Zappin v. Cooper

Background

Anthony Zappin, a disbarred attorney proceeding without a lawyer, brought claims under 42 U.S.C. § 1983 for abuse of process, conspiracy to abuse process, retaliation for criticizing Justice Matthew F. Cooper, and conspiracy to retaliate. He alleged that Cooper used his judicial position to cause a false criminal investigation and prosecution after an alleged November 2, 2016 encounter, and that Lauren Liebhauser conspired with Cooper. Zappin pleaded guilty to disorderly conduct in connection with the prosecution.

The opinion describes at least sixteen lawsuits Zappin filed in state and federal courts concerning his divorce, disbarment, encounter with Cooper, and resulting arrest and prosecution. In a March 31, 2022 order, the court granted Cooper’s request for a filing injunction and denied Zappin leave to file a second amended complaint. The injunction barred Zappin, without court permission, from filing new actions in the Southern District of New York against Cooper, New York State, New York State entities or agencies, or current or former New York State judges, officials, or employees concerning those events.

Motions and Standards

Zappin moved for reconsideration under Federal Rule of Civil Procedure 59(e) and Local Civil Rule 6.3. The court explained that reconsideration is an extraordinary remedy generally available only when there has been a controlling change in law, new evidence, or a need to correct clear error or prevent serious injustice. It is not a way to repeat arguments already considered or present new theories.

Zappin also moved for recusal under 28 U.S.C. § 455(a), which requires a judge to step aside when the judge’s impartiality might reasonably be questioned. The court applied the standard of whether an objective, well-informed observer would have significant doubt that justice would be done without recusal. It also noted that prior judicial rulings ordinarily are not a valid basis for recusal and that recusal arguments must be raised promptly after the relevant facts become known.

Court’s Analysis

The court held that Zappin had not identified controlling authority or facts that it had overlooked when imposing the filing injunction. It relied on Zappin’s extensive litigation history, including repeated suits concerning the same underlying events, failures to comply with court orders and deadlines, and efforts to relitigate issues in different courts. The court therefore declined to reconsider its decision granting Cooper’s motion for a filing injunction.

The court also declined to reconsider its denial of leave to file a second amended complaint. It reaffirmed its prior conclusion that amendment would be futile. The court explained that the proposed claims concerned the criminal charge arising from the November 2 incident, to which Zappin had pleaded guilty. It also discussed decisions holding that probable cause can defeat an abuse-of-process claim and stated that a later abuse-of-process claim is futile where there was probable cause for the prosecution, particularly when the prosecution resulted in a guilty plea. The court further relied on evidence of bad faith, undue delay, futility, and prejudice associated with Zappin’s repeated litigation.

The court denied the recusal motion because Zappin did not present facts showing that the court’s impartiality could reasonably be questioned. According to the court, his arguments largely concerned the validity and constitutionality of earlier rulings and included grievances about other proceedings. The court held that those matters did not establish grounds for recusal. It also held that the motion was untimely because it was filed after the case had been pending for years and relied on events known substantially earlier.

Disposition

The court denied Zappin’s motion for reconsideration and denied his motion for recusal. The court left the filing injunction in place and directed the Clerk of Court to terminate both motions. Judge Edgardo Ramos entered the order on February 6, 2023.