Lease v. Fishel

• Decision Date: 01 April 2010
• Docket Number: No. 1:07-CV-0003.,1:07-CV-0003.
• Citation: 712 F.Supp.2d 359
• Parties: David LEASE, Plaintiff,v.Douglas FISHEL, et al., Defendants.
• Court: U.S. District Court — Middle District of Pennsylvania

712 F.Supp.2d 359

David LEASE, Plaintiff,
v.
Douglas FISHEL, et al., Defendants.

No. 1:07-CV-0003.

United States District Court,
M.D. Pennsylvania.

April 1, 2010.

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Don A. Bailey, Harrisburg, PA, Sheri D. Coover, Law Office of Sheri D. Coover, Carlisle, PA, for Plaintiff.

Devon M. Jacob, Frank J. Lavery, Jr., Lavery, Faherty, Young & Patterson, P.C., David L. Schwalm, Thomas, Thomas & Hafer, LLP, Harrisburg, PA, James E. Chiaruttini, Stock and Leader, Sean E. Summers, Barley Snyder LLC, York, PA, Ronald H. Pollock, Jr., Lancaster, PA, Christopher P. Gerber, Eric M. Brown, Siana, Bellwoar & McAndrew, LLP, Chester Springs, PA, for Defendants. MEMORANDUM OPINIONMARTIN C. CARLSON, United States Magistrate Judge.
I Introduction

This case now comes before the Court for the purpose of addressing the appropriate measure of attorneys' fees to impose as a sanction for what has previously been found to be the latest failure by plaintiff's counsel to fulfill his professional responsibilities

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and abide by court-ordered deadlines in civil litigation.¹

These failures, which have been persistent and profound, are particularly regrettable and unfortunate since this sanctions litigation is only the latest episode in a repeated history of sanctions proceedings involving this attorney, sanctions proceedings that have spanned numerous cases over the past fifteen years. Thus, this sanctions litigation compels us to consider and evaluate an unfortunate, regrettable, but immutable fact with respect to this counsel. In terms of professional misconduct, counsel is a repeat offender who has violated court orders and been found to have indulged in professional misconduct on numerous occasions in the past. Lease v. Fishel, No. 07-03, 2009 WL 922486, *8 (M.D.Pa. April 3, 2009). Indeed, the simple, stark reality is that this particular sanctions proceeding constitutes only the latest in a long series of efforts by the federal courts throughout Pennsylvania to try to ensure compliance by plaintiff's counsel with the rules and standards of professional conduct required of all members of the bar. Over the past fifteen years federal district and appellate courts throughout the state have been compelled by the persistent misconduct of counsel to institute numerous sanctions proceedings against him. During this span of years, counsel has been found to have engaged in a staggering array of serious professional misdeeds including: filing inappropriate submissions, presenting unfounded allegations, submitting frivolous and unsupported legal arguments, vexatious litigation, engaging in unwarranted personal invective and plagiarism.²

This case also illustrates another episode of the particularly destructive, corrosive, and unprofessional course which this counsel has chosen to follow when he has been found to have indulged in professional misconduct. In the past, plaintiff's counsel has responded to these judicial efforts at maintaining basic standards of professionalism in an unfortunate and unprofessional manner by leveling groundless accusations against various judges,

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Beam v. Downey, 151 Fed.Appx. 142, 144 (3d Cir.2005) (holding that “Counsel's tirade against [district judge] is unfounded and unprofessional ....”), or by filing what were determined to be utterly baseless recusal motions against the presiding judge in the sanctions proceeding. Conklin v. Warrington Township, 476 F.Supp.2d 458 (M.D.Pa.2007). He has repeated that pattern of misbehavior in this case.

Finally, further compounding the gravity of this situation is the fact that plaintiff's counsel, Donald Bailey, Esq., has repeatedly failed to comply with rudimentary instructions of the court, and has persistently ignored court-ordered deadlines in the course of this litigation focusing on defining the proper measure of attorneys' fees sanctions that should be imposed against Mr. Bailey for past episodes of unprofessional conduct in this case. Thus, in this case we are presented with a tragic and troubling set of circumstances: a lawyer with a fifteen year history of professional misconduct citations; who is potentially facing an award of attorneys' fees as a sanction for his latest episode of professional misconduct; who has neglected to abide by court orders in the course of litigation intended to give counsel an opportunity to justify or explain his prior alleged misconduct; and who has indulged in further misdeeds by leveling baseless and frivolous claims in this proceeding.

II. Statement of Facts and of the Case

Some background regarding the extraordinary, repeated, unusual, and grave extent of counsel's longstanding failure to abide by prior court orders is appropriate.

1. Counsel's Misconduct During District Court Litigation

The tortured history of this litigation was detailed by the District Court in a comprehensive opinion detailing the increasingly vexatious conduct of plaintiff's counsel in this matter. Lease v. Fishel, No. 07-03, 2009 WL 922486 (M.D.Pa. April 3, 2009). Briefly, though, the pertinent facts are as follows:

In March, 2005 Attorney Bailey brought a civil rights action on behalf of David Lease against various local officials, and a local electric company. Lease v. Tyler, Civil No. 1:05-CV-618. ( Lease I ). This complaint alleged that code enforcement actions taken by the defendants were, in fact, merely a guise for a conspiracy to retaliate against the plaintiff for the exercise of his civil rights. ( Id.) These code enforcement actions allegedly involved efforts by local officials and utility companies to ascertain whether Lease was obtaining electric utility power without paying for these utility services.

Having commenced this action against the defendants, Lease was now subject to comply with discovery sought by the defendants as part of their defense to this lawsuit. One aspect of this discovery entailed an inspection of Lease's property, a form of discovery specifically authorized by Rule 34 of the Federal Rules of Civil Procedure. Pursuant to Rule 34, in August 2005 the defendants sought, and obtained, permission to inspect Lease's property, an inspection which was conducted in the presence of Attorney Bailey and Lease, and was undertaken without any effort by Attorney Bailey to seek a proper protective order under Rule 37 or otherwise prevent the inspection.

Ten months after this inspection, in June of 2006 Attorney Bailey moved to amend Lease's complaint to add, inter alia, a claim that the defendants violated Lease's Fourth Amendment rights when they conducted the inspection that was specifically authorized by the Federal Rules of Civil Procedure and was permitted by Lease and his counsel. Attorney Bailey advanced this claim, on the eve of

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the close of discovery and almost a year after the inspection had occurred. Moreover, Attorney Bailey sought to include this new claim, even though the inspection was specifically authorized by the Federal Rules of Civil Procedure and had not been objected to by counsel at the time it occurred.

On September 20, 2006, the District Court denied Attorney Bailey's motion to amend, citing his dilatory presentation of this matter. Ultimately the District Court dismissed this action entirely, granting the defendants summary judgment on the retaliation claims set forth by Attorney Bailey in this complaint.

Having been thus rebuffed by the Court in Lease I in his efforts to convert a routine discovery procedure authorized by the Federal Rules of Civil Procedure into a violation of the Fourth Amendment, Attorney Bailey waited three months before filing this civil action. Lease v. Fishel, Civil No. 1:07-CV-03 ( Lease II ). Included among the allegations set forth in this second complaint was the precise claim which the District Court had previously held could not be added to the original complaint in Lease I; namely, a claim that the inspection conducted by defendants Plank and Taughenbaugh in civil discovery in Lease I was actually an unlawful search which violated the Fourth Amendment. Defendants Plank and Taughenbaugh then moved to dismiss this second complaint, including the allegations in the complaint that treated civil discovery processes as tantamount to illegal searches in violation of the Fourth Amendment. The defendants also sought sanctions against Attorney Bailey for bringing this action, which they asserted violated Rule 11 of the Federal Rules of Civil Procedure since it advanced a legal claim that was frivolous and was not warranted by existing law.

On April 3, 2009, the District Court ruled on this motion, granting defendant Plank and Taughenbaugh's motion to dismiss. Lease v. Fishel, No. 07-03, 2009 WL 922486 (M.D.Pa. April 3, 2009). The Court then went on to address the question of whether Attorney Bailey's actions rose to the level of misconduct warranting a sanction. In this regard the Court observed that:

Mr. Bailey has brought claims which arise solely out of a discovery inspection that took place in August 2005. The Court notes that Mr. Bailey has largely articulated the correct elements and standard for the claims he has brought in his opposition to the motion to dismiss and motion for sanctions. But, Mr. Bailey pursues frivolous arguments in applying these standards to a civil discovery inspection by Plank and Taughenbaugh. For instance, Mr. Bailey neither explains why the Fourth Amendment should apply in the context of civil discovery between private parties nor attempts to justify how its violation could justify a separate cause of action. In fact, he does not even bother to cite a single case in support of such a claim (nor has the Court's own research located any). Instead, Mr. Bailey relies on unsupported, questionable arguments, claiming that the

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