Jones v. Deutsch Memorandum on Behalf of Defendant in Support of Cross-Motion, Joining in Motion to Dismiss and Moving for Summary Judgement of Co-Defendants

    •A * ~

UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF NEW YORK
----------------------------------------------- x
YVONNE JONES, ANITA JORDAN, APRIL JORDAN,
LATOYA JORDAN, ANNA RAMOS, LIZETTE RAMOS,
VANESSA RAMOS, GABRIEL RAMOS, THOMAS 88 Civ. 7738 (GLG)
MYERS, LISA MYERS, THOMAS MYERS, JR.,
LINDA MYERS, SHAWN MEYERS, ODELL A. JONES,
MELVIN DIXON, GERI BACON, MARY WILLIAMS,
JAMES HODGES, NATIONAL ASSOCIATION FOR 
THE ADVANCEMENT OF COLORED PEOPLE, INC.,
WHITE PLAINS/GREENBURGH BRANCH, and 
NATIONAL COALITION FOR THE HOMELESS,

Plaintiffs,
- against -

LAURENCE DEUTSCH, COLIN EDWIN KAUFMAN, STEVEN NEIL GOLDRICH, MICHAEL JAMES 
TONE, COALITION OF UNITED PEOPLES, INC., 
and ANTHONY F. VETERAN, as Supervisor of the Town of Greenburgh,

Defendants
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MEMORANDUM ON BEHALF OF DEFENDANT COLIN EDWIN KAUFMAN 
IN SUPPORT OF CROSS-MOTION, JOINING IN MOTION OF 

CO-DEFENDANTS TO DISMISS, FOR REASONABLE ATTORNEYS' FEES AND FOR AN AWARD OR SANCTIONS AND ADDITIONALLY 
_____________MOVING FOR SUMMARY JUDGMENT_______

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK--------------------------------------- x
YVONNE JONES, ANITA JORDAN, APRIL JORDAN,
LATOYA JORDAN, ANNA RAMOS, LIZETTE RAMOS,
VANESSA RAMOS, GABRIEL RAMOS, THOMAS 88 Civ. 7738 (GLG)
MYERS, LISA MYERS, THOMAS MYERS, JR.,
LINDA MYERS, SHAWN MEYERS, ODELL A. JONES,
MELVIN DIXON, GERI BACON, MARY WILLIAMS,
JAMES HODGES, NATIONAL ASSOCIATION FOR 
THE ADVANCEMENT OF COLORED PEOPLE, INC.,
WHITE PLAINS/GREENBURGH BRANCH, and 
NATIONAL COALITION FOR THE HOMELESS,

Plaintiffs,
- against -

LAURENCE DEUTSCH, COLIN EDWIN KAUFMAN, 
STEVEN NEIL GOLDRICH, MICHAEL JAMES 
TONE, COALITION OF UNITED PEOPLES, INC., 
and ANTHONY F. VETERAN, as Supervisor of the Town of Greenburgh,

Defendants.
x

MEMORANDUM ON BEHALF OF DEFENDANT COLIN EDWIN KAUFMAN 
IN SUPPORT OF CROSS-MOTION, JOINING IN MOTION OF 

CO-DEFENDANTS TO DISMISS, FOR REASONABLE ATTORNEYS' 
FEES AND FOR AN AWARD OR SANCTIONS AND ADDITIONALLY 
_____________MOVING FOR SUMMARY JUDGMENT____________

Preliminary Statement
This memorandum of law is submitted in support of co- 

defendants' motion dated December 12, 1988, for the reasons and 
on the basis of the authorities in support of their motion, as 
well as for the reasons and on the basis of the authorities set 
forth herein. Additionally, this memorandum is submitted in 
support of defendant Colin Edwin Kaufman's (hereinafter 
"Kaufman") motion for summary judgment in his favor, on the 
grounds that based on the allegations in plaintiffs' complaint, 
defendant Kaufman is entitled to a judgment in his favor against 
plaintiffs.



Nothing would be served by this defendant covering the 
same grounds as co-defendants and repeating the arguments 
advanced in support of their motion. It is this defendant's 
position (1) that it is obvious both factually and legally that 
plaintiffs have not alleged facts entitling them to the relief 
sought in their complaint and indeed, that there is such an utter 
lack of merit in their contentions, that under no fairly alleged 
factual scenario or under any valid legal theory, could 
plaintiffs make out a claim for relief against this defendant;
(2) that the sole purpose in bringing this action was to 
terrorize the named defendants and some 500 other residents of 
the Town of Greenburg into foregoing the expression of their 
views through the constitutionally protected rights of freedom of 
speech, freedom peaceably to assembly and to petition their 
government? and (3) that the mala fides of plaintiffs' counsel 
are so egregious and patent that an award of reasonable 
attorneys' fees to defendants, and the imposition of sanctions 
against plaintiffs' counsel is not only justified but required.

Factual Assertion Against Defendant Kaufman 
It is alleged (Par. 6 of the Complaint) that Kaufman is 

a natural person who resides at 8 Hartford Road (a/k/a Hartford 
Lane) White Plains, New York 10603. Paragraph 9 alleges various 
other persons participated as co-conspirators with defendants in 
the violations set forth, which consist of the expression of 
opinions and the attempted exercise of rights through means of 
expression absolutely protected by the First Amendment to the

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Constitution of the United States. Defendant Kaufman (Paragraph 
25) is, finally, alleged to have agreed in a petition pursuant to 
the Village Law of the State of New York, to accept service of 
certain papers in connection with a proceeding for incorporation. 
The foregoing constitute the entirety of the factual allegations 
against defendant Kaufman. Based upon the fact that he is 
natural person with a residence who agreed to accept service of 
legal papers, plaintiffs have brought the awesome power of the 
federal judiciary down on this defendant, alleging that he 
conspired to violate the civil rights of others by exercising his 
constitutional rights of freedom of speech, assembly and petition 
- all clearly protected by the First Amendment. This defendant is 
accused (without a shred of evidence to support the accusation) 
of being a racist and possessing racially inspired motivation in 
the exercise of these First Amendment rights. From defendant 
Kaufman's letter of January 21, 1988, (Exhibit A to Kaufman 
affidavit) it is clear that his motivation was most decidedly not 
racially inspired, but even if one assumes that nearly one year 
before the institution of this action, this defendant had the 
omniscience to see himself in this lawsuit and draft a wholly 
self-serving document, it is of no moment, because a minimum of 
legal research would have disclosed that motivation is not an 
issue when viewing the exercise of one's First Amendment Rights, 
at least in the context of instant case. Weiss v. Willow Tree 
Civil Association. 467 F. Supp. 803 (S.D.N.Y. 1979).

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Argument
It is difficult to believe that even these plaintiff's 

counsel would have pursued defendant Kaufman in a similar lawsuit 
if he had done exactly what he is alleged to have done here, but 
without the existence of the corporate defendant Coalition of 
United Peoples, Inc. The existence of that entity does not make 
defendant Kaufman's activities actionable.

What Judge Weinfeld held in respect the formation of a 
civic association in Weiss v. Willow Tree, supra. is particularly 
instructive:

" . . .  Finally, the formation of the Willow Tree 
Civic Association, even for the purpose of formally organizing the community against the plans of the 
plaintiffs, was constitutionally privileged. To label the defendants' association a 'convert conspiracy' does 
not strip it of the guarantee of the First Amendment 
without some basis to support a claim that the 
Association sought to do more than lobby for a 
particular point of view. The defendants had every 
right to band together for the advancement of beliefs 
and ideas, however, unpalatable the ideas or whatever 
the underlying motive." id. 817-818.

As pointed out in the co-defendants' memorandum of law 
submitted in support of the main motion under consideration, the 
lack of legal or factual merit to plaintiffs' claims is clear 
beyond peradventure. It is obvious that the proponents of the 
homeless housing project were being frustrated by the political 
and litigation activities of some defendants herein (together 
with 500 others) in opposing that project. It is also obvious, 
that proponents of this project, by wrapping themselves in the 
flag of racial rectitude, persuaded attorneys who ought to know 
better, to run roughshod over defendant Kaufman's rights. It is 
submitted that the violations of law and of plaintiffs' supposed

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rights urged against defendant Kaufman in this case are so 
completely insupportable that only two conclusions are possible: 
either plaintiffs counsel failed to conduct any legal or factual 
research, or, in utter disregard of the facts and the clear 
parameters of the law, based upon their distorted view of 
righteousness, they decided to forge ahead on the premise that 
those whose motivation is impure or does not coincide with their 
own, are not entitled to Constitutional rights and privileges.
The former is inexcusable and the latter is totally repugnant to 
the very foundations of our society.

The timing of the service of the summons and complaint 
in this matter, and the pandering to the press that followed, 
suggest that the true motivation in bringing this lawsuit was the 
defeat of the petition which the allegedly conspiring defendants 
had the audacity to pursue, and the stifling of opposition to the 
homeless housing project. Certainly plaintiffs spent little time 
or attention to pleading requirements in the drafting of their 
complaint. It is submitted the few lawyers with anything 
approaching a viable claim, would turn out a product which so 
completely ignores the simple rules of proper pleading. Rule 8, 
Federal Rule of Civil Procedure, requires only brevity, 
directness, plain speaking and simplicity. Paragraphs 1 through 
3 of the complaint herein go on for nearly three pages.
Paragraphs 10 through 20 allege endless facts about the plight of 
the homeless and the wonderfulness of West HELP, the arguably 
relevant portions of which could have been set forth far more 
succinctly. "Defendant" Veteran is glorified for a few

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paragraphs (pages 13 though 15 of the Complaint) and then follows 
the coup de grace: ten paragraphs citing and quoting from various 
Federal and State constitutional and statutory provisions. It is 
only when one sits down and attempts conscientiously to answer 
the complaint in this action that the true departure from proper 
pleading can be appreciated. (Even Rule 17(c) of the Federal 
Rules of Civil Procedure is flaunted by plaintiffs who ignore the 
fact that exactly half of the individual plaintiffs are minors 
who cannot sue in their own right. It could not have been 
inordinately difficult to have asserted these minors' claims 
through their parents who, it appears, are also plaintiffs.)*

*In another era, plaintiffs' pleading might well have been the object of criticism and sanctions such as described in the 
English case of Mvlward v. Welden (1566) (quoted in Gutta Percha 
& Rubber Mfq. Co. v. Holman. 150 App. Div. 678, 679, 135 NY Supp. 
766 (1st Dept. 1912); aff'd 208 NY 583, 101 N.E. 885 (1913):

"For as much as it now appeared to this court. . .
that the said replication doth amount to six score 
sheets of paper and yet all the matter thereof which is 
pertinent might have been well contrived in sixteen 
sheets of paper * * * and because his lordship is of 
opinion that such an abuse is not in any sort to be 
tolerated - proceedings of a malicious purpose to 
increase the defendant's charge and being fraught with 
such impertinent matter not fit for the court. It is 
therefore ordered that the Warden . . . shall cut a
hole in the midst of the same engrossed Replication 
which is delivered unto him for that purpose, and put the said [plaintiff's] head through the same hole, and 
so let the same Replication hang about his shoulders 
with the written side hanging outward, and then, the 
same so hanging, shall lead the said [plaintiff] 
bearheaded and barefaced round about Westminster Hall, 
whilst the Courts are sitting, and shall show him at 
the Bar of every of the three Courts within the Hall, 
and then shall take him back again to the Fleet, and 
keep him prisoner until he shall have paid to her 
Majesty for a fine and 20 nobles to the defendant for 
his costs in respect of the aforesaid abuse."

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Plaintiff's have at best placed support for their claim 
against defendant Kaufman on speculation and conjecture which 
cannot defeat his motion. None of the specific factual 
allegations required in this Circuit to support an alleged civil 
rights violation are made against defendant Kaufman, nor could 
they be fairly alleged. Plaintiffs have indeed corralled all of 
the facts assertable against this defendant: he is a natural 
person, a resident who had the misfortune to agree to accept 
service of certain papers in connection with the processing of a 
petition under state law. This Court's rulings in the following 
cases are in point: Courtemanche v. Enlarged City School District 
686 F. Supp. 1025, 1028 (1988); Rockland County Sheriff's 
Deputies Ass'n v. Grant. 670 F. Supp. 566 (1987); Raitpont v. 
Chemical Bank, et al.. 74 FRD 128 (1977). Particularly 
compelling, regarding the requirement for particularity in 
pleading facts in civil rights cases is this Court's reasoning in 
Pettman v. U.S. Chess Federation. 675 F. Supp. 175, 177 (1987):

"One court in this circuit has posited that a 
particularity exception to the general rule of notice pleading 
exists in civil rights cases. We find that court's reasoning 
instructive:

'The reason for this exception is clear . . .  A 
substantial number of [civil rights] cases are 
frivolous or should be litigated in state courts. They 
all cause defendants - public officials, policemen and 
citizens alike - considerable expenses, vexation and 
perhaps unfounded notoriety. It is an important public 
policy to weed out the frivolous and unsubstantial 
cases at an early stage of the litigation, and still 
keep the doors of the federal courts open to legitimate 
claims.'"

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Nor is the factual void in the claims against defendant 
Kaufman filled by vague, unsupported and generalized 
conclusionary allegations of conspiracy, Richards v. New York 
State Deot. of Corr. Services. 572 F. Supp. 1168, 1174 (1983), 
which, if taken as absolutely true, and stripped of plaintiffs' 
adjectives and adverbs, state that defendant Kaufman, by being a 
natural person, a resident in the Town of Greenburg, and by 
agreeing to be an agent for the service of papers in connection 
with a petition under the law of New York, conspired with some of 
the other defendants and 500 other individuals in the peaceful 
exercise of their First Amendment rights.

It is submitted that plaintiffs here are one step ahead 
of the plaintiffs in L.S.S. Leasing v. U.S. General Services 
Administration. 579 F. Supp. 1565 (1984) where this Court 
recognized, at p. 1575, that plaintiffs there were attempting to 
succeed in the federal courts where they had failed politically.

Here, feeling the impact of the legal and political 
opposition to the proposed homeless housing project, plaintiffs 
counsel decided to resort to the federal courts to attempt to 
stamp out political opposition, before that opposition had a 
chance to succeed. Few uses of the courts suggest themselves 
which could conceivably be more antithetical to the historical 
and philosophical underpinnings of this country. Any thoughtful 
person reflecting on what exactly is being done here ought first 
to be horrified and then outraged. The assertions in the 
complaint against defendant Kaufman are "hogwash" (Crialer v.

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Penzoil Company 687 F. Supp. 120, 124 (1988) and this Court ought 
to deal with this situation as it did in Crigler.

Conclusion
The complaint against all of the individual defendants 

herein should be dismissed, defendant Kaufman should be granted 
judgment in his favor against plaintiffs, an award of reasonable 
attorneys' fees should be made to all of the individual 
defendants' together with appropriate costs, and sanctions should 
be imposed against plaintiffs' counsel.

Dated: White Plains, New York
December 19, 1988

Quinn & Suhr Attorneys for Defendant 
Colin Edwin Kaufman 
170 Hamilton Avenue 
White Plains, NY 10601 
(914) 949-0800

Of Counsel:
Timothy C. Quinn, Jr.

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