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BARDSLEY v. LAWRENCE

February 12, 1997

NORMAN BARDSLEY, Plaintiff,
v.
JUDGE MARJORIE C. LAWRENCE, Court of Common Pleas for Montgomery County, Pennsylvania, Defendant.



The opinion of the court was delivered by: JOYNER

 JOYNER, J.

 FEBRUARY 12, 1997

 Before the Court is the Motion of Defendant Judge Majorie C. Lawrence ("Defendant" or "Judge Lawrence") to Dismiss Plaintiff's Complaint. Plaintiff Norman Bardsley ("Plaintiff" or "Bardsley"), a pro se litigant, has also moved for the preliminary and permanent injunctive relief demanded in the three counts of his Complaint. For the following reasons, we grant Defendant's Motion to Dismiss and, accordingly, deny Plaintiff's motions as moot.

 BACKGROUND

 This is the third lawsuit arising ultimately from a series of allegedly improper stock transactions that divested Bardsley of his majority ownership interest in a Pennsylvania corporation called Inofast Manufacturing, Inc. ("Inofast"). We described these transactions at length in our two opinions in one of these prior cases, Bardsley v. Powell, Trachtman, Logan, Carrle & Bowman, P.C., et al., 916 F. Supp. 454 (E.D.Pa. 1996) (denying Bardsley's motion for preliminary injunction); 916 F. Supp. 458 (E.D.Pa. 1996)(dismissing case), so we do not do so again here. Rather, we summarize the history of the litigation spawned by these transactions, and then move directly to a discussion of the motion before the Court.

 Bardsley filed the first lawsuit on June 16, 1994 in the Court of Common Pleas for Montgomery County. *fn1" This action, Bardsley v. Inofast Manufacturing, Inc., et al., Civil Action No. 94-11292 ("Bardsley I "), was assigned to Judge Lawrence, the defendant in this case. In Bardsley I, Plaintiff sued Inofast and its three other shareholders--his twin brother Scott Bardsley ("Scott"), his father Leigh Bardsley ("Leigh") and David Miller ("Miller")--who engaged in the allegedly improper deals. Plaintiff sought injunctive and compensatory relief under three theories of liability: (1) violation of fiduciary duty, (2) fraud and misrepresentation, and (3) violation of Pennsylvania's Business Corporation Law. According to Plaintiff's Complaint in the instant action, Judge Lawrence has denied his multiple motions for injunctive relief and motions to disqualify opposing counsel, including his most recent motions denied by Order dated October 21, 1996 (the "October 21 Order"). The October 21 Order also imposed $ 750 in sanctions for filing multiple frivolous motions. The case remains pending before Judge Lawrence.

 Ten months after filing Bardsley I, Plaintiff instituted the federal action that was before this Court, Bardsley v. Powell, Trachtman, Logan, Carrle & Bowman, P.C., et al. ("Bardsley II "), Civil Docket No. 95-2287. In Bardsley II, Plaintiff again sued Scott, Leigh and Miller, as well as the attorneys and firm representing them in the state proceeding. Bardsley asserted claims under the Securities Exchange Act of 1934, 15 U.S.C. §§ 78a-78kk (the "1934 Act"), the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961-68 ("RICO"), and various Pennsylvania common law rules. Plaintiff sought a preliminary injunction setting aside the elections of Inofast officers and directors conducted during the previous three annual shareholders meetings, voiding the disputed transactions, and restoring him to his majority status. We denied the motion after a two-day hearing because Bardsley had failed to demonstrate irreparable harm. 916 F. Supp. at 457-58. Subsequently, we dismissed Plaintiff's Complaint in its entirety, finding that (1) the 1934 Act claim was time barred and (2) the Complaint failed to allege facts stating a RICO claim, and refusing to exercise supplemental jurisdiction over the remaining state claims. 916 F. Supp. at 462-64. The Third Circuit affirmed both of these decisions by order dated December 13, 1996.

 Now comes Bardsley III. In this action, Plaintiff is suing the judge in Bardsley I, alleging that she has violated and continues to violate his constitutional due process right by her decisions in that case. Accordingly, in Count I of his Complaint, Plaintiff seeks the preliminary and permanent injunctive relief under § 1983. Counts II and III seek equitable relief under the 1934 Act voiding the disputed stock transactions themselves. We turn now to Defendant's Motion to Dismiss.

 DISCUSSION

 I. Standard for Motion to Dismiss Pursuant to Rule 12(b)(6)

 In considering a Rule 12(b)(6) motion, a court must primarily consider the allegations contained in the complaint, although matters of public record, orders, items appearing in the record of the case and exhibits attached to the complaint may also be taken into account. Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993). The Court must accept as true all of the allegations in the pleadings and must give the plaintiff the benefit of every favorable inference that can be drawn from those allegations. Schrob v. Catterson, 948 F.2d 1402, 1405 (3d Cir. 1991); Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3d Cir. 1990). Further, when the plaintiff is a pro se litigant, a court has a special obligation to construe the complaint liberally. Zilich v. Lucht, 981 F.2d 694 (3d Cir. 1992). A complaint is properly dismissed only if it appears certain that the plaintiff cannot prove any set of facts in support of its claim which would entitle it to relief. Ransom v. Marrazzo, 848 F.2d 398, 401 (3d Cir. 1988).

 II. Count I: Plaintiff's 42 U.S.C. § 1983 Claim

 As noted supra, Plaintiff alleges that Judge Lawrence has violated his constitutional rights by her rulings in Bardsley I. In particular, Bardsley cites Judge Lawrence's failure to grant (1) his numerous motions for an injunction that would void the allegedly improper stock transactions and (2) his motions to disqualify opposing counsel. Judge Lawrence most recently denied these motions in her October 21 Order, which, Plaintiff alleges, was conducted after an improper ex parte proceeding. *fn2" Accordingly, in Count I of his Complaint, Plaintiff seeks injunctive relief overturning Judge Lawrence's October 21 Order, granting his motion to disqualify ...


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