Heimbecker v. 555 Associates, CIVIL ACTION NO. 01-6140 (E.D. Pa. 3/26/2003)
| Decision Date | 26 March 2003 |
| Docket Number | CIVIL ACTION NO. 01-6140. |
| Parties | H. GERARD HEIMBECKER, Plaintiff, v. 555 ASSOCIATES, et al., Defendants. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
Presently before the Court are the following four motions to dismiss: (1) a Motion to Dismiss, filed by Defendants 555 Associates, 555 Investors, L.P., Ronald Rubin, Faith et Fils, Inc., Faith Robbins, Dale Mulartrick, James Rementer, Gerald Arth, Esquire, and Fox, Rothschild, O'Brien & Frankel, L.L.P. on December 14, 2001 ("Motion to Dismiss by the 555 Defendants et al."); (2) a Motion to Dismiss or for Summary Judgment, filed by Defendants Denis Dice, Esquire and Harvey, Pennington, Cabot, Griffith & Renneisen, Ltd. on December 14, 2001 ("Harvey Pennington Defendants' Motion to Dismiss"); (3) a Motion to Dismiss the Complaint, filed by Defendants CNA Insurance Company, Transportation Insurance Company, and Continental Casualty Company on December 14, 2001 ("CNA Defendants' Motion to Dismiss"); and (4) a Motion to Dismiss filed by Defendant Joseph T. F. Quinn on March 28, 2002 ("Quinn's Motion to Dismiss").1 Also before the Court is the Motion to Preclude Plaintiff from Commencing Further Actions, filed by Defendants CNA Insurance Company, Transportation Insurance Company, and Continental Casualty Company on December 14, 2001 ("Motion to Preclude").
In addition, H. Gerard Heimbecker ("Plaintiff") has filed a Motion for Recusal Pursuant to 28 U.S.C.A. § 144. The Motion for Recusal must be addressed and resolved first. Following this discussion, the Court will set forth the factual background and procedural history in this matter, and then proceed to address the four pending Motions to Dismiss and the Motion to Preclude.
On January 31, 2003, Plaintiff filed the instant Motion for Recusal pursuant to 28 U.S.C. § 144 ("Second Motion for Recusal"), which is currently pending. 28 U.S.C. § 144, entitled "Bias or prejudice of judge," provides:
Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding.
The affidavit shall state the facts and the reasons for the belief that bias or prejudice exists, and shall be filed not less than ten days before the beginning of the term at which the proceeding is to be heard, or good cause shall be shown for failure to file it within such time. A party may file only one such affidavit in any case. It shall be accompanied by a certificate of counsel of record stating that it is made in good faith.
28 U.S.C. § 144 (emphasis added). Having carefully considered the Second Motion for Recusal, the Court concludes that the Motion must be denied on the following grounds.
Initially, the Second Motion for Recusal must be denied based upon application of the "law of the case" doctrine. On May 24, 2002, one day after this matter was reassigned to this Court, Plaintiff filed a "Motion for the Recusal of The Honorable Legrome D. Davis Pursuant to 28 U.S.C.A. § 455" ("First Recusal Motion"). In the First Recusal Motion, Plaintiff argued that recusal was warranted based upon numerous factual allegations, including the following:
13. On May 23, 2002, . . . this case was randomly reassigned . . . to the Honorable Legrome D. Davis.
14. A review of the Resume of the Honorable Legrome D. Davis which is provided by the United States Department of Justice, Office of Legal Policy does not reveal a conflict.
15. A review of the Pennsylvania Manual does not reveal a conflict.
16. An article in The Legal Intelligencer, dated January 24, 2002, entitled "Six Nominated For Federal Bench Seats" by Shannon P. Duffy, states the Honorable Legrome D. Davis was an associate at the firm of Ballard Spahr Ingersoll and Andrews in 1987.
17. A 1999 White House Press Release states the Honorable Legrome D. Davis was an associate at Ballard, Spahr, Ingersoll and Andrews.
18. Ballard Spahr Ingersoll and Andrews represents the Defendants, CNA Financial, Inc., Transportation Insurance Company and Continental Casualty Insurance Company.
First Recusal Motion at 3. In an Order dated and filed on July 3, 2002, this Court denied Plaintiff's First Recusal Motion. Plaintiff then filed a Motion for Reconsideration, in which he included the following additional factual allegations: that I have had "long term, continuous and frequent contact" with Governor Edward Rendell,2 who is a partner at Ballard Spahr Ingersoll & Andrews, L.L.P. ("Ballard Spahr"); that Governor Rendell had appointed me as Assistant District Attorney in 1978 and 1981, and had appointed me as Chairperson of the Task Force on Alternatives to Incarceration in 1992; that Louis Fryman, Chairman of Fox, Rothschild, O'Brien & Frankel, L.L.P. ("Fox Rothschild"), is a witness in the present litigation; that Fox Rothschild is a Defendant in the present litigation; that Mr. Fryman had suborned perjury and committed obstruction of justice during the First Montgomery County Action; and that between 1997 and 2001 I participated in the selection process before the Federal Judicial Nominating Commission of Pennsylvania, of which Mr. Fryman was a member in 1996 and 1997. See Plaintiff's Motion for Reconsideration at 4-5. In an Order dated and filed on July 22, 2002, the Court denied Plaintiff's Motion for Reconsideration.
Plaintiff then filed a Petition for Writ of Mandamus with the United States Court of Appeals for the Third Circuit, which Petition was denied by Judgment and Opinion dated November 29, 2002. In its Opinion, the Court of Appeals addressed all of the factual allegations which were contained in both the First Recusal Motion and the Motion for Reconsideration, as set forth above. See Judgment and Opinion of Third Circuit Court of Appeals, No. 02-3046, dated November 29, 2002. Plaintiff responded to the denial of his Petition by filing a Petition for Panel Rehearing, which was denied by an Order dated January 29, 2003.
Two days later, on January 31, 2003, Plaintiff filed the Second Motion for Recusal pursuant to 28 U.S.C. § 144. Plaintiff's affidavit accompanying the Motion sets forth numerous factual allegations, including the following:
3. On May 23, 2002, . . . this case was randomly reassigned . . . to the Honorable Legrome D. Davis.
4. A review of the Resume of the Honorable Legrome D. Davis, which he provided to the United States Department of Justice, Office of Legal Policy, failed to reveal Judge Davis' employment with Ballard Spahr Ingersoll and Andrews.
5. A review of the Pennsylvania Manual did not reveal Judge Davis's employment with Ballard Spahr.
6. An article in The Legal Intelligencer, dated January 24, 2002, entitled "Six Nominated For Federal Bench Seats" by Shannon P. Duffy, stated Judge Davis was an associate at the firm of Ballard Spahr Ingersoll and Andrews in 1987.
7. A 1999 White House Press Release states the Honorable Legrome D. Davis was an associate at Ballard, Spahr, Ingersoll and Andrews.
8. Ballard Spahr Ingersoll and Andrews represents the Defendants, CNA Financial, Inc., Transportation Insurance Company and Continental Casualty Insurance Company.
. . . .
12. Further investigation into Judge Davis' "extremely attenuated" contacts with Ballard Spahr revealed the following:
a. An individual associated with the law firm of Ballard Spahr Andrews and Ingersoll which Judge Davis has had long term, continuous and frequent contact [sic] is Edward G. Rendell, Esquire.
b. Mr. Rendell is the governor of the Commonwealth of Pennsylvania . . . and a partner in the law firm of Ballard Spahr Andrews and Ingersoll.
c. In 1978, then District Attorney Rendell appointed Judge Davis as Assistant District Attorney for the City of Philadelphia. In 1981, Mr. Rendell again appointed Judge Davis to the position of Assistant District Attorney. . . .
. . . .
13. I discovered an additional conflict
a. In this case, Louis Fryman, Esquire, Chairman of Fox Rothschild O'Brien & Frankel, is a witness in the present litigation. . . .
. . . .
d. In 1996 and 1997, Mr. Fryman was appointed by United States Senators Arlen Specter and Rick Santorum to the Federal Judicial Nominating Commission of Pennsylvania.
e. In 1997 through 2001, Judge Davis participated in the selection process before the same Federal Judicial Nominating Commission of Pennsylvania and was deemed recommended.
Second Motion for Recusal, Exhibit 13, Affidavit, at 1-3.
As is evident from a recitation of these factual allegations, the Second Motion for Recusal is based upon factual allegations that are substantially similar, if not identical, to those underlying the First Recusal Motion, thereby triggering application of the "law of the case" doctrine.
The law of the case doctrine "limits relitigation of an issue once it has been decided" in an earlier stage of the same litigation. We apply the doctrine with the intent that it will promote finality, consistency, and judicial economy. Reconsideration of a previously decided issue may, however, be appropriate in certain circumstances, including when the record contains new evidence. This exception to the law of the case doctrine makes sense because when the record contains new evidence, "the question has not really been decided earlier and is posed for the first time." But this is so only if the new evidence differs materially from the evidence of record when the issue was first decided and if it provides less support for that decision. Accordingly, if the evidence at the two stages of litigation is "substantially similar," or if the evidence at the latter stage provides more support for the decision made earlier, the law of the case doctrine will apply. Hamilton v. Leavy, 2003 WL 559392,...
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