     18-2615
     Brodsky v. N.Y.C. Campaign Fin. Bd.

                                 UNITED STATES COURT OF APPEALS
                                    FOR THE SECOND CIRCUIT

                                               SUMMARY ORDER

Rulings by summary order do not have precedential effect. Citation to a summary order filed on or after
January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and this Court’s
Local Rule 32.1.1. When citing a summary order in a document filed with this Court, a party must cite
either the Federal Appendix or an electronic database (with the notation Asummary order@). A party citing
to a summary order must serve a copy of it on any party not represented by counsel.

            At a stated term of the United States Court of Appeals for the Second Circuit, held at
     the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
     on the 8th day of November, two thousand nineteen.

     PRESENT:    JOSÉ A. CABRANES,
                 JOSEPH F. BIANCO,
                               Circuit Judges
                 EDWARD R. KORMAN,
                               District Judge.*
     _____________________________________

     MERYL BRODSKY,

                             Plaintiff-Appellant,

                     v.                                                         18-2615

     NEW YORK CITY CAMPAIGN FINANCE BOARD,
     BY HILARY WEISMAN, GENERAL COUNSEL;
     ZACHARY W. CARTER, CORPORATION COUNSEL
     OF THE CITY OF NEW YORK,

                             Defendants-Appellees,

     THE NEW YORK CITY SHERIFF, (Nonparty),

                   Defendant.
     _____________________________________


     * Judge Edward R. Korman, of the United States District Court for the Eastern District of New
     York, sitting by designation.
FOR PLAINTIFF-APPELLANT:                                 Meryl Brodsky, pro se, New York, NY.

FOR DEFENDANTS-APPELLEES:                                Richard P. Dearing, Julie Steiner, for Zachary
                                                         W. Carter, Corporation Counsel of the City of
                                                         New York, New York, NY.

       Appeal from a judgment of the United States District Court for the Southern District of New
York (Alison J. Nathan, Judge).

    UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the District Court is AFFIRMED.

         Plaintiff-Appellant Meryl Brodsky (“Brodsky”) ran unsuccessfully for a New York City
Council seat in 2005. The New York City Campaign Finance Board (“the Board”) determined that
she was obligated to repay $35,415 in public campaign funds. Brodsky sued the Board in state court,
which ultimately ruled in the Board’s favor. Brodsky returned only $26,010 of the judgment owed
and refused to repay the rest. In 2010, the state court directed a garnishee to sell shares of Brodsky’s
stock to pay the remaining sum. In 2015, Brodsky, pro se, brought federal and state law claims in the
district court against the Board and Zachary Carter, the New York City Corporation Counsel
(“Brodsky I”). Brodsky raised, inter alia, a claim under the Internal Revenue Code (“IRC”), 26 U.S.C. §
6103, alleging that her tax information had been unlawfully disseminated during the state court
proceedings. The district court granted the Board’s motion to dismiss, and this Court affirmed. In
2017, Brodsky, again pro se, brought a second federal action, now on appeal, against the same
defendants and others alleging improper handling of her tax information. The District Court ruled
that the doctrine of res judicata barred her tax claims and declined to exercise supplemental jurisdiction
over her state law claims. Brodsky appealed. We assume the parties’ familiarity with the underlying
facts, procedural history of the case, and issues on appeal.

         As we have often noted when evaluating a motion to dismiss, a court “must accept as true all
of the factual allegations set out in [a] plaintiff’s complaint, draw inferences from those allegations in
the light most favorable to [the] plaintiff, and construe the complaint liberally.” Roth v. Jennings, 489
F.3d 499, 510 (2d Cir. 2007) (internal quotation marks and citation omitted). We review de novo a
district court’s dismissal of a complaint on the grounds of failure to state a claim, see Castagna v.
Luceno, 744 F.3d 254, 256 (2d Cir. 2014), and res judicata, see Soules v. Conn. Dep’t of Emergency Servs. &
Pub. Protection, 882 F.3d 52, 55 (2d Cir. 2018).

       The doctrine of res judicata, also known as claim preclusion, bars re-litigation if (1) the
previous action involved an adjudication on the merits; (2) the previous action involved the same

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parties or those in privity with them; and (3) the claims asserted in the subsequent action were, or
could have been, raised in the prior action. Monahan v. N.Y.C. Dep’t of Corr., 214 F.3d 275, 285 (2d Cir.
2000). Whether a judgment in a prior action will have preclusive effect “depends in part on whether
the same transaction o[r] series of transactions is at issue, whether the same evidence is needed to
support both claims, and whether the facts essential to the second were present in the first.” Id.
(internal quotation mark and citation omitted). “Where all requirements are met, res judicata can act as
a bar to virtually any sort of claim[.]” Id. at 290. We find all the requirements for this doctrine were
met and affirm the judgment of the District Court.

    1. Adjudication on the Merits

         In Brodsky I, the district court considered all of Brodsky’s claims, including the claim asserted
under § 6103, and dismissed the case in its entirety for failure to state a claim pursuant to Fed. R. Civ.
P. 12(b)(6). Brodsky I, 2016 WL 1258986, at *3 (S.D.N.Y. Mar. 28, 2016). For purposes of the
doctrine of res judicata, a “dismissal for failure to state a claim is a final judgment on the merits.”
Berrios v. N.Y.C. Hous. Auth., 564 F.3d 130, 134 (2d Cir. 2009) (citations omitted). Therefore,
Brodsky’s 2015 action involved an adjudication on the merits, satisfying the first element of the
doctrine of res judicata.

    2. Same Parties or Those in Privity

        In this Circuit, “literal privity is not a requirement for res judicata to apply.” Monahan, 214 F.3d
at 285. “Whether there is privity between a party against whom claim preclusion is asserted and a
party to prior litigation is a functional inquiry in which the formalities of legal relationships provide
clues but not solutions.” Chase Manhattan Bank, N.A. v. Celotex Corp., 56 F.3d 343, 346 (2d Cir. 1995).
“[A] party will be bound by the previous judgment if his interests were adequately represented by
another vested with the authority of representation.” Monahan, 214 F.3d at 285 (internal quotation
marks omitted).

         Brodsky argues that the parties were not the same in Brodsky I and 2017 action. This argument
is without merit. She first argues that the plaintiffs are different, since in the former lawsuit, she and
her campaign committee were the plaintiffs, while in the current lawsuit she is the sole plaintiff. In the
2015 action, the campaign committee was “listed as a plaintiff in the caption of [that] action.” Brodsky
v. Carter, 2015 WL 13746671, at *13 (S.D.N.Y. Dec. 15, 2015) (R&R). The court there found,
however, that the committee “has not appeared through counsel in the case, and thus it has not been
able to advance any argument of its own[.]” Id. As the magistrate judge found, “the federal claims that
Brodsky purports to assert on behalf of the Committee appear to be identical to those she asserts on

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her own behalf.” Id. Accordingly, the plaintiffs in both Brodsky I and the 2017 action (now before us)
are the same.

        Brodsky also asserts that the defendants are not the same in both actions. The caption in
Brodsky I listed defendants as “Zachary W. Carter, Corporation Counsel for the City of New York, on
Behalf of the New York City Campaign Finance Board.” Id. at 1. Here, the defendants are listed as
the Board by Hilary Weisman, its general counsel; Carter; and “the New York City Sheriff (Non-
Party).” In Brodsky I, the district court construed Brodsky’s claims against Carter as claims against the
Board because the allegations all related to the Board’s actions and the complaint did not allege any
personal involvement by Carter. Id.; 2015 WL 1258986, at *1 n.1 (dismissal). Here, Brodsky similarly
does not allege that Carter had any personal involvement, and her allegations are generally identical to
those in Brodsky I. Because Brodsky solely alleges misconduct by the Board—and appears to name
Carter because he is the City Corporation Counsel—Brodsky’s arguments asserting a lack of privity
between Carter and the Board are meritless.

        Weisman and the City of New York are also in privity with the Board. Weisman is in privity
with the Board because she is being sued in her official capacity as the Board’s counsel and it cannot
be seriously disputed that Weisman’s interests were “adequately represented” by the Board in
defending Brodsky I. Because the Board is a New York City agency, the City is also in privity with the
Board in Brodsky I. See N.Y.C. Admin. Code § 3-708 (providing that the mayor appoints the board
members); see, e.g., Cent. Hudson Gas & Elec. Corp. v. Empresa Naviera Santa S.A., 56 F.3d 359, 367–68
(2d Cir. 1995) (“[T]he principle of privity bars relitigation of the same cause of action against a new
defendant known by a plaintiff at the time of the first suit where the new defendant has a sufficiently
close relationship to the original defendant to justify preclusion.”). Finally, the current action lists the
New York City Sheriff in the caption as a “nonparty.” Brodsky explicitly considered him a nonparty
because he could not be “sued or served individually.” Privity need not be considered concerning a
nonparty. Thus, the defendant in Brodsky I is the same or in privity with the defendants in the 2017
lawsuit, satisfying the second element of the doctrine of res judicata.

        Finally, Brodsky’s inclusion of allegations against New York State Supreme Court Judge
Eileen Rakower in the 2017 federal lawsuit does not affect the District Court’s dismissal of the
complaint. Although Judge Rakower is not formally named as a party in the caption, Brodsky alleges
that Judge Rakower, along with Weisman and another Board attorney, “unlawfully procured and
disseminated” Brodsky’s tax return information during the state court proceedings. The District
Court arguably could have construed these allegations as expressing Brodsky’s desire to name Judge
Rakower as a defendant. But Brodsky took care to note when she was naming individuals as parties


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to the suit and when she was not doing so, and never named Judge Rakower as a defendant.1 We
therefore decline to construe Brodsky’s complaint as naming Judge Rakower as a party.

    3. Claims in the Prior Action

         The doctrine of res judicata is based, among other things, “on the requirement that the plaintiff
must bring all claims at once against the same defendant relating to the same transaction or event.”
Soules, 882 F.3d at 55 (internal quotation marks omitted). Brodsky argues that because her § 7431 was
not brought in the first action, it is not barred by the doctrine of res judicata. We find this argument
fails.

         To the extent Brodsky can be said to have raised a § 7431 claim in the current case, she could
have raised that claim in Brodsky I. The language of § 7431(a)(2) explicitly requires a “violation of any
provision of section 6103” to create a viable § 7431 claim. Indeed, we previously noted that §§ 6103
and 7431 operate “in tandem.” Brodsky, 673 F. App’x 42, 44 (2d Cir. 2016) (non-precedential
summary order). Because “claim preclusion prevents a party from litigating any issue . . . that could
have been raised or decided in a previous suit,” Clarke v. Frank, 960 F.2d 1146, 1150 (2d Cir. 1992)
(emphasis added) (citations omitted), Brodsky’s § 7431 claim is barred. “A party cannot avoid the
preclusive effect of res judicata by asserting a new theory or a different remedy.” Brown Media Corp. v.
K&L Gates, LLP, 854 F.3d 150, 157 (2d Cir. 2017) (internal quotation marks omitted).

        Brodsky also argues that—since Brodsky I—she has identified “[n]ew and previously
concealed evidence” that “could not be previously heard.” Specifically, she asserts that she filed her
2017 action after she procured a copy of a 2010 “execution check” from the Sheriff’s and City Clerk’s
Offices that relates to sale of her stock in a prior garnishment proceeding. Brodsky identifies this




1
  But even if the District Court had construed the complaint to include Judge Rakower as a
defendant, Judge Rakower would have been entitled to judicial immunity. Immunity attaches where
(1) “the relevant action is judicial in nature” and (2) the judge “had jurisdiction over the subject
matter before h[er].” Huminski v. Corsones, 396 F.3d 53, 74–75 (2d Cir. 2005) (internal quotation marks
omitted). Judge Rakower acted in her judicial capacity as a judge of the N.Y. State Supreme Court
when she presided over Brodsky’s Article 78 lawsuit. See N.Y C.P.L.R. § 7804(b) (“A proceeding
under this article shall be brought in the supreme court[.]”). Brodsky’s allegations that Judge Rakower
aided in the dissemination of her tax information occurred in relation to official court proceedings
that involved determining Brodsky’s assets in order to pay the judgment due to the Board. Even were
we to construe this complaint to include Judge Rakower as a party, she would be entitled to judicial
immunity. See Bliven v. Hunt, 579 F.3d 204, 209 (2d Cir. 2009).

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evidence in furtherance of her argument that claims which arise subsequent to a prior action are not
barred by the doctrine of res judicata. Brodsky’s argument here is misplaced.

        Even if she did not receive a copy of this execution check until 2017, that “evidence” does
not bar the application of the doctrine of res judicata here. Her possession of the check does not
constitute a new claim. Instead, it serves only as further possible evidence of alleged violations of the
tax statute and the state-law fraud claim that Brodsky previously raised in Brodsky I, and seeks to
assert again in the present action. The evidence relates to “the same transaction or connected series
of transactions” alleged in both the prior and present actions. Accordingly, it does not preclude the
District Court’s application of the doctrine of res judicata in this action. Maharaj v. BankAmerica Corp.,
128 F.3d 94, 97 (2d Cir. 1997).

        In sum, Brodsky’s 2017 lawsuit is barred by doctrine of res judicata because Brodsky I involved
an adjudication on the merits; the 2017 action involved the same parties as Brodsky I or those in
privity with them; and the claims asserted in the 2017 action were or could have been raised in
Brodsky I. See Soules, 882 F.3d at 55.

                                                CONCLUSION

        We have reviewed the remainder of Brodsky’s arguments and find them to be without merit.
For the foregoing reasons, the judgment of the District Court is AFFIRMED.

                                                FOR THE COURT:
                                                Catherine O’Hagan Wolfe, Clerk of Court




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