Bottone v. Roche

Background

Robert Bottone, proceeding without a lawyer, brought a diversity action based on an altercation with his former girlfriend, Alexandra Kravitz, and later events in family-court and civil proceedings. Kravitz retained Sivin, Miller & Roche LLP (SMR) to represent her, and David Roche, a partner at SMR, handled that representation. Bottone alleged that Roche and SMR filed a counterclaim and motions in the underlying proceedings, made statements during settlement discussions and telephone conversations, and threatened that criminal charges could become worse if Bottone did not withdraw his cases and pay Kravitz’s legal fees.

Bottone’s amended complaint asserted five claims against the SMR Defendants: civil conspiracy, abuse of process, prima facie tort, violation of New York Judiciary Law Section 487, and negligent training, hiring, and retention. The SMR Defendants moved to dismiss under Federal Rule of Civil Procedure 12(b)(1), which concerns subject-matter jurisdiction, and Rule 12(b)(6), which concerns whether a complaint states a legally sufficient claim. Bottone did not oppose the motion.

Subject-Matter Jurisdiction

The SMR Defendants argued that the court lacked diversity jurisdiction because Bottone had not shown a reasonable probability that his damages exceeded the required $75,000. The amended complaint requested $3,950,000 in compensatory and punitive damages against all defendants.

The court rejected this jurisdictional argument. It held that the SMR Defendants had not shown to a legal certainty that Bottone could not recover more than $75,000 from them. The court noted that Bottone asserted five separate causes of action, alleged additional unspecified damages, and sought punitive damages, which may count toward the jurisdictional amount when allowed by the controlling law. The court therefore found that Bottone adequately invoked diversity jurisdiction as to the SMR Defendants.

Failure to State a Claim

The court nevertheless held that Bottone had not adequately pleaded any of his five claims.

Civil conspiracy. Under New York law, a civil-conspiracy claim requires an underlying tort in addition to an agreement, an act advancing the agreement, intentional participation, and resulting injury. The court dismissed this claim because Bottone had not adequately pleaded the underlying abuse-of-process tort. The court also stated that, without an adequately pleaded underlying tort, Bottone could not maintain his related allegation that Erica Halverson aided and abetted the SMR Defendants’ alleged abuse of process.

Abuse of process. The court held that the motions to quash subpoenas, the protective-order motion, and the counterclaim identified by Bottone were not “legal process” for purposes of this claim. The court also held that Bottone had not alleged an improper collateral objective outside the ordinary purposes of litigation. Trying to limit an opposing party’s discovery was part of ordinary civil litigation, and the rejection or withdrawal of the filings did not establish such an objective. The court dismissed the abuse-of-process claim.

Prima facie tort. A prima facie tort claim requires intentional harm, special damages, lack of justification, and an otherwise lawful act carried out with the sole intent to harm. The court found that Bottone offered only a conclusory statement that the SMR Defendants acted solely to injure him. The allegations instead identified other possible purposes, including trying to make Bottone withdraw his cases and pay Kravitz’s legal fees. The court dismissed this claim.

New York Judiciary Law Section 487. This statute can impose liability on an attorney for deceit or collusion intended to deceive a court or party. The court held that Bottone had not pleaded deceit, collusion, or intent to deceive with the required particularity. The alleged conduct was consistent with litigation tactics, even if those tactics were sharp or unsuccessful. The court also held that Bottone had not alleged that the alleged deceit was part of a larger fraudulent scheme, that he was damaged by the alleged deceit, or that the claim could properly be brought in this separate action rather than in the underlying proceedings. The court dismissed the Section 487 claim.

Negligent training, hiring, and retention. This claim required Bottone to adequately allege that Roche committed an underlying tort. Because the court dismissed Bottone’s underlying tort claims, it dismissed the related claim against SMR as well.

Disposition

Judge Mary Kay Vyskocil granted the SMR Defendants’ motion to dismiss. The amended complaint was dismissed against those defendants with prejudice, and Bottone was denied leave to amend. The court separately noted that Bottone had not served Alexis El Sayed, Art Bar, or Erica Halverson, whom he had named again in the amended complaint after voluntarily dismissing them from the original complaint. The court directed Bottone to serve those defendants and file proof of service by March 29, 2024. If he did not do so and did not show cause in writing, the court stated that the amended complaint would be dismissed against them—and effectively in its entirety—for failure to prosecute. The court also stated that Bottone could instead file another notice of voluntary dismissal if he did not intend to pursue claims against those defendants.