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Pritchard v. Dow Agro Sciences

June 25, 2009

ROBERT T. PRITCHARD, SR. AND ELIZABETH ANN PRITCHARD, PLAINTIFFS,
v.
DOW AGRO SCIENCES, A DIVISION OF DOW CHEMICAL COMPANY, AND SOUTHERN MILL CREEK PRODUCTS OF OHIO DEFENDANTS.



The opinion of the court was delivered by: Hon. Nora Barry Fischer

MEMORANDUM OPINION

I. INTRODUCTION

The instant dispute arose from Plaintiff Robert Ted Pritchard's ("Mr. Pritchard") numerous ex parte communications with the Court and his dissemination of a letter containing allegedly defamatory communications regarding his former counsel and one of the defense counsel. In response to its receipt of the letter, the Court issued an Order for Mr. Pritchard to show cause why sanctions should not be imposed pursuant to Rule 11 of the Federal Rules of Civil Procedure. (Docket No. 82). Before this Court are responses to the Show Cause Order and Defendants Dow AgroSciences LLC ("Dow") and Southern Mill Creek Products of Ohio, Inc.'s ("Southern Mill") (collectively "Defendants") Motion for Sanctions and to Partially Strike Mr. Pritchard's pro se Motions. (Docket No. 93). Based on the following, the Court imposes sanctions on Mr. Pritchard for his violations of Rule 11, and GRANTS, in part and DENIES, in part Defendants' Motions. (Docket No. 93).

II. BACKGROUND*fn1

A. Delays in the Underlying Case

The instant lawsuit is a toxic tort case in which Mr. Pritchard and his wife, Elizabeth Ann Pritchard, assert that chemicals manufactured and sold by Defendants Dow and Southern Mill caused Mr. Pritchard to develop Non-Hodgkins Lymphoma. (Docket No. 23 at ¶¶7-10, 20).*fn2 This matter has been plagued by delays due to a series of ex parte communications by Mr. Pritchard which arose out of his apparent dissatisfaction with his former counsel and the Court's need to conduct a series of proceedings to resolve his reactions to same, as detailed below.*fn3

By way of further background, on September 29, 2008, Plaintiffs filed a Motion for Extension of Time to File Plaintiffs' Causation Reports, requesting an additional 120 days to conduct expert discovery. (Docket No. 50). In said motion, Plaintiffs' then counsel, Douglas S. Sholtis, Esquire, asserted that after a diligent search lasting approximately one year, he was able to locate potential co-counsel, i.e., Anapol Schwartz, a Philadelphia-based personal injury law firm with a toxic tort practice. (Docket No. 50 at ¶ 6; Docket No. 65 at 19). Defendants opposed said motion, arguing that Plaintiffs failed to comply with Local Rules 7.1 and 37.1 and that there were numerous delays in this litigation. (Docket Nos. 52 and 53). The Court granted Plaintiffs' Motion, and Plaintiffs were given thirty days to secure the entry of the appearance of substitute or additional counsel. (Docket No. 69).

B. The February and March Ex Parte Communications

On February 27, 2009, the Court received ex parte communications from Mr. Pritchard. (Docket No. 71). At that time, he was still represented by Mr. Sholtis. (Id.). Specifically, Mr. Pritchard sent the Court, William Padget, Esquire, counsel for Dow, Kimberly Brown, Esquire, counsel for Dow and Southern Mill, and Mr. Sholtis letters discussing settlement and a desire to terminate Mr. Sholtis as counsel.*fn4 (Tr. Hr'g., March 18, 2009, Docket No. 86 at 33:2-7). Mr. Pritchard also sent the Court a letter with attached photographs that pertain to Residex, an entity which Plaintiffs had initially named in their suit but had failed to properly serve. (Id. at 8:24-25). This correspondence did not appear to show copy to Dow or Residex. (Id. at 9:1-2).

In light of the receipt of said ex parte communications from Mr. Pritchard, the missed deadline by which Plaintiffs had been granted leave to secure additional counsel and conduct expert discovery, and a pending mediation date, the Court scheduled a status conference on March 9, 2009. (Docket No. 71). Prior to the status conference, Plaintiffs' then counsel filed a Motion to Withdraw as Attorney. (Docket No. 72). During the March 9th status conference, the Court contacted Mr. Lawrence Cohan of Anapol Schwartz. (Docket No. 73). Mr. Cohan, having been identified as potential substitute counsel, advised the Court that neither he nor his firm would be entering an appearance on behalf of Plaintiffs. (Id.). After further discussion and with agreement by Mr. Pritchard, Mr. Sholtis agreed to continue representing Plaintiffs until substitute counsel entered an appearance or Plaintiffs entered appearances pro se. (Id.). Mr. Pritchard was also instructed that he was not permitted to make any further communications to the Court or any of the defense counsel while he was still represented by counsel. (See id.).

Following the March 9, 2009 status conference, Mr. Pritchard continued to send materials to Ms. Brown despite being instructed to cease all such communication. (See id.). Ms. Brown received a series of packages that included the letter and photographs sent to the Court on February 27th, as well as numerous documents and a compact disc relating to Residex and Dursban, one of the products at issue. (See Docket No. 86 at 33:19-36:9). Ms. Brown advised Mr. Sholtis of her receipt of each package. (See id. at 34:1-36:23).

C. The Letter to the United States Attorney's Office

On March 12, 2009, Mr. Pritchard sent a letter to the United States Attorney's Office for the Western District of Pennsylvania, which was copied to the Court and forwarded by email to various members of the Allegheny County and Fayette County Bar Associations. (Id. at 8:16-23). The Court's Law Clerks and several of its interns also received this emailed letter. (Id.). The letter contained defamatory statements about one of the defense counsel and Plaintiffs' counsel regarding their competency and professional conduct. (See id. at 40:12-14, 64:5-9). Ms. Brown was forwarded the email in question by her associate, Vincent M. Roskovensky, Esquire, who originally received the email from his father.*fn5 (Id. at 36:16-24). Shortly after receiving this particular email, Ms. Brown received copies of the same letter by email from several attorneys and the executive director of the Allegheny County Bar Association. (See id. at 38:2-21). Ms. Brown was also notified by William Shipley, Esquire, a partner in her firm, Thorp Reed & Armstrong, that he had received the letter through an email that also contained additional defamatory statements about both parties' counsel. (Tr. Hr'g., April 1, 2009, Docket No. 105 at 2:3-21).

Upon receiving Mr. Pritchard's letter, the Court convened a telephone status conference with counsel for the parties. During same, Mr. Sholtis renewed his Motion to Withdraw as Attorney, and the Court scheduled a hearing for March 18, 2009 to address Mr. Pritchard's communications and the renewed motion. (Docket No. 77). The Court then issued the following order:

AND NOW, this 17th day of March, 2009, the Court, having advised Plaintiff Robert T. Pritchard during a status conference conducted on March 9, 2009 that he was represented by counsel and not to communicate with the Court regarding this matter, and thereafter, Plaintiff Robert T. Pritchard having made further communication to the Court, the Court's Law Clerk, and other members of the Court's staff, IT IS HEREBY ORDERED that Plaintiff Robert T. Pritchard shall have NO FURTHER COMMUNICATION with the Court or personnel of the Court's Chambers regarding this matter, whether those communications be made by telephone, letter, email or otherwise while represented by counsel; and IT IS FURTHER ORDERED that failure to comply with this Order may result in the Court imposing sanctions on Plaintiff Robert T. Pritchard. (Docket No. 78)(emphasis in original).

At the March 18, 2009 hearing, the Court granted Mr. Sholtis's Motion to Withdraw as Attorney, effective March 24, 2009, and ordered Plaintiffs to enter their appearances pro se or obtain new counsel by April 23, 2009. (See Docket No. 86 at 28:22-31:16). Also, the Court reconfirmed the March 23, 2009 deadline for Plaintiffs to serve answers to Defendants' written discovery requests. (Id. at 29:11-19).*fn6 Additionally, Mr. Pritchard admitted on the record to writing the letter at issue and mailing it to the United States Attorney's Office and this Court. (Id. at 25:23-26:5). He claims he sent the letter because he was upset with his counsel due to several of the issues raised during the March 9 status conference, namely the litigation's lack of progress. (Id. at 57:21-58:8). To further disseminate the letter, Mr. Pritchard went to the Allegheny County Bar Association's website and emailed every member with a last name beginning with the letter A, and half of the members with a last name beginning with the letter B. (Id. at 25:23-26:5). He used a similar method to disseminate the letter to the members of the Fayette County Bar. (Id. at 17:12-16). Mr. Pritchard also stated that he has a mental condition that may have facilitated his behavior. (Id. at 86:18).

D. The Order to Show Cause and Mr. Pritchard's Pro Se Motions

Following the hearing, the Court exercised its authority under Federal Rule of Civil Procedure 11(c)(3) and issued a Show Cause Order directed to Mr. Pritchard, requiring him to do the following:

1. Show good cause why his circulation of the letter is not in violation of Rule 11 of the Federal Rules of Civil Procedure and why sanctions should not be imposed upon him for engaging in such conduct, including monetary sanctions, and/or a Court order requiring that Plaintiff circulate a written apology to all persons who have received said letter and prohibiting Plaintiff from engaging in such communications in the future.

2. Produce to counsel Kimberly Brown, Esquire a list identifying all email addresses to which said letter was forwarded, copies of all emails sent by Mr. Pritchard and any responses received by him from third parties, and ...


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