United States District Court, W.D. Pennsylvania
NORA BARRY FISCHER, District Judge.
Presently before the Court is a Motion for Leave to Appeal filed by Albert Beaver, Jr., Esquire on behalf of Plaintiff Beaver Resources Corporation on August 22, 2014. (Docket No. ). For the following reasons, Mr. Beaver's Motion for Leave to Appeal is stricken from the record as it was filed in direct violation of this Court's July 22, 2014 Order, the Court grants the motion of Mr. Timothy Biasiello, Esquire to withdraw as counsel and this case will be dismissed, with prejudice, for failure to prosecute based on the Court's consideration and weighing of the all of the factors under Poulis v. State Farm Fire & Casualty Co. , 747 F.2d 863, 868 (3d Cir. 1984).
II. RELEVANT BACKGROUND
This is a case involving disputes over the ownership of oil and gas interests located in Elk County, Pennsylvania and outstanding royalties regarding same between Plaintiff Beaver Resources Corporation and Defendant William Brawand which was filed in federal court on July 29, 2008. (Docket No. 1). Until recently, when the case was dismissed for failure to prosecute by the Court of Common Pleas of Elk County, these parties and related individuals/entities had been involved in similar litigation for over two decades in what appears to be a feud between the two participating families. ( See Docket No. 161).
Mr. Beaver is an attorney, admitted to practice law in the U.S. District Court for the Western District of Pennsylvania. (Docket No. 196). However, he is also the sole shareholder of Plaintiff Beaver Resources Corporation and the only living representative of such corporation who is able to testify about the facts of this decades-long dispute with Defendant William Brawand concerning three oil/gas wells located in Elk County, Pennsylvania. (Docket No. 114). To this end, Mr. Beaver was the only fact witness deposed by Defendant during discovery. ( Id. ). Former counsel for Plaintiff, Paul Burroughs, Esquire withdrew as counsel around March of 2011 due to disagreements with Mr. Beaver. This case was originally listed for trial to commence nearly than three years ago, in September of 2011. Mr. Beaver entered an appearance on behalf of the corporation in July of 2011, purporting to act as counsel at the trial. At that time, former Chief Judge Sean J. McLaughlin held that Mr. Beaver was a necessary witness at trial, denied a motion to quash the trial subpoena served on him by Defendant and dismissed this case for failure to prosecute after Plaintiff, through its representative Mr. Beaver, failed to obtain new counsel to represent the corporation within the period of six months which had been afforded to him by the Court. ( Id. ). Judge McLaughlin's stated reasons for dismissing the case are fully set forth in his bench opinion dated August 8, 2011 and incorporated herein. (Docket No. 114).
The case was reopened by Judge McLaughlin in October of 2011 upon the withdrawal of appearance by Mr. Beaver and the entry of appearance on behalf of Plaintiff by Mr. Biasiello, Esquire an Illinois lawyer based in Chicago, after Mr. Biasiello offered assurances to the Court that he was trial counsel and was prepared to try the case. (Docket No. 121). During this conference, Judge McLaughlin reiterated that it was "preposterous" that Mr. Beaver would even contest the fact that he was a necessary witness at trial. ( Id. at 3-4). Mr. Biasiello agreed, stating "Judge, I couldn't agree more, it was ridiculous. [Mr. Beaver's] judgment was poor and he made - I think he took up the court's time and I think the court became very frustrated with him, and I can't blame the court." ( Id. at 4). The case was not re-listed for trial immediately in order to give Mr. Biasiello time to get up to speed on the case and presumably because the trial date had been lost due to the prior dismissal of the case. Judge McLaughlin also granted a petition for attorneys' fees filed by Defendant and awarded Defendant $1, 644.85 in fees and costs due to Mr. Beaver's behavior. (Docket No. 120).
The case remained relatively stagnant during the time frame between Mr. Biasiello's entry of appearance in October of 2011 and the reassignment of the case to the undersigned after Judge McLaughlin stepped down from the bench in August of 2013. To this end, the parties litigated a Daubert motion challenging Plaintiff's expert witness Roy Pittman, which the Court granted, in part, and denied, in part at a hearing. (Docket No. 135). Judge McLaughlin scheduled the case for trial in his January 2014 trial term after a pretrial conference was held on June 28, 2013. (Docket No. 138).
Upon reassignment to this Court in August of 2013, the parties were ordered file a series of status reports and also filed motions for extensions of same wherein they repeatedly advised that they were working toward a resolution of the case. (Docket Nos. 140, 144, 146, 148, 149). This Court held a telephonic status conference with counsel for the parties on January 23, 2014 and expressed its displeasure upon receiving a report that the case had not yet been resolved. Mr. Biasiello advised that he was going to seek leave to withdraw as counsel but after some discussion, he agreed to stay on and to participate in a settlement conference with the Court to attempt to get the matter resolved. (Docket Nos. 150, 152). The Court ordered all parties and counsel to appear, in person for such settlement conference. (Docket No. 151). Despite the Court's Order, Mr. Beaver attempted to appear by telephone, which the Court denied. (Docket Nos. 153, 154). The Court rescheduled the matter multiple times due to Mr. Beaver's health problems and his alleged inability to travel during the winter from his home in upstate Wisconsin to Pittsburgh for the conference. (Docket Nos. 154, 157).
The Court finally convened the settlement conference with the parties and counsel on April 22, 2014 but the case was not resolved. (Docket No. 160). The Court told the parties and counsel that it intended to trifurcate the trial on the issues of statute of limitations; abandonment and damages and would permit briefing on the effect, if any, of an expected ruling in the state court litigation on this federal action. (Docket No. 160). Mr. Biasiello again stated that he intended to withdraw as counsel and the Court ordered that it would not grant any motion to withdraw until Plaintiff was able to obtain substitute counsel. (Docket No. 160). After the conference, the Court was advised via a status report that the state court had issued an Opinion and Order dismissing the case for non-pros, i.e., failure to prosecute by Mr. Beaver. (Docket No. 161).
Mr. Biasiello filed a motion to withdraw as counsel for Plaintiff on May 19, 2014, which the Court denied, without prejudice, to him re-filing same upon the entry of substitute counsel, and also ordered Plaintiff to find new counsel by June 19, 2014. (Docket Nos. 163, 164). In the interim, Defendant filed a motion for contempt against Plaintiff, arguing that Mr. Beaver had violated Judge McLaughlin's Order by acting as counsel for Plaintiff in attempts to settle the case. (Docket No. 165). In a status report filed on June 20, 2014, Mr. Biasiello advised that Plaintiff had not obtained substitute counsel despite efforts to do so and requested that the Court extend the deadline for Plaintiff to respond to the motion for contempt due to counsel's previously scheduled vacation out of the country. (Docket Nos. 166, 167, 168). The Court granted both requests and ordered that the response was due by July 18, 2014. (Docket No. 168).
Despite the Court's Orders, while Mr. Biasiello was out of the country on vacation, Mr. Beaver filed a series of motions seeking sanctions against Defendant. Defendant countered by filing two additional motions for contempt. This Court then issued the following Order on July 22, 2014:
ORDER OF COURT
AND NOW, this 22nd day of July, 2014, upon consideration of the various motions filed by the parties in the above-captioned matter which are presently pending before the Court, (Docket Nos. , , , , , , , ), the various briefs in opposition thereto (Docket Nos. 187, 188), the long and contentious history of the litigation between the parties before former Chief Judge Sean J. McLaughlin and the undersigned in this federal case, as well as the state court litigation which the parties have cited repeatedly and at length throughout these proceedings, and finding that the relief sought via the pending motions are neither supported by law nor appropriately awarded in light of all of the facts and circumstances of this case,
IT IS HEREBY ORDERED that:
1. Mr. Albert Beaver, Jr.'s Motions to Appear Specially and/or to Substitute Counsel for the purpose of pursuing sanctions (Docket No. , ) are DENIED because: (1) former Chief Judge McLaughlin's prior ruling precluding Mr. Beaver from representing Plaintiff due to his analysis of these circumstances in light of Rule 3.7 of the Pennsylvania Rules of Professional Conduct remains the law of the case and Mr. Beaver has not demonstrated "extraordinary circumstances" sufficient for the Court to reconsider that ruling nearly three full years after it was made, see Lesende v. Borrero , 752 F.3d 324, 338-39 (3d Cir. 2014); (2) as a corporate entity, Plaintiff Beaver Resources Corporation cannot proceed pro se through its corporate representative, Mr. Beaver, see 28 U.S.C. § 1654; and, (3) Mr. ...