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Lease v. Fishel

April 1, 2010


The opinion of the court was delivered by: Martin C. Carlson United States Magistrate Judge

Chief Judge Kane

(Magistrate Judge Carlson)


I. Introduction

This case now comes before the Court for the purpose of addressing the appropriate measure of attorneys' fees to impose as a sanction for what has previously been found to be the latest failure by plaintiff's counsel to fulfill his professional responsibilities and abide by court-ordered deadlines in civil litigation.*fn1

These failures, which have been persistent and profound, are particularly regrettable and unfortunate since this sanctions litigation is only the latest episode in a repeated history of sanctions proceedings involving this attorney, sanctions proceedings that have spanned numerous cases over the past fifteen years. Thus, this sanctions litigation compels us to consider and evaluate an unfortunate, regrettable, but immutable fact with respect to this counsel. In terms of professional misconduct, counsel is a repeat offender who has violated court orders and been found to have indulged in professional misconduct on numerous occasions in the past. Lease v. Fishel, No. 07-03, 2009 WL 922486, *8 (M.D.Pa. April 3, 2009). Indeed, the simple, stark reality is that this particular sanctions proceeding constitutes only the latest in a long series of efforts by the federal courts throughout Pennsylvania to try to ensure compliance by plaintiff's counsel with the rules and standards of professional conduct required of all members of the bar. Over the past fifteen years federal district and appellate courts throughout the state have been compelled by the persistent misconduct of counsel to institute numerous sanctions proceedings against him. During this span of years, counsel has been found to have engaged in a staggering array of serious professional misdeeds including: filing inappropriate submissions, presenting unfounded allegations, submitting frivolous and unsupported legal arguments, vexatious litigation, engaging in unwarranted personal invective and plagiarism.*fn2

This case also illustrates another episode of the particularly destructive, corrosive, and unprofessional course which this counsel has chosen to follow when he has been found to have indulged in professional misconduct. In the past, plaintiff's counsel has responded to these judicial efforts at maintaining basic standards of professionalism in an unfortunate and unprofessional manner by leveling groundless accusations against various judges, Beam v. Bauer, 151 F. App'x 142, 144 (3d Cir. 2005)(holding that "Counsel's tirade against [district judge] is unfounded and unprofessional....") , or by filing what were determined to be utterly baseless recusal motions against the presiding judge in the sanctions proceeding. Conklin v. Warrington Township, 476 F.Supp.2d 458 (M.D. Pa. 2007). He has repeated that pattern of misbehavior in this case.

Finally, further compounding the gravity of this situation is the fact that plaintiff's counsel, Donald Bailey, Esq., has repeatedly failed to comply with rudimentary instructions of the court, and has persistently ignored court-ordered deadlines in the course of this litigation focusing on defining the proper measure of attorneys' fees sanctions that should be imposed against Mr. Bailey for past episodes of unprofessional conduct in this case. Thus, in this case we are presented with a tragic and troubling set of circumstances: a lawyer with a fifteen year history of professional misconduct citations; who is potentially facing an award of attorneys' fees as a sanction for his latest episode of professional misconduct; who has neglected to abide by court orders in the course of litigation intended to give counsel an opportunity to justify or explain his prior alleged misconduct; and who has indulged in further misdeeds by leveling baseless and frivolous claims in this proceeding.

II. Statement of Facts and of the Case

Some background regarding the extraordinary, repeated, unusual, and grave extent of counsel's longstanding failure to abide by prior court orders is appropriate.

1. Counsel's Misconduct During District Court Litigation

The tortured history of this litigation was detailed by the District Court in a comprehensive opinion detailing the increasingly vexatious conduct of plaintiff's counsel in this matter. Lease v. Fishel, No. 07-03, 2009 WL 922486 (M.D.Pa. April 3, 2009). Briefly, though, the pertinent facts are as follows:

In March, 2005 Attorney Bailey brought a civil rights action on behalf of David Lease against various local officials, and a local electric company. Lease v. Tyler, Civil No. 1:05-CV-618.(Lease I). This complaint alleged that code enforcement actions taken by the defendants were, in fact, merely a guise for a conspiracy to retaliate against the plaintiff for the exercise of his civil rights. (Id.) These code enforcement actions allegedly involved efforts by local officials and utility companies to ascertain whether Lease was obtaining electric utility power without paying for these utility services.

Having commenced this action against the defendants, Lease was now subject to comply with discovery sought by the defendants as part of their defense to this lawsuit. One aspect of this discovery entailed an inspection of Lease's property, a form of discovery specifically authorized by Rule 34 of the Federal Rules of Civil Procedure. Pursuant to Rule 34, in August 2005 the defendants sought, and obtained, permission to inspect Lease's property, an inspection which was conducted in the presence of Attorney Bailey and Lease, and was undertaken without any effort by Attorney Bailey to seek a proper protective order under Rule 37 or otherwise prevent the inspection.

Ten months after this inspection, in June of 2006 Attorney Bailey moved to amend Lease's complaint to add, inter alia, a claim that the defendants violated Lease's Fourth Amendment rights when they conducted the inspection that was specifically authorized by the Federal Rules of Civil Procedure and was permitted by Lease and his counsel. Attorney Bailey advanced this claim, on the eve of the close of discovery and almost a year after the inspection had occurred. Moreover, Attorney Bailey sought to include this new claim, even though the inspection was specifically authorized by the Federal Rules of Civil Procedure and had not been objected to by counsel at the time it occurred.

On September 20, 2006, the District Court denied Attorney Bailey's motion to amend, citing his dilatory presentation of this matter. Ultimately the District Court dismissed this action entirely, granting the defendants summary judgment on the retaliation claims set forth by Attorney Bailey in this complaint.

Having been thus rebuffed by the Court in Lease I in his efforts to convert a routine discovery procedure authorized by the Federal Rules of Civil Procedure into a violation of the Fourth Amendment, Attorney Bailey waited three months before filing this civil action. Lease v. Fishel, Civil No. 1:07-CV-03 (Lease II). Included among the allegations set forth in this second complaint was the precise claim which the District Court had previously held could not be added to the original complaint in Lease I; namely, a claim that the inspection conducted by defendants Plank and Taughenbaugh in civil discovery in Lease I was actually an unlawful search which violated the Fourth Amendment. Defendants Plank and Taughenbaugh then moved to dismiss this second complaint, including the allegations in the complaint that treated civil discovery processes as tantamount to illegal searches in violation of the Fourth Amendment. The defendants also sought sanctions against Attorney Bailey for bringing this action, which they asserted violated Rule 11 of the Federal Rules of Civil Procedure since it advanced a legal claim that was frivolous and was not warranted by existing law.

On April 3, 2009, the District Court ruled on this motion, granting defendant Plank and Taughenbaugh's motion to dismiss. Lease v. Fishel, No. 07-03, 2009 WL 922486 (M.D.Pa. April 3, 2009). The Court then went on to address the question of whether Attorney Bailey's actions rose to the level of misconduct warranting a sanction. In this regard the Court observed that:

Mr. Bailey has brought claims which arise solely out of a discovery inspection that took place in August 2005. The Court notes that Mr. Bailey has largely articulated the correct elements and standard for the claims he has brought in his opposition to the motion to dismiss and motion for sanctions. But, Mr. Bailey pursues frivolous arguments in applying these standards to a civil discovery inspection by Plank and Taughenbaugh. For instance, Mr. Bailey neither explains why the Fourth Amendment should apply in the context of civil discovery between private parties nor attempts to justify how its violation could justify a separate cause of action. In fact, he does not even bother to cite a single case in support of such a claim (nor has the Court's own research located any). Instead, Mr. Bailey relies on unsupported, questionable arguments, claiming that the search was only conducted "under the guise of discovery" and that Plank and Taughenbaugh "had no basis in fact for this filing [sic] expedition beyond an unlawful desire to injure Lease and prevent this litigation from succeeding." The Court is unaware that a defendant could unlawfully desire that litigation brought against him not succeed, though Mr. Bailey makes this argument at various points. He even involves opposing counsel, arguing that Plank and Taughenbaugh "violated his First Amendment rights to petition the government. They did this through their lawyers as participates [sic] in the litigation."

Id. at *9.

The District Court then went on to "find[] that Mr. Bailey has advanced these claims against Plank and Taughenbaugh without a reasonable inquiry under the circumstances. The claims are not warranted by existing law or by non-frivolous argument for extending, modifying, or creating new law. As such, Mr. Bailey has violated Rule 11(b)." Id. at *10.

Having made these findings, the Court then assessed what the appropriate sanction should be for this violation of Rule 11 by Attorney Bailey, noting that when:

Rule 11(b) has been violated, the Court has discretion to tailor a sanction to the particular facts of the case. The Court may impose appropriate sanctions "on any attorney, law firm, or party that violated the rule or is responsible for the violation." Fed.R.Civ.P. 11(c)(1). The court can impose monetary sanctions such as attorney fees or penalties, or non-monetary sanctions, which can include: oral or written reprimands, publication of the sanctioning opinion, referral of the matter to the state bar for disciplinary proceedings, an order barring an attorney from appearing for a period of time, compulsory legal education, or dismissal of baseless claims. But, an appropriate sanction must be limited to the least severe sanction that suffices to deter repetition of the conduct or comparable conduct by others similarly situated. Fed.R.Civ.P. 11(c)(4); In assessing the appropriateness of monetary sanctions as opposed to non-monetary sanctions, courts have considered: "(1) the willfulness of counsel's conduct; (2) whether the conduct was part of a pattern; (3) whether counsel engaged in past similar conduct; (4) whether the conduct was intended to injure; (5) what effect the conduct had on the time or expense of litigation; and, (6) the type of sanction sufficient to deter a repetition of such conduct."

Id. at *10.

In this case, upon a consideration of these legal and equitable factors, the Court found "that reasonable attorney fees and costs are the least severe sanctions that suffice to deter repetition of this conduct", id. at *11, and ordered the defendants to file a fees petition detailing the work which they had done defending against this frivolous claim.

2. Counsel's Misconduct During Proceedings Before This Court

Upon receipt of these fees petitions, on October 5, 2009, this particular matter was referred to this Court for the purpose of conducting a calculation of attorneys' fees owed by plaintiff's counsel. When the undersigned was appointed to conduct these proceedings in October 2009, plaintiff's counsel raised no objections to this appointment. This Court, in turn, endeavored to provide plaintiff's counsel with every reasonable opportunity to address and explain this latest episode of alleged misconduct in a fashion which could mitigate the potential sanctions confronting counsel. Indeed, we set, and rescheduled at Mr. Bailey's request, no fewer than five deadlines for counsel to address the professional misconduct allegations in this litigation. In a disturbing pattern of non-compliance, counsel allowed all five of these deadlines to lapse without complying with these court orders.

Thus, on October 13, 2009, we entered an order permitting plaintiff's counsel an opportunity to file a supplemental response to the defendants' fees petition by November 2, 2009, and providing for a hearing or argument on this petition, if necessary, on November 30, 2009. (Doc. 87.)*fn3 We took this step to fully ensure, and protect, the interests of plaintiff's counsel in this important sanctions and attorneys' fees dispute, and after giving full consideration to Mr. Bailey's request for a hearing.

In response to this October 13 order, granting plaintiff's counsel a further opportunity to address the appropriate sanction following this latest finding of misconduct, plaintiff's counsel made no effort to seek recusal of the Court. Instead, plaintiff's counsel sought an extension of time from the Court, to November 30, 2009, in which to file a supplemental response in this case. (Doc. 88.)

Motivated by a concern for counsel, and an interest in providing counsel a reasonable opportunity to address this grave matter, we granted this request on November 3, 2009, and extended counsel's response deadline to the date which counsel proposed, November 30, 2009. (Doc. 88.). Thus, we set a second deadline for counsel to address these matters, a deadline that Mr. Bailey specifically requested. Once again, counsel did not at this time raise any concerns that might warrant recusal of the Court. Instead, having specifically sought an extension of this deadline in order to attempt to further explain the District Court's finding of professional misconduct at earlier stages of this litigation, counsel inexplicably allowed the deadline he requested to lapse without making a timely filing as required by the Court's November 3 order.

Because we wished to provide counsel with every opportunity to cure this default, we deferred action in this matter on counsel's failure to timely file a supplemental response for approximately 45 days, until January 13, 2010, when we entered an order directing the plaintiff's counsel to show cause on or before January 19, 2010 why he should not be deemed to have waived his right to file a supplemental response to this motion for attorneys' fees. (Doc. 90.) This order represented the third deadline provided to counsel in order to allow him to address these findings that he engaged in prior unprofessional conduct in this litigation.

Counsel failed to meet this third deadline set by the Court.

Instead, on January 19, 2010, counsel filed a motion seeking a one-day extension of this deadline to submit a supplemental response to this motion for attorney's fees. (Doc. 91.) Even though counsel had now failed to meet three deadlines, consistent with our longstanding efforts to afford counsel with every reasonable opportunity to cure these prior, multiple defaults and address this sanctions matter, we granted this motion. (Doc. 92.)

Having requested, and received, this extension of time, plaintiff's counsel then failed to file the response to the fee petition called for by the Court in its January 13, 2010 order. Thus, counsel failed to meet this, the fourth deadline set by the Court for responding to the merits of this fees petition.

Instead, in an action which was consistent with a pattern of past behavior by counsel when confronted by prior sanctions proceedings, see Conklin v. Warrington Township, 476 F.Supp.2d 458 (M.D. Pa. 2007), counsel filed a motion seeking recusal of both this Court and the District Court. (Doc. 93.) This motion is a peculiar document. It bases the recusal request, in part, upon an unsigned and incomplete affidavit; unsupported recitals relating, inter alia, to matters which counsel alleges occurred a quarter of a century ago in the 1980's; and vague factual assertions all of which pre-date the October 2009 appointment of the Court to this matter.

The timing of this pleading was also peculiar, coming in the midst of sanctions proceedings, months after the appointment of the Court to these proceedings, an appointment which plaintiff's counsel did not object to when made by the District Court, and on the eve of counsel's fourth failure to abide court-ordered response deadlines in this case.

Presented with these persistent failures by counsel to address the merits of this fee petition, and counsel's belated assertion of this new issue in a peculiar manner, on January 21, 2010, we took steps to prescribe a prompt, orderly and fair process for the resolution of this matter by entering a comprehensive briefing order in this case. (Doc. 95.) In this order we took several steps, steps dictated by counsel's repeated failure to do the simplest and most fundamental thing required of an attorney-- to abide by court-ordered deadlines.

First, given the failure of plaintiff's counsel to comply with the briefing schedules prescribed by this Court in our Orders of October 13, November 3, January 13 and January 20 (Doc. 87, 89, 90, and 92), and to abide by the briefing schedules specifically requested by the plaintiff's counsel in motions filed on October 30 and January 19 (Docs. 88 and 91) we found that the plaintiff's counsel was deemed to have waived the opportunity to file further supplemental submissions in opposition to the outstanding motion for attorney's fees. We also found in light of the failure of plaintiff's counsel to abide by the briefing schedules prescribed by this Court in our Orders of October 13, November 3, January 13 and January 20 (Doc. 87, 89, 90, and 92), and adhere to the briefing schedules specifically requested by the plaintiff's counsel in motions filed on October 30 and January 19 (Docs. 88 and 91) the hearing or argument scheduled in this matter on the fees' petition was also deemed waived by plaintiff's counsel.

With respect to the Motion to Recuse (Doc. 93) that counsel had belatedly filed, we gave counsel an opportunity to address this issue in an appropriate, fair and professional fashion. Specifically, we instructed plaintiff's counsel to do the minimum required of all counsel: We ordered counsel to follow the Court's local rules governing motions practice in civil matters. In particular, we directed counsel to fully comply with the requirements Local Rule 7.5 by filing a brief in support of his motion on or before February 3, 2010. We further advised counsel that all briefs must conform to the requirements prescribed by Local Rule 7.8. Moreover, in accordance with Local Rule 7.3, which provides that "[w]hen allegations of fact are relied upon in support of a motion, all pertinent affidavits, transcripts, and other documents must be filed simultaneously with the motion and shall comply with Local Rule 5.1 (f)", the plaintiff's counsel was placed on notice that no other factual submissions would be permitted on this motion without prior leave of court and upon a showing of good cause.

Through this January 21 order we extended to counsel a fifth opportunity in the context of this sanctions proceeding to demonstrate that he could comply with Court orders. Counsel then elected to inexplicably squander this opportunity. Instead of complying with this Court's January 21 order, the latest of five orders setting deadlines in this matter, counsel blithely moved for yet another extension of time in this case on the very date set by the Court for his response, February 3, 2010. (Doc. 96.) This motion, which was filed near the close of court business on February 3, was a summary one-page document which provided no grounds for the relief requested, and no cogent explanation for counsel's latest failure to comply with scheduling orders, beyond a summary assertion that counsel's "outstanding work-load and additional responsibilities in other matters" prevented him from doing so.

In the context of this case, we found counsel's February 3 excuse for his failure to comply with court orders to be plainly inadequate. In this regard we were compelled to note that nearly one year earlier, counsel was found to have engaged in serious professional misconduct, warranting Rule 11 sanctions. Lease v. Fishel, No. 07-03, 2009 WL 922486 (M.D.Pa. April 3, 2009). This sanctions hearing was the latest episode in a regrettable fifteen-year history of sanctions proceedings involving counsel, proceedings which had resulted in multiple findings of grave misconduct involving filing inappropriate submissions, presenting unfounded ...

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