Zappin v. Cooper

Background

Anthony Zappin sued Justice Matthew F. Cooper, Lauren Liebhauser, Kevin M. Doyle, and Hannah Yu. The court had already dismissed the action as to Doyle and Yu, leaving Cooper and Liebhauser. Zappin’s amended complaint asserted four claims under 42 U.S.C. § 1983: abuse of process, conspiracy to abuse process, retaliation for criticizing Cooper in violation of the First Amendment, and conspiracy to retaliate.

Zappin alleged that Cooper used his judicial position to persuade or induce the Manhattan District Attorney’s Office to investigate and prosecute him based on a false police report. Zappin said the prosecution was retaliation for his criticism of Cooper. The allegations concerned a November 2, 2016, incident in which Zappin claimed Cooper spat on him while they passed each other on a Manhattan sidewalk. Zappin reported the incident, was later arrested and charged with falsely reporting an incident, and pleaded guilty to disorderly conduct.

The opinion described sixteen lawsuits Zappin had filed in state and federal court concerning his divorce, related disciplinary proceedings and disbarment, the sidewalk incident, and the resulting arrest and prosecution. The court also described prior findings that Zappin had repeatedly missed deadlines, disobeyed court orders, pursued duplicative claims, and imposed burdens on courts and opposing parties.

Filing injunction

Cooper asked the court to bar Zappin from filing new related civil actions in the Southern District of New York without first obtaining the court’s permission. The court applied five factors concerning the litigant’s history of repetitive or harassing litigation, motive, representation by counsel, burdens imposed on courts and parties, and whether other sanctions would be adequate.

The court found that all five factors supported an injunction. It relied on the number and overlap of Zappin’s lawsuits, his alleged failures to follow court orders and deadlines, prior dismissals, the burdens on courts and defendants, and the fact that earlier sanctions had not deterred him. The court also considered two federal suits Zappin filed in February and March 2022, despite his earlier statement that he did not intend to file new lawsuits.

The court granted Cooper’s motion for a filing injunction. The injunction prohibits Zappin, without leave of court, from filing any new action in the Southern District of New York against Cooper, the State of New York, any New York State entity or agency, or any current or former New York State judge, official, or employee, when the action arises from the divorce proceeding, disciplinary proceeding, November 2 incident, or resulting arrest and prosecution.

Proposed second amended complaint

Zappin sought permission to file a second amended complaint asserting nine proposed claims, including federal and state abuse-of-process claims, retaliation claims, conspiracy claims, a claim concerning use of bail as punishment without due process, and state-law prima facie-tort claims. The proposed claims were based on his allegation that Cooper and Liebhauser conspired to bring false criminal charges against him as retaliation.

The court reasoned that Zappin’s guilty plea to disorderly conduct established probable cause for the arrest and prevented him from satisfying the requirement that a criminal prosecution end in his favor for certain false-arrest and malicious-prosecution claims. The court stated that the same bar applied to corresponding state-law claims. It therefore concluded that the proposed amendment would be futile and denied Zappin’s motion for leave to file a second amended complaint.

Disposition

Cooper’s motion for a filing injunction was GRANTED. Zappin’s motion for leave to file a second amended complaint was DENIED. The court directed the parties to appear for a conference and directed the Clerk of Court to terminate the two motions.

Scope and uncertainty

The opinion’s list of proposed claims does not expressly identify false-arrest or malicious-prosecution claims, although the amendment analysis focuses on those claims and then states that the proposed amendment would be futile. The opinion does not state that the existing amended complaint was dismissed in this order.