The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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MAYER CHAIM BRIKMAN (RABBI),
RIVKAH BRIKMAN, and JOSEPH B.
WOLHENDLER,
Plaintiffs, MEMORANDUM AND ORDER
19-CV-5143 (RPK) (CLP)
-against-
YEHOSHUA S. HECHT, JOHN DOE 1-10,
and JANE DOE 1-10,
Defendants.
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RACHEL P. KOVNER, United States District Judge:
Pro se plaintiffs Mayer Chaim Brikman, Rivkah Brikman, and Joseph B. Wolhendler bring
this defamation action against Yehoshua Hecht and twenty unidentified defendants. Plaintiffs,
who live in New York, invoke federal diversity jurisdiction. Mr. Hecht moves to dismiss the
complaint on the grounds that plaintiffs know that the unnamed defendants live in New York. Mr.
Hecht also moves for sanctions. For the reasons explained below, Mr. Hecht’s motions are denied.
BACKGROUND
The following background comes from allegations in the second amended complaint,
incorporated documents, and documents amenable to judicial notice. Plaintiffs’ allegations are
“accept[ed] as true” on a motion to dismiss. Hamilton v. Westchester Cnty., 3 F.4th 86, 90-91
(2d Cir. 2021) (quoting Dane v. UnitedHealthcare Ins. Co., 974 F.3d 183, 188 (2d Cir. 2020)).
Plaintiff Mayer Chaim Brikman is the rabbi for a Brooklyn synagogue called Kneses Israel
of Seagate. See Second Am. Compl. ¶ 1 (Dkt. #35). He filed this suit with his wife Rivkah
Brikman and Kneses board member Joseph B. Wolhendler. See id. ¶¶ 1-3. Plaintiffs allege that
Yehoshua Hecht and twenty unnamed individuals posted libelous statements concerning Mr.
Wolhendler from the Twitter handle @KnesesG. See id. ¶¶ 3-4. Plaintiffs allege that defendants
posted libelous statements concerning Mayer and Rivkah Brikman from the same account, see id.
¶¶ 5-6, retweeted libelous statements from Mr. Hecht’s Twitter handle using a separate account
(“@IgudOf”), see id. ¶ 7, and posted additional libelous statements from a third Twitter handle
(“@wertsbergercha1”), see id. ¶ 8.
In September 2019, plaintiffs sued Mr. Hecht and Twitter, Inc. See Compl. at 4-5 (Dkt. #1).
Plaintiffs’ claims against Twitter were dismissed with prejudice. See Mem. & Order at 10
(Dkt. #26). Plaintiffs were then granted leave to amend the complaint to remove all allegations
against Twitter and add twenty unnamed defendants. See Pls.’ Ltr. at 1 (Dkt. #28); Dkt. Entry
(Oct. 24, 2020). After Mr. Hecht filed a motion to dismiss the first amended complaint for failure
to state a claim, see Def.’s Notice of Mot. (Dkt. #31), plaintiffs were granted leave to file a second
amended complaint, see Order (Dkt. #34), which rendered moot Mr. Hecht’s motion to dismiss.
Mr. Hecht now moves to dismiss the second amended complaint for lack of subject-matter
jurisdiction under Federal Rule of Civil Procedure 12(b)(1). See Def.’s Mot. to Dismiss Pls.’
Second Am. Compl. at 1 (Dkt. #36) (“Defs.’ Memo”). He also asks the Court to use its inherent
powers to sanction plaintiffs. See ibid.
DISCUSSION
Yehoshua Hecht’s motions are denied. Mr. Hecht argues that this action lacks diversity
jurisdiction because plaintiffs are citizens of New York, and they have admitted in prior court
filings in state court proceedings that they know that the unnamed defendants are citizens of New
York. Invoking plaintiffs’ prior statements regarding the citizenship of the unnamed defendants,
Mr. Hecht also asks that the Court use its inherent powers to sanction plaintiffs for “intentionally
making false statements” regarding citizenship in this case “and misleading the Court into
exercising diversity jurisdiction.” Def.’s Memo at 9. Mr. Hecht’s motion is denied. Plaintiffs
assert in this Court that they do not know the citizenship of the unidentified defendants. Any
inconsistent allegations made elsewhere are not conclusive at this stage of the case, and the motion
for sanctions is premature.
I. Mr. Hecht’s motion to dismiss for lack of subject-matter jurisdiction is denied.
To survive a motion to dismiss for lack of subject-matter jurisdiction, plaintiffs must show
that the Court has “the statutory or constitutional power to adjudicate” the action. Cortlandt St.
Recovery Corp. v. Hellas Telecomms., S.A.R.L., 790 F.3d 411, 416-17 (2d Cir. 2015). Here,
plaintiffs rely on diversity jurisdiction. See Second Am. Compl. at 4. A federal court has diversity
jurisdiction over civil actions when the amount in controversy exceeds $75,000 and all plaintiffs
are “citizens of states diverse from those of all defendants.” Pa. Pub. Sch. Emps.’ Ret. Sys. v.
Morgan Stanley & Co., 772 F.3d 111, 118 (2d Cir. 2014). A party invoking diversity jurisdiction
“bears the burden of demonstrating that the grounds for diversity exist and that diversity is
complete.” Advani Enters., Inc. v. Underwriters at Lloyds, 140 F.3d 157, 160 (2d Cir. 1998).
Plaintiffs have met that burden at the pleading stage. Each plaintiff seeks at least $250,000
in damages. See Second Am. Compl. at 10. And plaintiffs adequately plead diversity, because
they allege that they are citizens of New York, that Mr. Hecht is a citizen of Connecticut, and that
the citizenship of the other twenty defendants is unknown. See id. at 4-5. While it is possible that
the John and Jane Doe defendants may eventually be identified as citizens of New York, “the mere
inclusion of John Doe defendants does not destroy complete diversity until it is later found that
one or more of the unknown defendants is domiciled such that there is not complete diversity.”
Zaccaro v. Shah, 746 F. Supp. 2d 508, 516 (S.D.N.Y. 2010) (quoting Doe v. Ciolli, 611 F. Supp.
2d 216, 220 (D. Conn. 2009)); see, e.g., Grice v. McMurdy, No. 18-CV-6414, 2020 WL 90770, at
*1 n.1 (W.D.N.Y. Jan. 8, 2020); Wells Fargo Bank, N.A. v. Ullah, No. 13-CV-0485, 2014 WL
470883, at *6 n.3 (S.D.N.Y. Feb. 6, 2014); Marcelo v. EMC Mortg. Corp., No. 10-CV-5964, 2011
WL 1792671, at *2 n.3 (E.D.N.Y. May 6, 2011).
Mr. Hecht suggests that it has been established that the unidentified defendants are
domiciled in New York, because plaintiffs asserted that certain individuals domiciled in New York
were responsible for the relevant tweets from @KnesesG during prior state-court litigation.
See Def.’s Memo at 3, 8; Def.’s Memo, Ex. A, at 4-5 (Dkt. #36-2); Def.’s Memo, Ex. B, at 1
(Dkt. #36-3); Def.’s Memo, Ex. F., at 2 (Dkt. #36-7). But a plaintiff’s past inconsistent allegations
are not conclusive judicial admissions at the motion-to-dismiss stage. While “[a] court may take
judicial notice of a document filed in another court . . . to establish the fact of such litigation and
related filings,” Glob. Network Commc’ns, Inc. v. City of New York, 458 F.3d 150, 157 (2d Cir.
2006), “a judicial admission only binds the party that makes it in the action in which it was made,
not in separate and subsequent cases,” Hausler v. JP Morgan Chase Bank, N.A., 127 F. Supp. 3d
17, 38 (S.D.N.Y. 2015). Accordingly, “[p]rior inconsistent pleadings, though admissible against
plaintiff . . . in any subsequent litigation involving that party, are controvertible, not conclusive
admissions.” Holland v. City of New York, 197 F. Supp. 3d 529, 541 n.9 (S.D.N.Y. 2016) (quoting
The Limited, Inc. v. McCrory Corp., 683 F. Supp. 387, 395 n.5 (S.D.N.Y. 1988). As a result,
plaintiffs’ filings “in the prior state court action[s] are not binding in this action, but rather, may
only be considered as evidence, which [d]efendant may offer at the time of summary judgment or
trial.” Nagaraj v. Sandata Techs., LLC, No. 18-CV-4748, 2020 WL 7249338, at *6 (E.D.N.Y.
June 16, 2020), report and recommendation adopted, No. 18-CV-4748, 2020 WL 6482194
(E.D.N.Y. Nov. 4, 2020). Until then, plaintiffs have adequately alleged complete diversity.
Similarly, plaintiffs’ past statements are not binding under the doctrine of judicial estoppel.
The doctrine of judicial estoppel “prevents a party from asserting a factual position in a legal
proceeding that is contrary to a position previously taken by that party in a prior legal proceeding.”
Frost v. New York City Police Dep’t, 980 F.3d 231, 255 (2d Cir. 2020). But the doctrine applies
only when a party’s inconsistent position in an earlier proceeding “was adopted by the first tribunal
in some manner, such as by rendering a favorable judgment.” Clark v. AII Acquisition, LLC, 886
F.3d 261, 266 (2d Cir. 2018). Mr. Hecht has not shown that plaintiffs’ state-court allegations
regarding the citizenship of those responsible for the challenged tweets were adopted by any
tribunal. I therefore decline to bind plaintiffs to their prior assertions of citizenship under the
doctrine of judicial estoppel.
II. Sanctions would be premature.
Mr. Hecht requests that the Court use its inherent powers to award “legal fees, costs and
expenses” against plaintiffs “for intentionally making false statements and misleading the Court
into exercising diversity jurisdiction.” Def.’s Memo at 9.
“[A] court’s inherent power allows it to impose monetary sanctions against a litigant . . .
for misconduct.” Int’l Techs. Mktg., Inc. v. Verint Sys., Ltd., 991 F.3d 361, 367 (2d Cir. 2021).
But this power “must be exercised with restraint and discretion.” Id. at 368 (quoting Chambers v.
NASCO, Inc., 501 U.S. 32, 44 (1991)). “When it comes to monetary sanctions, a court should
sanction only ‘bad faith, vexatious[], [or] wanton[]’ acts or actions otherwise undertaken for
‘oppressive reasons.’” Ibid. (quoting Chambers, 501 U.S. at 45-46). Under these principles,
“inherent-powers sanctions are appropriate only if there is clear evidence that the conduct at issue
is (1) entirely without color and (2) motivated by improper purposes.” Wolters Kluwer Fin. Servs.
Inc. v. Scivantage, 564 F.3d 110, 114 (2d Cir. 2009). “Conduct is entirely without color when it
lacks any legal or factual basis.” Ibid. Improper purposes include “harassment or delay.”
Schlaifer Nance & Co. v. Est. of Warhol, 194 F.3d 323, 336 (2d Cir. 1999). A “finding that conduct
is without color or for an improper purpose . . . must be supported by a high degree of specificity
in the factual findings. Wolters Kluwer Fin. Servs., Inc., 564 F.3d at 114.
In addition, “[t]he time when sanctions are to be imposed rests in the discretion of the trial
judge,” Chambers, 501 U.S. at 56 n.19, and the practice in this Circuit is to “only grant[] sanctions
motions based on a plaintiff’s fraudulent allegations after the end of discovery and/or summary
judgment practice,” Laba v. JBO Worldwide Supply Pty Ltd., No. 20-CV-3443, 2021 WL 2739228,
at *5 (S.D.N.Y. July 1, 2021) (collecting cases). That practice reflects the fact that typically “only
after discovery has been completed will the Court properly have before it” the basis for a plaintiff’s
allegations. Luv N’ Care, Ltd. v. Shiboleth LLP, No. 16-CV-3179, 2017 WL 3671039, at *13
(S.D.N.Y. Aug. 8, 2017).
Applying these principles, I decline to impose sanctions at this time. Plaintiffs do appear
to have made inconsistent allegations regarding the identity of the individuals behind the
@KnesesG account. But not every such inconsistency is attributable to improper purposes or
reflects litigation conduct that is without color. Consistent with local practice, I decline to award
sanctions based on plaintiffs’ inconsistent pleadings at this early stage of the proceedings, where
the record concerning the basis for plaintiffs’ dueling factual assertions is exceedingly limited.
CONCLUSION
The motion to dismiss is denied. The motion for sanctions is denied without prejudice.
SO ORDERED.
/s/ Rachel Kovner
RACHEL P. KOVNER
United States District Judge
Dated: August 24, 2021
Brooklyn, New York