16-3097-cv
Shapiro v. Goldman
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A
COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 24th day of August, two thousand seventeen.
PRESENT: PIERRE N. LEVAL,
REENA RAGGI,
RAYMOND J. LOHIER, JR.,
Circuit Judges.
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MARK SHAPIRO,
Plaintiff-Appellant,
v. No. 16-3097-cv
DANIEL SACHS GOLDMAN, NICHOLAS L.
MCQUAID, PREET BHARARA, UNITED STATES OF
AMERICA, THE NATIONAL INSURANCE CRIME
BUREAU, ANTHONY TARDALO, JANICE K.
FEDARCYK, DONALD G. ANSPACHER, SUSAN Q.
HOOD, ROBERT BRODY, DOUGLAS S. MENGES,
NANCY PIERCE, MICHAEL SEIFER, JOHN AND
JANE DOE DOJ POLICY MAKERS #1–5 (name(s) who
are not fully known at present, and possibly other
unidentified members of the Department of Justice),
FEDERAL BUREAU OF INVESTIGATION SPECIAL
AGENTS AND ASSISTANT DIRECTORS, #1–10
(name(s) and identification numbers that are not fully
known at present, and possibly other unidentified
members of the Department of Justice),
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Defendants-Appellees,
OFFICE OF THE UNITED STATES ATTORNEY,
SOUTHERN DISTRICT OF NEW YORK, FEDERAL
BUREAU OF INVESTIGATION, UNITED STATES
DEPARTMENT OF JUSTICE, CITY OF NEW YORK,
NEW YORK CITY POLICE DEPARTMENT, RIVKIN
RADLER LLP, BARRY I. LEVY, MICHAEL A.
SIRIGNANO, DALLAS REGAN, GOVERNMENT
EMPLOYEES INSURANCE COMPANY, GEICO
GENERAL INSURANCE COMPANY, GEICO
INDEMNITY COMPANY, STATE FARM FIRE AND
CASUALTY INSURANCE COMPANY, STATE FARM
MUTUAL AUTOMOBILE INSURANCE COMPANY,
TRAVELERS INDEMNITY COMPANY, TRAVELERS
HOME AND MARINE INSURANCE COMPANY,
FARMERS INSURANCE COMPANY, PROGRESSIVE
CASUALTY INSURANCE COMPANY, NATIONWIDE
MUTUAL INSURANCE COMPANY, METLIFE
INSURANCE COMPANY, METROPOLITAN
REINSURANCE COMPANY, METROPOLITAN
CASUALTY INSURANCE COMPANY,
METROPOLITAN PROPERTY AND CASUALTY
INSURANCE COMPANY, METROPOLITAN
GENERAL INSURANCE COMPANY, ALLSTATE
INSURANCE COMPANY, ALLSTATE PROPERTY
AND CASUALTY INSURANCE COMPANY,
LIBERTY MUTUAL INSURANCE COMPANY,
LIBERTY MUTUAL FIRE INSURANCE COMPANY,
REPWEST INSURANCE COMPANY, 21ST CENTURY
INSURANCE AND FINANCIAL SERVICE, 21ST
CENTURY INSURANCE COMPANY, AIG
ADVANTAGE INSURANCE COMPANY, TRUCK
INSURANCE EXCHANGE, FARMERS NEW
CENTURY INSURANCE COMPANY,
Defendants.
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APPEARING FOR APPELLANT: RAYMOND J. ZUPPA, JR. (Jonathan M.
Davidoff, Davidoff Law Firm, PLLC, New
York, New York, on the brief), The Zuppa Firm
PLLC, Garden City, New York.
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APPEARING FOR GOVERNMENT ANDREW E. KRAUSE, Assistant United
APPELLEES: States Attorney (Christopher Connolly,
Assistant United States Attorney, on the brief),
for Joon H. Kim, Acting United States Attorney
for the Southern District of New York, New
York, New York.
APPEARING FOR PRIVATE MICHAEL R. NELSON (Kymberly Kochis, on
APPELLEES: the brief), Sutherland Asbill & Brennan LLP,
New York, New York, for Nancy Pierce.
BARRY JACOBS, Abrams, Gorelick,
Friedman & Jacobson, LLP, New York, New
York, for The National Insurance Crime
Bureau, Anthony Tardalo, Susan Q. Hood,
Robert Brody, and Douglas S. Menges.
Appeal from a judgment of the United States District Court for the Southern
District of New York (Naomi Reice Buchwald, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment entered on August 17, 2016, is AFFIRMED.
Plaintiff Mark Shapiro appeals from the dismissal of his complaint alleging
various constitutional and tort claims pursuant to Bivens v. Six Unknown Named Agents
of Federal Bureau of Narcotics, 403 U.S. 388 (1971), and the Federal Tort Claims Act
(“FTCA”), 28 U.S.C. §§ 1346(b), 2671–2680, against federal prosecutors and Federal
Bureau of Investigation (“FBI”) agents (“Government Defendants”), as well as the
National Insurance Crime Bureau (“NICB”) and several of its employees and board
members (together with the NICB, “Private Defendants”) for their role in securing his
indictment incident to a wide-ranging insurance-fraud investigation.
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At oral argument on August 17, 2017, Shapiro withdrew all but three of his Bivens
claims. Shapiro v. Goldman, No. 16-3097, U.S. Court of Appeals for the Second
Circuit (Aug. 17, 2017), http://www.ca2.uscourts.gov/oral_arguments.html. Those
remaining are for: (1) malicious prosecution, (2) inducement of false testimony, and (3)
defamatory statements made by the government, known as a “stigma plus” claim. Also
remaining on appeal are Shapiro’s FTCA claims. We review de novo the dismissal of a
complaint pursuant to Fed. R. Civ. P. 12(b)(6), accepting all factual allegations as true
and drawing all reasonable inferences in Shapiro’s favor. See Biro v. Condé Nast, 807
F.3d 541, 544 (2d Cir. 2015). In so doing, we assume the parties’ familiarity with the
facts and record of prior proceedings and issues on appeal.
Fed. R. Civ. P. 8(a)(1)–(2) requires a complaint to contain a “short and plain
statement” setting forth grounds for the court’s jurisdiction and showing that the plaintiff
is entitled to relief. Despite three opportunities to plead, Shapiro repeatedly violated
this standard, filing a prolix 115-page Second Amended Complaint. That, by itself,
warrants affirmance of the district court’s dismissal. See Salahuddin v. Cuomo, 861
F.2d 40, 42 (2d Cir. 1988) (“When a complaint does not comply with the requirement
that it be short and plain, the court has the power, on its own initiative or in response to a
motion by the defendant, . . . to dismiss the complaint.”).
In any event, upon independent review of the record, and for the reasons stated in
the thorough opinion of the district court, see Shapiro v. Goldman, No. 14 Civ. 10119
(NRB), 2016 WL 4371741 (S.D.N.Y. Aug. 15, 2016), we conclude that dismissal was
warranted for failure to plead facts that plausibly support his claims. See Ashcroft v.
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Iqbal, 556 U.S. 662, 678 (2009) (“To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to state a claim to relief that is
plausible on its face.”) (internal quotation marks omitted); TechnoMarine SA v. Giftports,
Inc., 758 F.3d 493, 505 (2d Cir. 2014) (affirming district court’s dismissal of complaint
for failure to plausibly plead claims). Insofar as the Private Defendants request that we
issue an order to show cause as to why Shapiro or his counsel should not be sanctioned
for bringing a frivolous appeal, that application is denied.
Accordingly, the judgment of the district court is AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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