue preclusion, in contrast, bars successive

litigation of an issue of fact or law actually litigated and resolved in a valid court determination

essential to the prior judgment, even if the issue recurs in the context of a different claim.” Id.

(internal quotations omitted).

                         2. Res Judicata Bars Plaintiff’s § 1983 Claims

                                         a. Claim Preclusion

       Noting the previous litigation in the Southern District of New York, Defendants argue

that Plaintiff’s complaint must be dismissed pursuant to the principles of res judicata. 6 See, e.g.,

Foley Defs.’ Mot. to Dismiss at 9-13. Claim preclusion bars a subsequent lawsuit “if there has

been prior litigation (1) involving the same claims or cause of action, (2) between the same

parties or their privies, and (3) there has been a final, valid judgment on the merits, (4) by a court
6
       Defendants further argue that Plaintiff lacks standing because he does not have the right to sue in
       his own name, even as an individual shareholder, to assert Iviewit’s property interests and
       because a pro se plaintiff cannot represent a corporation. See, e.g., Proskauer Defs.’ Mot. at 12-
       13. Because this issue is not jurisdictional, and because this case is properly dismissed under the
       doctrine of res judicata, the court declines to reach this issue. See Labovitz v. Washington Times
       Corp., 172 F.3d 897, 900 (D.C. Cir. 1999) (“Although the [Defendant] characterizes this as a
       standing question, the issue here is who is the real party in interest, see Fed. R. Civ. P. 17(a), to
       bring a lawsuit ‘under the governing substantive law to enforce the asserted right.’”); Whelan v.
       Abell, 953 F.2d 663, 672 (D.C. Cir. 1992) (noting that while “[s]tanding and real-party-in-interest
       questions do overlap . . . the question whether the suit should be brought by [and individual
       stakeholder] or the Corporation really depends, as we have noted, on considerations and
       conventions of corporate law - whether the corporation should be entitled to bring an action, at
       least in the first instance, without the distraction of stockholders’ suits - which we think are
       brought into play under Rule 17(a) of the Federal Rules of Civil Procedure”).


                                                    8
of competent jurisdiction.” Smalls v. United States, 471 F.3d 186, 192 (D.C. Cir. 2006).

Additionally, claim preclusion has the additional requirement that the nonmoving party had a full

and fair opportunity to litigate the claim. Li v. Montgomery, 2000 U.S. App. LEXIS 15467, at

*3 (D.C. Cir. 2000).

       There is little question that this case meets the first four elements of claim preclusion.

First, this suit involves the same § 1983 claims as the previous litigation in the Southern District

of New York. As described above, Judge Scheindlin dismissed Plaintiff’s § 1983 claims relating

to the alleged “conspiracy regarding the theft of inventions,” the same claim asserted here.

Bernstein, 591 F. Supp. 2d at 468. Plaintiff cites to case law for the notion that res judicata does

not apply in the event that “other facts or conditions intervene” since the time of the first

litigation. However, he does not argue nor point to any new factual developments since Judge

Scheindlin’s ruling that would form a new basis for a claim. See Pl.’s Opp’n to State Defs.’ Mot.

to Dismiss at 9.

       As to Defendants’ role in the previous litigation, all but five of the named defendants

were also defendants in Plaintiff’s previous suit. See supra n.4. Thus, with respect to the

defendants who are “repeat players,” this action and the previous action are “between the same

parties or their privies” for purposes of res judicata.

       Further, the court notes that Judge Scheindlin’s decision to dismiss the § 1983 claims was

a final judgment on the merits arising from a court of competent jurisdiction, the United States

District Court for the Southern District of New York. See Smalls v. United States, 471 F.3d 186,

192 (D.C. Cir. 2006) (observing that an Article III court is a court of competent jurisdiction).

Plaintiff argues that Judge Scheindlin’s dismissal was not a final judgment on the merits because

it relied, in part, on the expiration of the applicable statute of limitations. See Pl.’s Opp’n to




                                                   9
State Defs.’ Mot. to Dismiss at 10. The D.C. Circuit, however, has explicitly treated a dismissal

on statute of limitations grounds as a judgment on the merits. Smalls, 471 F.3d at 192.

Therefore, the first four elements of claim preclusion are met.

       Lastly, the court turns to inquire whether Plaintiff received a full and fair opportunity to

litigate the § 1983 claims before the Southern District of New York. See Bernstein, 591 F. Supp.

2d at 448. Plaintiff contends that he was not an individual plaintiff in the previous litigation, see

Pl.’s Opp’n to Def. Joao’s Mot. to Dismiss at 10, and also rejects the notion that he acted as a

representative of the shareholders in the previous action, see Pl.’s Opp’n to Meltzer Defs.’ Mot.

to Dismiss at 15. In other words, Plaintiff insists that he was not a litigant in the Southern

District of New York case. The record in that case, however, indicates otherwise. In his motion

to re-open the case before Judge Scheindlin, Plaintiff describes himself as an “individual

Plaintiff.” See Pl. Lamont’s Mot. to Re-Open, dated October 5, 2012, Bernstein v. Appellate

Division First Dep’t, et al, Civ. No. 07-11196 (S.D.N.Y.). Indeed, Plaintiff’s pro se status

confirms that he was in fact suing as an individual. See Ivey v. Geithner, 2009 U.S. App. LEXIS

7774, at *2 (D.C. Cir. Apr. 10, 2009) (noting that a pro se litigant “may not represent the

interests of other parties”). Thus, the “P. Stephen Lamont” who filed suit pro se in this court is

the same “P. Stephen Lamont” who filed suit pro se before the Southern District of New York.

       Plaintiff next argues that he did not receive a fair opportunity because two of the judges

involved in that prior case should have recused themselves due to conflicts but failed to do so.

Pl.’s Opp’n to State Defs.’ Mot. to Dismiss at 11-12. More specifically, Plaintiff claims that

Judge Scheindlin owned shares of IBM and Intel. Plaintiff also claims that his previous litigation

was tainted because United States Court of Appeals for the Second Circuit Judge Richard C.

Wesley received a pension from the State of New York, a defendant in this matter. Plaintiff




                                                 10
claims that Judge Wesley took part in the Bernstein appeal. However, there is no record that

Circuit Judge Wesley took part in this litigation. See Mandate, Bernstein v. Appellate Division

First Dep’t, et al, Civ. No. 11-5303 (2d. Cir. May 5, 2011) (indicating that the three-judge panel

that heard Plaintiff’s appeal was composed of Judges Ralph K. Winter, José A. Cabranes, and

Mark Kravitz). In any event, Plaintiff should have raised these concerns regarding recusal in his

previous litigation, instead of filing a new case before this court with the exact claims in order to

raise his untimely recusal concerns. Accordingly, the court concludes that Plaintiff received full

and fair opportunity to litigate his § 1983 claims before the Southern District of New York.

        In sum, the court finds that the elements of claim preclusion are met with respect to the

Plaintiff’s § 1983 claims against Defendants who were also parties in the Bernstein matter.

Because those claims are properly barred under claim preclusion, the court dismisses them with

prejudice.

                                          b. Issue Preclusion

        With respect to those five that were not litigants in Bernstein, issue preclusion bars

Plaintiff’s § 1983 claims. 7 “The objective of the doctrine of issue preclusion (also known as

collateral estoppel) is judicial finality.” Yamaha Corp. of Am. v. United States, 961 F.2d 245,

254 (D.C. Cir. 1992). Under issue preclusion or collateral estoppel, “once a court has decided an

issue of fact or law necessary to its judgment, that decision may preclude relitigation of the issue

in a suit on a different cause of action involving a party to the first case.” Id. (quoting Allen, 449

U.S. at 94). Issue preclusion applies if three criteria are met: (1) if in the prior litigation, the


7
        The court notes that under these circumstances claim preclusion may also bar the § 1983 claims
        against the non-Bernstein Defendants. Hinton v. Rudasill, 624 F. Supp. 2d 48, 51 (D.D.C. 2009)
        (explaining that non-mutual defensive estoppel “bars a party who has had a full and fair
        opportunity to litigate an issue in an earlier case and lost from relitigating that same issue in a
        later case against a different defendant”). Because issue preclusion applies, however, the court
        declines to reach the applicability of claim preclusion.


                                                    11
issue was “actually litigated, that is, contested by the parties and submitted for determination by

the court;” (2) if the prior litigation was “actually and necessarily determined by a court of

competent jurisdiction;” and (3) if “preclusion in the second trial [does] not work an unfairness”

to the party bound by the first determination. Otherson v. Dep’t of Justice, 711 F.2d 267, 273

(D.C. Cir. 1983) (citations omitted). “An example of such unfairness would be when the losing

party clearly lacked any incentive to litigate the point in the first trial, but the stakes of the

second trial are of a vastly greater magnitude.” Yamaha Corp. of Am., 961 F.2d at 254.

        As previously discussed, Plaintiff received a full and fair opportunity to litigate his

§ 1983 claims in the Southern District, a court of competent jurisdiction. There is nothing to

suggest that Plaintiff lacked the proper incentive to litigate his § 1983 claims in the Bernstein

litigation. Moreover, Judge Scheindlin rendered a final judgment, determining that Plaintiff’s §

1983 claims should be dismissed, inter alia, on statute of limitations grounds and for failure to

state a claim. See generally Bernstein, 591 F. Supp. 2d at 464-68. Before this court, Plaintiff

again raises § 1983 claims based on the same factual allegations – claims that Judge Scheindlin

has already found to be faulty under the applicable law and statute of limitations period.

Therefore, because these § 1983 claims were litigated and determined in the Southern District of

New York and because no unfairness to Plaintiff has been demonstrated, issue preclusion bars

Plaintiff’s § 1983 claims against the five non-Bernstein defendants.” See Yamaha Corp. of Am.,

961 F.2d at 254-55 (“[O]nce an issue is raised and determined, it is the entire issue that is

precluded, not just the particular arguments raised in support of it in the first case.”).

        Accordingly, Plaintiff’s § 1983 claims – the only federal claims before this court – are

dismissed pursuant to the doctrine of res judicata. 8 With respect to Plaintiff’s remaining claims,


8
        The court is inclined to dismiss Plaintiff’s case for a variety of reasons, aside from res judicata
        grounds. Because, however, one of the main purposes behind the doctrine of res judicata is to


                                                     12
the court declines to assert its supplemental jurisdiction and dismisses this case in its entirety. 9

See 28 U.S.C. § 1367(c)(3).

         C. The Court Denies Plaintiff’s Motion for Leave to Amend the Complaint

        Plaintiff seeks to amend his complaint by: (1) dismissing Defendants Krane, Andrias, and

Saxe, and (2) adding a § 1983 claim against Defendant Time Warner. However, as discussed

above, Plaintiff’s claims (including his § 1983 claims) are dismissed. See supra at Part III.B.

Plaintiff’s proposed amendments would not change this result. Raising an additional § 1983

claim against Time Warner would be futile because the claim would be dismissible for the same

reasons discussed above. See supra n.8. Moreover, Plaintiff’s attempt to amend his complaint

so as to dismiss the claims against three of the Defendants is not necessary because the claims

against these Defendants are dismissed as a result of this order. Accordingly, Plaintiff’s

proposed




        conserve judicial resources and encourage the finality of judgments, the court declines to do so.
        See Allen v. McCurry, 449 U.S. 90, 94 (1980).
 9
        Plaintiff has not served three Defendants: Defendants Utley, Reale, and Hirsch. Instead, Plaintiff
        moves the court to require the United States Marshals Service to serve the summons and
        complaint upon these defendants. See generally Pl.’s Mot. to Require U.S. Marshals Service to
        Serve Summons & Compl. Because the court determines that Plaintiff’s suit is barred pursuant to
        the doctrine of res judicata, Plaintiff’s motion to compel the United States Marshals Service to
        serve specific defendants is denied as moot.

        Similarly, Plaintiff moves the court to require the United States Marshals Service to serve two of
        the New York State Defendants – Lawrence DiGiovanna and James Peltzer, and asks that the
        court impose sanctions on the New York Attorney General for allegedly evading service with
        respect to these two defendants. See generally Pl.’s Mot. to Require U.S. Marshals Service to
        Serve Summons & Compl. & Mot. for Sanctions. The court previously ordered that this motion
        be held in light of the pending motion to dismiss by the New York Defendants. Because the court
        now determines that dismissal is appropriate, Plaintiff’s motion is also denied as moot.



                                                    13
amendments would be futile, Plaintiff’s motion to amend is denied. 10 Nat’l Wrestling Coaches

Ass’n v. Dep’t of Educ., 366 F.3d 930, 945 (D.C. Cir. 2004) (stating that “a district court has

discretion to deny a motion to amend on grounds of futility where the proposed pleading would

not survive a motion to dismiss”).

       SO ORDERED.

August 8, 2012




                                                        BARBARA J. ROTHSTEIN
                                                        UNITED STATES DISTRICT JUDGE




10
       On August 7, 2012, Plaintiff moved to amend his motion to amend. See Pl.’s “Amended Mot. for
       Leave to File a First Amended Compl.” In addition to his previous proposed amendments,
       Plaintiff seeks to “[m]ore particularly specify the claims against Defendant Time Warner, Inc.”
       and “expand” on his breach of contract claim against Defendant Time Warner, Inc. to include a
       “breach of duty not to oppose injunctive relief” claim. Because, however, this additional
       proposed claim would fall under the rubric of a contract claim, and because the court has declined
       to exercise supplemental jurisdiction as to those claims, the court denies Plaintiff’s motion to
       amend his motion to amend.


                                                  14
