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Lewis v. Smith

August 6, 2010

THOM LEWIS, PLAINTIFF,
v.
JESSE SMITH, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Hon. John E. Jones III

MEMORANDUM AND ORDER

THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:

Pending before the Court is the Joint Motion for Sanctions on behalf of Defendants Dan Flaherty and Frank Sterner (Doc. 33) filed on February 22, 2010. The Motion has been fully briefed by the parties and is therefore ripe for our review. The Motion shall be granted to the extent set forth hereinafter.

I. PROCEDURAL HISTORY

A summary of the procedural history of this matter and a prior related matter is necessary to the disposition of this Motion. On March 19, 2007, Plaintiff Thom Lewis filed a Complaint in the United States District Court for the Middle District of Pennsylvania against numerous defendants ("hereinafter "Lewis I").*fn1 Plaintiff, through counsel Don A. Bailey, Esq. ("Attorney Bailey"), alleged a violation of his civil rights related to his "kennel License," and sued for relief pursuant to 42 U.S.C. § 1983. In Lewis I, the Plaintiff accused the defendants of using his kennel license to traffic in illegal dogs and of being parties to an illegal dog-selling ring which allegedly included members of the Attorney General's office.

On March 26, 2007, Lewis filed an Amended Complaint in Lewis I. Thereafter, on July 27, 2007, Judge Muir granted the Commonwealth defendants' motion to dismiss for failure to state a claim with respect to all but one of the Commonwealth defendants.

On August 13, 2007, Dan Flaherty and Frank Sterner, defendants in Lewis I, filed a motion to dismiss for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6). Rather than oppose the motion, Lewis filed a Second Amended Complaint, without requesting leave of Court. Judge Muir sua sponte issued an Order striking the Second Amended Complaint, and, in an abundance of fairness to Lewis, provided him an opportunity to file an opposition brief to Flaherty and Sterner's motion to dismiss. Thereafter, on October 18, 2007, Judge Muir granted Flaherty and Sterner's motion to dismiss.

On July 28, 2009, Judge Muir granted the remaining Commonwealth defendant's motion for summary judgment, thereby closing the case in Lewis I.

Lewis did not file an appeal of the Orders of dismissal in Lewis I.

On November 2, 2007, Lewis filed a new action that was assigned to the undersigned ("Lewis II"). The new action asserted the same or substantially similar claims as Lewis I, and included some of the same defendants that were dismissed from Lewis I, including Flaherty and Sterner.

On February 5, 2008, Defendants Flaherty and Sterner filed a motion to dismiss in Lewis II, alleging, inter alia, that Lewis' claims were barred by the doctrines of res judicata and/or collateral estoppel based upon Judge Muir's previous ruling in Lewis I.

On February 14, 2008, counsel for Flaherty and Sterner sent a letter to Attorney Bailey, requesting that he withdraw the new action. Attorney Baily did not respond to the letter.

By Order dated August 7, 2008, this Court granted Flaherty and Sterner's motion to dismiss, finding that Lewis II was barred by the doctrine of res judicata. On September 17, 2008, Lewis filed an appeal to the Third Circuit Court of Appeals to contest this Court's dismissal of Lewis II. The Third Circuit affirmed our August 7, 2008 dismissal of Lewis' claims against Flaherty and Sterner. The Third Circuit specifically concluded that "[i]f Lewis disagreed with the Lewis I court's rulings, he should have moved for reconsideration or filed an appeal rather than file a second action." (Doc. 33, Ex. K., p. 6).*fn2

Thereafter, Defendants Flaherty and Sterner filed the instant motion for attorneys fees. Upon review of the Motion, we issued an Order requiring the Defendants to file a supplemental submission cataloging the fees billed in Lewis II only, inasmuch as we do not have jurisdiction to award fees incurred in Lewis I. (Doc. 51). On June 21, 2010, the Defendants filed a supplemental ...


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