Conklin v. Warrington Tp.

• Decision Date: 15 February 2007
• Docket Number: Civil Action No. 1:05-CV-1707.
• Citation: 476 F.Supp.2d 458
• Parties: Steven CONKLIN, Plaintiff v. WARRINGTON TOWNSHIP, et al., Defendants.
• Court: U.S. District Court — Middle District of Pennsylvania

476 F.Supp.2d 458

Steven CONKLIN, Plaintiff v. WARRINGTON TOWNSHIP, et al., Defendants.

Civil Action No. 1:05-CV-1707.

United States District Court, M.D. Pennsylvania.

February 15, 2007.

Don Bailey, Bailey & Ostrowski, Harrisburg, PA, for Plaintiff.

Rolf E. Kroll, Shaun J. Mumford, Margolis Edelstein, Camp Hill, PA, Donald B. Hoyt, Blakey, Yost, Bupp & Rausch, LLP, York, PA, Samuel C. Stretton, The Law Office of Samuel C. Stretton, West Chester, PA, for Defendants.

MEMORANDUM

CONNER, District Judge.

Before the court is a motion to recuse filed by plaintiff Steven G. Conklin ("Conklin"). (Doc. 60.) The question presented by plaintiffs motion is whether the court's decision to sanction plaintiffs counsel, Attorney Don Bailey, for his unprofessional conduct in the instant matter requires the court to recuse. For the reasons that follow, the court answers this question in the negative and, hence, will deny plaintiffs motion.

I. Introduction

As a threshold matter, the court observes that the instant motion to recuse and supporting brief are presented in a peculiar manner. Both are signed by counsel of record, Attorney Bailey, yet the narrative purports to be that of the plaintiff personally. Paragraph 16 of the motion declares:

These decisions are plaintiffs [sic] and are not the decisions or reasonings of plaintiffs counsel, although counsel has indicated to plaintiff that he does concur in plaintiffs analysis of the law and facts in this circumstance.

(Doc. 60 ¶ 16.) In reality, this attempt to transfer to Mr. Conklin responsibility for the contents of the motion and brief is ineffectual in light of Rule 11(b) of the Federal Rules of Civil Procedure which provides, in pertinent part, that

[b]y presenting to the court (whether by signing, filing, submitting, or later advocating) a pleading, written motion, or other paper, an attorney ... is certifying that to the best of [his] knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, —

(1) it is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation;

(2) the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law; [and]

(3) the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery .

FED.R.CIV.P. 11(b). Attorney Bailey's act of signing the motion to recuse carries with it the explicit representations and confluent obligations of Rule 11. That Attorney Bailey chose to submit a motion and brief ostensibly prepared by his client does not alter his fundamental obligations under Rule 11. See Greenfield v. U.S. Healthcare, Inc., 146 F.R.D. 118, 125 (E.D.Pa.1993) ("Under Rule 11, the signer's duty to conduct a reasonable inquiry is not delegable ...."); Fleekop v. Mann Music Ctr., Civ. A. No. 89-6846, 1990 WL 204253, at *4 (E.D.Pa. Dec. 12, 1990) ("Rule 11 requires an attorney to do more than merely rely on a client's version of the facts before certifying that a claim is well-grounded in fact.") (citing Mary Ann Pensiero, Inc. v. Lingle, 847 F.2d 90, 94 (3d Cir.1988)).

This method of raising the recusal issue is problematic in that it presents as a pro se motion. It does not identify any statutory basis for disqualification. Nor does it identify any applicable caselaw. Consequently, the court is burdened with an analysis without the benefit of meaningful research from the moving party. In short, the irregular manner of presentation chosen by plaintiffs counsel has unduly complicated the court's review of the matter. Although the manner of presentation does not comport with Rule 11, the court will refrain from any formal sanctions. It is, however, another example of counsel's non-conformance which burdens and frustrates judicial review. (See, e.g., Doc. 43 at 2 n. 2; infra note 1.)

The court also recognizes that it has the option of issuing a second¹ order on briefing, but, in the interest of expediting resolution of this matter, the court will proceed with an analysis of the recusal motion based upon the record before it and the court's independent research. To facilitate this analysis, the court must set forth certain background facts and procedural developments.

II. Factual Background and Procedural History Relevant to the Motion to Recuse²

The complaint in this case was filed by Attorney Bailey in August 2005. (See Doc. 1.) Brought pursuant to 42 U.S.C. § 1983, the complaint vaguely alleged that plaintiffs constitutional rights were violated by the unlawful application of local zoning ordinances.³ Defendants moved to dismiss the complaint on various grounds. By order of court dated May 16, 2006 (Doc. 28), the court granted in part and denied in part the motions to dismiss.

Seizing on a footnote in the opinion, which simply noted the complaint's lack of clarity in obiter dictum (see Doc. 28 at 2 n. 2),⁴ Attorney Bailey filed a "motion to strike, vacate and reconsider the court's May 16, 2006 order" and supporting brief. (Docs. 29, 30.) These documents expanded on plaintiffs claims — tacitly acknowledging the complaint's lack of clarity — but also accused the court of, inter alia, incompetence and racism. Upon review of the motion and supporting brief, the court determined that Attorney Bailey filed these documents in a fit of pique over sanctions imposed upon him by the undersigned in an unrelated case. See Cornish v. Goshen, No. 1:04-CV-232, Doc. 30 (M.D.Pa. Aug. 1, 2005) (order sanctioning Attorney Bailey pursuant to Rule 11 of the Federal Rules of Civil Procedure); (Doc. 35 at 6 n. 11.) Specifically, the court noted that it was no mere coincidence that Attorney Bailey filed the motion to vacate and supporting brief on the very day that he filed his certification of compliance with the court's order of sanctions in Cornish.⁵ Indeed, the language of Attorney Bailey's motion was nearly identical to the language employed by the court in its prior order of sanctions.⁶

By order dated June 30, 2006, the court directed Attorney Bailey to show cause "why sanctions should not be imposed for the apparent violations of Rule 11 of the Federal Rules of Civil Procedure identified in the accompanying memorandum." Id. at 10. In response to the show cause order, Attorney Bailey flatly denied that his motion and brief were filed in a fit of pique over sanctions previously imposed by the court. He claimed that he "wrote the motion and brief as the words popped into his mind." (Doc. 42 at 16.) Attorney Bailey also denied engaging in unprofessional conduct, characterizing his filings as "courteous[,] succinct and proper." (Doc. 42 at 15.) He also pervicaciously continued the impertinent commentary of his motion to vacate.⁷ Following a thorough review of the matter, the court concluded that Attorney Bailey's filing of the documents at issue was not reasonable and that it was done in bad faith and for an improper purpose, to wit: in retaliation for the court's previous sanction order. The court stated: "Attorney Bailey's improper and unprofessional accusations cannot be attributed to mere stridence in the heat of aggressive advocacy. To the contrary, his submissions were the product of deliberate defiance, designed to impugn the integrity of the court." (Doc. 43 at 4.)

This was not Attorney Bailey's first exposure to disciplinary action. (See Doc. 35 at 7; Doc. 43 at 6.) When considered in combination with the court's prior disciplinary action against Attorney Bailey it triggered the undersigned's obligation under the Canon 3(B)(3) of the Code of Conduct for United States Judges to "initiate appropriate action when the judge becomes aware of reliable evidence indicating the likelihood of unprofessional conduct by a ... lawyer." CODE OF CONDUCT FOR UNITED STATES JUDGES CANON 3(B)(3) (2002); see also United States v. Mendoza, 468 F.3d 1256, 1262 (10th Cir.2006). Consequently, the court fined Attorney Bailey $1,000 and directed the Clerk of Court to send the relevant documents to the Disciplinary Board of the Supreme Court of Pennsylvania "for an investigation as to whether Attorney Bailey's conduct comports with that of an attorney admitted to the practice of law in this state." (Doc. 43 at 7.)⁸

Thereafter, the litigation proceeded without controversy. Attorney Bailey paid his fine.⁹ The court granted an enlargement of time for factual discovery and extended the deadlines for motions for summary judgment. (Doc. 50.) On January 12, 2007, over five months after the entry of sanctions against Attorney Bailey, plaintiff filed the instant motion to recuse. On January 30, 2007, the court ordered plaintiff to file a supporting brief. (Doc. 63.) Plaintiff filed a brief in support of his motion to recuse on February 6, 2007. By order of court dated February 9, 2007, the court stayed briefing on defendants' motion for summary judgment pending resolution of plaintiffs motion to recuse. (Doc. 72.)

III. Discussion

The disqualification standard is set forth in 28 U.S.C. § 455, which provides in pertinent part as follows:

(a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.

(b) He shall also disqualify himself in the following circumstances:

(1) Where he has a personal bias or prejudice concerning a party ....

Id.¹⁰ Pursuant to the above quoted language, the court must consider whether its rulings and statements objectively produce the appearance of bias against Conklin.¹¹ As explained by the Supreme Court, these provisions "require ... `bias and prejudice' ... to be evaluated on an objective basis, so that what matters is not the...