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HERBERT v. REINSTEIN

August 22, 1997

LINCOLN J. HERBERT
v.
ROBERT J. REINSTEIN, et. al.



The opinion of the court was delivered by: NEWCOMER

 Presently before this Court are defendants' Motion for Sanctions Pursuant to Federal Rule of Civil Procedure 11, and in the Alternative, for Dismissal Under Federal Rule of Civil Procedure 12(b)(6), and plaintiff's response thereto, and defendants' reply thereto, and plaintiff's rebuttal to defendants' reply. For the reasons that follow, this Court grants in part and denies in part defendants' Motion.

 I. Facts and Procedural History

 On May 3, 1994, Mr. Herbert, a student at the Law School, was involved in an altercation with a homeless person, whom Mr. Herbert sprayed with "pepper gas." An asthmatic Law School employee was exposed to some of the pepper gas left in the wake of the incident and was hospitalized with injuries caused by the gas. Dean Reinstein, having solicited accounts of the events of May 3, 1994, from various witnesses and Temple campus police, called Mr. Herbert into his office on May 5, 1994. Mr. Herbert claimed that he had inadvertently sprayed the employee while attempting to ward off an attack by a homeless person brandishing a knife. Reports by the police and witnesses contradicted Mr. Herbert's account of the incident. These reports indicated that the homeless person did not have a knife and that Mr. Herbert was not in any danger inside the law school. Dean Reinstein decided that Mr. Herbert represented a "clear and present danger" to the law school community, whereupon Dean Reinstein suspended Mr. Herbert and referred the case to the Law School's disciplinary system.

 Prior to Mr. Herbert's suspension on May 5, 1994, other activities of Mr. Herbert at the law school had come to the attention of Dean Reinstein. While a student at the Law School, Mr. Herbert founded and acted as president of the Western Heritage Society (WHS), a "right-wing" student organization. The opinions of Mr. Herbert and the WHS were unpopular among many students, faculty and administrators at Temple and the Law School. Dean Reinstein was aware of various other incidents in which Mr. Herbert had been involved in physical and verbal altercations. Mr. Herbert alleged that Dean Reinstein's stated reason for the suspension was a pretext and that Dean Reinstein actually suspended Mr. Herbert because he disagreed with Mr. Herbert's political philosophy.

 At the proceedings before the disciplinary committee, Mr. Herbert was charged with violating the Law School Code of Student Conduct by engaging in acts of violence and by telling falsehoods to a University administrator. After reviewing all the evidence, the panel found Mr. Herbert not guilty of engaging in acts of violence and guilty of telling falsehoods to Dean Reinstein. On October 17, 1994, the disciplinary committee voted to suspend Mr. Herbert from the law school until January 1997, at which time he could return as a student on a probationary basis. The committee also voted to require that Mr. Herbert undergo 100 hours of psychological therapy and perform 100 hours of community service. The sanction requiring community service was removed through the Law School's internal appeals process.

 On September 20, 1994, Mr. Herbert, proceeding pro se, filed a motion for a temporary restraining order (TRO), a memorandum of law in support of his request for a TRO and a complaint (Original Complaint) with this Court. The defendants named in that suit were the same defendants as those named in the instant lawsuit. In the Original Complaint, Mr. Herbert alleged violations of his due process, free speech and free association rights under the First and Fourteenth Amendments to the United States Constitution and 42 U.S.C. § 1983.

 This Court denied Mr. Herbert's motion for a TRO on September 21, 1994, and ordered consolidation of plaintiff's request for a preliminary injunction with a trial on the merits under Federal Rule of Civil Procedure 65(a)(2). Plaintiff's case was tried before this Court, which entered judgment in favor of defendants and rendered findings of fact and conclusions of law in a Memorandum Opinion dated October 21, 1994. The Court found, inter alia, that Mr. Herbert was afforded all the process he was due in his initial suspension from the Law School on May 5, 1994 and at the subsequent internal Law School disciplinary hearing held on October 3 and 10, 1994.

 Plaintiff appealed this Court's Order, dated October 21, 1994, to the United States Court of Appeals for the Third Circuit on November 18, 1994. On October 6, 1995, a three judge panel of the Third Circuit affirmed this Court's denial of injunctive relief in an unpublished opinion. Herbert v. Reinstein, 70 F.3d 1255, slip op. at 18 (3d Cir. Oct. 6, 1995). However, the majority reversed in part, finding that while the internal disciplinary process eventually afforded Mr. Herbert sufficient due process, he had not been provided all the process he was due at his initial May 5, 1994 meeting with Dean Reinstein. Id. at 13. Specifically, the majority found that Dean Reinstein should have raised again with Mr. Herbert his prior incidents of aggressive behavior and should have informed Mr. Herbert that these prior incidents influenced his decision to temporarily suspend Mr. Herbert. Id. The Third Circuit remanded the case to this Court for determination of any damages. This Court held a damages hearing on February 20, 1996. On February 23, 1996, this Court entered findings of fact and conclusions of law, awarding Mr. Herbert one dollar in nominal damages. Herbert v. Temple University School of Law, 1996 U.S. Dist. LEXIS 2171, No. CIV.A.94-5765, 1996 WL 84849, at *4 (E.D. Pa. Feb. 23, 1996). Subsequently, Temple sent Mr. Herbert a check for the award, which he rejected. Mr. Herbert appealed pro se this Court's February 23, 1996 Order. His appeal was recently dismissed by the Third Circuit on procedural grounds.

 On January 21, 1997, Mr. Herbert filed the instant action against numerous defendants, including the defendants who were named in his first suit. On March 7, 1997, certain of the defendants served plaintiff's counsel with a motion for sanctions against plaintiff and plaintiff's counsel pursuant to Federal Rule of Civil Procedure 11. In the face of this motion for sanctions, plaintiff, represented by new lead counsel, filed an Amended Complaint on March 28, 1997.

 Mr. Herbert's Amended Complaint dropped many of the claims and defendants named in the first complaint. The Amended Complaint names as defendants Temple, the Law School and Dean Reinstein. The Amended Complaint consists of four counts. In Count 1, Mr. Herbert alleges that his rights under 42 U.S.C. § 1983 and the Fourteenth Amendment were violated by unlawful proceedings. In Count 2, Mr. Herbert alleges that his rights under § 1983, the Fourteenth Amendment, and 20 U.S.C. § 1232h were violated by the imposition of a sanction requiring psychiatric counseling. In Count 3, Mr. Herbert alleges that Temple breached a covenant of good faith and fair dealing through its actions. In Count 4, Mr. Herbert alleges that his Section 1983 and First Amendment rights were violated by a denial of rights of speech, petition, assembly, and association from 1993 to 1997.

 Presently before this Court is defendants' motion for Rule 11 sanctions, and in the alternative, for dismissal under Federal Rule of Civil Procedure 12(b)(6). *fn1" The defendants argue (1) that Counts 1, 2, and 4 of the Amended Complaint are time-barred under the applicable two-year statute of limitations; (2) that Counts 1, 3, and 4 are barred by the doctrines of res judicata or collateral estoppel; and (3) that Count 2, in addition to being time-barred, is without merit as a matter of law. In the motion for sanctions, defendants move in the alternative for dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6).

 Mr. Herbert rejoins that Counts 1, 2, and 4 are not time-barred for two reasons. First, Mr. Herbert asserts that his cause of action did not accrue until January 18, 1995, the date on which the plenary faculty affirmed in part the sanctions handed down by the disciplinary committee. Second, Mr. Herbert argues that since January 18, 19, and 20, 1997, fell on Saturday, Sunday, and Martin Luther King, Jr. Day, Federal Rule of Civil Procedure 6(a) allowed him to file on the January 21, 1997. Mr. Herbert argues that Counts 1, 3, and 4 should not be barred by res judicata or collateral estoppel because in his Complaint, dated September 15, 1994, he only raised the issue of his initial suspension by Dean Reinstein, and not the suspension and sanctions determined by the disciplinary committee. Mr. Herbert argues that Count 2, alleging violations of Section 1232h, is not lacking in merit, and therefore not sanctionable. Mr. Herbert's counsel also argues that their investigation, including a polygraph examination, was sufficient to determine that their client was "telling the truth."

 II. Standards

 A. Rule 11 Standard

 Courts are to give the Federal Rules of Civil Procedure their plain meaning. Business Guides, Inc. v. Chromatic Comm. Enter., Inc., 498 U.S. 533, 540, 111 S. Ct. 922, 927, 112 L. Ed. 2d 1140 (1991) (citing Pavelic & LeFlore v. Marvel Entertainment Group, 493 U.S. 120, 123, 110 S. Ct. 456, 458, 107 L. Ed. 2d 438 (1989)). Under Rule 11, "[a] signature certifies to the court that the signer has read the document, has conducted a reasonable inquiry into the facts and the law and is satisfied that the document is well grounded in both, and is acting without any improper motive." Business, 498 U.S. at 540, 111 S. Ct. at 927 (citing 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1335 (2d ed. 1990)). "'The certification requirement now mandates that all signers consider their behavior in terms of the duty they owe to the court system to conserve its resources and avoid unnecessary proceedings.'" Business, 498 U.S. at 542, 111 S. Ct. at 928 (quoting Wright & Miller, § 1331) (emphasis added by Supreme Court). To comply with these requirements, counsel must conduct a reasonable investigation of the facts and a normally competent level of legal research to support the presentation. Mary Ann Pensiero, Inc. v. Lingle, 847 F.2d 90, 94 (3d Cir. 1988); Lieb v. Topstone Indus., Inc., 788 F.2d 151, 157 (3d Cir. 1986). Rule 11 is aimed at curbing the abuses of the judicial system. Business, 498 U.S. at 540, 111 S. Ct. at 927; Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 385, 110 S. Ct. 2447, 2450, 110 L. Ed. 2d 359 (1990). The main purpose of the rule is not to award parties who have been victimized by vexatious litigation but rather to deter baseless filings and curb abuses. Business, 498 U.S. at 533, 111 S. Ct. at 929.

 Rule 11 is governed by the objective reasonableness under the circumstances standard. Business, 498 U.S. at 538, 111 S. Ct. at 926; Pensierio, 847 F.2d at 94. The Third Circuit has explained that courts should "avoid using the wisdom of hindsight and should test the signer's conduct by inquiring into what was reasonable to believe at the time the pleading, motion or other paper was submitted." Gaiardo v. Ethyl Corp., 835 F.2d 479, 482 (3d Cir. 1987) (citations and internal quotations omitted).

 Determining whether an attorney has violated Rule 11 involves a consideration of three types of issues. First, the court must consider factual questions regarding the nature of the attorney's pre-filing inquiry and factual basis of the pleading or other paper. Second, legal issues are raised in considering whether a pleading is "warranted by existing law or a good faith argument" for changing the law and whether the attorney's conduct violated Rule 11. Third, the district court must exercise discretion to tailor an "appropriate sanction." Cooter, 496 U.S. 394, 398, 110 S. Ct. at 2450.

 The Third Circuit has identified five factors which should be considered in determining the reasonableness of an attorney's pre-filing inquiry: (1) the amount of time available to the signer for conducting the factual and legal investigation; (2) the necessity for reliance on a client for underlying factual information; (3) the plausibility of the legal position advocated; (4) whether the case was referred to the signer by another ...


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