Riccobene v. Scales, Civil Action No. 3:97-CV-15.

CourtUnited States District Courts. 4th Circuit. Northern District of West Virginia
Writing for the CourtBroadwater
Citation19 F.Supp.2d 577
PartiesMichaelangelo P. RICCOBENE, Plaintiff, v. Cinda L. SCALES, Esquire, et al., Defendants.
Docket NumberCivil Action No. 3:97-CV-15.
Decision Date13 May 1998
19 F.Supp.2d 577
Michaelangelo P. RICCOBENE, Plaintiff,
v.
Cinda L. SCALES, Esquire, et al., Defendants.
Civil Action No. 3:97-CV-15.
United States District Court, N.D. West Virginia, Martinsburg Division.
May 13, 1998.

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COPYRIGHT MATERIAL OMITTED

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Diane Elizabeth Cafferty, Washington, DC, for plaintiff.

Marcia Page Riccobene, Junction, WV, pro se.

MEMORANDUM OPINION AND ORDER

BROADWATER, District Judge.


This diversity action is before the court upon motions for summary judgment filed by defendant Cinda L. Scales ("defendant Scales")(Document No. 25), and by defendants, Steven M. Askin, D. Michael Burke & Lawrence M. Schultz (collectively "defendants Askin, Burke & Schultz")(Document No. 24), pursuant to Rule 56 of the Federal Rules of Civil Procedure and Local Rule 4.01(a). Although being granted an extension of time to file, the plaintiff, Michaelangelo P. Riccobene ("plaintiff"), did not submit at brief in opposition to either of the respective summary judgment motions.1

Upon review of the summary judgment motions submitted by each of the defendants, the court is of the opinion that each should be granted.

I. FINDINGS OF FACT

On February 3, 1994, the plaintiff filed his Complaint alleging negligent, intentional, and malicious interference with his contract of employment and with his prospective advantage, intentional infliction of emotional distress, and defamation. The plaintiff's Complaint is predicated on two letters authored by defendant Scales, an attorney. The letters were received by the plaintiff's superior officer in the United States Army during the pendency of a domestic violence action and a divorce action between the plaintiff and his exwife, defendant Marcia Riccobene ("Ms. Riccobene").

At the time of the domestic violence and divorce actions, the plaintiff was a member of the United States Army with the rank of Sergeant First Class and was assigned to the White House motor pool. Defendant Scales, an attorney employed by defendants Askin, Burke & Schultz at the time of these proceedings, represented Ms. Riccobene in the domestic violence and divorce actions against the plaintiff.

Ms. Riccobene instituted the domestic violence action against the plaintiff in the Magistrate Court of Morgan County, West Virginia, on August 27, 1992. She alleged that on or about August 11, 1992, the plaintiff slammed metal gates into her and threatened to hit her in the face. She retained defendant Scales on August 28, 1992 to represent her in both the domestic violence action and divorce action.

On September 10, 1992, Ms. Riccobene amended her Petition in the domestic violence action and alleged additional abuse and threats by the plaintiff. Defendant Scales represented Ms. Riccobene at a domestic violence hearing held on September 15, 1992. Ms. Riccobene testified about abuse by the plaintiff. The plaintiff testified in his own defense at this hearing. He stated that he would never do anything to jeopardize his career in the military and denied committing any acts of domestic violence. Magistrate Margaret Gordon, Morgan County, West Virginia, issued a Domestic Violence Final Protective Order finding that Ms. Riccobene had proven her allegations of abuse by the plaintiff by a preponderance of the evidence.

On September 15, 1992, the plaintiff also filed a complaint for divorce against Ms. Riccobene in the Circuit Court of Morgan County, West Virginia, citing irreconcilable differences as grounds for divorce. Ms. Riccobene answered the plaintiff's divorce complaint on October 13, 1992, likewise citing

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irreconcilable differences and mental cruelty as grounds for divorce.

On October 16, 1992, Magistrate Gordon entered an Order which renewed her previous Domestic Violence Final Protective Order dated September 15, 1992.

On November 13, 1992, Magistrate Donald J. Sharp, Morgan County, West Virginia, heard sufficient testimony of spousal abuse by the plaintiff upon Ms. Riccobene to issue another Domestic Violence Final Protective Order. This order extended the prior orders in the domestic violence proceeding. Defendant Scales represented Ms. Riccobene at this hearing before Magistrate Sharp. She again presented testimony of the plaintiff's abuse of Ms. Riccobene.

On March 8, 1993, the Family Law Master of Morgan County, West Virginia, entered an order in the divorce proceeding regarding the separation and disposition of certain property. This Order provided that the plaintiff and Ms. Riccobene were prohibited from harassing or interfering with the liberty of each other, but denied the plaintiff's request that Ms. Riccobene and her counsel be prohibited from contacting his superior officer.

In March 1993, Ms. Riccobene informed Defendant Scales that she had contacted the Plaintiff's superior officer, Sergeant Major Lindsey D. Cullison, to enlist his assistance in bringing a halt to the Plaintiff's abuse and harassment of her. Ms. Riccobene further advised defendant Scales that Sergeant Major Cullison would not take action unless defendant Scales confirmed to him in writing that the military may be interested in investigating the matter.

On March 23, 1993, defendant Scales sent a letter at Ms. Riccobene's request to Sergeant Major Cullison. The purpose of the letter was to obtain the military's help in stopping the Plaintiff from abusing and harassing Ms. Riccobene.2 Defendant Scales' March 23, 1993 correspondence to the plaintiff's superior officer made no factual disclosures.

The plaintiff responded to defendant Scales' contact with his superior officer by filing an ethics complaint against defendant Scales with the West Virginia State Bar. The plaintiff alleged that defendant Scales had violated a court order entered in the divorce proceeding by contacting his superior officer and thereby jeopardized his career in the military.

On May 4, 1993, defendant Scales responded to the plaintiff's ethics complaint against her by sending a letter to the West Virginia State Bar. Prior to defendant Scales' submission of her response, Ms. Riccobene informed defendant Scales that the plaintiff continued to abuse and harass her and that she feared for her physical safety. In response to Ms. Riccobene's concerns, defendant Scales sent a copy of her May 4, 1993 letter to the West Virginia State Bar with attachments, including the plaintiff's ethics complaint against her and her affidavit addressing the allegations in the ethics complaint, to Sergeant Major Cullison. The purpose was to obtain assistance from the military for her client.

On July 15, 1994, the West Virginia Supreme Court of Appeals issued and filed a Writ of Prohibition ordering the West Virginia State Bar's Committee on Legal Ethics to stop investigating defendant Scales pursuant to the plaintiff's ethics complaint. In this decision, the West Virginia Supreme Court of Appeals found that the Family Law Master's order prohibiting the dissemination of information was limited to the divorce case and did not include the domestic violence proceedings held before the Magistrate Court. The Supreme Court further held that defendant Scales' March 23, 1993 correspondence with the plaintiff's superior officer had a substantial purpose other than to harass and embarrass the plaintiff and was in furtherance of defendant Scales' representation of Ms. Riccobene.

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After defendant Scales' and Ms. Riccobene's contacts with his superior officer, the plaintiff was reassigned to a unit at Fort Myer, Virginia. The plaintiff believed that he would thereafter be assigned duty overseas and elected to retire.

At that time, the United States Army has a formal policy to both stop and prevent domestic violence, which is embodied at Army Regulation 608-18, Personal Affairs: The Army Family Advocacy Program (18 September 1987). The United States Army had an interest in both stopping and preventing domestic violence committed by its soldiers and had a clear interest in receiving reports of domestic violence allegedly committed by its soldiers.

II. DISCUSSION OF LAW

Under Fed.R.Civ.P. 56(c), summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." The party seeking summary judgment bears the initial burden of showing the absence of any issues of material fact. Celotex v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). However, as the United States Supreme Court noted in Anderson v. Liberty Lobby, Inc., Rule 56 itself "provides that a party opposing a properly supported motion for summary judgment may not rest upon mere allegation of denials of [the] pleading, but must...

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4 practice notes
  • Practice and procedure: Patent and trademark cases rules of practice; representation of others before Patent and Trademark Office,
    • United States
    • Federal Register December 12, 2003
    • December 12, 2003
    ...stock issues, and communication was treated as confidential and not disclosed until beginning of court action); Riccobene v. Scales, 19 F.Supp 2d 577 (N.D. W. Va. 1998) (statements by attorney, representing Army officer's wife, to officer's superior made in course of representing the wife, ......
  • Part II
    • United States
    • Federal Register December 12, 2003
    • December 12, 2003
    ...stock issues, and communication was treated as confidential and not disclosed until beginning of court action); Riccobene v. Scales, 19 F.Supp 2d 577 (N.D. W. Va. 1998) (statements by attorney, representing Army officer's wife, to officer's superior made in course of representing the wife, ......
  • Curry v. Weiford, No. CIV.A. 2:03CV115.
    • United States
    • U.S. District Court — Northern District of West Virginia
    • September 21, 2005
    ...district court must nonetheless ensure that the moving party is entitled to judgment as a matter of law. See also, Riccobene v. Scales, 19 F.Supp.2d 577, n. 1 (N.D.W.Va.1998). Thus, the Court has proceeded to determine whether there is a genuine issue of material fact. The Court notes that ......
  • Chesapeake Trust v. Chesapeake Bay Enter., Inc. (In re Potomac Supply Corp.), Case No. 12-30347-DOT
    • United States
    • United States Bankruptcy Courts. Fourth Circuit. U.S. Bankruptcy Court — Eastern District of Virginia
    • December 31, 2013
    ...unique in its application of the absolute privilege to all forms of communication during litigation. See, e.g., Riccobene v. Scales, 19 F. Supp. 2d 577, 582-84 (N.D.W. Va. 1998) (applying absolute privilege to allegedly defamatory letter from attorney sent as part of judicial proceedings fo......
2 cases
  • Curry v. Weiford, No. CIV.A. 2:03CV115.
    • United States
    • U.S. District Court — Northern District of West Virginia
    • September 21, 2005
    ...district court must nonetheless ensure that the moving party is entitled to judgment as a matter of law. See also, Riccobene v. Scales, 19 F.Supp.2d 577, n. 1 (N.D.W.Va.1998). Thus, the Court has proceeded to determine whether there is a genuine issue of material fact. The Court notes that ......
  • Chesapeake Trust v. Chesapeake Bay Enter., Inc. (In re Potomac Supply Corp.), Case No. 12-30347-DOT
    • United States
    • United States Bankruptcy Courts. Fourth Circuit. U.S. Bankruptcy Court — Eastern District of Virginia
    • December 31, 2013
    ...unique in its application of the absolute privilege to all forms of communication during litigation. See, e.g., Riccobene v. Scales, 19 F. Supp. 2d 577, 582-84 (N.D.W. Va. 1998) (applying absolute privilege to allegedly defamatory letter from attorney sent as part of judicial proceedings fo......

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