VDARE Foundation, Inc. v. James

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

_______________________________________________

VDARE FOUNDATION, INC.,

Plaintiff,

v. 1:22-CV-1337

(FJS/CFH)

LETITIA JAMES, in her official capacity as

Attorney General of the State of New York,

Defendant.

_______________________________________________

APPEARANCES OF COUNSEL

RANDAZZA LEGAL GROUP, PLLC JAY MARSHALL WOLMAN, ESQ.

100 Pearl Street, 14th Floor MARC J. RANDAZZA, ESQ.

Hartford, Connecticut 06103

- and –

4974 South Rainbow Boulevard, Suite 100

Las Vegas, Nevada 89118

Attorneys for Plaintiff

OFFICE OF THE NEW YORK STATE ALEXANDER S. MENDELSON, AAG

ATTORNEY GENERAL RICK SAWYER, AAG

28 Liberty Street

New York, New York 10005

Attorneys for Defendant

SCULLIN, Senior Judge

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

Pending before the Court is Defendant's motion to dismiss Plaintiff's complaint for lack

of subject matter jurisdiction and, alternatively, for failure to state a claim. See Dkt. No. 12, 51.

Plaintiff opposes the motion. See Dkt. Nos. 25-26, 54.

II. BACKGROUND

On December 12, 2022, Plaintiff VDARE Foundation, Inc. (hereinafter "Plaintiff" or

"VDARE") commenced this action by filing a Verified Complaint for declaratory and injunctive

relief and, for certain causes of action, sought compensatory and punitive damages. See

generally Dkt. No. 1, Complaint. According to the Complaint, VDARE "is a non-profit

foundation recognized by the IRS as a 501(c)(3) educational organization organized and existing

under the laws of the State of New York, but with a principal place of business in Berkeley

Springs, West Virginia." See id. at ¶ 1. Furthermore, "VDARE was founded to support the

efforts of VDARE.com, a non-profit web magazine . . . [and] is literally a mom-and-pop

operation, run by Peter and Lydia Brimelow, husband and wife, with limited staff and

resources." See id. at ¶ 2.

VDARE states that "the Court has subject matter jurisdiction because this action involves

claims based on the First and Fourteenth Amendments to the United States Constitution, and

because this action seeks to prevent state officials from interfering with federal rights." See id. at

¶ 4. Furthermore, VDARE asserts that 'subject matter jurisdiction is conferred on this Court by

28 U.S.C. § 1343(a)(3) because this action is brought to redress deprivations under color of state

law of rights, privileges and immunities secured by the United States Constitution." See id.

Finally, VDARE states that "the Court has supplemental jurisdiction over state law claims

asserted in this action[.]" See id.

According to VDARE, "[Peter] Brimelow with an editorial collective of several other

journalists started VDARE.com to publish articles critical of the immigration policy of the

United States." See id. at ¶ 8. "Throughout its existence, VDARE has published pieces that

criticize current United States immigration policy for various reasons and from a variety of

angles and perspectives. VDARE's editorial position in favor of limiting immigration is not

based on any sort of aversion to immigrants. Brimelow is himself an immigrant and a

naturalized United States citizen." See id. In addition, "[m]any of VDARE's editors and

contributors, current and former, are immigrants or foreign nationals." See id.

Plaintiff contends that "[s]tories originally published in VDARE have been positively

cited by the New York Times, the Harvard Journal on Law and Public Policy, and many other

publications." See id. However, Plaintiff acknowledges that "VDARE is not without detractors .

. . [and] has repeatedly been tarred with pejoratives such as 'white nationalist,' and 'racist[']." See

id. at ¶ 9. "VDARE rejects these labels." See id. Plaintiff argues that, "[w]hatever the views of

VDARE's detractors, its speech is non-violent and lawful and protected by the First Amendment

to the United States Constitution." See id.

Plaintiff states that the "[u]se of pejoratives to describe VDARE has led to significant

reputational and professional harm for those associated with it. On occasions when associations

with VDARE have been disclosed or become public, people have lost employment, and

contractors essential to VDARE's existence have opted to stop providing services. Venues

which have agreed to host VDARE's conferences have faced pressure campaigns and threats.

Such venues have sometimes cancelled contracts with VDARE." See id. at ¶ 10. Finally,

Plaintiff asserts that, "[t]o protect its rights of speech and association, VDARE is vigilant about

maintaining the privacy of those associated with it and does not disclose their identities unless

required by law." See id. at ¶ 11.

On June 24, 2022, Defendant issued a subpoena to VDARE, identifying 44 categories of

demanded documents. See id. at ¶ 22. Among other things, Defendant demanded "copies of

transcripts of each deposition in the litigation between Peter Brimelow and/or VDARE and the

New York Times, and all documents produced by VDARE and/or Brimelow in connection with

those proceedings." See id. at ¶ 23. VDARE explained that "[t]his demand referred to a lawsuit

for libel filed by Brimelow against the New York Times for calling him an 'open white

nationalist,' which he is not." See id.

Thereafter, on July 20, 2022, after a meet-and-confer with Assistant Attorneys General

on July 18, 2022, an attorney then advising VDARE on responding to Defendant's subpoena,

requested in writing that she withdraw her subpoenas on grounds that they were pretexts aimed

at VDARE's rights under the First Amendment to express positions critical of governmental

officials and policy. See id. at ¶ 24. Defendant declined to withdraw the subpoenas. See id.

In August 2022, before a revised return date, VDARE engaged new counsel and directed

him to comply with Defendant's subpoena. See id. at ¶ 25. Defendant acknowledged new

counsel's need to get up to speed and his competing commitments and requested that VDARE

produce "very basic corporate records" to demonstrate its intent to comply in advance of a

"rolling production." See id. Between September 19 and November 21, 2022, VDARE

produced approximately 6,000 pages of documents in response to Defendant's subpoena to

Plaintiff after completing review of documents that VDARE maintained electronically and in

hard copy. See id. at ¶ 25.

While making and before completing the production, VDARE advised Defendant of its

position that production of the identities of many of its contractors would violate the First

Amendment. See id. at ¶ 26. VDARE explained to Defendant that some of the contractors

would face retribution if their association with VDARE were revealed and that VDARE

otherwise risked losing services of contractors indispensable to its existence if their identities

were disclosed, as had happened in the past. See id. VDARE cited several cases to support its

position. See id.

VDARE proposed that Defendant identify specific contractors about which she was

concerned, and VDARE could otherwise identify any contractor that might qualify as a "related

party" within the meaning of New York law. See id. at ¶ 27. VDARE expressed its desire to

make as robust a production as possible, proposing that the issue of disclosure of contractors'

identities could be revisited if it did not prove to be an adequate solution or if a specific need

arose. See id. Defendant rejected VDARE's proposals and requested that VDARE further

articulate its objection to disclosure of the identities of vendors. See id.

In a letter dated October 31, 2022, VDARE again articulated its objection to disclosure of

the identities of contractors and requested that the parties meet and confer on the issue. See id. at

¶ 28. VDARE advised Defendant that the identities of its contractors were indispensable to its

work and their identities were inextricably intertwined with financial records, including on lists

of banking transactions and associated copies of checks. See id. VDARE also advised

Defendant that the work of its counsel, a sole practitioner reviewing all of its documents himself,

to provide documents with redactions was labor-intensive, time-consuming and ongoing. See id.

VDARE proposed in its letter of October 31, 2022, that the parties meet and confer to determine

if they could find at least a temporary resolution of the issue. See id.

In addition, in early October 2022, Defendant requested that VDARE provide a general

outline of electronically-stored files (emails) that it would need to collect for review and produce

and begin collecting. See id. at ¶ 30. VDARE did so, advising that the universe of such files

amounted to more than 40 gigabytes of data, providing a list of email custodians, and otherwise

keeping Defendant updated as to the status of the review. See id. According to VDARE, the

emails, like its paper documents contain information about the identities of contractors whose

association with VDARE is not required for any legitimate oversight of VDARE by Defendant,

and the disclosure of which would violate First Amendment protections and risk VDARE's

existence. See id.

On December 2, 2022, Defendant demanded VDARE's full compliance with its subpoena

by December 12, 2022, or she would deem VDARE in non-compliance. See id. at ¶ 32.

Although VDARE advised Defendant of its concerns about unnecessary disclosure of identities

of contractors, Defendant demanded that their identities be disclosed. See id. Furthermore,

although Defendant had encouraged VDARE to make a rolling production as documents were

reviewed, resulting in later decisions not to redact some information that had earlier been

redacted, Defendant questioned the validity of VDARE's concerns. See id. Although VDARE

had advised Defendant that redactions of identities of contractors were intertwined with its

records and were otherwise time consuming and labor intensive to apply, Defendant demanded,

by December 12, 2022, a log identifying each redaction of each contractor's identity in VDARE's

production, and list prospective production of emails, as a precondition to meet-and-confer about

VDARE's constitutional objection to unnecessary disclosure of identities of contractors. See id.

at ¶ 32. Finally, VDARE contends that Defendant's position threatens its very existence and

reveals that her targeting of VDARE is a pretext because she disagrees with its constitutionally-

protected speech. See id. at ¶ 33.

Based on these allegations, VDARE asserts the following causes of action: (1)

declaratory relief under the First Amendment, i.e., a declaration that the subpoena's attempts to

compel First Amendment speech and association rights are unconstitutional; (2) violation of

VDARE's First and Fourteenth Amendment rights under § 1983 by retaliating against VDARE

based on its exercise of its rights of freedom of speech and association for which it seeks

compensatory and punitive damages; (3) violation of VDARE's rights under Article I, Section 8

of the New York State Constitution by retaliating against VDARE based on its exercise of its

rights of freedom of speech and association, for which it seeks compensatory and punitive

damages; and (4) injunctions barring Defendant from enforcing her subpoena.

On December 14, 2022, two days after VDARE commenced the present action,

Defendant petitioned New York State Supreme Court, pursuant to New York Not-for-Profit

Corporation Law, Estates, Powers and Trusts Law, Executive Law and CPLR Article 4, see Dkt.

No. 35-6, State Court Petition, at ¶ 9, for an Order (i) compelling VDARE to comply without

delay with the June 23, 2022 subpoena; (ii) ordering all documents produced to be unredacted

(except for agreed upon redactions to donor and volunteer information); and (iii) granting such

other and further relief as it deems just, proper, and appropriate, see id. at ¶ 6.

In support of her petition, Defendant asserted that (1) the Subpoena was issued pursuant

to a legally-authorized investigation for which there was a factual basis and that the requests in

the Subpoena were reasonably related to the investigation; (2) VDARE had interposed no

cognizable basis for delaying or withholding responsive document productions to Defendant; and

(3) as a result, VDARE should be ordered to comply with the Subpoena without further delay.

See id. at ¶¶ 29-31.

On January 18, 2023, Defendant filed the pending motion to dismiss in this Court. See

Dkt. No. 12. The next day, January 19, 2023, the State Supreme Court heard oral argument and

reserved decision on Defendant's petition. On January 23, 2023, the State Supreme Court issued

a decision and order, in which it noted that the Subpoena sought documents (1) concerning

VDARE's organizational structure; (2) compliance with conflict-of-interest policy requirements

under New York law and financial operations; (3) its purchase and conveyance of the Berkeley

Springs Castle; and (4) transactions between VDARE and entities controlled by the Brimelows.

See Dkt. No. 15, State Supreme Court Decision, at 6. The State Supreme Court also noted that,

although VDARE had originally taken "the position that the Subpoena was unlawful and should

be withdrawn[, o]n September 19, 2022, new counsel for [VDARE] agreed to comply with the

Subpoena but asserted that a significant volume of electronically-stored and hard copy

documents needed to be reviewed." See id. VDARE made its first production that day,

consisting of 27 documents produced without Bates numbers and bearing unmarked redactions.

See id.

The State Supreme Court further explained that, in the 12 weeks since its first September

delivery, VDARE had produced "approximately 6,000 pages from its hard copy records . . . [and

had] redacted that material without any explanation for how the material was chosen for

redaction." See id. Defendant asserted that "the redactions [were] extensive and ha[d] been

applied across almost every category of document produced, including board meeting minutes,

bank statements, internal accounting ledgers, credit card statements, invoices, financial records

for the limited liability company (Happy Penguins LLC) from which [VDARE] had historically

leased Peter Brimelow's services, and bank statements to accounts held personally by Peter and

Lydia Brimelow." See id.

Furthermore, the State Supreme Court noted that, "on October 23, 2022, Lydia Brimelow

[had] represented that, with limited exceptions, [VDARE's] hard copy production was complete,

and identified 22 unique email accounts containing approximately 40 gigabytes of potentially

responsive electronically stored information." See id. VDARE's counsel had originally "stated

that review of that material would be completed by November 21, 2022. [VDARE] subsequently

proposed December 12, 2022, as the new deadline for completing email production." See id. at

6-7.

The State Supreme Court further noted that, on December 2, 2022, Defendant wrote to

VDARE, "summarizing [her] concerns with the pace and scope of production, including

[VDARE's] extensive redactions, and demanded that [VDARE] complete its subpoena

compliance and produce a redaction log by December 12, 2022." See id. at 9.

In response to the petition, VDARE moved for an Order dismissing the special

proceeding or alternatively staying the proceeding pending resolution of VDARE's federal

action. See id. (footnote omitted). The State Supreme Court granted Defendant's motion to

compel and denied VDARE's motion for a stay or dismissal. See id.

In its Decision and Order, the State Supreme Court explained that "[t]he requirements for

the issuance of an investigatory subpoena duces tecum" were as follows: "'(1) that the issuing

agency has authority to engage in the investigation and issue the subpoena, (2) that there is an

authentic factual basis to warrant the investigation, and (3) that the evidence sought is reasonably

related to the subject of the inquiry.'" See Dkt. No. 15 at 8 (quoting Evergreen Ass'n, Inc. v.

Schneiderman, 153 A.D.3d 87, 96 (2017) (quoting Matter of Abrams v. Thruway Food Market &

Shopping Center, Inc., 147 A.D.2d 143, 147, 541 N.Y.S.2d 856; citing Matter of Levin v.

Murawski, 59 N.Y.2d 35, 462 N.Y.S.2d 836, 449 N.E.2d 730, and Matter of A'Hearn v.

Committee on Unlawful Practice of Law of N.Y. County Lawyers' Assn., 23 N.Y.2d 916, 298

N.Y.S.2d 315, 246 N.E.2d 166)).

The State Supreme Court found that "New York State ha[d] a public policy interest in

ensuring the robust regulation of tax-exempt charitable entities like [VDARE], and [Defendant]

ha[d] authority to supervise and investigate such entities when misconduct was suspected." See

id. at 9. The State Supreme Court also found that Defendant's Subpoena was "focused on subject

matter areas that f[e]ll within the statutory provisions that govern[ed] not-for-profit

corporations." See id. Furthermore, the State Supreme Court noted that "[t]he Not-for-Profit

Corporation Law [("N-PCL")] provide[d] that entities like VDARE may be formed only for

charitable purposes . . . and that charitable assets may not be distributed to members, directors or

officers, . . ." See id. (internal citations omitted). Moreover, the State Supreme Court found that

"[c]haritable entities [were] also subject to express requirements under the N-PCL for lawful

operation, including requirements for a process by which compensation is set, . . .; processes for

acquisition and 'sale or other disposition' of property . . .; creating and presenting complete and

accurate financial reports . . .; a process for considering related party transactions, . . .; and a

process for managing conflicts of interest. . . ." See id. (internal citations omitted).

The State Supreme Court concluded that "[t]he Subpoena requests demand[ed] the type

of material that [would] permit [Defendant] to determine whether [VDARE] ha[d] complied with

these requirements, including complete copies of [VDARE's] annual regulatory filings, financial

transaction records, compensation records of Board meetings and review." See id. at 9-10. The

State Supreme Court found these documents would "permit [Defendant] to determine whether

there ha[d] been any diversion of charitable assets, [e.g.] through unlawful payments to for-profit

corporations held by the Brimelows or other VDARE fiduciaries." See id. at 10. Furthermore,

the State Supreme Court noted that "Article 7-A of the Executive Law authorize[d] [Defendant]

to supervise charitable organizations that solicit in New York, and Article 7-A required

[Defendant] to monitor such organizations to ensure that . . . a charity d[id] not solicit

contributions under false pretenses or use the contributions it receive[d] in a manner that [was]

not 'substantially consistent' with the charity's stated purposes." See id. (citing Executive Law

§ 172-d).

In addition, the State Supreme Court noted that VDARE had "raised constitutional

objections related to the First Amendment and therefore had the initial threshold burden to make

a showing that production of the information sought would impair its First Amendment rights."

See id. (citations omitted). The State Supreme Court, however, concluded that VDARE made

"this argument on behalf of its donors and [Defendant] ha[d] agreed, initially, to redact donors'

and volunteers' identities." See id. Thus, the State Supreme Court concluded that VDARE had

"not established that the Subpoena would impair [its] own First Amendment rights." See id.

Additionally, the State Supreme Court found that VDARE's "filings . . . underscore[d] the

reasonableness of the Subpoena." See id. VDARE "admit[ted] the critical facts that first

triggered [Defendant's] scrutiny – Peter Brimelow, [VDARE's] founder and director, and his

wife, Lydia Brimelow, also a director, [had] used and continue[d] to use a $1.4 million charitable

asset as their personal residence." See id. at 10-11 (citing Frisch Aff. (Doc. No. 37)). The State

Supreme Court noted that VDARE argued that "the Brimelows paid rent to live in the cottage

beginning in April 2021, however, the lease [was] between Lydia Brimelow and BBB, LLC, a

West Virginia for-profit corporation that she manage[d], and Lydia Brimelow [had] signed the

document as both landlord and tenant." See id. (citing Frisch Aff. Ex. H (Doc. No. 45); Fuchs

Aff. Ex. L (BBB, LLC registration showing Lydia Brimelow as manager)).

The State Supreme Court also found that VDARE's motion and accompanying papers

fail[ed] to meet its burden of establishing the Subpoena's invalidity" and that VDARE, "which

ha[d] partially complied with the [S]ubpoena for months, ha[d] not established why providing a

redaction log for its already-produced documents raise[d] any First Amendment concerns or why

continuing production would pose a threat to its existence." See id. The State Supreme Court

stated that, although VDARE argued "that redactions [were] required to protect the identities of

contractors – including writers who contribute[d] to the website – these were precisely the

records [Defendant sought] to examine in [her] investigation of [VDARE's] alleged

organizational misconduct." See id. The State Supreme Court noted that, "[t]o the extent

anonymity is used to make violations of law, 'it is unprotected by the First Amendment.'" See id.

(quoting Arista Recs., LLC v. Doe 3, 604 F.3d 110, 118 (2d Cir. 2010)).

The State Supreme Court also addressed the fact that "the only board member among

four who [was] not a Brimelow family member was a known contributor." See id. The State

Supreme Court found that Defendant could "probe this contributor's compensation as part of

[her] investigation of conflicts of interest and board independence." See id. The State Supreme

Court also found that Defendant could "seek the identities of other contributors to determine

whether further conflicts of interest [might] exist." See id.

In addition, the State Supreme Court found VDARE's reliance on Americans for

Prosperity Found. v. Bonita, 141 S. Ct. 2373 (2021), unavailing because "[t]hat decision

concerned only donor disclosures in statewide annual filing requirements, while expressly

permitting subpoenas seeking the same information as part of a targeted investigation." See id. at

11-12 (citing Ams. for Prosperity Found., 141 S. Ct. at 2386-87). Moreover, the State Supreme

Court noted that Defendant had "indicated a willingness to enter into a stipulation/order of

confidentiality to further address any of [VDARE's] concerns. See id. at 12. Finally, the State

Supreme Court found that VDARE had not presented any "compelling basis for a stay of [the]

special proceeding in its moving papers and acknowledged at oral argument that it had not

sought a stay of this proceeding from the Federal District Court." See id.

Based on these findings, the State Supreme Court ordered VDARE to "comply with the

Subpoena, subject to the agreement of July 27, 2022 . . . that VDARE may redact the following

from otherwise responsive material: (i) the names of any actual or anticipated private

(nonVDARE) attendees present at VDARE events conducted at or broadcast from the 276

Cacapon Road, Berkley Springs, West Virginia Property; and (ii) donor-identifying information

in any responsive record of private contributions to the organization and/or purchases from the

October 16, 2021 'Castle Auction' (transaction amounts, dates, and other details must be

disclosed)"; and "such redactions [were] without prejudice to [Defendant's] right to seek

modification of these agreed redaction terms by written application to the Court on notice to

VDARE"; and "on or before February 10, 2023, VDARE shall re-produce all hard copy

documents previously produced to [Defendant], in a revised form that bears only those

redactions outlined in the preceding paragraph or any additional redaction identified by VDARE

in a written log that complies with the requirements of CPLR 3122(b); this production shall be

accompanied by simultaneous delivery of the corresponding CPLR 3122(b) log"; and "on or

before February 24, 2023, VDARE shall provide a written log that complies with the

requirements of CPLR 3122(b) to identify the redactions, if any, applied to such production[.]"

See id. at 12-13. Finally, the State Supreme Court directed that "the parties, if so advised,

[might] forthwith enter into a Stipulation for the Production of Confidential Information pursuant

to this order and submit said stipulation to be so-ordered by the court[.]" See id. at 13.

After the State Supreme Court entered its Order, VDARE moved for a stay and interim

relief pending appeal. See generally Dkt. No. 35-10, VDARE's motion for a stay. As grounds

for its motion, VDARE argued that (1) Defendant's demand for immediate disclosure of

constitutionally protected information extraneous to any legitimate investigative need warranted

the inference that Defendant's pursuit of VDARE was retaliation for VDARE's exercise of its

constitutional rights, see id. at 8-15; (2) Defendant's erroneous challenge to the first-filed rule,

see id. at 15-18; and (3) the State Supreme Court had unduly deferred to Defendant at the

expense of VDARE's right to seek redress in federal court for the state's unconstitutional

retaliation and demand for disclosure of constitutionally protected information extraneous to any

truly overriding investigative need, see id. at 18-25.

In opposition to VDARE's motion for a stay, Defendant argued that the court should deny

the stay pending appeal because VDARE was unlikely to succeed on the merits of its appeal;

equitable factors weighed against staying the Supreme Court's Order that VDARE comply with

its outstanding Subpoena obligations, i.e., VDARE would not be harmed – irreparably or

otherwise – by complying with that Order and the relative hardships of the parties weighed in

favor of denying VDARE's application. See generally Dkt. No. 35-11. On March 23, 2023,

New York State Court, Appellate Division, First Department denied VDARE's motion for a stay

pending appeal. See generally Dkt. No. 35-12.

On March 21, 2023, Plaintiff filed a motion requesting that this Court enter a Temporary

Restraining Order or, in the alternative, a preliminary injunction. See Dkt. No. 29. After

consulting with counsel, the Court denied the motion for a Temporary Restraining Order, see

Dkt. No. 32, and issued a scheduling order for Defendant to file its opposition to Plaintiff's

motion for a preliminary injunction and for Plaintiff to file its reply to Defendant's opposition.

See id. After the briefing was complete and the Court had reviewed the parties' submissions, the

Court issued a Memorandum-Decision and Order, dated June 27, 2023, denying VDARE's

motion for a preliminary injunction. See Dkt. No. 50. In that Memorandum-Decision and Order,

the Court also ordered that each of the parties could supplement their prior submissions

supporting or opposing Defendant's motion to dismiss to address the issue of the effect of res

judicata on that motion within 30 days. See id. Both parties filed their submissions on July 27,

2023. See Dkt. Nos. 51, 52. On that same date, VDARE filed a Notice of Appeal regarding this

Court's denial of its motion for a preliminary injunction. See Dkt. No. 53.1

III. DISCUSSION

Defendant has moved to dismiss VDARE's complaint based on res judicata and for

failure to state a claim. The Court will address the parties' res judicata arguments first.

"A court may consider a res judicata defense on a Rule 12(b)(6) motion to dismiss when

the court's inquiry is limited to the plaintiff's complaint, documents attached to or incorporated

therein, and materials appropriate for judicial notice." TechnoMarine S.A. v. Giftports, Inc., 758

F.3d 493, 498 (2d Cir. 2014) (citation omitted). In addition, the court "'may also look to public

records, including complaints filed in state court, in deciding a motion to dismiss.'" Simpson v.

Melton-Simpson, No. 10 Civ. 6347 (NRB), 2011 WL 4056915, *2 (S.D.N.Y. Aug. 29, 2011)

(quoting Blue Tree Hotels, Inv. (Canada), Ltd. v. Starwood Hotels and Resorts, Worldwide, Inc.,

369 F.3d 212, 217 (2d Cir. 2004)) (other citation omitted); see also Simmons v. Trans Express

Inc., 16 F.4th 357, 360 (2d Cir. 2021) (noting that courts may take judicial notice of state-court

judgments and filings); Staehr v. Hartford Fin. Servs. Grp., Inc. 547 F.3d 406, 426 (2d Cir.

2008) (holding that matters judicially noticed by a court "are not considered matters outside the

pleadings" (citation omitted)).

1 According to the Second Circuit's Docket for this case, VDARE's brief is due on November 8,

2023. See VDARE Found., Inc. v. James, No. 23-1084, Dkt. No. 23.

In its previous Memorandum-Decision and Order, in which it denied VDARE's motion

for a preliminary injunction, the Court addressed the necessary elements for a res judicata

defense. See Dkt. No. 50. As the Court explained, "[t]o determine the effect of a state court

judgment, federal courts . . . are required to apply the preclusion law of the rendering state[,]" in

this case New York. Conopco, Inc. v. Roll Int'l, 231 F.3d 82, 87 (2d Cir. 2000) (citations

omitted). Under New York's doctrine of res judicata, "a disposition on the merits bars litigation

between the same parties, or those in privity with them, of a cause of action arising out of the

same transaction or series of transactions as a cause of action that either was raised or could have

been raised in the prior proceeding[.]" Blue Sky, LLC v. Jerry's Self Storage, LLC, 145 A.D.3d

945, 946 (2d Dep't 2016) (citations omitted). Therefore, because Defendant is invoking res

judicata as a defense in opposition to VDARE's motion to dismiss, she must show that "'(1) the

previous action involved an adjudication on the merits; (2) the previous action involved the

plaintiffs or those in privity with them; [and] (3) the claims asserted in the subsequent action

were, or could have been, raised in the prior action.'" TechnoMarine SA, 758 F.3d at 499

(quoting Monahan v. N.Y.C. Dep't of Corr., 214 F.3d 275, 285 (2d Cir. 2000)).

In this case, there can be no dispute that the State Supreme Court entered a final

judgment when it compelled VDARE to comply with Defendant's Subpoena. See Trump v.

Jones, No. 1:21-cv-1352 (BKS/CFH), 2022 WL 1718951, *16 (N.D.N.Y. May 27, 2022)

(explaining that "[t]he 'final judgment on the merits' requirement may . . . be satisfied by a 'final

order in a special proceeding [which] conclusively determine[s] every question at issue therein'"

(quoting [Bannon, 270 N.Y.] at 489-90, 1 N.E.2d 975 ("The essential element of a conclusive

adjudication is finality of the proceedings. A judicial decision can constitute a conclusive

adjudication of question of fact or law only when rendered in a proceeding in which a court had

jurisdiction to render an irrevocable and final decision upon such question.")) (other citations

omitted). In this case, the State Supreme Court had jurisdiction to conduct a special proceeding

in which Defendant sought an Order compelling VDARE to comply with her Subpoena.

Furthermore, the State Supreme Court granted Defendant's request and ordered VDARE to

comply with that subpoena, which was a final order and, thus, should be given res judicata

effect. See Aziz v. Butt, 156 N.Y.S.3d 832, 73 Misc. 3d 1233A (Sup. Ct. Westchester Cty. 2021)

(giving res judicata effect to prior special proceeding).

Furthermore, there is no dispute that the parties in the state-court action and in this action

are the same – VDARE and the Attorney General of the State of New York. Thus, the only

dispute is whether the causes of action that VDARE raises in this action arise out of the same

transaction or series of transactions as the causes of action that either were raised or could have

been raised in the state-court proceeding.2

Under New York's transactional analysis approach, "'once a claim is brought to a final

conclusion, all other claims arising out of the same transaction or series of transactions are

barred, even if based upon different theories or if seeking a different remedy.'" Trump, 2022 WL

1718951, at *18 (quoting [O'Brien, 54 N.Y.2d at 357]). To determine whether claims arise out

of the same transaction or series of transactions, a court must analyze "'whether the claims turn

on facts that are related in time, space, origin, or motivation, whether they form a convenient trial

unit, and whether their treatment as a unit conforms to the parties' expectations or business

understanding or usage.'" Id. (quoting Simmons v. Trans Express Inc., 37 N.Y.3d 107, 111-12,

170 N.E.3d 733 (2021) (citations and internal quotation marks omitted)).

2 The Court notes that VDARE incorrectly argues that res judicata requires that the causes of

action in the two proceedings must be the same and must seek the same relief.

In this action, VDARE raises four claims: (1) a declaration that Defendant's Subpoena's

attempt to compel First Amendment speech and associational rights is unconstitutional; (2) a

claim that Defendant violated its First Amendment rights by retaliating against it based on its

exercise of its rights of freedom of speech and association and that her Subpoena is an offshoot

of Defendant's targeting of VDARE because of its viewpoints;3 (3) a claim that Defendant

violated its rights under Article I, Section 8 of the New York State Constitution by retaliating

against it based on its exercise of its rights of freedom of speech and association;4 and (4)

injunctive relief barring Defendant from enforcing her unconstitutional demands. See generally

Complaint.

All of VDARE's claims in this action arise out of Defendant's investigation into VDARE

and her issuance of a Subpoena seeking certain documents as part of that investigation.

Likewise, the state-court action involved the same investigation and the issue of whether

VDARE should be compelled to provide certain documents to Defendant as part of that

investigation. Thus, the Court concludes that the claims in this action clearly arise out of the

3 The Court notes that the only Defendant in this action is the New York State Attorney General,

whom VDARE has sued in her official capacity. In Count Two, VDARE seeks compensatory

and punitive damages against Defendant for violations of its First Amendment rights. However,

the Eleventh Amendment bars such claims. See Lewis v. Stango, No. 3:22-cv-1248 (OAW),

2023 WL 4684666, *10 (D. Conn. July 21, 2023) (citing Kentucky v. Graham, 473 U.S. 159, 169

(1985))

4 The Court notes that, in Count Three, VDARE seeks compensatory and punitive damages

against Defendant for violating its rights under Article I, Section 8 of the New York State

Constitution by retaliating against it based on exercise of its rights of freedom of speech and

association. However, "[s]overeign immunity bars state constitutional claims against the state,

its agencies, or against its employees in their official capacity, regardless of the relief sought."

Alleyne v. New York State Educ. Dep't, 691 F. Supp. 2d 322, 335 (N.D.N.Y. 2010) (Sharpe, J.)

(citing Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 105-106, 104 S. Ct. 900, 79 L.

Ed. 2d 67 (1984) (finding sovereign immunity bars federal courts from adjudicating state claims

against the state); Alliance of Am. Insurers v. Cuomo, 854 F.2d 591, 604 (2d Cir. 1988);

Diamond v. Pataki, No. 03 Civ. 4642, 2007 WL 485962, at *7 (S.D.N.Y. Feb. 14, 2007)).

same transaction or series of transactions as the claims involved in the State Supreme Court

proceeding.

The Court also notes that there is no reason why, if VDARE believed that Defendant's

Subpoena was overbroad or unconstitutional, it could not have brought a motion to quash or

vacate that Subpoena in State Supreme Court challenging the validity of Defendant's Subpoena

or her authority to issue that Subpoena. Rather than do so, however, VDARE at least initially,

partially complied with the Subpoena. Moreover, in response to Defendant's filing of the special

proceeding in State Supreme Court to compel VDARE to comply fully with the Subpoena,

VDARE could have, and did, raise many of the same issues in opposition to certain aspects of

the Subpoena, including its constitutionality.

For all of the above-stated reasons, the Court concludes that res judicata bars the Court

from considering VDARE's claims in this action.

IV. CONCLUSION

Having reviewed the entire file in this case, the parties' submissions and the applicable

law, and for the above-stated reasons, the Court hereby

ORDERS that Defendant's motion to dismiss Plaintiff's complaint, see Dkt. No. 12, is

GRANTED; and the Court further

ORDERS that VDARE's motion for an injunction pending appeal, see Dkt. No. 56, is

DENIED as moot; and the Court further

ORDERS that the Clerk of the Court shall enter judgment in favor of Defendant and

close this case.

IT IS SO ORDERED.

Dated: September 13, 2023 — Ap fe tban

Syracuse, New York Freder J. cullin, Jr.

Senior United States District Judge

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