Bobal v. Rensselaer Polytechnic Institute

Decision Date22 October 1990
Docket NumberD,No. 852,852
Parties, 17 Fed.R.Serv.3d 1332, 63 Ed. Law Rep. 442 Gail Elizabeth BOBAL, Plaintiff-Appellant, v. RENSSELAER POLYTECHNIC INSTITUTE, Board of Trustees of Rensselaer Polytechnic Institute, Dr. Gerald Moss, Dr. Punkaj K. Das, Dr. Donald S. Rodbell, Dr. Stephen E. Wiberley, Dr. Edward J. Smith, Dr. Henry A. Scarton, Dr. Allen Zelman, Dr. Gary Judd, Dr. William C. Jennings, Dr. John B. Brunski, Defendants-Appellees. ocket 89-7413.
CourtU.S. Court of Appeals — Second Circuit

Gail Elizabeth Bobal, Edison, N.J., pro se.

Miriam M. Netter (Pattison, Sampson, Ginsberg & Griffin, P.C., Troy, N.Y., of counsel), for defendants-appellees.

Before OAKES, Chief Judge, FEINBERG and WALKER, Circuit Judges.


Circuit Judge:

Plaintiff pro se Gail Elizabeth Bobal appeals from two dismissal orders and various other denials of relief entered against her by the District Court for the Northern District of New York (Neal P. McCurn, C.J.). Bobal advances three distinct arguments. First, she asserts that the district court erred when, pursuant to Fed.R.Civ.P. 12(b)(6), it dismissed with prejudice sixteen of her twenty causes of action and limited the relief available in one of the remaining four. Second, she argues that the district court abused its discretion when it dismissed with prejudice the remaining four causes of action as a result of plaintiff's violation of a discovery order, and then improperly refused to grant her relief from its final judgment pursuant to Fed.R.Civ.P. 60(b). Third, she argues that the court below abused its discretion by refusing to disqualify defendants' counsel.

We find no error in the district court's denial of Bobal's disqualification motion and its dismissal of the majority of her causes of action. Nonetheless we conclude that the district court abused its discretion by dismissing with prejudice the remainder of Bobal's suit without first warning this pro se plaintiff that such a harsh sanction was in the offing.


The complaint in this action revolves around plaintiff's attempts to obtain a graduate degree in biomedical engineering from defendant Rensselaer Polytechnic Institute ("RPI"). She charges the school and members of its past and current faculty with, inter alia,

delaying, obstructing, and preventing her from obtaining her doctorate. [The suit's] nature can be described as a breach of duty to deal reasonably, fairly, and in good faith ... [with a student who] imparted her nonfunded scientific findings to the school. This case involves wrongful encumbrance of the student's intellectual property ... and a bad-faith breach of contract through malicious [sex] discrimination.

Just as she perceived conspiracies against her while a student at RPI--as her Amended Complaint makes clear--so too does plaintiff now see conspiracies within the court system designed to thwart her claims. She charges Judge McCurn with "impeachable offenses" and alleges that a recently adopted local rule for the Northern District of New York "was hastily written and enacted to prejudice her interests." She also bases her motion to disqualify defendants' counsel on an alleged conspiracy between opposing counsel and attorneys for the Legal Aid Society ("Legal Aid") with whom she once consulted, but who declined to represent her.

On December 20, 1985, after oral argument and in an opinion delivered from the On May 8, 1986, Judge McCurn held a status conference; Bobal did not appear because, she later said, she had never received the clerk's letter notifying her of the conference. The court then rescheduled the conference for June 4, 1986. At that conference, the district court attempted to fashion a discovery schedule for the action. He ordered Bobal to appear for her deposition on July 14 and 15, 1986. She stated that "I will not be available ... This is an improper conference and I am not a party to this conference." She then left the courtroom. Judge McCurn memorialized his discovery order on June 20, 1986. Bobal forthrightly admits that she violated the court order, but attempts to justify her conduct because she "conclude[d] that the order would irreparably prejudice her case."

bench and later memorialized in a two-page order, the district court dismissed sixteen of the twenty causes of action pleaded, and limited recovery under one of the remaining four. On May 14, 1987 Judge McCurn dismissed with prejudice the remainder of plaintiff's suit as a sanction for plaintiff's deliberate violation of a court order. His dismissal must be placed in its proper context.

Neither at the June 4 conference nor in the June 20 order did Judge McCurn indicate that Bobal's failure to comply with his order would result in the dismissal of her case. On September 4, 1986, by which time plaintiff had failed to contact defendants' counsel to attempt to reschedule her deposition, defendants moved to dismiss the case, pursuant to Fed.R.Civ.P. 16(f), 37(d) and 41(b). Judge McCurn granted the motion on May 14, 1987, and on July 6, 1987 denied Bobal's request to amend both his December 1985 order dismissing the majority of her claims and his May 1987 order dismissing the remainder.

On May 14, 1988, Bobal moved--presumably pursuant to Fed.R.Civ.P. 60 and the applicable ethical canons--to disqualify defendants' counsel, Miriam Netter, on the basis of Netter's past position as president of the Northeastern New York branch of Legal Aid, which Bobal had once contacted in an attempt to retain counsel to bring an action against RPI. The district court conducted a hearing on October 3, 1988. On January 28, 1989, the district court denied the motion and denied Bobal's request for reconsideration on June 17, 1989. This appeal followed.


In more than eighty pages of appellate briefs, and with the organization and presentation of a six-hundred page appendix, Bobal proves herself capable of considerable legal research. Bobal's Amended Complaint, however, is not always clear, and its occasional confusion highlights the weakness of the majority of the dismissed claims. In examining Bobal's submissions, we are guided by the Supreme Court's mandate that pro se papers be held "to less stringent standards than formal pleadings drafted by lawyers," Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 595, 30 L.Ed.2d 652 (1972), as well as our own instructions that "a pro se litigant should be afforded every reasonable opportunity to demonstrate that he [or she] has a valid claim." Satchell v. Dilworth, 745 F.2d 781, 785 (2d Cir.1984).

We must determine whether, given her pro se status and the potentially colorable nature of at least some of the dismissed claims, Bobal should have received what all parties agree was a harsh sanction. At the outset, we emphasize that appellant's charges of judicial misconduct remain conclusory and frivolous, and lack any support in the record. In fact, the record reveals that Judge McCurn displayed considerable patience with Bobal even as she displayed little with him--such as turning her back on the judge and walking out of his courtroom in the middle of a conference. Were Judge McCurn biased against the appellant, one might have expected him to grant defendants' original motion to dismiss the action in its entirety. Instead he carefully considered the motion and took pains to preserve four causes of action for further development. Those four claims include: misrepresentation; conversion; breach of contract; and interference with contractual We have examined the remaining claims in Bobal's Amended Complaint and substantially agree with the district court's conclusions. Several claims dismissed by the district court are not recognized in New York. Appellant cites no relevant authority--nor could we find any--to support her claims for the substantive torts of "abuse of discretion," "intimidation," "conspiracy" or "peonage." Other dismissed claims merely repeat and reallege wrongs properly subsumed within those claims the district court left intact in its December 1985 ruling. Plaintiff's "breach of promise," "abuse of power," "malfeasance," "trust and fiduciary duty" and particularly garbled "quasi contract liabilities" claims raise issues that are most properly and fully addressed in her breach of contract claim. Her "antitrust violations" claim is frivolous, and merely realleges the contentions raised in her contract and conversion claims.

relations, which was correctly limited--over plaintiff's objections--to acts of faculty members acting outside the scope of their employment.

Still other claims, even when read in the light most favorable to plaintiff, fail as a matter of law. Her claim of prima facie tort fails because she did not, and apparently could not in good faith, allege that the defendants were motivated solely by malicious motives. See, e.g., Burns Jackson Miller Summit & Spitzer v. Lindner, 59 N.Y.2d 314, 333, 464 N.Y.S.2d 712, 721, 451 N.E.2d 459 (1983). She alleges the tort of waste, yet that tort requires an injury to real property, which could not be alleged in this case, as plaintiff candidly admits; she instead envisions an extension of present law from real to personal property. Her "interference with prospective advantage" claim fails to plead the essential elements of the tort. See, e.g., Williamson, Picket, Gross, Inc. v. 400 Park Avenue Co., 63 A.D.2d 880, 405 N.Y.S.2d 709 (1st Dep't 1978), aff'd, 47 N.Y.2d 769, 417 N.Y.S.2d 460, 391 N.E.2d 296 (1979); Rosenberg v. Del-Mar Division, 56 A.D.2d 576, 391 N.Y.S.2d 452 (2d Dep't 1977). Her claims for "defamation and malicious injurious falsehood or disparagement" charge, in effect, slander, yet she fails to plead adequately the actual words spoken, publication or special damages. See, e.g., Goldberg v. Sitomer, Sitomer & Porges, 97 A.D.2d 114, 469 N.Y.S.2d 81 (1st Dep't 1983), aff'd, 63 N.Y.2d 831,...

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