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BOYKIN v. BLOOMSBURG UNIV. OF PENNSYLVANIA

January 19, 1995

MICHAEL R. BOYKIN, et al., Plaintiffs
v.
BLOOMSBURG UNIVERSITY OF PENNSYLVANIA, et al., Defendants



The opinion of the court was delivered by: MUIR

 January 19, 1995

 I. Introduction.

 This order relates to a motion for sanctions against Robert S. Mirin, counsel for the Plaintiffs, filed by Defendants Press-Enterprise, Inc. and Paul Eyerly, III, publisher of Press-Enterprise ("media defendants").

 A hearing on the motion commenced Friday, October 21, 1994. Mr. Mirin was the sole witness that entire day. During the day the Court stated that Mr. Mirin's answers were extremely lengthy, that the proceedings were moving slowly, and that if the hearing was not terminated by 4:15 p.m. on the 6th hearing day, the Court would terminate it at that time. The hearing concluded on the sixth hearing day, October 28, 1994, at 4:12 p.m.

 During the last day of the hearing, the Court set filing dates for proposed supplemental findings of fact, objections and briefing.

 At the conclusion of the hearing, the Court made oral findings of fact and stated oral conclusions of law, reserving the right to supplement the same after consideration of the above-scheduled filings. Those oral findings and conclusions are embodied in our order of October 30, 1994, and are interspersed within our findings of fact set forth below.

 On November 7, 1994, the media defendants filed proposed supplemental findings of fact and a supplemental submission and affidavit in support thereof. On November 14, 1994, Mr. Mirin filed objections to the media defendants' proposed supplemental findings of fact. On November 18, 1994, Mr. Mirin filed a brief in support of his objections. On November 18, 1994, the media defendants filed a brief in opposition to Mirin's objections. No reply brief was filed.

 On December 9, 1994, at the request of Mr. Mirin, we held a second hearing to address the proposed supplemental findings of fact submitted by the Media Defendants on November 7, 1994. The hearing concluded at 4:30 p.m. on December 9, 1994.

 At the conclusion of the hearing, we established a filing deadline of December 23, 1994, for the submission of additional proposed findings of fact and conclusions of law with respect to the issues raised at the second hearing. On December 13, 1994, we issued an order in which reduced our oral order of December 9, 1994, to writing and also allowed for the submission of additional proposed supplemental findings of fact and conclusions of law with respect to the first hearing.

 II. Findings of Fact.

 1. Plaintiffs in the above action are Michael R. Boykin, Margaret L. Boykin and Aaron M. Boykin, all individuals residing at 203 Glenn Avenue, Bloomsburg, Pennsylvania. (Undisputed, hereafter "U")

 2. Counsel for Plaintiffs in the above action is Robert S. Mirin, Esquire, of Mirin & Jacobson, P.C., 8150 Derry Street, Harrisburg, PA 17111-5260. (U)

 3. Plaintiffs commenced an action in state court on January 11, 1994, by filing a Praecipe for Writ of Summons in the Court of Common Pleas of Columbia County, Pennsylvania, C.A. No. 31-1994. (U)

 4. Writs were issued in plaintiffs' state court suit to Bloomsburg University and eight other Bloomsburg related officials and individuals (hereinafter "the Bloomsburg defendants"), along with several Pennsylvania state troopers and other state actors.

 5. Paul Eyerly, III (hereinafter "Eyerly"), the publisher of the Press-Enterprise, also was named as defendant in plaintiffs' state court action.

 6. Press-Enterprise, Inc. (hereinafter "Press-Enterprise") publishes the Press-Enterprise, a newspaper of general circulation in Bloomsburg, Pennsylvania and surrounding areas. (U)

 7. Eyerly and Press Enterprise, Inc. are hereinafter referred to as the "media defendants."

 8. On January 24, 1994, defendant Eyerly praeciped the Court for a Rule directing plaintiffs to file a Complaint against him in the state court action. (U)

 9. On January 24, 1994, the Columbia County Prothonotary executed the Rule, ordering plaintiffs to file a Complaint against Eyerly within 20 days after service of the Rule. (U)

 10. On February 8, 1994, counsel for defendant Eyerly served plaintiffs by placement in first-class U.S. Mail on that date with the Rule from the Columbia County Prothonotary.

 11. Plaintiffs did not file a Complaint with the Columbia County Prothonotary by March 2, 1994, as directed by the Rule issued by the Court of Common Pleas.

 12. On March 2, 1994, defendant Eyerly praeciped the Court to enter a Judgment of Non Pros against plaintiffs for failing to comply with the state court Rule. (U)

 13. On March 2, 1994, the Prothonotary of the Court of Common Pleas of Columbia County entered an Order granting a Judgment of Non Pros against plaintiffs, thereby dismissing Eyerly as a defendant from the action. (U)

 14. On March 2, 1994, plaintiffs initiated the instant action by filing a Complaint in the Middle District of Pennsylvania, No. 4:CV-94-306 ("Boykin I"), naming several other defendants, including Eyerly and the Press-Enterprise. (U)

 15. The parties have continuously referred in their papers and in their testimony to the action filed in this Court on March 2, 1994, as Boykin I and the action instituted January 11, 1994, in the Court of Common Pleas of Columbia County and removed to this Court on May 31, 1994, as Boykin II. (Because of the use of these designations in undisputed facts, we will retain those designations despite the confusion obviously engendered).

 16. In Boykin I, plaintiffs alleged that the publication of certain unidentified news articles by the Press-Enterprise violated the federal civil rights laws, including sections 1981, 1983, 1985 and 1986 of Title 42, as well as violated Title VII.

 17. In their Boykin I federal court Complaint, plaintiffs also alleged state law claims against the media defendants, including defamation and invasion of privacy. (U)

 19. No newspaper articles were physically attached as exhibits to the Boykin I federal Complaint. (U)

 20. On March 23, 1994, the media defendants filed a Motion to Dismiss plaintiffs' Complaint with this Court. (U)

 21. In the Motion to Dismiss, the media defendants argued, among other things, that plaintiffs' state law libel and privacy claims were time barred under the applicable one year statute of limitations and that plaintiffs' libel and privacy claims were legally insufficient. (U)

 22. As of March 23, 1994, plaintiff's counsel was put on notice that the media defendants contended that plaintiffs' state law libel and privacy claims were time-barred under the applicable one year statute of limitations.

 23. After the media defendants agreed to give plaintiffs a ten day extension to respond, on April 18, 1994, plaintiffs filed their brief in opposition to the motion to dismiss. (U)

 24. On April 20, 1994, in the earlier state court action initiated by Writ of Summons, the Bloomsburg University defendants, by the Commonwealth's attorney, praeciped the Columbia County Prothonotary to Rule plaintiffs to file a Complaint as to the Bloomsburg defendants or suffer a Judgment of Non Pros. (U)

 25. On April 20, 1994, the Columbia County Prothonotary issued a Rule to plaintiffs ordering them to file a Complaint with respect to the Bloomsburg defendants within 20 days after service of the Rule. (U)

 26. In response to the Rule, plaintiffs filed a Complaint ("Boykin II") in the Columbia County state court action, No. 31-1994, on or about May 9, 1994. (U)

 27. In this state complaint which is virtually identical to the federal complaint in Boykin I, in addition to naming the Bloomsburg defendants and several other state actors, plaintiffs also identified the Press-Enterprise as a defendant for the first time.

 28. The state court Rule issued on April 20, 1994, did not require plaintiffs to file a complaint as to the media defendants.

 29. Plaintiffs also named Paul Eyerly, III, as publisher, as a defendant in this Complaint, despite that when the Complaint was filed, the prior March 2, 1994 Order non prossing plaintiffs as to defendant Eyerly and dismissing Eyerly from the action remained a valid, standing Order. (U)

 30. Plaintiff's Boykin II Complaint was virtually identical to the previous Boykin I Complaint filed in the Middle District of Pennsylvania. (U)

 31. The Boykin I and Boykin II Complaints allege identical claims of defamation and invasion of privacy against the media defendants. (U)

 32. No newspaper articles were identified in the body of the Boykin II Complaint.

 33. No newspaper articles were attached as exhibits to the Boykin II Complaint. (U)

 34. On May 16, 1994, counsel for the media defendants wrote to plaintiffs' counsel, Robert S. Mirin, Esquire, informing him that in defense counsel's view plaintiffs had engaged in procedural maneuvers calling in question their "good faith." (U)

 35. The media defendants contend that their May 16, 1994 letter to plaintiffs' counsel put him on notice that the media defendants intended to seek counsel fees and sanctions, if plaintiffs would not dismiss their claims against the media defendants in Boykin II. (U)

 36. On May 17, 1994, this Court dismissed all claims against the media defendants in Boykin I. (U)

 37. The Court's May 17, 1994 Memorandum stated that plaintiffs' libel and privacy claims against the media defendants were barred by the applicable one-year statute of limitations. (U)

 38. The Court's May 17, 1994 Memorandum stated that plaintiffs' libel and privacy claims against the media defendants "failed to meet the most basic pleading requirements" and that the Complaint failed to allege the necessary elements to sustain such claims. (U)

 40. The Court's May 17, 1994 Memorandum stated that plaintiffs' Complaint failed to allege sustainable § 1981 or § 1983 claims as to the media defendants. (U)

 41. On May 31, 1994, the Bloomsburg defendants successfully petitioned the Court to remove the state court Boykin II Complaint to the Middle District of Pennsylvania, No. 4:CV-94-817, at which time Plaintiff's Motion to Strike the Judgment of Non Pros was pending. (U)

 42. On June 1, 1994, plaintiffs filed an Application for Reconsideration of the federal Court's May 17, 1994 Order and Memorandum, dismissing all claims against the media defendants in the Boykin I Complaint. (U)

 43. Prior to filing a 12(b)(6) Motion with respect to the Boykin II Complaint, pursuant to the Middle District Rule 7.1, the media defendants contacted the offices of plaintiffs' counsel to ask that he withdraw his claims voluntarily against Eyerly and the Press-Enterprise, but plaintiff's counsel was unavailable. (U)

 44. On June 7, 1994, the media defendants were required under the Federal Rules to file either a responsive pleading or a 12(b) Motion to Dismiss with respect to the removed Boykin II Complaint. (U)

 45. On June 7, 1994, the media defendants filed a 12(b)(6) Motion to Dismiss Plaintiffs' Boykin II Complaint on the grounds that: (a) plaintiffs' claims against the media defendants were identical to the claims previously dismissed on their merits by this Court; (b) plaintiffs' state law libel and privacy claims were time barred under the applicable one year statute of limitations and were legally insufficient; and (c) plaintiff failed to state a claim for a federal civil rights violation. (U)

 46. The media defendants subsequently contacted plaintiffs' counsel again to seek his concurrence to the motion to dismiss filed in Boykin II, and plaintiffs' counsel agreed to dismiss the claims against Eyerly only. (U)

 47. On June 15, 1994, the Court ordered Boykin I and Boykin II to be consolidated under Civil Action No. 4:CV-94-306. (U)

 48. On June 30, 1994, plaintiffs filed a Brief in Support of Plaintiffs' Motion for Reconsideration.

 49. In plaintiffs' Brief in Support of Plaintiffs' Motion for Reconsideration, plaintiffs admitted that their state law libel and invasion of privacy claims were barred by the applicable statute of limitations. Further, plaintiffs also admitted with respect to this same issue that "the law of Pennsylvania is against them." Brief in Support at 2.

 50. In plaintiffs' Brief in Support of Plaintiffs' Motion for Reconsideration, plaintiffs' argument as to the reason why the Court should reconsider its decision with respect to plaintiffs' libel and privacy claims is "that the law of Pennsylvania is unjust and should be changed." Brief in Support at 2.

 51. On July 18, 1994, this Court denied plaintiffs' Motion for Reconsideration with respect to the above matter. (U)

 52. In the Court's July 18, 1994 Order, it held that the media defendants' motion to dismiss the Boykin II Complaint was deemed to be moot because the two cases had been consolidated.

 53. In a previous state court action filed in Columbia County, Pennsylvania, not involving the Boykins, plaintiffs' counsel, Robert S. Mirin, Esquire, filed a suit on November 11, 1993, on behalf of plaintiff, George Mitchell. (U)

 54. As was the case in Boykin, the Complaint filed in Mitchell named multiple defendants and asserted federal civil rights violations and pendent state claims. (U)

 55. The Mitchell complaint, inter alia, also asserted libel and invasion of privacy claims against defendant Press Enterprise, Inc. (U)

 56. The Complaint filed in Mitchell v. Bloomsburg Univ. of Pa., et al., No. 1674-93, was removed to the Middle District of Pennsylvania on December 3, 1993, and is presently in discovery. (U)

 57. Three of the articles attached to the Complaint were published more than one year before plaintiff initiated suit in Mitchell. (U)

 58. On December 9, 1993, Press-Enterprise filed a Motion to Dismiss all claims against it in the Mitchell action. (U)

 59. In its Motion to Dismiss, Press-Enterprise put plaintiff on notice of its contention that three of the articles on which its defamation and invasion of privacy claims were based were time barred by the statute of limitations and that these claims were legally deficient. (U)

 60. Plaintiff was also put on notice in this same Motion to Dismiss that one of the articles upon which plaintiff's defamation and invasion of privacy claims were based was not published by the Press-Enterprise. (U)

 61. On January 14, 1994, in lieu of responding to the Press-Enterprise's 12(b)(6) Motion to Dismiss, plaintiff Mitchell ...


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