Pietrangelo v. Wilmer Cutler Pickering Hale & Dorr, LLP, 11–CV–1067.

• Decision Date: 11 April 2013
• Docket Number: No. 11–CV–1067.,11–CV–1067.
• Citation: 68 A.3d 697
• Parties: James PIETRANGELO, II, Appellant, v. WILMER CUTLER PICKERING HALE & DORR, LLP, Appellee.
• Court: D.C. Court of Appeals

68 A.3d 697

James PIETRANGELO, II, Appellant,

v.WILMER CUTLER PICKERING HALE & DORR, LLP, Appellee.

No. 11–CV–1067.

District of Columbia Court of Appeals.

Submitted Oct. 30, 2012.

Decided April 11, 2013.

James Pietrangelo, II, pro se.

Gerson Zweifach, Ellen Oberwetter, and Marcus Smith, Washington, were on the brief for appellee.

Before BLACKBURNE–RIGSBY and EASTERLY, Associate Judges, and SCHWELB, Senior Judge.

BLACKBURNE–RIGSBY, Associate Judge:

Appellant James E. Pietrangelo, II, a licensed attorney acting pro se, brought an action for legal malpractice and an array of other alleged wrongs against appellee Wilmer Cutler Pickering Hale & Dorr, LLP (hereinafter “WilmerHale”) for conduct related to WilmerHale's pro bono representation of Pietrangelo and others in a challenge to the since-repealed “Don't Ask, Don't Tell” (DADT) statute,¹ which regulated the treatment of gays in the military. Pietrangelo's complaint contains twenty-three separate counts. Judge Thomas J. Motley dismissed twenty of these counts for failure to state a claim for which relief can be granted, and Judge Joan Zeldon subsequently granted summary judgment in favor of WilmerHale with respect to one more count. Following a trial before Judge Zeldon, the jury found for WilmerHale as to the remaining two counts.

On appeal, Pietrangelo identifies thirty-three points of error. He challenges virtually every ruling adverse to him, and presents claims which are discussed below and which, in our view, range from arguable to patently frivolous. WilmerHale responds by contending, first, that we need not reach the merits of Pietrangelo's individual claims because the suit should be dismissedon the basis of what it describes as Pietrangelo's perjury, fraud upon the court, and repeated acts of contempt. In the alternative, WilmerHale argues that none of the trial court rulings complained of by Pietrangelo constitute reversible error.

We agree with WilmerHale that Pietrangelo's conduct in this case and at trial was a shocking abuse of the judicial system, such that dismissal of the case pursuant to Super. Ct. Civ. R. 41(b) would not have been an abuse of discretion by the trial judge.² Given the fact that Pietrangelo is an attorney, his actions are all the more disturbing. Recognizing our oft-stated preference for trial on the merits, however, the trial judge declined (with obvious and explicitly stated reluctance) to dismiss the action and we therefore also address the merits of Pietrangelo's arguments on appeal. Discerning no reversible error, we affirm. But that there may be no misunderstanding, we make clear that this court will protect the process of an orderly trial and respect for the trial court's orders. Where a party engages in contumacious behavior, utterly inconsistent with the orderly administration of justice, such as Pietrangelo did here, dismissal is an appropriate sanction within the exercise of the trial court's discretion.

I. Factual Background

On September 15, 2009, Pietrangelo filed a twenty-three count amended complaint against WilmerHale. The complaint contained various allegations arising from WilmerHale's pro bono representation of Pietrangelo and eleven other former armed service members in a challenge to the DADT statute. WilmerHale filed the DADT challenge in the United States District Court for the District of Massachusetts in 2004. Stuart Delery was WilmerHale's lead attorney on the case. The attorney-client relationship between Pietrangelo and WilmerHale began in 2004 and continued until 2006 when the Massachusetts federal district court dismissed the DADT challenge. See Cook v. Rumsfeld, 429 F.Supp.2d 385 (D.Mass.2006).

In May 2006, following the dismissal of his case by the federal district court, Pietrangelo decided to proceed pro se with the DADT challenge. Pietrangelo sought the legal advice of Harvard Law Professor Lawrence Tribe, but Professor Tribe did not represent Pietrangelo in court. As part of his self-representation, Pietrangelo filed a motion for reconsideration with the Massachusetts federal district court, which the court denied in an unreported decision. He then filed his notice of appeal and merits brief with the United States Court of Appeals for the First Circuit. The other eleven plaintiffs, who were still represented by WilmerHale, also appealed to the First Circuit. The First Circuit affirmed the district court's decision in 2008. Cook v. Gates, 528 F.3d 42, 65 (1st Cir.2008). Thereafter, Pietrangelo filed a petition for a writ of certiorari with the United States Supreme Court. On June 8, 2009, the Supreme Court denied certiorari. Pietrangelo v. Gates, ––– U.S. ––––, 129 S.Ct. 2763, 174 L.Ed.2d 284 (2009).

Pietrangelo claims that he agreed to postpone filing his petition for certiorari to give WilmerHale additional time to file its own petition on behalf of the other eleven plaintiffs in exchange for WilmerHale agreeing to allow him to use its appendix if WilmerHale filed its own petition, thereby saving Pietrangelo the cost of having to print one. Specifically, Pietrangelo claims that WilmerHale agreed to inform him by November 25, 2008, if it “was definitely not going to file its own [petition].” Additionally, he alleges that WilmerHale represented to him that, if it did not inform him otherwise, he “could assume that WilmerHale was going to file a petition,” and he could have his own petition printed with references to WilmerHale's expected appendix. Pietrangelo asserts that he delayed filing his petition in reliance on this verbal agreement but that WilmerHale failed to inform him that it was not going to file a petition until December 29, 2008. Since Pietrangelo had already printed his petition containing record citations to the appendix that he expected WilmerHale would be filing, he had to reprint his petition to reference his own appendix, which cost $432.50. The crux of Pietrangelo's claim is his contention that WilmerHale did not want him to appeal to the Supreme Court and, therefore, it never intended to file a petition for certiorari and deliberately delayed informing him in an attempt to trick him into missing the filing deadline.

After Pietrangelo filed his petition with the Supreme Court, WilmerHale filed a response brief on behalf of the eleven other plaintiffs. The response brief supported Pietrangelo's argument on the merits but argued that “the Court would be better advised to defer review at this time.” WilmerHale and its clients alleged that they took this position because they believed a favorable outcome was unlikely given the composition of the Supreme Court and that another case proceeding in the Ninth Circuit might be a better vehicle for Supreme Court review. After WilmerHale filed the response brief, Pietrangelo asked WilmerHale to withdraw the brief because it opposed the relief he sought. When WilmerHale initially refused, Pietrangelo informed WilmerHale that he would file bar complaints against WilmerHale attorneys for violating their duties of loyalty and confidentiality to him.³ The following day, Pietrangelo claims that Professor Tribe contacted him at WilmerHale's request and advised him not to file the bar complaints. Pietrangelo claims that he had contacted Professor Tribe and established an attorney-client relationship so that Tribe could assist him in the appellate challenges to DADT.⁴ Further, Pietrangelo claims that WilmerHale and Professor Tribe exchanged Pietrangelo's confidential client information without his consent.

Generally, the claims in Pietrangelo's amended complaint were that WilmerHale had wronged him by: (1) filing its brief opposing his petition for certiorari on behalf of the eleven other plaintiffs in the United States Supreme Court (Counts 1–4); (2) interfering with the attorney-client relationship he had formed with Professor Tribe and exchanging confidential information with Tribe (Counts 5–11); (3) breaching an alleged agreement with Pietrangelo that, if he would delay filing his petition for certiorari, he could use WilmerHale's appendix if WilmerHale filed its own petition (Counts 12–15); and (4) committing legal malpractice in drafting the complaint for the DADT challenge (Counts 16–19). The four remaining claims (Counts 20–23), which were based on the alleged wrongs underlying the first nineteen claims, includedintentional infliction of emotional distress, unfair trade practices, bad faith, and conspiracy.

Pietrangelo's overarching allegation was that WilmerHale entered into an agreement with “the Obama Camp” to throw the DADT challenge “in exchange for substantial inducements, including positions for WilmerHale partners and attorneys within the new administration[,] favorable action for WilmerHale clients in future administrative proceedings before the administration, and White House [p]olitical access.”

Following the filing of Pietrangelo's amended complaint in D.C. Superior Court, WilmerHale filed a motion to dismiss the complaint for failure to state a claim upon which relief could be granted. On August 2, 2010, the trial court dismissed twenty of the twenty-three counts pursuant to Super. Ct. Civ. R. 12(b)(6). Discovery followed on the three surviving counts. These counts related to whether WilmerHale breached the alleged agreement to notify Pietrangelo by November 25, 2008, as to whether it would file a petition for certiorari and appendix in the Supreme Court. Following the close of discovery, WilmerHale moved for summary judgment on one of the three remaining counts, which the trial court granted. The case then proceeded to a jury trial on the two surviving counts on July 18, 2011. After a three day trial, the jury found in favor of WilmerHale on both counts. This appeal followed.

We first address, in Part II of this opinion, Pietrangelo's contemptuous behavior before the trial court. We then consider, in Part III of this opinion, Pietrangelo's claims that the trial court improperly dismissed Counts 1–11,...