author: CHARLES R. RICHEY, District Judge.

text:
    Francis X. McLAUGHLIN, Plaintiff, v. Benjamin C. BRADLEE, et al., Defendants.
    Civ. A. No. 84-1776.
    United States District Court, District of Columbia.
    Feb. 26, 1985.

      Francis X. McLaughlin, Kensington, pro se.
    William E. McDaniels, David E. Kendall, Kevin T. Baine, and Gerson A. Zweifbach, Williams & Connolly, Washington, D.C., for defendants The Washington Post Co., Bradlee, and Chesire.
    Hugh E. Donovan, Donovan & Nash, Silver Spring, Md., for defendants Alban and Michaleski.
    David A. Levin, Digges, Wharton & Levin, Annapolis, Md., for defendant Montgomery County.
   CHARLES R. RICHEY, District Judge.

INTRODUCTION

Before the Court are plaintiffs three most recent postjudgment motions in this case: (1) his January 29, 1985 “Rule 15(a) Motion to Clarify Complaint by Amendment”, (2) his February 7, 1985 Rule 59(e) Motion (Renewed)”, and (3) his February 12, 1985 “Rule 54(b) Motion for Entry of Final Judgment Etc.” Upon consideration of the motions, the opposition thereto, defendants’ requests for sanctions, and the supporting memoranda, the Court for the reasons herein stated, denies plaintiff’s motions, and grants defendants’ requests for sanctions.

BACKGROUND

The following background information is extremely confusing due to plaintiff’s wide-reaching and excessive legal maneuvering. The interrelated nature of McLaughlin’s postjudgment motions adds to this confusion.

On June 11, 1984, plaintiff, a lawyer, filed the complaint in this case. The complaint attacked an alleged conspiracy between certain employees of the Washington Post and the Montgomery County, Maryland, police force, who allegedly conspired to discredit and injure the plaintiff. On December 21, 1984, this Court issued a lengthy Opinion and Order dismissing the four count complaint on the grounds that it was precluded by previous litigation. McLaughlin v. Bradlee, 599 F.Supp. 839 (D.D.C.1984). In that Opinion the Court reviewed the extensive previous litigation, which was entirely initiated by plaintiff. Because of the complexity of plaintiff’s previous suits, the Court will not repeat the history of the litigation here. It is sufficient to note that by the time plaintiff’s grievances appeared before this Judge, plaintiff had already burdened three separate courts, (exclusive of appellate courts), with substantially the same suit arising out of the same alleged conspiracy. Plaintiff lost in each court.

After this complaint was filed, all of the defendants moved to dismiss, and for sanctions against plaintiff. The defendants asserted that plaintiff brought this suit in bad faith, knowing that the issues had been fully litigated. Although the Court gave serious consideration to the requests for sanctions, the Court concluded that there was insufficient evidence of plaintiff’s bad faith in filing the lawsuit. The Court considered this to be a close question, however, and included the following passage in the conclusion to the Opinion:

Today the Court has issued an Order dismissing, with prejudice, each Count presented in this case. Hopefully, this will mark the end of this litigation. If it does not signal the end of plaintiff’s litigation on these issues, the Court might later consider the defendants’ requests for sanctions.

599 F.Supp. at 850.

On December 31, 1984, the plaintiff, apparently undaunted by the Court’s warning, filed a motion, pursuant to Fed.R. Civ.P. 59(e), to vacate the Opinion and Order. On January 28, 1985, after reviewing the motion, defendants’ opposition, and plaintiff’s response, the Court issued a three page Order denying the motion.

Although this case was long ago dismissed, plaintiff has now filed a motion to amend the complaint. In this motion, filed on January 29, 1985, the day after the Court denied plaintiff’s first motion to vacate, plaintiff attempts to add a new count to the complaint.

Plaintiff has also now filed a “renewed” motion to reconsider and vacate the Court’s Orders of December 21, 1984, and January 28, 1985. In this renewed motion, which was filed on February 7, 1985, as in his previous motion to vacate, (and in his opposition to defendants’ motions to dismiss), plaintiff seeks an opportunity to conduct discovery and to hold an evidentiary hearing to demonstrate that he was denied a “full and fair opportunity to litigate” the earlier actions, thus rendering improper the application of the doctrine of res judicata. See Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 333, 91 S.Ct. 1434, 1445, 28 L.Ed.2d 788 (1971).

Plaintiff's final motion (to date) is a “Rule 54(b) Motion for Entry of Final Judgment Etc.” In this motion, which was filed on February 12, 1985, plaintiff asks the Court to direct the entry of a final judgment as to its Orders of December 21, 1984 and January 28, 1985. Plaintiff seeks a final judgment only as to the four counts of the original complaint, (which the Court has already adjudicated twice), but not one for his Count V, which he has recently presented to the Court in his motion to amend the complaint. Like his renewed motion to vacate the Court’s dismissal and his motion to amend the complaint, the Court will today rule on this motion for entry of final judgment.

In the face of no fewer than four post-judgment motions by plaintiff, the defendants, to no surprise to the Court, have renewed their requests for sanctions against plaintiff. Fed.R.Civ.P. 11; 28 U.S.C. § 1927. After briefly reviewing plaintiff’s latest motions, the Court considers these requests for sanctions.

BECAUSE PLAINTIFF MOVED TO AMEND HIS COMPLAINT AFTER THE COURT HAD DISMISSED THIS CASE, THE COURT DENIES THE MOTION

On June 11, 1984 plaintiff filed a four count complaint in this case. Each of the six defendants timely moved to dismiss the complaint. On December 21, 1984, after lengthy deliberation, the Court decided that the complaint must be dismissed because of the preclusive effects of plaintiff’s three previous suits. Seven and a half months after filing his complaint, and several months after the defendants moved to dismiss, and indeed more than one month after the Court dismissed this case, plaintiff moved to amend his complaint. In this motion, McLaughlin desires to add a new Count, Count V, which is premised on a denial of plaintiff’s “Constitutional Right to Privacy.” This Count contains allegations virtually identical to those in Count I of his original complaint.

Although plaintiff filed this motion one day after the Court had denied his first Motion to Vacate the dismissal, he was apparently unaware of that denial. Plaintiff states that the pendency of his Rule 59(e) motion “stays this court’s order granting defendants’ Rule 12(b) motions to dismiss the complaint herein”, thus allowing plaintiff to exercise his “absolute right to file his amended complaint of January 29, 1985 herein as a ‘matter of course’ in accordance with the provisions of Rule 15(a) of the F.R.Civ.P.” Alternatively, plaintiff requests leave of court to allow him to amend his complaint.

McLaughlin cites only Reiss v. Richardson, 455 F.2d 1287, 1289 n.2 (D.C.Cir.1971), for the proposition that because the Court has not yet ruled on his second Motion to Vacate, plaintiff may amend his complaint “as a matter of course”. That case states that a party may amend his complaint “as of right ... until dismissal.” Id. This case, however, was dismissed on December 21, 1984, one and a half months before plaintiff filed his motion to amend. By the time plaintiff filed this motion, the Court had even denied one Motion to Vacate. Thus, there can be no doubt that the motion to amend came too late to be filed “as a matter of course”. Id. See also Jackson v. Salon, 614 F.2d 15, 17 (1st Cir.1980); Rodgers v. Lincoln Towing Service, Inc., 596 F.Supp. 13, 26 (N.D.Ill.1984) (denying motion to amend while considering a Rule 59(e) motion).

The Court also denies plaintiffs request for leave of court to amend his complaint. In plaintiffs motion he presents no reasons why the additional Count Y would not suffer from the same fatal defects as the other four counts. Indeed, its substantial identity with original Count I convinces the Court that it would be an abuse of discretion to permit the amendment. Rodgers, 596 F.Supp. at 26.

BECAUSE THE COURT HAS ALREADY DECIDED THE ISSUES PRESENTED BY PLAINTIFF’S SECOND RULE 59(e) MOTION, THE COURT DENIES THE MOTION

On February 7, 1985, plaintiff filed his second Rule 59(e) Motion, seeking reconsideration of two of the Court’s Orders, namely, (1) the Court’s Order of December 21, 1984, which dismissed his complaint, with prejudice, on the basis of res judicata, and (2) the Court’s Order of January 28, 1985, which denied plaintiff’s first Motion to vacate the aforesaid Order of December 21, 1984. The Court’s reaction to plaintiff’s filing of this motion is one of disbelief.

Plaintiff presents absolutely no new argument in this motion to vacate. As previously noted, plaintiff repeats his request for discovery and an evidentiary hearing to prove that he “was deprived of crucial evidence or witnesses in the first litigation”, citing Blonder-Tongue, 402 U.S. at 333-34, 91 S.Ct. at 1445-46. The Court already has, on two separate occasions, rejected this contention. See McLaughlin v. Bradlee, 599 F.Supp. at 846-847, 849, 850; Order of January 28, 1985, at 1-3.

In this renewed motion, plaintiff points out that:

both Judges Miller [of the U.S. District Court in Maryland] and Gesell [of this Court] had denied his requests to examine defendant Alban concerning the some 320 pages of his [police] reports which had been requested, but withheld, during the state court case and in CA No. 81-779 [before Judge Gesell] in this court. (Plaintiff asked Judge Gesell both before and after he, plaintiff, had obtained the 320 pages on January 31, 1984, but his request to examine Alban was summarily denied in both instances.)

Rather than support plaintiff’s contention that res judicata should not apply, these facts indicate that plaintiff’s asserted entitlement to discovery is itself barred by res judicata. Plaintiff, having requested and been denied this same discovery in two separate courts, cannot now assert an entitlement to that discovery. For these reasons, and for the reasons stated in the Court’s Opinion of December 21, 1984, and in the Court’s Order of January 28, 1985, the Court denies this second motion to vacate.

BECAUSE THE COURT HAS ENTERED A FINAL JUDGMENT AS TO ALL PROPERLY PRESENTED CLAIMS, THE COURT MUST DENY THE RULE 54(b) MOTION

Plaintiffs most recent filing is a “Rule 54(b) Motion for Entry of Final Judgment Etc.” This Rule allows a Court which has adjudicated some, but not all, of the claims presented, to direct the entry of a final judgment as to those claims if there is no just reason for delay. Fed.R.Civ.P. 54(b). Thus, a party may appeal those judgments while other counts of the complaint remain to be adjudicated in the District Court.

It is McLaughlin’s position that because the Court has not yet ruled on Count V of his amended complaint, which he allegedly filed “as a matter of course” while awaiting the Court’s ruling on his second Motion to Vacate, this action is somehow still “alive” in this Court, at least as to Count V. Thus, plaintiff would like the Court to direct the entry of final judgment as to Counts I-IV, so that plaintiff may appeal the dismissal of these Counts. The Court, however, has decided that it must deny the Motion to Amend the Complaint. See supra, pp. 1414-1415. Therefore, Count V is not before the Court, and plaintiff is not faced with any piecemeal judgments. Rule 54(b) is improper in such a case, and the Court denies plaintiff’s motion.

BECAUSE PLAINTIFF HAS HARASSED THE COURT AND DEFENDANTS WITH PLEADINGS FILED FOR IMPROPER PURPOSES, AND HAS THEREBY UNREASONABLY INCREASED COSTS, THE COURT MUST IMPOSE SANCTIONS PURSUANT TO RULE 11 AND 28 U.S.C. § 1927

A. Bases for the Court’s Authority to Impose Sanctions.

Rule 11 of the Federal Rules of Civil Procedure, in part, provides as follows:

The signature of an attorney or party [on a pleading, motion, or paper] constitutes a certificate by him that he has read the pleading, motion, or other paper; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well-grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation____ If a pleading, motion, or other paper is signed in violation of this rule, the court, upon motion or upon its own initiative, shall impose upon the person who signed it, ... an appropriate sanction, which may include an order to pay to the other party or parties the amount of reasonable expenses incurred because of the filing of the pleading, motion, or other paper, including a reasonable attorney’s fee.

Fed.R.Civ.P. 11 (Emphasis supplied).

Under this rule, as amended in 1983, the court has a responsibility to impose punishment for violations. Fed.R.Civ.P. advisory committee note. “And the words ‘shall impose’ in the last sentence focus the court’s attention on the need to impose sanctions for pleading and motion abuses. The court, however, ... has discretion to tailor sanctions to the particular facts of the case, with which it should be well acquainted____ The new language is intended to reduce the reluctance of courts to impose sanctions, see Moore, Federal Practice ¶ 7.05 at 1544, by emphasizing the responsibility of the attorney and reenforcing those obligations by the imposition of sanctions.” Id.

The United States Code has a provision similarly designed to deter such abuses. 28 U.S.C. § 1927; Tedeschi v. Smith, Bar ney, Harris Upham & Co., 579 F.Supp. 657, 660-61 (S.D.N.Y.1984). That section provides as follows:

Any attorney or other person admitted to conduct cases in any court of the United States ... who so multiplies the proceedings in any case as to increase costs unreasonably and vexatiously may be required by the court to satisfy personally such excess costs.

28 U.S.C. § 1927.

These codifications are supplemented by a court’s inherent power to impose sanctions on recalcitrant attorneys or litigants. Tedeschi, 579 F.Supp. at 660-61; Synanon Church v. United States, 579 F.Supp. 967, 974 (D.D.C.1984). It has long been the rule that “federal courts, in the exercise of their equitable powers, may award attorneys fees when the interests of justice so require.” Hall v. Cole, 412 U.S. 1, 4-5, 93 S.Ct. 1943, 1945-1946, 36 L.Ed.2d 702 (1973). “Thus, it is unquestioned that a federal court may award counsel fees to a successful party when his opponent has acted ‘in bad faith, vexatiously, wantonly, or for oppressive reasons.’ ” Id. at 5, 93 5. Ct. at 1946 (quoting 6 J. Moore, Federal Practice ¶ 54.77[2] at 1709 (2d ed. 1972)). An award of fees for such vexatious conduct is punitive, and must be predicated upon a showing of bad faith. Hall, 412 U.S. at 5, 93 S.Ct. at 1946; Tedeschi, 579 F.Supp. at 661.

B. There is Abundant Evidence That Plaintiffs Conduct Has Been Vexatious, and Clearly Warrants the Imposition of Sanctions.

Defendants first moved for sanctions against McLaughlin because McLaughlin was attempting to relitigate matters already adjudicated. It is especially appropriate to impose sanctions in situations where the doctrines of res judicata and collateral estoppel plainly preclude re-litigation of the suit. E.g. Huettig & Schromm v. Landscape Contractors Council, 582 F.Supp. 1519, 1521 (N.D.Cal.1984); Andre v. Merrill Lynch Ready Assets Trust, 97 F.R.D. 699, 702 (S.D.N.Y.1983). See also Weiss v. United States, 227 F.2d 72, 73 (2d Cir.1955), cert. denied 350 U.S. 936, 76 S.Ct. 308, 100 L.Ed. 817 (1956). The imposition of sanctions is one of the few options available to a court to deter and punish people who relitigate cases hopelessly foreclosed.

Although the Court first determined that plaintiff’s actions were plainly foreclosed by plaintiff’s extensive previous litigation, 599 F.Supp. at 848 (“the Court can find no mitigating circumstances in favor of plaintiff”), at 850 (“it would be exceedingly unfair to require defendants to again face these charges”), the Court was reluctant to impose any sanctions at the time it first dismissed this case because it sincerely believed that plaintiff, trained in the law, would cease and desist litigating the issues he had asserted thrice previously and lost. The Court, however, clearly alerted McLaughlin that if he continued his vexatious and harassing abuse of the judicial process, it might find sufficient evidence of his bad faith to impose sanctions against him. 599 F.Supp. at 841, the Court made it plain that it had “decided to deny the requested sanctions at this time, but to retain jurisdiction of the question of sanctions until it is determined what further actions, if any, the plaintiff may take. If further proceedings are undertaken on the issues herein decided, the defendants may make application for a hearing to re-open this request at the earliest possible date consistent with the Court’s docket and other responsibilities.” The Court concluded its Opinion with the following warning: “Hopefully this will mark the end of this litigation. If it does not signal the end of plaintiffs litigation on these issues, the Court might later consider the defendants’ requests for sanctions.” Id. at 850.

McLaughlin’s four frivolous postjudgment motions have eliminated the Court’s doubts about his intent to harass defendants. Together with plaintiff’s history of litigation abuses, described herein, these postjudgment motions represent a plain example of plaintiff’s bad faith, particularly in light of the three cases prior to the instant one. Plaintiff’s conduct, in the face of abundant warnings from all defendants herein, and from the Court, have convinced the Court that he brought this entire lawsuit, with its attendant frivolous motions, in bad faith.

In imposing sanctions under Rule 11, the Court must take into account all of the surrounding circumstances. Huettig & Schromm, 582 F.Supp. at 1522; Fed.R.Civ.P. 11 advisory committee note. In the present case, not only did McLaughlin, a lawyer, file the instant suit, which Vas plainly barred by previous litigation, bur in 1981 he simultaneously filed a photocopied complaint in three separate courts. Each of those courts was burdened with some of his predictable postjudgment motions, followed by appeals. Plaintiff can now add the name of this Judge to the list of those who have faced his campaign of judicial harassment. McLaughlin apparently believes that he may continue to file meritless motions until the Court gives in to his demands. Simply stated, he is wrong in that belief.

It is significant to note that McLaughlin is not a first offender. His “penchant for placing a conspiratorial gloss on the most innocuous of happenstances” has already been recognized by a federal judge. In the Matter of Winthrop Lawrence Corp., Civ. No. Y-80-2470 (D.Md.) (Young, J.) (slip op., July 29, 1981), at 8, n.8. See also McLaughlin v. Copeland, 455 F.Supp. 749 (D.Del.1978), aff'd without opinion, 595 F.2d 1213 (3d Cir.1979) (dismissing plaintiff’s complaint, which alleged a conspiracy to commit various torts, for failure to state a claim).

A review of Winthrop demonstrates that McLaughlin is no stranger to judicial rebuke. That case involved several appeals by McLaughlin from adverse rulings by the bankruptcy court. The District Court affirmed every substantive determination by the bankruptcy judge, but reversed the bankruptcy judge’s award of fees (because, in District Judge Young’s view, bankruptcy judges, as opposed to Article III judges, do not have “inherent power” to award fees for vexatious conduct). Judge Young did assess costs and fees against McLaughlin for the efforts expended on appeal.

The Court finds relevant many of Judge Young’s comments:

To date, none of appellant’s various legal meanderings have borne fruit. Indeed, McLaughlin’s most recent go-rounds have been decidedly unsuccessful, the bankruptcy court having in each instance assessed costs and fees against him in an apparent (and probably futile) attempt to forestall even further legal jousting.... McLaughlin desparately needs to be told to seek his talisman elsewhere. (Winthrop, slip op. at 1-2).
In fact, [bankruptcy] Judge Lebowitz admonished McLaughlin that the history of this “litigation” bordered on abuse of process. The court further admonished McLaughlin that “if any other pleadings were filed without substantial merit, the court would entertain a Motion to hold [McLaughlin] responsible for costs, attorneys’ fees, and other expenses.” July 24 Order at 13.
Undeterred, McLaughlin on July 10, 1980 himself filed an Application for Examination [of an individual]. Attached to this Application was a 176 page “Factual Submission”, and a self-serving affidavit.... Judge Lebowitz reviewed the submission, found it to be a rehash of the unsupported allegations made by McLaughlin over the course of the previous years, and denied the application without a hearing. Costs and fees were assessed. McLaughlin predictably appeals from this determination.... (Id., at 6).
[T]his court has no hesitation in paraphrasing Judge Lebowitz’s comment in his July 24 Order at 15:
The Court ... is firmly convinced that ... the filing[s] by McLaughlin [have] no merit and [were] filed in bad faith, vexatiously and for oppressive reasons. (Id., at 16).

It is clear, therefore, that McLaughlin has in the past filed meritless and vexatious motions for purposes of harassment. He is also familiar with the consequences of such actions. In assessing all of the circumstances, Huettig & Schromm, 582 F.Supp. at 1522, the Court considers this evidence probative of McLaughlin’s bad faith.

One does not have to look far for further evidence of plaintiff’s vexatious intent. After this Court denied his first Rule 59(e) Motion, plaintiff filed a renewed Rule 59(e) Motion. In the interim, McLaughlin had filed a Motion to Amend the Complaint. The Court is convinced that McLaughlin’s second Motion to Vacate was filed solely as a futile attempt to keep this action “alive” so that he might amend his complaint “as a matter of course”. Plaintiff cited no authority for these procedural gymnastics, which were clearly interposed to “multipl[y] the proceedings” and “to increase costs unreasonably and vexatiously.” 28 U.S.C. § 1927.

That plaintiff filed his second Rule 59(e) motion only so that he could amend his complaint, and not to actually “alter or amend the judgment”, is evidenced by his Rule 54(b) Motion. In that Motion, filed only four days after the renewed Rule 59(e) Motion, McLaughlin asked the Court to enter final judgment as to its December 21 and January 28 Orders. However, those were the very Orders which plaintiff sought to vacate only four days previously. Because McLaughlin did not give the Court adequate time to consider the merits of his second Rule 59(e) Motion, it is clear that this second Rule 59(e) Motion was not filed for proper purposes, such as to “alter or amend the judgment”, Fed.R.Civ.P. 59(e), but rather for improper purposes, i.e. to allow plaintiff to amend his complaint. Obviously that is not a purpose for which Rule 59(e) was established. Compare Fed.R.Civ.P. 59(e) with Fed.R.Civ.P. 15(a).

When plaintiff first filed this lawsuit, he knew full well that he would face a motion for sanctions. In a letter dated June 9, 1984, (two days before McLaughlin instituted this lawsuit), Mr. McDaniels, lawyer for three of the named defendants, told him:

This letter is also to put you on notice that our clients view the draft complaint as frivolous, vexatious, harassing and would consider its filing a malicious prosecution of a civil claim____ This is to serve notice that Ms. Chesire, Mr. Brad-lee and The Washington Post will hold you responsible for all expenses incurred in defending themselves against this frivolous, vexatious and malicious complaint if it is filed.

Thus, McLaughlin was expressly told, if he needed to be told, that this was a frivolous complaint, and that he might be liable for expenses and fees incurred by the defendants. Plaintiff further knew, at the time that he filed the suit, that he had already cost these defendants considerable sums of money in his zealous but unsuccessful attacks on this alleged conspiracy. As he stated in his Opposition to Motion to Dismiss, at 19, “Following the filing of the ‘1981’ litigation the ‘Post’ has expended some $1.3 million in a further effort to crush the plaintiff____” From the filings by the various defendants in the present case, the Court is certain that they spent a substantial amount of money in defending this frivolous complaint as well. Plaintiff should not be surprised to learn that he must pay for that successful defense.

CONCLUSION

This Court has limited resources. In 1984 the Court deliberated at length over plaintiff’s frivolous complaint. The Court has reluctantly spent considerable time and effort on this Opinion, detailing McLaughlin’s derelictions and abuses. When one plaintiff consumes so much of the Court’s time on groundless actions, not only do the defendants and the Court suffer, but so do the other litigants with legitimate legal issues. The Court will no longer tolerate such abuses of the legal system.

For reasons amply stated herein, the Court is absolutely convinced that plaintiff instituted this lawsuit in bad faith, and, faced with dismissal of the case, proceeded to inundate the Court with one frivolous motion after another. It is clear that plaintiff is bent on harassing these defendants, making them suffer substantial expenses in defending themselves against this scurrilous attack. The Court has determined that McLaughlin must account for costs and expenses, including attorneys’ fees, to which he has subjected the defendants. By Order of even date herewith, the Court directs defendants to submit, within ten days, applications for reasonable fees and costs representing time spent on this case after June 11, 1984, the date that plaintiff filed the instant complaint. See Aune v. United States, 582 F.Supp. 1132, 1136 (D.Ariz.1984); Rodgers v. Lincoln Towing Service, Inc., 596 F.Supp. 13, 22 (N.D.Ill.1984) (defendants in both cases were ordered to submit applications for fees). The Court will not become embroiled in “satellite litigation” over these fees, Fed.R.Civ.P. 11 advisory committee note, but the Court will allow plaintiff to respond to the application, within the time allowed by the Rules of the Court. Except for the defendants’ applications for fees and costs, and the plaintiff’s reply thereto, the Clerk is ordered not to receive any further pleadings with respect to this case.

      . Count I in relevant part alleged that:
      defendants agreed to, and did, violate plaintiffs constitutional right to privacy against the disclosure of personal information which had been acquired under the color of state law and which was maliciously disclosed by defendant Alban ... to defendant Chesire in her own right and on behalf of defendants Brad-lee and the "Post”.
      Similarly, in Count V, plaintiff seeks to add the following allegations to the Complaint:
      Defendant Alban, beginning in, or about, October 1978, ... on behalf of himself as well as on behalf of defendants Michaleski and Montgomery County, Md., violated plaintiffs constitutional right to privacy against the disclosure of personal (and professional) information which said defendants had acquired under color of state law and which the unlawfully and maliciously disclosed ... to unauthorized persons not defendants herein.
      Plaintiff has made no attempt to distinguish Count V from Count I, (other than the minor facial differences), nor any attempt to explain why Count V, unlike Count I, should not be subject to preclusion.

      . This might also be considered within the purview of the doctrine of the law of the case. See IB Moore's Federal Practice ¶ 0.404 at 117 et seq.

      . It appears that the true purpose behind this motion is not to rehash plaintiffs request for discovery and a hearing, but rather to provide plaintiff with a basis for arguing that this lawsuit is still "pending”, and that therefore his complaint can be amended "as a matter of course.” See infra, p. 1419. As in his motion to amend, plaintiff again cites Reiss v. Richardson, 455 F.2d 1287, 1289 n.2 (D.C.Cir.1971), to demonstrate that because the Court has not yet ruled on this second motion to vacate, plaintiff may amend his complaint. The Court has already concluded that it must deny the motion to amend. See supra, pp. 1414—1415.

      . In a letter to the Court, plaintiff admits that he “doubt[s] that the ‘renewed’ Rule 59(e) motion of February 7, 1985 further tolls the time for the taking of an appeal.”

      . McLaughlin should not be too distressed with this result because, with the Court’s Order accompanying this Opinion, he will definitely have a final and appealable judgment.

      . Under the 1983 amendments to Fed.R.Civ.P. 11, there may be doubt as to whether a finding of bad faith is a necessary predicate for the imposition of sanctions. E.g. Rodgers v. Lincoln Towing Service, Inc., 596 F.Supp. 13, 22 and 27 (N.D.Ill.1984). In light of McLaughlin’s obvious harassment in instituting this lawsuit and in filing numerous frivolous motions, the Court concludes that the requirements of Rule 11 are met here, and that plaintiff has unquestionably acted in bad faith.


source: Caselaw Access Project

author: GARRITY, District Judge.

license: Public Domain

text:
    Lawrence HESTER, Plaintiff, v. CITY OF LAWRENCE, Defendant.
    Civ. A. No. 82-1944-G.
    United States District Court, D. Massachusetts.
    Feb. 26, 1985.
    June M. Gonsalves, Lowell, Mass., for plaintiff.
    Edward J. Grimley, Jr., City Sol., Lawrence, Mass., for defendant.
   MEMORANDUM AND ORDER ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

GARRITY, District Judge.

The plaintiff, Lawrence Hester, filed a complaint against the City of Lawrence (the “City”) alleging racial discrimination under Title VII, 42 U.S.C. § 2000e et seq., and 42 U.S.C. §§ 1981, 1983 and 1985. The Title VII count was dismissed by order of the court dated August 13, 1984 for failure to comply with the 90-day limitations period which runs from the time a complainant receives a “Notice of Right to Sue” from the Massachusetts Commission Against Discrimination (“MCAD”), 42 U.S.C. § 2000e-5(f)(l). The City now moves for summary judgment on the remaining §§ 1981, 1983 and 1985 counts for failure to comply with the statute of limitations applicable to such actions.

Since the federal civil rights statutes do not contain a statute of limitations, the courts must apply the statute of limitations governing the most analogous state action. Burnett v. Grattan, 1984, _ U.S. _, 104 S.Ct. 2924, 82 L.Ed.2d 36. The issue to be resolved here is whether the six-month statute of limitations contained in M.G.L. c. 151B, § 5 (“section 5”) or some other statute of limitations governs these civil rights actions.

The City relies on the First Circuit opinions which have held that the section 5 limit is to be applied to federal civil rights actions in Massachusetts. Burns v. Sullivan, 1 Cir.1980, 619 F.2d 99, cert. denied, 1980, 449 U.S. 893, 101 S.Ct. 256, 66 L.Ed.2d 121; Carter v. Supermarkets General Corp., 1 Cir.1982, 684 F.2d 187. Hester argues that these decisions have been effectively overruled by the Supreme Court’s recent opinion in Burnett, supra. After consideration of the parties’ briefs and the Burnett decision, the court finds that the section 5 statute of limitations can no longer be applied to actions arising under the reconstruction-era Civil Rights Acts.

Burnett involved the applicability of a six-month statute of limitations borrowed from Maryland’s administrative civil rights statute (Md.Ann.Code, Art. 49B, § 9(a)) to federal civil rights claims. The Court, while not holding explicitly that a six-month time limitation can never be applied to claims under the Civil Rights Acts, rejected reliance on Art. 49B and other statutes of limitations which are applied to state administrative actions and not designed to serve the same goals as the federal actions.

Massachusetts General Law c. 151B shares several of the characteristics which the Court found relevant to its consideration of the Maryland statutory scheme. Both create essentially administrative rights and procedures and both contain six-month statutes of limitations which govern the filing of administrative complaints. Like the Maryland statute, c. 151B requires a complainant only to “make, sign and file” a complaint, “which shall set forth the particulars ... of the alleged violation” and places the burden of investigation on the administrative agency rather than the complainant (M.G.L. c. 151B, § 5). The short statute of limitations is tailored to the relatively informal procedures of the state agencies compared to the more demanding court procedures. The Court observed in Burnett that in such circumstances “borrowing an administrative statute of limitations ignores the dominant characteristic of civil rights actions: they belong in court.” Burnett, supra, _ U.S. at _, 104 S.Ct. at 2930, 82 L.Ed.2d at 45 (citations omitted).

The two state statutes are different in two respects: chapter 151B creates a private right of action in the courts and grants broad remedial powers to the state agency, whereas the Maryland statute does neither. However, in creating the private right of action the Massachusetts legislature provided a longer limitations period of two years from the time of the alleged violation within which a suit must be filed. M.G.L. c. 151B, § 9 (“section 9”). It is true that an aggrieved person must also have filed an administrative complaint within six months in order to preserve his or her right to file suit in the courts under section 9, see Carter, supra, 684 F.2d at 191, but by creating a longer limitations period for the court action the legislature implicitly recognized the more burdensome nature of filing a court complaint. Since an MCAD complainant is free to choose to go to court only 90 days after filing his complaint with the MCAD, this distinction between the limitations periods for administrative and judicial filings also suggests that the shorter time limit is intended to further the conciliation goals of the statute by requiring prompt intervention, rather than a goal of bringing a quick end to claims which are strongly disputed. The goals of the federal civil rights statutes, on the other hand, “are compensation of persons whose civil rights have been violated, and the prevention of the abuse of state power.” Burnett, supra, _ U.S. at _, 104 S.Ct. at 2931, 82 L.Ed.2d at 47 (citations omitted).

The First Circuit has identified several important ends which are promoted by the application of the short section 5 limitation to the federal civil rights actions, e.g., it fosters prompt resolution of personnel disputes, it encourages resort to the state administrative procedure and relieves some of the burden on the federal courts. Burns, supra, 619 F.2d at 107. However, the Supreme Court ruling requires that these ends be subordinated to the overriding goals of compensation and prevention which are better served by a longer statute of limitations.

Therefore, in light of the Supreme Court’s rulings in Burnett, the court finds that the six-month statute of limitations contained in M.G.L. c. 151B, § 5, and applied to the filing of administrative complaints with the MCAD, is not the time limit applied to the state action “most analogous” to an action under the federal civil rights acts. The task, then, is to identify a more appropriate statute. We adopt Hester’s suggestion that the two-year time limit of c. 151B, § 9, be applied in this case.

The First Circuit rejected the section 9 limit in Carter, supra; however it was rejected in favor of the six-month limit of section 5. The only other apparent options would be to apply the three-year limit of the general tort statute of limitations or six-year contract limitation, M.G.L. c. 260, §§ 2A and 2 respectively. The court finds that the c. 151B, § 9 is the “most analogous” because, “[w]here, as here, the state has provided a specific remedy, complete with statute of limitations, for racial discrimination in ... employment and promotion, actions under the federal Civil Rights Acts alleging racial discrimination by the state must be governed by that statute of limitations.” Burns, supra, 619 F.2d at 107. Since the section 9 limit runs from the time of the alleged violation rather than being tied to any resolution of the administrative procedure, it can be considered independently of that process without danger of confusion. Applying the two-year limit of section 9 to the present case, it appears that at least some of the plaintiff’s claims are preserved.

Accordingly, we order that the City’s motion for summary judgment be denied. However, we are mindful that the Burnett decision did not necessarily prohibit the application of all six-month statutes of limitations to claims under the federal civil rights acts, that the Massachusetts and Maryland statutes are distinguishable in some respects, and that the Court of Appeals for this Circuit has indicated its preference for a reasonably short statute of limitations for federal civil rights actions. In fact, a very recent opinion in this district held that the six-month limit of section 5 governs these actions, although the Burnett decision was not discussed. Townsend v. Gray Line Bus Co., 597 F.Supp. 1287 (D.C.Mass.1984). Accordingly, we find, pursuant to 28 U.S.C. § 1292(b), that the issue of the applicability of the statute of limitations of M.G.L. c. 151B, § 5 is one as to which there is substantial ground for difference of opinion and that an immediate appeal of this order may materially advance the ultimate termination of this litigation.

      . We note that the Court was also aware of the First Circuit decisions in Burns and Carter, supra, when deciding Burnett. _ U.S. at _, n. 9, 104 S.Ct. at 2928, n. 9, 82 L.Ed.2d at 43, n. 9.


author: WEBER, District Judge.

text:
    John T. GRAHAM, Plaintiff, v. F.B. LEOPOLD COMPANY, INC., a Mueller Co., Defendant.
    Civ. A. No. 84-1355.
    United States District Court, W.D. Pennsylvania.
    Feb. 27, 1985.
    John C. Unkovic, David J. McAllister, Reed, Smith, Shaw & McClay, Pittsburgh, Pa., for defendant.

      Frank P. Krizner, Evans City, Pa., for plaintiff.
   OPINION

WEBER, District Judge.

This age discrimination case, alleging violations of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e-5(f)(8), and the Age Discrimination in Employment Act, 29 U.S.C. § 626(c), is now before the court on defendant’s motion for summary judgment. Both parties have submitted briefs which rely on deposition testimony.

Defendant claims that there is no genuine issue of material fact and that plaintiff cannot establish his claims as a matter of law. If this is so, Fed.R.Civ.P. 56 entitles defendant to have summary judgment granted in his favor. Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).

Defendant first argues that ADEA is the exclusive federal remedy for age discrimination and that Title VII of the Civil Rights Act accords no cause of action for the redress of age discrimination. Plaintiff does not dispute this argument. We agree that a simple reading of these two statutes indicates that only 29 U.S.C. § 623 is applicable. Therefore plaintiff’s Count I alleging a violation of Title VII of the Civil Rights Act by age discrimination will be dismissed.

Defendant next argues that plaintiff cannot satisfy the elements of a prima facie case or otherwise create a genuine issue of material fact regarding the alleged occurrence of age discrimination to warrant a trial. On this summary judgment motion, we must determine whether the facts, considered in a light most favorable to the plaintiff, state a claim for relief. The order' of proof in this ADEA case, according to McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), requires that plaintiff must make out a prima facie case of age discrimination by proving that:

1) he is within the protected age group of 40-70 years;
2) he was subject to adverse employment action;
3) he was qualified for the position in question, and
4) younger employees were treated more favorably.

Proof of these facts raises a rebuttable presumption of discrimination which defendant may counter by presenting a legitimate, non-discriminatory reason for the employment action. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 1094, 67 L.Ed.2d 207 (1981). Nevertheless, the plaintiff must still bear the ultimate burden of establishing that age was a determining factor in his discharge by a preponderance of the evidence. Smith v. Flax, 618 F.2d 1062 (4th Cir.1980).

In the present case, it is undisputed that Graham was 52 years of age when he was terminated from his position as Plant Superintendent of the Fiberglass Plant in December 1983. He had been with the company for 24 years. His position was filled by Jim Green, a foreman from the Clari-vac plant who was 41 years of age and had been an employee for approximately five years. Further, while there is some dispute about plaintiff’s qualifications for the position he held, at least as compared with other management level employees holding similar positions (See Lyons Dep.Tr. at 51), for purposes of this motion we will assume that plaintiff has sufficiently met his burden of showing that he was qualified, thereby establishing a prima facie case.

Defendant must, in turn, present its legitimate, nondiscriminatory reason for the employment action. Defendant has done so by stating that certain problems were noted in 1983 in Leopold’s management, including a decline in Leopold’s profitability. (Lyons Dep. Tr. at 14-15, 17-18; based on 1982 and 1983 operation data). Sales of products manufactured by the Plastic plants were down. (Lyons Dep. Tr. at 24-25, 43, 48; Goyak Dep. Tr. at 77). In light of this Mueller, the parent company, determined that steps would be taken to reverse the downward turn, including a reduction in work force and the consolidation of five management jobs into four jobs. (Lyons Dep. Tr. at 18, 20, 22-23; Goyak Dep. Tr. at 84, 91). These five positions were viewed as the Leopold plant’s management group and were treated equally for purposes of consolidation. (Lyons Dep. Tr. at 22). When plaintiff’s job performance was compared to that of the other four employees, he had the least favorable performance rating (Lyons Dep. Tr. at 41, 50; Goyak Dep. Tr. at 91-92, 93). Also plaintiff was the only one of the five employed in the plastics plant, and Leopold was contemplating a shutdown of the Plastics plant at that time. (Goyak, Dep. Tr. at 77-79, 81-82, 91-92). For these reasons, Mr. Goyak, Leopold’s Vice-President of Engineering and Operations Manager, recommended to Robert W. Lyons, Leopold’s president, that plaintiff be terminated. (Lyons Dep. Tr. at 36). Mr. Lyons made the final decision. (Lyons Dep. Tr. at 26, 36, 50-51, 54; Goyak Dep. Tr. at 69). Plaintiff was one of 24 employees who were laid off by Leopold in late 1983. (Lyons Dep. Tr. at 20, 22-25, 30; Goyak Dep. Tr. at 67). Moreover Jim Green who filled plaintiff’s position was 41 years old and also a member of the protected age group. (Lyons Dep. Tr. at 32-33, 39). Green received a higher evaluation than plaintiff. When Green assumed plaintiff’s position, Green’s previous job in the Clari-vae plant was abolished (Lyons Dep. Tr. at 40; Goyak Dep. Tr. at 80) in line with the company’s reorganization.

We note that defendant’s burden is light and that the evidence, as stated, need only raise a factual issue on the motivation for the plaintiff’s termination. Texas Dept. of Community Affairs v. Burdine, 450 U.S. at 254-255, 101 S.Ct. at 1094. Defendant has rebutted the presumption of discrimination, and plaintiff must proceed to show that defendant’s reasons are a pretext, or that evidence exists proving defendant’s discriminatory intent.

Plaintiff first argues that defendant’s reasons are pretextual. Plaintiff’s strongest evidence is his own testimony that prior to his notice of termination, Mr. Goyak had told him that he was “in the protected age group” and that he should get a lawyer. (Plaintiff’s Brief at 3, but see Graham Dept. Tr. at 29, 30, 42, 59, 60, 76). Goyak’s testimony disputes this (Goyak Dep. Tr. at 95-96). In this regard plaintiff’s testimony warrants direct quoting: "... He [referring to Goyak] said he would advise me to get a lawyer and fight this thing.” (Graham Dep. Tr. at 30). “He said [again referring to Goyak] if I were you, I would get a lawyer and fight this.” (Graham Dep. Tr. at 30). And later, plaintiff testified, “As a matter of fact, yes, George Goyak did tell me I was in the protected age group”. The next question asked was “And did you ask him what he meant by that?” Plaintiff answered: “Well I knew what he meant by that, that I was in an age bracket and that I just couldn’t be talked (sic) out on the street.” (Graham Dep. Tr. at 42). Plaintiff’s own testimony- further states that Goyak told plaintiff directly that he was being let go due to a reorganization, that Goyak never indicated to him that age was a factor in his termination, nor did any other person in the company. (Graham Dep. Tr. at 42-43, 49). Goyak indicated at his deposition that while he believed the elimination of fixed costs was necessary for the survival of the company, his personal feelings about plaintiff’s termination were of sorrow and pity. (Goyak Dep. Tr. at 89).

We cannot infer from the evidence or from the inferences reasonably drawn from plaintiff’s testimony regarding an isolated comment by Goyak that age was a factor in the decision to terminate the plaintiff. We do infer that Goyak, who was forced to chose which one management person among the five would be terminated, was somewhat angry and uncomfortable about plaintiffs termination. We interpret Goyak’s statements to plaintiff to be a show of support for the plaintiff. We note, however, there is no dispute that Goyak did recommend plaintiff to be terminated, and that he told plaintiff directly his recommendation was based on factors other than age. We take Goyak’s comment about plaintiff being in a protected age group as a'layman’s suggestion that Graham’s age might provide him with some extra legal protections not afforded to others, rather than as an intent to discriminate because of age. We, therefore, find plaintiff’s evidence insufficient as a matter of law to show either that defendant’s legitimate nondiscriminatory reason was a pretext, or that defendant had a discriminatory intent in terminating the plaintiff. On this summary judgment motion, we must accept plaintiff’s statements as true and grant plaintiff the benefit of all inferences that can reasonably be drawn therefrom. At the same time the party opposing summary judgment may not rest on the allegations of his pleadings or upon bare assertions, conclusory allegations, suspicions or doubts, but must, by affidavit or otherwise set forth specific facts showing that there is a genuine issue for trial. Ness v. Marshall, 660 F.2d 517, 519 (3d Cir.1981). Significantly, plaintiff does not provide evidence that disputes the adverse economic conditions affecting the plant in 1983 or the fact that numerous layoffs took place before and after plaintiff’s termination. Nor does plaintiff dispute that his performance ratings were the lowest of the five management personnel then employed by defendant at the Leopold plant whose positions were then being consolidated into four positions. Plaintiff has not identified anyone who was younger, who retained employment with defendant, and who had inferior performance ratings to his own and is not alleging any pattern of age discrimination. For all of the above stated reasons, we believe that this case is akin to Pierce v. New Process Company, 580 F.Supp. 1543, 1546 (W.D.Pa.1984); aff’d. without opinion, 749 F.2d 27 (3d Cir.1984). There being no prior pattern of age discrimination and insufficient facts in which to state an age discrimination claim, summary judgment for defendant will be granted.

      . We recognize that plaintiff has raised additional factual arguments in his brief, but since we do not believe that these arguments, either individually or in combination, raise any genuine issue of material fact and/or that they are unsupported by the evidence we will not address them individually.

      . There must be some basic evidentiary fact to permit the trier of fact to draw a reasonable and permissible inference of intent to discriminate. Nash v. Jacqueline Cochran, Inc., 548 F.Supp. 676, 680 (S.D.N.Y.1982). We do not deal here with defendant’s arguments that it is not Go-yak’s intent, but Lyon’s intent that would bear examination by this court, since we do not find that Goyak’s statements and the inferences reasonably drawn from them as alleged by the plaintiff are sufficient to show that age was a factor in plaintiffs termination. Defendant cites LaMontagne v. American Convenience Products, Inc., 36 FEP Cases 913 (7th Cir.1984) for the proposition that it is only Lyon’s intent, as the ultimate decision-maker, that should be considered. Plaintiff argues that Lyons acted on Goyak’s recommendation and therefore Go-yak’s intent is pertinent despite the fact that Lyons was the ultimate decision-maker.

      . The establishment of a prima facie case of age discrimination does not require submission of the case to the jury, Keller v. Bluemle, 571 F.Supp. 364 (E.D.Pa.1983), aff’d without opinion, 735 F.2d 134 (2d Cir.1984), nor does it preclude summary determination.

      . Plaintiff argues that this case resembles more the situation in Rubis v. McGraw-Edison Co. Power Systems Div., 570 F.Supp. 27 (W.D.Pa.1983), in which this court refused to grant summary judgment on behalf of the company in an age discrimination case. There the court examined the evidentiary materials submitted and found that 1) younger men had been retained as supervisors though their performance ratings were similar or lower than plaintiffs, 2) the performance evaluation ratings may have been inapplicable to plaintiffs and 3) importantly, the defendant company had a past practice of age discrimination representing unwritten management policies to maintain young supervisors. Thus a material issue of fact remained for trial. None of these facts are present here. In fact, plaintiff forthrightly admits that he had never known age to be a factor in defendant’s employment actions in the past, and that he was not alleging that his termination was part of a general pattern of age discrimination. (Graham Dep.Tr. at 76-77). We find that these admissions also distinguish Meschino v. International Telephone and Telegraph Corp., 563 F.Supp. 1066 (S.D.N.Y.1983) which was cited by plaintiff.