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July 8, 1983

PETER T. CAMPANA, Plaintiff,

The opinion of the court was delivered by: LATCHUM

The plaintiff, Peter T. Campana, an attorney practicing in Williamsport, Pennsylvania, filed a complaint in this Court on April 22, 1983, against the defendant, the Honorable Malcolm Muir, a United States District Judge for the Middle District of Pennsylvania. *fn2" The complaint, which seeks monetary damages in excess of $10,000, consists of two counts. Count I charges the defendant with malicious prosecution by causing the plaintiff to be charged for criminal contempt without probable cause. Count II charges that the defendant maliciously libeled him in an opinion, dated February 18, 1983, which was rendered by Judge Muir following the termination of criminal contempt proceedings against the plaintiff.

 The defendant has moved to dismiss the complaint under Rule 12(b)(4), (5) and (6), Fed.R.Civ.P., for insufficiency of process, failure to accomplish personal service, and failure to state a claim upon which relief can be granted. Alternatively, defendant has moved for summary judgment in his favor.

 Because the Court finds, based on the doctrine of judicial immunity, that the defendant is immune from any liability for damages on the claims asserted in this action, summary judgment will be entered in defendant's favor and the Court need not address defendant's Rule 12(b) motions.


 The undisputed pertinent facts may be summarized as follows. The plaintiff is an attorney admitted to practice law in the Commonwealth of Pennsylvania and in this Court. (Compl., para. 4.) The defendant is Malcolm Muir, a United States District Judge of this Court. (Id., P 2.) On December 16, 1981, plaintiff commenced a civil action in this Court on behalf of Daniel Bogart against the Borough of Berwick, Pennsylvania, and its Zoning Hearing Board, entitled Bogart v. Dietterick, C.A. No. 81-1431. (Compl., para. 5; Tr. Vol. I, p. 18.) *fn3"

 On November 12, 1982, Judge Muir, to whom the Bogart case was assigned, by a Court Order directed the plaintiff as Bogart's only attorney of record to attend a settlement conference on December 1, 1982 at 3:25 p.m., and to confer with opposing counsel prior to the settlement conference in a good faith effort to settle the Bogart case. (Compl., para. 12; Tr. Vol. I, pp. 18-23.) Plaintiff did not attend that December 1 conference and instead sent Charles L. Knight, Esq., as co-counsel who had not previously entered his appearance. (Compl., paras. 13 & 14; Tr. Vol. I, p. 132.) With respect to plaintiff making a good faith effort to confer with opposing counsel regarding settlement between November 12 and December 1, 1982, plaintiff admitted that he neither conferred with opposing counsel (although he attempted twice unsuccessfully to return opposing counsel's telephone calls), nor did he direct Mr. Knight to do so. (Compl., para. 15; Tr. Vol. II, pp. 75-78.)

 On January 11, 1983, the United States attorney at the direction of Judge Muir moved for a rule to show cause upon plaintiff why he should not be held in criminal contempt for violating the November 12 order by failing to attend the settlement conference on December 1, 1982, and to confer prior thereto with opposing counsel in a good faith attempt to settle the case. (Compl., paras. 17 & 18.) On January 19, 1983, the Court granted the show cause rule upon plaintiff, required him to answer by February 3, 1983, and set the hearing to commence on February 4, 1983.

 On January 24, 1983, plaintiff filed a petition and a supporting affidavit requesting Judge Muir to disqualify himself from presiding in the contempt proceedings. (Compl., para. 20.) Plaintiff's supporting affidavit averred, as the basis for Judge Muir's recusal, "The Court has contact with the undersigned in connection with the facts and events which gave rise to the contempt proceeding." (Tr. Vol. II, p. 83.) The Court, knowing he had had no contact with plaintiff, denied the recusal motion. (Compl., para. 22.)

 The criminal contempt hearing took place on February 4th and 9th, 1983. (Tr. Vol. I, pp. 1-175; Vol. II, pp. 1-133.)

 Following the contempt hearing, Judge Muir on February 18, 1983, filed an Opinion setting forth his findings of fact and conclusions of law. (Def. Opening Br., Ex. B.) Because Judge Muir could "not conclude beyond a reasonable doubt that Campana actually intended to violate this Court's November 12, 1983, Order," the Court discharged the rule. (Id. at 4.) However, Judge Muir did find plaintiff to be negligent and criticized the manner in which he practiced law in this Court. (Id. at 4 & 5.) The particular statements contained in the Opinion which the plaintiff contends were maliciously and falsely made read as follows:

On January 24, 1983, Campana filed a petition for the recusal of the undersigned. The motion had no valid basis either in fact or in law and was supported solely by a false affidavit of Campana and a highly questionable certification of Campana's counsel that Campana had filed the affidavit in good faith.

 Id. at 4.

* * ...

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