Biase v. Kaplan

852 F. Supp. 268

Nicola BIASE, Plaintiff, v. Lawrence O. KAPLAN, Angelo A. Vigna, V. Gerard Comizio, Eugene M. Schwartz, John C. Griffin, Ellen B. Kulka, Tara L. French and the Office of Thrift Supervision, Defendants.

Civ. A. No. 93-4951 (AJL).

United States District Court, D. New Jersey.

May 9, 1994.

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Nicola Biase, pro se.

Robert M. Hanna, Asst. U.S. Atty., Newark, NJ, for defendants Lawrence O. Kaplan, Angelo A. Vigna, V. Gerard Comizio, Eugene M. Schwartz, John C. Griffin, Ellen B. Kulka and Tara L. French.

Richard L. Rennert, Trial Atty., Office of the Chief Counsel, Legal Div., Office of Thrift Supervision, Washington, DC, for Office of Thrift Supervision.

OPINION

LECHNER, District Judge.

This is an action brought by pro se plaintiff Nicola Biase ("Biase") against the Office of Thrift Supervision (the "OTS") and Lawrence O. Kaplan ("Kaplan"), Angelo A. Vigna ("Vigna"), V. Gerard Comizio ("Comizio"), Eugene M. Schwartz ("Schwartz"), John C. Griffin ("Griffin"), Ellen B. Kulka ("Kulka") and Tara L. French ("French") (collectively, the "Individual Defendants"), all current or former employees of OTS. Biase alleges OTS and the Individual Defendants violated 42 U.S.C. § 1985 and his rights under the First and Fifth Amendments. Jurisdiction is alleged pursuant to 28 U.S.C. §§ 1331 and 1367(a).

Currently before the court are the motions of OTS and the Individual Defendants to dismiss the action. OTS moves for dismissal of the action under Fed.R.Civ.P. 12(b)(1) and 12(b)(6) (the "OTS Motion"). The Individual Defendants move for dismissal under Fed. R.Civ.P. 12(b)(1), 12(b)(5) and 12(b)(6) (the "Individual Defendants' Motion").¹ For the reasons stated below, both the OTS Motion and the Individual Defendants' Motion are granted and the action is dismissed.

Facts

On 5 November 1993, Biase filed a complaint (the "Complaint") against the OTS, Kaplan, Vigna and Comizio, seeking $500,000,000.00 in damages, "together with the interest thereon and the costs and disbursements of the action." Complaint, ad damnum clause, ¶¶ 1-6. On 11 January 1994, Biase filed an amended complaint (the "Amended Complaint"), adding Schwartz, Griffin, Kulka and French as defendants.

According to the Amended Complaint, Biase is a resident of the state of New Jersey. See Amended Complaint, ¶ 3. The Amended Complaint alleges the Individual Defendants were, "at all relevant times," employees of the OTS located in Washington, D.C. and the state of New Jersey.² Id., ¶¶ 4-9. The Amended Complaint alleges the Individual Defendants "did engage in a conspiracy with each other in order to deprive Biase of constitutional and civil rights." Id.

According to the Amended Complaint, in 1990, Biase purchased 9.4% of the shares in Polifly Financial Corporation ("PFC"). Id., ¶ 11. Biase identifies PFC as "a New Jersey savings and loan corporation." Id. According to the Amended Complaint, the "chief asset" of PFC at that time was Polifly Savings and Loan ("PSL"). Id. PSL was a "troubled savings and loan association operating under Consent Agreement."³Id. At the time Biase purchased shares of PFC stock, he requested and received two seats on PFC's board of directors (the "Board"). Id.

Upon being appointed to the Board, Biase "recommended that PFC's management focus its attention upon drastically reducing operating expenses, including but not limited to reducing excessive executive compensation." Id., ¶ 12. Biase "also questioned OTS's own actions regarding PSL by suggesting that its hand picked directors and officers were incompetent and/or indifferent to the survival of PSL." Id., ¶ 13. Biase alleges his actions alienated OTS, which "refused to address ... Biase's concerns about its actions regarding PSL." Id., ¶¶ 14-15.

According to the Amended Complaint, Biase, "frustrated in his attempts to get the Board ... and OTS to take the necessary steps to save PSL," resigned from the Board on 28 January 1992. Id., ¶ 16. Upon his resignation, Biase "announced that he would exercise his rights as a shareholder and appeal to his fellow shareholders." Id.

The Amended Complaint alleges that, on or about 29 February 1992, Biase "made a request for a special shareholders meeting (the "Shareholders Meeting") in a letter to the secretary of PFC." Id., ¶ 17. Biase alleges the purpose of the Shareholders Meeting "was to discuss and vote on the following proposals:"

(i) remove the president and chief executive officer of PFC; (ii) decrease the operating expense of PFC; (iii) limit compensation paid to the executives of PFC;

(iv) change the location of PFC's headquarters; (v) commence legal action on behalf of PSL against the United States and certain United States Government agencies for breach of contract and restitution damages in an amount not less than $11,730,583.

Id.

The Amended Complaint alleges that, in response to his request for the Shareholders Meeting, OTS and the Individual Defendants "conspired to enter a campaign of retaliation and harassment against ... Biase with a view of depriving him of his rights as a shareholder of PFC as well as guarantees of freedom of association and expression, due process and equal protection of the laws." Id., ¶ 18.

Biase alleges that, "subsequent to his request for the Shareholders Meeting Biase was ... the target of two separate investigations by OTS (the "OTS Investigations")." Id., ¶ 19. Biase alleges the OTS Investigations were "groundless, retaliating in bad faith and were conducted with the sole purpose of preventing Biase from informing his fellow shareholders of misconduct on the part of officials of OTS and officers and directors of PFC and PSL." Id.

Biase alleges that, in connection with the OTS Investigations, the OTS issued "certain subpoenas" (the "OTS Subpoenas") "for the sole purpose of harassing ... Biase and not as part of any justifiable investigation."⁴ Id., ¶ 21. Biase alleges that, "as a result of this campaign of harassment, ... he was unable to appeal to his fellow shareholders." Id., ¶ 22. Biase further alleges that, as a "direct consequence" of the OTS Investigations, PSL "failed and was taken over by the Resolution Trust Corporation" ("RTC") on or about 20 November 1992. Id., ¶ 23.

The first count of the Amended Complaint ("Count I") alleges the actions of OTS and the Individual Defendants deprived Biase of his rights to freedom of expression and association, in violation of the First Amendment. Id., ¶ 25. The Amended Complaint seeks $100,000,000.00 for the deprivation alleged in Count I. Id., ad damnum clause, ¶ 1.

The second count of the Amended Complaint ("Count II") alleges the actions of OTS and the Individual Defendants deprived Biase of his right to due process of law, in violation of the Fifth Amendment. Amended Complaint, ¶ 26. The Amended Complaint seeks $100,000,000.00 in damages for the deprivation alleged in Count II. Id., ad damnum clause, ¶ 2.

The third count of the Amended Complaint ("Count III") alleges the actions of OTS and the Individual Defendants deprived Biase of his right to equal protection of the law, in violation of the Fourteenth Amendment. Amended Complaint, ¶ 27. The Amended Complaint seeks $100,000,000.00 in damages for the deprivation alleged in Count III. Id., ad damnum clause, ¶ 3.

The fourth count of the Amended Complaint ("Count IV") alleges the actions of OTS and the Individual Defendants violated 42 U.S.C. § 1985. Amended Complaint, ¶ 29. The Amended Complaint seeks $100,000,000.00 in damages for this violation. Id., ad damnum clause, ¶ 4.

The fifth count of the Amended Complaint ("Count V") alleges the actions of OTS and the Individual Defendants constituted "abuse of process." Amended Complaint, ¶ 30. Count V, like the other counts in the Amended Complaint, seeks $100,000,000.00 in damages.⁵ Id., ad damnum clause, ¶ 5.

The OTS Motion was filed 7 March 1994. The Individual Defendants' Motion followed on 9 March 1994.

Discussion

A. Standard of Review for Pro Se Submissions and Pleadings

Pro se submissions "must be held to less stringent standards than formal pleadings drafted by lawyers." Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 292, 50 L.Ed.2d 251 (1976), reh'g denied, 429 U.S. 1066, 97 S.Ct. 798, 50 L.Ed.2d 785 (1977) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957)); see also (Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 595-96, 30 L.Ed.2d 652 reh'g denied, 405 U.S. 948, 92 S.Ct. 963, 30 L.Ed.2d 819 (1972)); United States v. Day, 969 F.2d 39, 42 (3rd. Cir.1992); Lewis v. Attorney Gen. of United States, 878 F.2d 714, 722 (3d Cir.1989). When reviewing a pro se complaint in this context, a court must assume a plaintiff's factual allegations are true and construe his claims liberally. Neitzke v. Williams, 490 U.S. 319, 330 n. 9, 109 S.Ct. 1827, 1834 n. 9, 104 L.Ed.2d 338 (1989); Haines, 404 U.S. at 520, 92 S.Ct. at 595-96; Roman v. Jeffes, 904 F.2d 192, 197 (3d Cir. 1990).

B. The OTS Motion

As indicated, OTS moves to dismiss the Amended Complaint for lack of jurisdiction, pursuant to Fed.R.Civ.P. 12(b)(1), and for failure to state a claim upon which relief may be granted, pursuant to Fed.R.Civ.P. 12(b)(6).

1. Standard of Review under Fed. R.Civ.P. 12(b)(1)

A challenge to the court's subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1) differs from an attack on the merits pursuant to Fed.R.Civ.P. 12(b)(6) or 56. Rule 12(b)(1) does not afford a plaintiff all the procedural safeguards provided by Rules 12(b)(6) and 56. Instead, Rule 12(b)(1) challenges a plaintiff's right to be heard in Federal court. Limited procedural safeguards exist depending on the type of Rule 12(b)(1) motion.

There are two types of Rule 12(b)(1) motions, those which "attack the complaint on its face" and those which "attack the existence of subject matter jurisdiction in fact, quite apart from any...