United States District Court, W.D. Pennsylvania
CAILIN NICOLE SOLOFF Pro Se, and DYLAN MICHAEL SOLOFF Pro Se, Plaintiffs,
EDWARD J. AUFMAN, WILLIAM J. GAFFEY, and AUFMAN ASSOCIATES, INC. Defendants.
MEMORANDUM OPINION DENYING PLAINITFFS' MOTION FOR
RECUSAL (DOC. NO. 67)
J. Schwab United States District Judge
Summary of the Case
Amended Complaint identifies Plaintiffs as college students
currently attending the University of Southern California.
Through the statements set forth in the pleadings submitted
by the Parties, as well as the documents related to certain
Trusts and Accounts, some which have been attached to the
pleadings and the various motions and responses filed in this
case, it appears that Plaintiffs are dissatisfied with their
grandfather's provision of financial gifts to them
(either directly or indirectly through their mother), but
have elected to sue Defendants - who were and are the
grandfather's financial and investment advisors - instead
of their grandfather. Plaintiffs' pleadings, as well as
their Motions and Responses to Defendants' Motions,
illustrate their belief that Defendants exploited, extorted,
and/or misappropriated funds in said Trusts and Accounts,
resulting in Plaintiffs' inability to obtain the funds
they want from these financial vehicles.
it appears that Plaintiffs were not direct
beneficiaries of some, if not all, of their grandfather's
various Trusts and other investment vehicles, and although it
appears that Defendants have no fiduciary relationship with
Plaintiffs or other duty to Plaintiffs, the Court has
permitted this case to proceed up to this point in time,
because Plaintiffs are pro se and because the Court
believed all Parties would benefit from the mandatory
Alternative Dispute Resolution (“ADR”) process
and the pre-ADR discovery which this Court ordered.
assist the Parties in obtaining a cost-effective, independent
evaluation of this case, by a subject matter expert, the
Court ordered the Parties to participate in an Early Neutral
Evaluation (“ENE”) pursuant to the ADR program
established by Local Rule 16.2, and consistent with
Plaintiffs' own request. Doc. no. 16, page 13,
item 15. Further, the Court recommended the Parties retain,
as the ENE Neutral, one of Pittsburgh's leading estates
and trusts attorneys, at a cost of $3, 000 per side. Doc.
nos. 19, 24, 48, 70, 74.
of participating in good faith in the ENE process,
Plaintiffs, through their motion practice, began attacking
Defendants, their counsel, the ENE Neutral (doc. no.
70, pages 3-4), and now, finally, the Court (doc.
no. 67), as set forth in more detail below. It has
become readily apparent that these pro se Plaintiffs
are quite skilled in these legal matters, as demonstrated by
their Complaint (doc. no. 5), Amended Complaint
(doc. no. 49), and their extensive motion practice.
before the Court is Plaintiffs' Motion for Recusal
(doc. no. 67) and Defendants' Response in
Opposition thereto. Doc. no. 71. After careful
consideration, the Court denied Plaintiffs' Motion for
Recusal on July 5, 2018 (see doc. no. 75), and now
has prepared the following Memorandum Opinion to explain its
First Federal Lawsuit in the Western District of
filed their first federal lawsuit in the Western District of
Pennsylvania on July 10, 2017, on behalf of themselves and
their two minor siblings. Doc. no. 3 in case no.
17-cv-00908. At that time, Plaintiffs also filed a request to
file the matter in forma pauperis, which this Court
immediately granted. Doc. nos. 1 and 2. However, after
reviewing the Plaintiffs' Complaint, Defendants'
Motion to Dismiss, Plaintiffs' Response, and
Defendants' Reply, on September 27, 2017, this Court held
This Court finds, based on the Adult Plaintiffs'
Complaint and other filings, that the mother of both the
Adult and Minor Plaintiffs is living and capable of bringing
claims on behalf of her two minor children. In addition,
there are no alleged facts in the lengthy Complaint, nor in
any of the Adult Plaintiffs' Briefs, as to why the two
Adult Plaintiffs have any authority to sue on behalf of their
siblings. . . . Thus, this Court concludes that the
Plaintiffs' mother would be the best representative of
the minor children's claims.
Given this decision, the Court will grant the Defendants'
Motion to Dismiss without prejudice, due to the lack [of]
capacity for the Adult Plaintiffs to sue on behalf of the
Doc. no. 18, p. 6-7, case no. 17-cv-00908.
Second Federal Lawsuit in the Western District of
thereafter, on November 17, 2017, Plaintiffs filed the
instant lawsuit, again by seeking this Court's leave to
file a Complaint in forma pauperis, which this Court
(again) immediately granted. Doc. nos. 1 and 2. This time,
the Complaint only asserted claims on behalf of the Adult
Plaintiffs - Cailin and Dylan Soloff - and Defendants filed
an Answer to same. Doc. nos. 5 and 9.
Rule 26(f) Conference and Report
Plaintiffs, who reside in the state of California, filed a
Motion to Appear via Skype, Facetime, or conference call at
the Rule 26(f) conference. Doc. no. 14. This Court
granted Plaintiffs' request, and the Rule 26(f)
conference was conducted by the Parties. Doc. nos. 15 and 16.
In the Rule 26(f) Report of the Parties, filed by the Parties
on March 26, 2018 (doc. no. 16), Defendants
indicated that the ADR process would likely be fruitless
because they did not intend to make “any monetary
offer.” Id. In this same Report, Plaintiffs
noted that “Defendants [were] adamantly opposed to any
type of Alternative Dispute Resolution, believing it would
not be fruitful to either party, as they have [sic] they do
not intend on settling this matter. Plaintiffs
opposed that viewpoint and were strongly in favor of
ADR. Prior to the ‘confer' [P]laintiffs were
open to either ENE or Mediation.” Id.
Initial Case Management Conference and the ADR
April 4, 2018, the Court held its Initial Case Management
Conference in this matter at which time Plaintiff Cailin
Soloff was present, and indicated to the Court that she was
authorized to speak on behalf of her brother, Plaintiff Dylan
Soloff, who could not attend due to school commitments.
During this conference, the Court discussed the Rule 26(f)
Report, sided with Plaintiffs, and ordered an ENE to take
place with a qualified Neutral. The Court further ordered as
. . . (1) Plaintiffs (and Defendants) should serve and file,
on the docket, formal request for production of documents on
or before April 13, 2018; (2) The opposing Party should serve
and file, on the docket, responses and objections to those
requests on or before April 23, 2018; (3) Any documents which
exist and are responsive to a request, shall be produced by a
Party to the opposing Parties by April 30, 2018; and (4) The
Parties are to attend an Early Neutral Evaluation, preferably
before Sam Goncz of Cohen & Grigsby, if Mr. Goncz can
preside as the neutral evaluator in this matter after
performing a conflict check. If Mr. Goncz can handle this
matter as an evaluator, he is to be paid $6, 000 in a fee, by
the Parties (50% of his fee to be paid by the Plaintiffs, and
50% to be paid by the Defendants) in advance of the
See Text Order at doc. no. 19.
Plaintiffs' Request for a “Free” ENE and
“Free” ADR Counsel
this conference, on April 10, 2018, Plaintiffs filed a Motion
seeking the appointment of pro bono counsel to
represent them at the ADR proceeding. Doc. no. 22.
On April 11, 2018, the Parties filed a Stipulation selecting
an ADR process wherein they indicated that they had selected
ENE for their ADR process, and noted that Sam
Goncz would serve as the Neutral. Doc. no.
24. Also, on April 11, 2018, Plaintiffs requested that
the Court also waive their pro rata share of the
Neutral's fee. Doc. no. 25. The Court denied the
Plaintiffs' request for a pro bono attorney
(without prejudice) and for a waiver of the Neutral fee. In
reaching this decision the Court noted:
In effect [Plaintiffs] want the [N]eutral to perform an
important service to Plaintiffs for free. Given the complex
nature of this case and the age of the Trusts at issue, this
case will undoubtedly cost each Party much more than $3, 000
if they proceed through discovery and ultimately to trial,
and it is unfair to expect the neutral to work for 50% of his
already reduced rate. If each Party does not pay their fair
share of $3, 000 to the [N]eutral by May 4, 2018, the Court
will cancel the ENE Stipulation and exempt this case from the
Doc. no. 26. With respect to Plaintiffs' Motion
for a pro bono attorney, the Court held:
The Court also DENIES, without prejudice, Plaintiffs'
Motion for a Pro Bono Attorney to Represent Plaintiffs at ADR
Early Neutral Evaluation (doc. no. 22). The Court
will reconsider this Motion for a Pro Bono Attorney if and
when the record becomes clear as to whether the ENE will
proceed. In sum, the Court is denying Plaintiffs'
request for a free ENE process and for a free attorney at the
ENE, but is willing to reconsider appointing a pro bono
attorney for the ENE once the docket reflects that the
payments have been made to the neutral evaluator and that the
ENE will proceed.
Id. (emphasis added.)
Pre-ENE Discovery and Motions Practice
the entry of the April 4, 2018 Order, the Parties engaged in
pre-ENE discovery, which primarily consisted of an exchange
of documents, with the goal of having a robust and meaningful
ENE. Doc. nos. 27, 28, 29, 32, 33, and 42. During the course
of this discovery, Plaintiffs and Defendants filed various
Motions against one another claiming that each side had
failed to comply with the other's document production
requests. See Defendants' Motion to Quash Subpoenas
(doc. no. 30), which this Court denied as moot (doc
no. 31); see also Plaintiffs' Motion to Compel (doc.
no. 34), Defendants' Opposition to Plaintiffs'
Motion to Compel (doc. no. 37), Plaintiffs'
Reply to Responses filed by Defendants (doc. no.
38), which this Court granted in part and denied in part
(doc. no. 45). In addition, Plaintiffs filed a
Motion seeking additional time to pay the Neutral their fifty
percent share of his fee (doc. no. 46), Defendants
filed a Response (doc. no. 47), and the Court
granted Plaintiffs' request for this extension of time.
Doc. no. 48.
Amended Complaint and Additional Motions Practice
15, 2018, Plaintiffs filed an Amended
Complaint. Doc. no. 49. Ten days later, on
May 25, 2018, Plaintiffs filed a Motion for Sanctions and a
Motion to Compel Discovery. Doc. no. 50. On June 1,
2018, Defendants filed a Motion to Strike attachment 1 to the
Amended Complaint. Doc. no. 52. On June 4, 2018,
Defendants filed their own Motion to Compel (doc. no.
54), an Answer to the Amended Complaint (doc. no.
56), and a Response to Plaintiffs' Motion for
Sanctions and Motion to Compel. Doc. no. 57.
Plaintiffs filed a Response to Defendants' Motion to
Strike Attachment 1 from the Amended Complaint (doc. no.
58, filed on June 9, 2018), a Response to
Defendants' Motion to Compel Discovery (doc. no.
59, filed on June 11, 2018), and a Motion to Strike
Defendants' Affirmative Defenses found in the Answer to
the Amended Complaint (doc. no. 60, filed on June
18, 2018). On June 21, 2018, the Court entered an Order
denying Plaintiffs' Motion for Sanctions and to Compel
(doc. no. 50); granting Defendants' Motion to
Strike attachment 1 to the Amended Complaint (doc. no.
52); and granting, in part, Defendants' Motion to
Compel (doc. no. 54) and denying Plaintiffs'
Motion to Strike (doc. no. 60). Doc. no.
Additional Motion Practice by Plaintiffs
the Court's entry of its June 21, 2018 Order, the Court
was hopeful that this matter would proceed as scheduled, and
that the ENE would be held on or before June 29, 2018
(doc. no. 48), with the Parties present and actively
participating as per the Court's instruction. However, on
June 24, 2018, Plaintiffs filed a “Motion to Strike
Defendants Affirmative Defenses, [and] Reconsideration of
Memorandum Order for Fraud Upon the Court” (hereinafter
“Reconsideration Motion”). Doc. no. 64.
Plaintiffs' Complaint Against Neutral and the ENE
their Reconsideration Motion (doc. no. 64),
Plaintiffs expressed their displeasure with the Court's
June 21, 2018 Order - the first Order of Court in which this
Court did not rule in Plaintiffs' favor - and also
indicated that they had just discovered that the Neutral had
a “conflict of interest, ” and thus, claimed he
could not serve as a Neutral during the ENE. Plaintiffs asked
this Court to reconsider its Order (doc. no. 63). In
addition, their Reconsideration Motion (doc. no. 64)
suggested that the alleged “conflict of interest”
was proof that the Court, the Neutral, the Florida Lawsuit
Defendant(s), and the Defendants' counsel in the instant
case were all conspiring against Plaintiffs' interests.
Finally, in this Reconsideration Motion, Plaintiff Cailin
Soloff implied that she was now too afraid to attend the ENE,
by stating as follows:
The SOLE Plaintiff scheduled to appear at that
“ENE' is a twenty[-]year old, female, college
student that resides in California and attends the University
of Southern California. She will not be attending any
“ENE” in which three, male attorneys in
Pennsylvania have “conspired” to
“extinguish” the claims of Plaintiffs in a
Pennsylvania Federal Court. The “three”
male attorneys are beginning to frighten, the
“only” female college student, who is only
twenty-years old and “not” an attorney.
Doc. no. 64, p. 12 (emphasis added). Plaintiffs'
Reconsideration Motion also stated that their neighbor is a
public defender in Orange County, California and that they
feel “more safe sharing the information with
him.” Id. The last section of this Motion
(doc. no. 64) states as follows:
WHEREFORE, Plaintiffs are respectfully declaring Fraud Upon
the Court and Requesting an Attorney be appointed for
Plaintiffs in Pennsylvania and Defendants['] Affirmative
Defenses be Stricken and Memorandum Order Reconsidered for
Fraud Upon the Court.
Id., p. 13.
Defendants' Response and ...