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Wise v. Washington County

United States District Court, W.D. Pennsylvania

April 17, 2015

DAVID D. WISE, Plaintiff,
WASHINGTON COUNTY; and CAPTAIN MICHAEL KING, individually and in his capacity as a Washington County Corrections Officer, Defendants.




Presently before the Court is Defendants' Motion for Sanctions against Plaintiff's counsel Lawrence H. Fisher, Esq. ("Fisher"). As the nature of the Motion demands a review of the entire record, the Court first sets forth a detailed overview of the proceedings. See, e.g., Baker Indus., Inc. v. Cerberus Ltd., 764 F.2d 204, 209 (3d Cir. 1985) (reviewing the entire record in affirming the district court's finding of bad faith).


A. Initiation of the Suit and Early Proceedings

This civil rights action was brought pursuant to 42 U.S.C. § 1983 by Plaintiff David Wise ("Wise" or "Plaintiff") against Washington County, Captain Michael King ("King"), and various Washington County Correctional Facility ("WCCF") correctional officers and nurses, alleging that they violated his Eighth Amendment right of protection from cruel and unusual punishment and his Fourteenth Amendment Equal Protection rights. (Docket No. 1). Plaintiff also set forth assault and battery claims against certain of the officers and nurses. ( Id. ). The parties agreed that Wise's seizure disorder, which he has had since he was approximately five years old, constituted a serious medical need. (Docket No. 103 at 14); (Docket No. 308-1 at 8-10, 15).

Wise did not take his medication as prescribed on September 13, 2006. (Docket No. 228 at 3). Consequently, he had a seizure while driving and caused an accident killing a passenger in another car. ( Id. ); Commonwealth v. Wise, CP-63-CR-0001211-2009 (Ct. Comm. Pl. Wash. Cnty.).[1] He was convicted of vehicular manslaughter and subsequently sentenced to a term of incarceration beginning on May 1, 2010. (Docket No. 228 at 3). During processing two days later, WCCF completed a Treatment Intake Screen for Wise, at which time he informed WCCF personnel of his seizure disorder. (Docket No. 103 at 2).

With this backdrop, Wise alleged that he received inadequate medical care for three seizures he suffered at WCCF, with the first occurring on May 15, 2010. (Docket No. 29, passim ); (Docket No. 103 at 2). He maintained that he had a second seizure on May 26th; however, Defendants disputed same. (Docket No. 103 at 4). He then had a second or third seizure on July 16, 2010. ( Id. at 6-7). Theodore Melencheck ("Melencheck") and Robert Fields ("Fields"), also WCCF inmates, reportedly heard and saw the events surrounding this seizure. ( Id. at 6-9).

Wise also alleged that he was assaulted and battered by WCCF personnel. (Docket No. 29 at 14-15). Additionally, he made complaints that the correctional officers and nurses taunted and mocked him. ( Id. at 12); (Docket No. 81-4 at 105:10-106:5).

On release, Wise sought legal representation. Akman & Associates, who had previously represented him in Social Security and criminal matters, referred him to Fisher, who at that time was an employee of Cohen & Willwerth, P.C.[2] (Docket No. 273 at ¶¶ 13, 24); (Docket No. 303 at ¶ 5). Fisher had worked for Akman & Associates from 1996 through 2006. (Docket No. 273 at ¶ 13). He went into solo practice in 2013 during the pendency of this case.[3] ( Id. at ¶ 24).

Upon receiving the referral and medical records from Akman & Associates, Fisher reviewed the file and evaluated the claim. (Docket No. 273 at ¶ 13). He then hired a private investigator[4] to seek out additional information, but this effort was "to no avail." ( Id. at ¶ 14). Akman & Associates also provided Fisher with their "Negligence Questionnaire"[5] regarding, inter alia, Wise's medical treatment. ( Id. at ¶ 15). Fisher first met with Wise on November 18, 2010 and during this meeting, they reviewed said Questionnaire. (Docket No. 303 at ¶ 2). Fisher then prepared the Complaint. (Docket No. 273 at ¶ 16). Wise verified it, and it was filed on December 15, 2010. ( Id. at ¶ 17); (Docket No. 1). He sought exemplary and punitive damages against all Defendants at Counts 1 and 2. (Docket No. 1).

Service was made on King and Washington County on December 27, 2010, and on Kelley and Lehr on January 6, 2011. (Docket Nos. 2-5). After being granted a month-long extension, (CM/ECF, Text Order, Mar. 8, 2011), Defendants' counsel, Edmond R. Joyal, ("Joyal"), filed their Answer on April 7, 2011, (Docket No. 7). The Answer claimed, among other defenses, that punitive damages were not recoverable against the individual Defendants in their official capacities and Washington County and the Complaint failed to state a claim upon which relief could be granted. ( Id. ). Defendants also opted to have this case randomly assigned to a district judge. (Docket No. 9). The matter was then randomly assigned to this Court, with then Chief Magistrate Judge Lisa P. Lenihan referred. (CM/ECF, Text Order, Apr. 14, 2011).

Consistent with the Federal and Local Rules, [6] Judge Lenihan entered an initial Case Management Order and, given the Court's mandatory Alternative Dispute Resolution ("ADR") program, referred the parties to an Early Neutral Evaluation ("ENE")[7] before the Honorable Kenneth Benson.[8] (Docket Nos. 14, 16). Thereafter, the parties engaged in a series of discovery motions. (Docket Nos. 17, 21, 23).

Plaintiff's Amended Complaint, filed June 30, 2011, set forth Eighth Amendment and Equal Protection claims against Washington County, correctional officers: King, Adam Lehr ("Lehr"), and Kelley, and nurses: Victoria Goroncy ("Goroncy"), Autumn Loughman ("Loughman"), Luanne Rossi ("Rossi"), and Jill Nixon ("Nixon") at Counts 1 and 2. (Docket No. 29). At Counts 3 and 4, he pled assault and battery claims against King, Kelley, and Rossi. ( Id. ). The punitive damages claim remained against all Defendants at Counts 1 and 2. ( Id. ). Defendants again raised various defenses in their Answer, including that the Defendants in their official capacities and Washington County, as a municipal defendant, were not subject to punitive damages and were entitled to qualified immunity. (Docket No. 31).

On July 12, 2011, the parties engaged in ENE before Judge Benson. The case did not resolve, and it was returned to Judge Lenihan for further proceedings. (Docket No. 30).

Additional discovery motions followed.[9] (Docket Nos. 32, 34, 37, 38, 39, 41, 48, 49, 50, 57, 60, 69, 75). In all, there were two motions to extend the time to complete discovery. (Docket Nos. 32, 38). The first was joint, and the second was filed by Fisher. (Docket Nos. 32, 38).

Throughout discovery, Judge Lenihan repeatedly reminded counsel of the Local Rules' meet and conferral requirement and the Rules of Professional Conduct.[10] (CM/ECF Text Order June 9, 2011); (Docket No. 55); (CM/ECF Text Order, Feb. 17, 2012) ("It has always been the goal of this court to promote respect and professionalism among attorneys practicing before it and the goal of the Allegheny County Bar Association to promote collegiality among lawyers in the bar. Counsel are again encouraged to attempt to work out these discovery issues in a professional and respectful manner.").

B. Dispositive Proceedings

Akin to discovery, there were numerous requests for extensions of time during this stage of the litigation. There were some joint motions, but Joyal filed the majority of these requests. ( See Docket Nos. 6, 11, 78, 88, 104, 115, 146).

Defendants moved for partial judgment on the pleadings, arguing that Plaintiff failed to state a claim for conspiracy and any Equal Protection violation. (Docket No. 65). Additionally, they argued that the Amended Complaint failed to state any claim against the individual Defendants in their official capacities. ( Id. ). During Wise's deposition the next day, Fisher agreed to stipulate that the Equal Protection claim should be dismissed. (Docket No. 81-4 at 1); (Docket No. 81-5 at 181:17-21). The claim was formally conceded two weeks later vis-à-vis the Proposed Order attached to Plaintiff's Response in Opposition to the Motion for Judgment on the Pleadings. (Docket No. 67-1). In the proposed Order and brief, Plaintiff also agreed that punitive damages were not recoverable against the County. (Docket Nos. 67-1, 68 at 3-4). Finally, he asserted that he did not plead a conspiracy claim, despite the following language that appeared twice in his Amended Complaint: "[t]hese Defendants, individually, and in a conspiracy with each other, violated Wise's rights...." (Docket No. 29 at ¶¶ 20, 42); (Docket No. 68 at 7).

After considering the parties' briefs, (Docket Nos. 64, 68), Judge Lenihan issued a Report and Recommendation ("R&R"), (Docket No. 74), which was adopted as the Opinion of this Court, (Docket No. 77). The Motion was granted as it related to any alleged conspiracy claim, Equal Protection Claim and claim for punitive damages against Washington County and the individual Defendants in their official capacities. ( Id. ). It was denied as to the claim for punitive damages against the individual Defendants in their personal capacities. ( Id. ).

Subsequently, Defendants moved for summary judgment, which was opposed. (Docket Nos. 80, 85). Judge Lenihan ultimately issued an R&R, which was also adopted as the Opinion of this Court. (Docket Nos. 103, 108). All claims against Nixon, Loughman, and Lehr and the assault claim against Kelley were dismissed. (Docket No. 108). The Motion was denied in all other respects. ( Id. ).

Judge Lenihan next convened a final Status Conference. (Docket No. 109). Therein, she raised the possibility of settlement negotiations, but Defendants were not willing to make an offer. ( Id. ). The case was then referred to this Court for trial. (Docket No. 110). A Pretrial Order was entered, setting jury selection and trial for July 10, 2013. (Docket No. 111).

C. Pretrial Matters

1. Initial Pretrial Proceedings

In light of Joyal's unopposed request for an extension of time to file proposed jury instructions and motions in limine, (Docket No. 115), the Court convened a telephonic status conference to reset deadlines and address other pretrial issues, (Docket No. 116). The Court also ordered counsel to submit confidential settlement positions. ( Id. ). After receiving a demand for $1.3 million, [11] Joyal requested a telephonic status conference, during which "Plaintiff['s] counsel was unable to fully account for the demand of $1.3 million made in this case." (Docket Nos. 129, 132, 273-1). Thus, the Court ordered Fisher to provide defense counsel an explanation of the financial basis for his demand.[12] (Docket No. 132).

Two days later, the Court held a final pretrial conference with counsel for both parties in attendance as well as Plaintiff, his wife, and Defendants King and Goroncy.[13] (Docket No. 144). Following same, the Court conducted lengthy settlement negotiations, but the case did not settle.[14] ( Id. ). Given the fact that the trial would likely take more than the week the Court had set aside, [15] Fisher's trial schedule, and a threatened motion to disqualify him, the Court rescheduled the trial for December 9, 2013. ( Id. ); (Docket No. 155 at 161:22).

2. Motion to Disqualify Fisher

Defendants argued that Fisher should be disqualified for his failure to return a memorandum[16] inadvertently produced to him as part of a discovery production in Consonery v. Washington Cnty., et al., filed at Civil Action No. 09-1510. Fisher and Joyal were also opposing counsel in that case, which was litigated before now Chief Magistrate Judge Maureen Kelly simultaneously with this matter. This Court ordered both counsel to produce affidavits regarding the alleged inadvertent disclosure. (Docket No. 150).

Previously, in February and March of 2012, Judges Kelly and Lenihan, respectively, directed Joyal to file a motion to claw back the disputed memorandum. (Docket No. 163 at 7); (Docket No. 66). Joyal did not do so. Instead, he set forth argument based on the alleged inadvertent disclosure more than a year and a half later in his Motion to Disqualify Fisher. (Docket No. 163 at 7). Finding this to be an "inexcusable delay, " the Court found that Defendants waived the privilege and, accordingly, denied the Motion in this respect. ( Id. ).

Defendants' second argument for disqualification of Fisher was based on his relationship with Melencheck. (Docket No. 157). They argued that he was a potential witness due to Fisher and Melencheck's 2011 correspondence about Wise's seizures and Defendants' treatment of circumstances as outlined in Defendants' Response. (Docket Nos. 140, 141). same at WCCF. (Docket No. 165 at 3-6). Initially, Fisher sent Melencheck a blank affidavit for him to complete with details about his observations. ( Id. at 2-3). Fisher then approached Joyal and requested "proper assurances" that inmates who were willing to testify about their observations of the alleged improper treatment of Wise would not "suffer retribution from jail personnel." ( Id. at 4). In doing so, Fisher arguably was acting as an advocate for Melencheck and Wise contemporaneously. As counsel were unable to agree as to whether this request for assurances was valid, Fisher filed a Motion for Protective Order. ( Id. ). Judge Lenihan granted the Motion to the extent that the identities of potential witnesses would only be disclosed to the WCCF warden and deputies, and that those individuals were prohibited from disclosing the identities to the corrections officers. ( Id. ); (Docket No. 28).

Given the apparent quid pro quo relationship between Fisher and Melencheck, Joyal argued that Fisher should not examine Melencheck at trial. (Docket No. 157 at 14). He also claimed that, if the Court would permit same, Fisher would be in a position to testify as to his relationship with Melencheck without being subject to cross examination. ( Id. ). The Court denied the Motion to Disqualify on this basis, but prohibited Fisher from examining Melencheck at trial, leaving Kevin Tucker, Esq. ("Tucker"), his co-counsel, to handle that task. (Docket No. 165).

3. Subsequent Pretrial Proceedings

With the matter being set for trial the following week and counsel's failure to agree on joint exhibit binders per this Court's Order, (Docket No. 145), another telephonic status conference took place on December 5, 2013, (Docket No. 176). During same, Fisher informed the Court and defense counsel that he learned the previous day that Wise suffered a seizure earlier that week and remained in critical care. ( Id. ). Accordingly, the Court continued the trial date from December 9, 2013 to April 7, 2014. (Docket Nos. 180, 181, 182).

In preparation for trial in April, there was yet another Pretrial Status Conference.[17] (Docket No. 186). At that time, the Court denied Fisher's motion for leave to view Melencheck's cell, as fact discovery had been closed for several months. ( Id. ). Plaintiff moved for reconsideration but it was denied as untimely, as this Court requires Motions for Reconsideration to be brought within seven days.[18] (Docket No. 192).

Counsel for the parties engaged in additional pretrial motions practice relative to stipulations, motions in limine, and Wise's medical records. (Docket Nos. 205, 210, 224, 227, 233). Given Plaintiff's hospitalization, the Court ordered Fisher to produce his post-incarceration medical records. (Docket No. 191). Fisher moved for an in camera review of said records, arguing that they were privileged and unrelated to the instant matter. (Docket No. 196). The Court granted the motion, (Docket No. 199), and issued an Order on several pretrial issues, noting that Defendants had not raised a Daubert challenge and the time for same had passed. (Docket No. 197).

Fisher then filed a Motion for a Jury View of WCCF, asserting that Melencheck testified that defense photographs did not accurately portray what he could see from his jail cell. (Docket No. 202 at 3). These photographs had been taken by Martin Murphy ("Murphy"), a professional photographer retained by the defense. (Docket No. 285 at 8). Fisher also argued that the photographs were manipulated. (Docket No. 202 at 3-4). In light of these arguments, Fisher averred that the jury should be able to observe the view from Wise's cell to Melencheck's cell and weigh the pertinent testimony. ( Id. at 4).

While Defendants did not oppose the Motion, per se, they noted WCCF's security procedures and other restrictions that govern such a site visit. (Docket No. 204). In light of said scheduling and security concerns, Fisher withdrew the Motion.[19] (Docket No. 206).

The Court then addressed the use of Wise's February 21, 2012 deposition at trial. (Docket No. 209). Given Wise's continued ill health, Fisher was ordered, at his expense, to begin to undertake the required editing of Wise's deposition taken by Joyal, incorporating the Court's rulings. ( Id. ). Several times in the Order, the Court pointed to Hall v. Clifton Precision, 150 F.R.D. 525 (E.D. Pa. 1993) treating deposition conduct, (Docket No. 209), as the transcript was replete with arguments, objections, and unprofessional and often hostile remarks between counsel. (Docket Nos. 81-4, 81-5, passim ).

Plaintiff moved to exclude reference to Wise's conviction at trial, arguing that its violent nature was highly prejudicial. (Docket No. 205 at 3). The Court ruled, inter alia, that it would inform the jury of his conviction for vehicular homicide and issue a limiting instruction. (Docket No. 228). Also, Defendants would be permitted to reference said conviction in their opening statement, but any further reference would be limited, depending on the evidence elicited at trial. ( Id. ).

Having convened another Telephonic Status Conference upon review of pertinent medical records and treating physician Dr. Karen Tobin's ("Dr. Tobin") medical report, the Court found that Plaintiff was unavailable, as contemplated by Federal Rule of Civil Procedure 32(a)(4)(C), for trial and for a videotaped deposition for use at trial. (Docket Nos. 233, 234, 245). Thus, the Court ordered Fisher to produce a copy of the edited deposition to Defendants and the Court on April 3, 2014, which he did. (Docket No. 234).

Two days later, the Court held another Telephonic Conference, during which Joyal provided an update on the status of the subpoenaed medical records[20] and raised concerns about Plaintiff's ability to prove damages. (Docket No. 240). The Court then heard the parties' positions as to bifurcation before ultimately bifurcating the trial as to liability and damages. ( Id. ).

D. Trial Proceedings

Jury selection commenced on April 7, 2014. (CM/ECF, Minute Entry, Apr. 7, 2014). That day, Defendants filed a Motion to Dismiss Based Upon Federal Rule of Civil Procedure 36(b), arguing that they were prejudiced as a result of Fisher's disobedience of the Court's discovery Orders and his failure to supplement and/or amend Plaintiff's initial disclosures and responses to interrogatories to include Wise's additional treatment providers. (Docket No. 241). Fisher responded that he had fully complied with the Court's discovery orders and produced all necessary documents to Defendants. (Docket No. 242). The Court heard argument and considered all of the discovery issues throughout pretrial proceedings, up to and including Fisher's failure to comply with the December 13, 2013 Order requiring counsel to secure and provide all medical records created between Wise's release from WCCF and the date of trial. (CM/ECF Minute Entry, Apr. 9, 2014). The Court granted the Motion to the extent that it limited Plaintiff's damages claim for emotional/mental distress to his time at WCCF and any immediate hospitalization thereafter.[21] ( Id. ).

Plaintiff presented medical testimony from WCCF physician Dr. John David Six ("Dr. Six")[22] and Wise's treating physician Dr. Tobin, but he did not utilize expert testimony. (Docket No. 251). Following the close of Plaintiff's case-in-chief, Defendants brought a Motion for Judgment as a Matter of Law, arguing that no reasonable jury could find for Plaintiff as to the Eighth Amendment, assault, or battery claims. (Docket No. 244). In their written response to the Motion, Fisher and Tucker maintained that they had met their burden as to all of the claims against all remaining Defendants, pointing to Wise's medical records, WCCF's notes and logbooks, and the testimony of Mr. and Mrs. Wise, Dr. Tobin, Fields, Thomas Wright, Melencheck, and King. ( Id. at 6-7). However, on April 10, 2014, Fisher voluntarily dismissed all claims against Goroncy, Rossi, and the § 1983 claim against Kelley. (Docket No. 247).

The Court heard oral argument from Joyal, Tucker, and Fisher on April 11, 2014 as to the remaining aspects of the Motion. (CM/ECF Minute Entry Apr. 11, 2014). After the defense rested and the Court heard additional argument on the 14th, the Court dismissed the assault claim against King and the battery claim against Kelley. (Docket No. 251); (Apr. 14 Morning Trans. at 70-72).

Thus, the Eighth Amendment claim against King based on alleged delay and the failure to train and/or supervise claim against Washington County were the only claims remaining when the case went to the jury. (Docket No. 253). The jury rendered a defense verdict on April 14, 2014, finding that King did not violate Plaintiff's Eighth Amendment right to adequate medical care. ( Id. ). No post-trial motions challenging the verdict were filed.

E. Motions for Sanctions and/or Attorneys' Fees and Costs

On April 12, 2014, Defendants moved for attorneys' fees and costs under Federal Rules of Civil Procedure 37(b), 37(c)(1)(A), and 26(g) and 28 U.S.C. § 1927 for reimbursement of the costs they spent in securing Wise's subpoenaed medical records, consistent with this Court's prior Order, (Docket No. 187).[23] (Docket Nos. 248, 255). Plaintiff opposed, arguing that the motion was "unfounded, unreasonable, and an improper mechanism for seeking reimbursement" for "fees and costs incurred in the routine course of discovery in this case." (Docket No. 257).

Defendants then moved for an extension of time to file a Motion for Costs and Fees pursuant to 28 U.S.C. § 1927, Federal Rule of Civil Procedure 11, and the Court's inherent authority. (Docket No. 260). The Court granted said Motion, and ordered same to be filed not more than twenty days after the Court ruled on the then-pending Motions. (Docket No. 261).

Plaintiff filed a Sur Reply to Defendants' Motion for Attorney Fees, and attached thereto an Affidavit from Fisher. (Docket No. 262, 262-1). In his Affidavit, Fisher set forth the efforts he made prior to filing the Complaint in this action, his review of the medical records in this case, and his visit with Wise while he was hospitalized on December 5, 2013. (Docket No. 262-1). Tucker also filed an Affidavit explaining his role and exposure to the then-pending Motions before the Court. (Docket No. 263).

On May 28, 2014, the Court convened a Hearing and Oral Argument on Defendants' Motions, (Docket Nos. 248, 255), which was continued, as neither Tucker nor a representative of Cohen & Willwerth P.C., Fisher's former firm, appeared, (Docket No. 270). Defendants filed supplemental exhibits demonstrating their costs in subpoenaing Wise's medical records. (Docket No. 272). Fisher filed a Supplemental Affidavit addressing his evaluation of the claim, his fees, and his demand, (Docket No. 273), as well as a Brief arguing that he did not engage in bad faith and that the sanctions sought were inappropriately based on personal animus, (Docket No. 274).

Defendants then filed a Motion requesting that Judge Benson issue a report of his participation in the ENE, providing his opinions as to the strengths and weaknesses of the case. (Docket No. 275). Plaintiff did not oppose same, (Docket No. 276); however, the Court denied the Motion for various reasons outlined in its July 11, 2014 Memorandum Opinion and Order, (Docket No. 284), and discussed, infra.

The Court heard additional argument from both counsel at the June 9, 2014 Hearing before ordering Fisher to file evidence concerning his relationship with Cohen & Willwerth. (Docket No. 276). Subsequently, defense counsel and Cohen & Willwerth reached a settlement agreement, and Defendants withdrew the Motions for fees and sanctions on June 30, 2014 in their entirety. (Docket Nos. 282, 283).

However, within the twenty-day time frame set forth in this Court's prior Order, (Docket No. 261), Joyal filed a Motion seeking sanctions against Fisher, only, pursuant to 28 U.S.C. § 1927, Federal Rule of Civil Procedure 11, and 42 U.S.C. § 1988, (Docket No. 285), as well as a Motion for Attorneys' Fees, Expenses and Costs pursuant to 42 U.S.C. § 1988 and Federal Rule of Civil Procedure 54(d), (Docket No. 288). Fisher responded to both Motions, arguing that they were perfunctory in that they did not specify the harm caused by the conduct to be sanctioned or claim the requisite bad faith. (Docket Nos. 289, 290). The Court ordered Fisher to file a supplemental response, as he did not have immediate access to Joyal's billing records, which were filed under seal in support of his motions. (CM/ECF Text Order, Aug. 5, 2014). Joyal produced the records to Fisher, who then responded, (Docket No. 291), per the Court's Order. Fisher claimed that the records were insufficient proof under § 1988, as they did not denote exactly how much time was spent in defending the alleged frivolous claims and the claims that survived summary judgment but did not reach the jury. ( Id. at 5-6).

During the Hearing, the Court questioned the timeliness of the Rule 11 Motion, and Joyal immediately responded that he would withdraw the motion.[24] (Docket No. 300 at 4:12-5:6). The Court also encouraged the parties to resolve their dispute, given the nature of the allegations. ( Id. at 52:9-12). The day after the Hearing, Joyal withdrew the § 1988 motion. (Docket No. 294).

A week later, Fisher filed his pre-filing billing records, under seal. (Docket No. 296). The following day, Defendants filed their Supplemental Brief in support of their Motion for Sanctions, arguing that sanctions were appropriate here because Fisher pursued frivolous claims without any credible evidence to support the damages and liability aspects of the case. (Docket No. 297). In part, Joyal relied on Zabresky v. Von Schmeling, discussed infra. 2014 WL 2450950, at *9 (M.D. Pa. May 28, 2014); (Docket No. 297). Despite Fisher's billing records being sealed, Joyal referred to them in his brief on the public docket. (Docket No. 297). Hence, the Court removed Joyal's brief from public view. (CM/ECF Text Order Oct. 15, 2014).

Fisher also filed a blank copy of the Akman & Associates Questionnaire. (Docket No. 303-1). Defendants replied, requesting that the Court order Fisher to produce his notes from his November 18, 2010 meeting with Wise and Akman & Associates to confirm that it no longer maintained any files regarding Wise. (Docket No. 304). Fisher responded that he did not have said notes and that no jurisdiction existed over Akman & Associates. (Docket No. 305).

A week later, Defendants requested that Fisher produce records from the initiation of the litigation or an appropriate affidavit, (Docket No. 306), which request the Court granted, (Docket No. 307). Fisher then filed an Affidavit stating that, prior to filing the Complaint, he had his initial notes, the Questionnaire, Wise's medical and criminal records, information from WCCF's website, the transcripts of Wise's preliminary hearing and sentencing in the criminal case, and the original file from Wise's criminal attorney. (Docket No. 308). Supporting exhibits were attached to the Affidavit. ( Id. ). In terms of the Amended Complaint, Fisher also had all of the previously-described records as well as the jail records provided by Defendants, their initial disclosures, Melencheck's records, and the ambulance records. ( Id. ). Fisher claimed that he had since lost many of the records during a move. ( Id. ).

Defendants subsequently moved for another Hearing on the Motion for Sanctions. (Docket No. 309). Fisher opposed, (Docket No. 310), and Joyal replied, (Docket No. 314), setting forth the specific evidence he wished to introduce at such a Hearing. Fisher then filed a Sur Reply maintaining that Joyal failed to substantiate Defendants' request for a hearing and questioning whether same was made in good faith. (Docket No. 315 at 2). As the Court believes it has more than a sufficient basis to rule, it denied Defendants' Motion for a Hearing on November 18, 2014. (Docket No. 316).

Given the Court's suggestion to counsel to negotiate their dispute, (Docket No. 300 at 52:11), a Telephonic Status Conference was held on March 12, 2015, during which counsel advised that they had engaged in settlement negotiations. (Docket No. 318). However, negotiations had failed. ( Id. ). Six days later, Fisher emailed the Court's clerk advising that counsel were unable to resolve this matter as they could not agree on confidentiality as a term of any release and settlement agreement.

Based on the Court's inquiry and following email correspondence with counsel and Murphy about Murphy's appearance at trial, Fisher filed an Affidavit about his process in subpoenaing Murphy. (Docket No. 320); See Section IV.C.2.e, supra. Joyal has not replied to same as of this writing. The Court now turns to the Motion at hand, and writes in support of its Order dated March 31, 2015. (Docket No. 321).


Title 28 U.S.C. § 1927 provides:

Any attorney or other person admitted to conduct cases in any court of the United States or any Territory thereof who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys' fees reasonably incurred because of such conduct.

28 U.S.C. § 1927. "Section 1927 is a fee shifting statute which provides that attorneys may be liable for the excess costs, expenses and fees reasonably incurred because of such bad faith conduct." E.E.O.C. v. U.S. Steel Corp., 877 F.Supp.2d 278, 287 (W.D. Pa. 2012) (citing Sutton v. American Fed'n of State, County and Mun. Workers, Local 1510, 1997 WL 34663, at *7 (E.D. Pa. Jan. 28, 1997). Further, "[i]t limits attorney sanctions to situations in which an attorney has (1) multiplied proceedings; (2) in an unreasonable and vexatious manner; (3) thereby increasing the cost of the proceedings; and (4) doing so in bad faith or by intentional misconduct.'" Ferguson v. Valero Energy Corp., 454 F.Appx. 109, 112 (3d Cir. 2011) (quoting In re Schaefer Salt Recovery, Inc., 542 F.3d 90, 101 (3d Cir. 2008)) (internal quotation marks omitted). Indeed, "... an attorney's conduct must be of an egregious nature, stamped by bad faith that is violative of recognized standards in the conduct of litigation.'" Id. Interpreting In re Prudential Ins. Co. Am. Sales Practice Litig. Agent Actions, 278 F.3d 175 (3d Cir. 2002), the United States Court of Appeals for the Third Circuit explained that a district court may sanction attorneys under its inherent power when the conduct is egregious or where the statutory provision is inadequate. Ferguson, at 114.

The Third Circuit guides that § 1927 sanctions are intended to deter an attorney from intentionally and unnecessarily delaying judicial proceedings, and they are limited to the costs that result from such delay. LaSalle Nat'l Bank v. First Connecticut Holding Grp., LLC., 287 F.3d 279, 288 (3d Cir. 2002) (citing Zuk v. E. Pa. Psychiatric Inst. of the Med. Coll. of Pa., 103 F.3d 294, 297 (3d Cir. 1996)).

To that end, the Court is mindful of the admonition of the Supreme Court of the United States:

[I]t is important that a district court resist the understandable temptation to engage in post hoc reasoning by concluding that, because a plaintiff did not prevail, his action must have been unreasonable or without foundation. This kind of hindsight logic could discourage all but the most airtight claims....

Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421-22 (1978). Accordingly, the Third Circuit has held that district courts should impose § 1927 sanctions sparingly. See In re Orthopedic Bone Screw Products Liab. Litig., 193 F.3d 781, 796 (3d Cir. 1999)) (sanctioning powers should be used sparingly in order to avoid chilling novel legal or factual arguments from counsel). It also cautions that, "courts should exercise [this sanctioning power] only in instances of a serious and studied disregard for the orderly process of justice." LaSalle Nat'l Bank, at 288-89 (citations and quotations omitted). Further, it notes that the power to sanction under § 1927 necessarily "carries with it the potential for abuse, and therefore the statute should be construed narrowly and with great caution so as not to stifle the enthusiasm or chill the creativity that is the very lifeblood of the law." Id. (quoting Mone v. Commn'r of Intern. Revenue, 774 F.2d 570, 574 (2d Cir. 1985); see also Ford v. Temple Hosp., 790 F.2d 342, 349 (3d Cir. 1986) ("The uncritical imposition of attorneys' fees can have an undesirable chilling effect on an attorney's legitimate ethical obligation to represent his client zealously."); Baker Industr. Inc, 764 F.2d at 208 ("Th[e] bad faith requirement is... necessary to avoid chilling an attorney's legitimate ethical obligation to represent his client zealously[.]"). Prior to sanctioning an attorney, a court must provide the party to be sanctioned with particularized notice of and some opportunity to respond to the charges. Jones v. Pittsburgh Nat. Corp., 899 F.2d 1350, 1357 (3d Cir. 1990).

As such, absent a finding that counsel's conduct resulted from bad faith, rather than misunderstanding, bad judgment, or well-intentioned zeal, the Court may not impose sanctions under § 1927. Grider v. Keystone Health Plan Cent., Inc., 580 F.3d 119, 142 (3d Cir. 2009). A finding of bad faith is required to impose liability; otherwise, "an attorney who might be guilty of no more than a mistake in professional judgment in pursuing a client's goals might be made liable for excess attorneys' fees...." Baker Indus., 764 F.2d at 209; see also Gaiardo v. Ethyl Corp., 835 F.2d 479 (3d Cir. 1987) (holding Section 1927 requires a finding of counsel's bad faith as a precondition to the imposition of fees) (citing Baker ); Macheska v. Thomson Learning, 347 F.Supp.2d 169, 180 (M.D. Pa. 2004) (citing Hackman v. Valley Fair, 932 F.2d 239, 242 (3d Cir. 1991)).

A showing of bad faith requires clear and convincing evidence that counsel or a party intentionally advanced a baseless contention for an improper purpose. E.E.O.C. v. U.S. Steel Corp., 877 F.Supp.2d at 291-92. Bad faith is plain when the "claims advanced were meritless, that counsel knew or should have known this, and that the motive for filing the suit was for an improper purpose such as harassment." In re Prudential, 278 F.3d at 188 (quoting Smith v. Detroit Fed'n of Teachers Local 231, Am. Fed. of Teachers, AFL-CIO, 829 F.2d 1370, 1375 (6th Cir. 1987)). Bad faith may be inferred where a party pursues clams that are clearly frivolous. Johnson v. Smithkline Beecham Corp., 2015 WL 1004308, at *7 (E.D. Pa. Mar. 9, 2015) (citing In re Prudential ); see also Matthews v. Freedman, 128 F.R.D. 194, 206-07 (E.D. Pa. 1989), aff'd, 919 F.2d 135 (3d Cir. 1990) (plaintiff's counsel acted in bad faith by litigating time-barred claims). On the other hand, bad faith is not found where motions, discovery requests, and discovery costs are multiplied when they are utilized by counsel to support colorable claims. See, e.g., Reeves v. Dauphin Cnty., 2008 WL 2054006, at *1 (M.D. Pa. May 13, 2008) (citing and quoting Mazzone v. Grant Wilfley Casting, 2008 WL 1803513, at *2 (D.N.J. Apr. 21, 2008) (citation omitted) and In re Prudential Ins. Co., 278 F.3d at 188).

The Third Circuit has recently affirmed the bad faith requirement in the bankruptcy context where counsel's bribery tactics, inter alia, demonstrated nefarious motives. In re Prosser, 777 F.3d 154, 163 (3d Cir. 2015) ("[A]lthough the Bankruptcy Court's reasons for its finding of bad faith could have been more explicit, its finding was supported by both the entire record' and its use of the very words of the statute.'") (citing Baker Indus., 764 F.2d at 209).

Although not controlling, the Court also notes the Ninth Circuit's definition of bad faith:

A comprehensive definition of "bad faith" or conduct "tantamount to bad faith" is not possible, but the type of conduct at issue "includes a broad range of willful improper conduct." Fink v. Gomez, 239 F.3d 989, 992 (9th Cir. 2001). Such conduct includes "delaying or disrupting the litigation or hampering enforcement of a court order." Primus Auto. Fin. Servs., Inc. v. Batarse, 115 F.3d 644, 648 (9th Cir. 1997). In addition, "willful disobedience of a court's order, " actions constituting a "fraud" upon the court, or actions that defile the "very temple of justice" are sufficient to support a bad faith finding. Chambers v. NASCO, Inc., 501 U.S. 32, 47 (1991). And "recklessness when combined with an additional factor such as frivolousness, harassment, or an improper purpose" is sufficient. Fink, 239 F.3d at 994. Therefore, "reckless misstatements of law and fact, when coupled with an improper purpose" can establish bad faith. Id. ; see also B.K.B. v. Maui Police Dept., 276 F.3d 1091, 1108 (9th Cir. 2002) (same); Malhiot v. S. Cal. Retail Clerks Union, 735 F.2d 1133, 1138 (9th Cir. 1984) (knowing false statements of fact or law establish bad faith). It is of particular importance to note that it is "permissible to infer bad faith from [a party's] action[s] plus the surrounding circumstances." Miller v. City of Los Angeles, 661 F.3d 1024, 1029 (9th Cir. 2011). Accordingly, Mr. Hancock, Mr. Musnuff, and Goodyear [respondents to motion for sanctions] are incorrect when they repeatedly claim the Court must, in effect, obtain a confession before imposing sanctions.

Haeger v. Goodyear Tire & Rubber Co., 906 F.Supp.2d 938, 974 (D. Ariz. 2012) (alterations in original).

In judging whether an attorney's conduct constitutes bad faith or intentional misconduct, the Court is also mindful of the Pennsylvania Rules of Professional Conduct:[25]

A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law...
EXPLANATORY COMMENT [1] The advocate has a duty to use legal procedure for the fullest benefit of the client's cause, but also a duty not to abuse legal procedure. The law, both procedural and substantive, establishes the limits within which an advocate may proceed. However, the law is not always clear and never is static. Accordingly, in determining the proper scope of advocacy, account must be taken of the law's ambiguities and potential for change.
[2]... What is required of lawyers, however, is that they inform themselves about the facts of their clients' cases and the applicable law and determine that they can make good faith arguments in support of their clients' positions. Such action is not frivolous even though the lawyer believes that the client's position ultimately will not prevail. The action is frivolous, however, if the lawyer is unable either to make a good faith argument on the merits of the action taken or to support the action taken by a good faith argument for an extension, modification or reversal of existing law.

Pa. RPC 3.1. Pennsylvania courts have explained that Rule 3.1 requires that, where "a lawyer knows that his or her client's case lacks any legal merit, the lawyer is not only justified in refusing to represent the client but also mandated to do so." Seilhamer v. Pa. Bd. of Prob. & Parole, 996 A.2d 40, 45 (Pa.Commw. Ct. 2010) (quoting Peace v. Dept. of Pub. Welfare, 501 A.2d 1164 (Pa. 1985). In that vein, "[t]here is a presumption that an attorney licensed to practice law in this Commonwealth, who acts as an officer of the court system, has acted in good faith upon signing a document filed with the court." Eiser v. Brown & Williamson Tobacco Corp., 938 A.2d 417, 428 (Pa. 2007) (Baldwin, J., plurality) (citing Rule 3.1).

Rules 3.1 and 3.2, which require attorneys to "make all reasonable efforts to expedite litigation consistent with the interests of the client, " go hand-in-hand. Pa. RPC 3.1, 3.2; see Church of the Overcomer v. Cnty. of Delaware, 2013 WL 5942378, at *2 (E.D. Pa. Nov. 6, 2013) ("At oral argument and in subsequent communications, in keeping with the highest professional traditions as embodied in Pennsylvania Rules of Professional Conduct 3.1 and 3.2, Plaintiffs' able ...

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