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Charles Breslin, et al v. Dickinson Township

March 5, 2012


The opinion of the court was delivered by: (Magistrate Judge Carlson)

(Judge Stengel)


I. Introduction

This case, which comes before us for consideration of Plaintiffs' motion that this Court recuse itself in this case, inspires "a profound sense a tragedy", Lease v. Fishel, 712 F.Supp.2d 359,386 (M.D.Pa. 2010), compels us, once again, to consider the unfortunate professional trajectory of plaintiffs' counsel, and requires us to reflect upon the recurring, and wholly regrettable, themes that now mark his practice in this and other litigation before this Court.

At the outset, this motion reveals the apparent inability of counsel to take to heart the Court's prior admonition to consider, "the wisdom of Albert Einstein, who once stated that doing the same thing over and over again and expecting different results is the highest form of folly." Breslin v. Dickinson Tp., No. 09-1396, 2011 WL 1900448, *6 (M.D.Pa. May 19, 2011). Here, counsel pursues Einstein's folly by filing a motion which is essentially identical to several pleadings that were previously considered--and rejected--by this Court in this, and other cases. Indeed, in this motion counsel repeats an argument which counsel himself conceded one year ago had no basis in fact. Moreover, this case also illustrates a particularly tragic and inappropriate course which this counsel has chosen to follow, a course in which counsel responds to judicial rulings 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 a proceeding. Conklin v. Warrington Township, 476 F.Supp.2d 458 (M.D. Pa. 2007).

Remarkably, with the passage of time this penchant has become even more pronounced, notwithstanding the fact that courts have, time and again, roundly criticized and flatly rejected this particular and corrosive conduct by plaintiffs' counsel.*fn1 Thus, over time counsel's accusations have become more frequent, frantic, far-reaching and far-fetched. For example, counsel has routinely filed what the courts have repeatedly found to be baseless recusal motions.*fn2 Moreover, with each recounting, counsel's claims against the judiciary become more far-reaching, all encompassing, and increasingly have "the qualities of something imagined, but not real." Lease v. Fishel, 712 F.Supp.2d 359, 377 (M.D.Pa. 2010). Presently, these claims of judicial bias are sweeping, and embrace state and federal trial courts, the Pennsylvania Supreme Court, The Disciplinary Board of the Supreme Court of Pennsylvania, and the United States Court of Appeals for the Third Circuit. See e.g., Beyer v. Duncannon, 428 F. App'x 149, 155 n.7(3d Cir. 2011); Bailey v. Disciplinary Board of the Supreme Court of Pennsylvania, No. 11-1130, 2011 WL 4102811 (W.D. Pa. Sept. 14, 2011).

It is against this backdrop that we consider the current motion to recuse.

II. Statement of Facts and of the Case

Some brief factual context is helpful in understanding the current motion to recuse. This case is a civil rights action brought by the plaintiffs against defendants, various local township officials, alleging constitutional First Amendment and First Amendment-retaliation claims. Following contentious discovery proceedings, this case was referred to the undersigned on January 25, 2011, for the purpose of overseeing pre-trial discovery. (Doc. 77) We also were concurrently assigned responsibility for a second case being litigated by plaintiff's counsel, Snyder v. Bender, No. 1:09-CV-927, on February 14, 2011. Snyder v. Bender, No. 1:09-CV-927 (Doc. 67.)*fn3

In the instant case, upon being assigned to this matter, we promptly scheduled a telephone conference in this case with all counsel on February 5, 2011. (Doc. 83) At this conference, the Court had a full opportunity to address a host of discovery issues for the parties, and spoke to a concern voiced by plaintiffs' counsel, who expressed a fear that in an earlier meeting of counsel, defense counsel may have had an ex parte telephone contact with the Court. (Id., pp. 18-26.) In response to this concern voiced by plaintiffs' counsel, both the Court and defense counsel stated that no ex parte communication had occurred. Rather, defense counsel simply spoke to the Court's deputy clerk, who advised counsel that the parties should address any disputes at their meeting among themselves. (Id.)

On February 5, 2011, plaintiffs' counsel expressed complete and total satisfaction with the information provided by the Court on this score, stating: "I very much appreciate your bringing it up", (id., p.18), and affirming counsel's view of the Court's fairness in this regard, asserting: "I appreciate your response. I can't tell you how happy it makes me, because you know what, I didn't think you'd do that." (Id., p.20.) Plaintiffs' counsel then went on to make two observations, stating to the Court that he was " [v]ery grateful with your candor", (id., p. 20), while suggesting that he might wish to send the Court an ex parte letter. (Id.,"Maybe just a letter form to you? Do you want me to copy it to the other counsel?")

We declined this invitation by plaintiffs' counsel to indulge in some form of ex parte communication and instead advised all counsel as follows regarding the rules for communication with the Court:

THE COURT: Anything -- just as you appropriately asked that any communications from the other side be transparent, if you are going to send me a further letter on this issue, you should make sure the other side receives a copy of it. Is that fair?

MR. BAILEY: Yes, sir. Yes, sir, I will do that.

THE COURT: Is that fair from the point of view of the Defendants? MR. MORGANSTERN: That is fair, Your Honor. (Id., 20-21.)

Following our initial assignment to these cases, and for several months after these case assignments, plaintiff's counsel expressed complete satisfaction with the court. Thus, on March 4, 2011, in the companion case, plaintiffs' counsel informed this Court that: "I love my fellow man, believe it or not. You probably wouldn't even believe that I love you." Snyder v. Bender, No. 1:09-CV-927 (Doc. 75, p.5, emphasis added.)

Similarly, on March 24, 2011, in a conference held in this case, plaintiffs' counsel volunteered to swear to the Court's integrity, fairness and affability, stating:

You haven't done anything improper. I've been impressed with you, not only your affability, but your fairness. So judge, I'm not complaining at all. I will swear.*fn4 (Doc. 106, p. 4)

Plaintiffs' counsel repeated these observations later during this March 24, 2011 conference, informing the Court that: "I noticed when I called here the other day how affable you were. I was very impressed." (Doc. 106, p.34)

Forty-three days later, on May 6, 2011, plaintiffs' counsel moved to recuse this Court, alleging that the Court was unfair and biased. (Docs. 119 and 120) The only intervening events which had occurred in the span of these 43 days to transform the Court in the eyes of plaintiffs' counsel from loveable, affable and fair to biased and subject to recusal were that: First, at the urging of plaintiffs' counsel, we set an expedited schedule for the resolution of discovery issues in this case; second, plaintiffs' counsel inexplicably failed to comply with the schedule that the plaintiffs asked us to set, and failed to respond to a defense motion to compel; and third, we then did what a court is supposed to do: We ruled upon this uncontested motion to compel.*fn5

We denied the plaintiffs' motion to recuse in an opinion and order entered on May 19, 2011. See Breslin v. Dickinson Twp., No. 09-1396, 2011 WL 1900465 (M.D. Pa. May 19, 2011). Following the denial of this recusal motion, the Court then presided over numerous matters in this case, (Docs. 133-240), often ruling in favor of the plaintiffs when we regarded their position as meritorious. (Docs. 191-194) At no time during the intervening eight months did the plaintiffs assert any judicial bias on the part of the Court which called for recusal.

On December 5, 2011, however, we filed a report and recommendation which recommended that the District Court deny a motion to belatedly supplement the complaint that was filed by the plaintiffs. (Doc. 241) Plaintiff's counsel responded to this report and recommendation in an erratic fashion, by first objecting to the report, (Doc. 249) and then moving to withdraw their objections. (Doc. 256)

Having decided that they would not object to the message set forth in this report and recommendation, the plaintiffs then, curiously, filed a motion on January 11, 2012, objecting to the messenger, this Court, and seeking to recuse the Court from this case. (Doc. 260) A review of the motion reveals that it consists almost entirely of arguments that were previously considered, and rejected, by this Court in May 2011, including one claim which plaintiff's counsel acknowledged was factually bankrupt in February of 2011.

II. Discussion

A. Recusal of This Court is Not ...

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