Petition for Writ of Certiorari — Bailey v. Smith

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Suoreme Court, U.S

IN THE

SUPREME COURT OF THE UNITED STATES

DON BAILEY

Petitioner

JESSE SMITH; MARY BENDER; RICK BURD;

JOHN BREINER; DAN FLAHERTY; FRANK

STERNER; DEB SMITH; JOHN DOE; RON HILL;

MICHAEL FOERSTER; JOHN DOWLING; AND

JOSEPH CURCILLO

Respondents

ON PEITITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE THIRD CIRCUIT

PETITION FOR WRIT OF CERTIORARI

Don Bailey, Esquire

PAID# 23786

4311 N. 6% Street

Harrisburg, Pa 17110

QUESTIONS PRESENTED

1. Whether the federal Court System is

capable of Self Discipline?

Suggested Answer Yes!

LISTS OF PARTIES

All parties have been listed in the caption

hereto.

CORPORATE DISCLOSURE STATEMENT

This document 1s not subject to any provisions

of Supreme Court Rule 29.6.

ill

TABLE OF CONTENTS

QUESTIONS PRESENTED ...................

LISTS OF PARTIES

CORPORATE DISCLOSURE

py Fee eee yy. rrr

OPINIONS BELOW...

JURISDICTION

CONSTITUTIONAL PROVISIONS

INVOLVED

STATEMENT OF THE CASE...........

REASONS FOR GRANTING THE WRIT...

CONCLUSION

APPENDIX

PINE FE ores dra ean ckaniaccie ane i

Appendix B 2A-3A

PEG in san Sas exncinvenmicasedseoneus 4A-28A

TABLE OF AUTHORITIES

Matthew Lockarv, et al. vs. Paul Kayfetz

et al. 974 F.2d 1166 (1992)

MacDraw, Inc. v. CIT Group Equip. Fin. Inc.

73 F.3d 1253, 1257 (274 Cir 1996)

Schoenberg, 971 F.2d at 934

Jurinko v. Medical Protective Co., 03-CV-4053,

Ae, 2 SU I, Penns dos vein an stnesdeses cavccsveness 14

Introcase v. Cunningham, 857 F.2d 965, 970

(4th Cir 1988)

Unanue Casual v. Unanue Casual, 132 F.R.D.

146, 151-52 (D.N.J. 1989), aff'd 898 F. 2d 839

(1st Cir 1990)

Cooter & Gell v. Hartmarx Corp, 496 U.S. at 406,

110 S.Ct. at 2461

Geller v. Randi, 40 F.3d 1300, 1304 (D.C. Cur 1995)

Aziz v. Pa State Univeristy, 1998 WL 964483, at 3

(E.D. Pa. Nov 17, 1998)......ccccccsccececesceseseeeeeseees 14

Carbone v. Gen. Accident Ins. Co., 1996 WL 420427,

at 2 (E.D. Pa. July 25,

1996)

Puricelli vs. Morris et al., (D.C. Civil Action No.

99-CV-05974 Submitted Under Third Circuit

LAR 34.1(a) February 15, 2005 decision filed

May 10, 2005

Roberts v. Mentzer No. 10-306................seescesse0ss. 8

Venesevich v. Leonard et al

TABLE OF APPENDICES

Pages

Appendix A

Opinion of the Third Circuit Court of

Appeals dated October 6, 2010............... LA

Appendix B

Opinion of the Third Circuit Court of

Appeals dated October 6, 2010................... 2A-3A

Appendix C

Memorandum of the Magistrate Judge Rice

dated August 5, 2010......... EIEIO A ett PA 4A-28A

CITATIONS OF REPORTS BELOW

The Opinion of the Third Circuit Court of

Appeals was filed on October 6, 2010 (App A, AJ).

Opinion of the Third Circuit Court of Appeals dated

October 6, 2010 (App B, 2A-3A). Memorandum and

Opinion of the Honorable Magistrate Rice dated

August 5, 2010 (App C, 4A-28A).

STATEMENT OF JURISDICTION

The decision of the United States Court of

Appeals for the Third Circuit, for which review is

sought, was filed on October 6, 2010 (App A).

CONSITTUITIONAL PROVISION INVOLVED

The 1st Amendment to the U.S. Constitution is

implicated in this case. The Amendment states in

pertinent part as follows:

“Congress shall make no law...abridging the

freedom of speech...or...to petition the Government

for a redress of grievances.”

The 5 Amendment to the U.S. Constitution

is implicated in this case. The Amendment states in

pertinent part as follows:

“No person...shal! be deprived of life, liberty,

or property, without due process of law”.

The 1444 Amendment to the U.S. Constitution

is implicated in this case. The Amendment states in

pertinent part as follows... nor deny to any person

within its jurisdiction the equal protection of the

laws’.

STATEMENT OF THE CASE

Collie Rescue of Central Pennsylvania Inc.

(CRCP) was a non-profit charity incorporated and

licensed in Pennsylvania beginning in 1997. The

appellant, Thom Lewis was the President and CEO

of CRCP. On or about June 2000 the petitioner,

Lewis filed a complaint with the "Department of

State Bureau of Charities" regarding misconduct by

Susan Ferree. The initial investigator assigned was

Doreen Haar. The complaint was eventually referred

to the Department of State and the Department of

Agriculture. Because of the _ roles of these

respondents in the transport of dogs along with the

other public employee respondents the complaints of

Thom Lewis went nowhere and instead he was

subjected to extreme retaliatory misconduct at the

hands of these respondents over a period of years.

On or about early 2001 Hill targeted Lewis in a

partnership with Ferree. He totally failed in efforts

to encourage other law enforcement agencies to take

action against Lewis. Lewis received information

from a number of sources that Ron Hill was involved

in pursuing a personal vendetta against him. Hill

led to representatives of the Auditor General's

Office. He later used his official position in the

Attorney General's office to assist Ferree in setting

up a nonprofit organization similar to CRCP. On or

about May 2001, having learned that Ferree was

ulegally using CRCP's license to sell dogs, CRCP

filed a writ of summons against her and four others.

On or about 2002 the petitioner complained

personally to the respondents Rick Burd that dogs

were being illegally transported and sold by state

employees using nonprofit entities

Consequently the petitioner was increasingly

made the target of unlawful and_ retaliatory

investigations and _ retaliatory acts by former

respondents in previous actions namely investigator

Hill, attorney Downing, attorney Forester and others

from the Pennsylvania Attorney General's Office,

including, he believes others and the Charitable

Trusts Division of the Pennsylvania Attorney

General's Office. In January 2003 Lewis hired

attorney Joseph Curcillo to represent CRCP. Later,

by action of the CRCP board Curcillo was directed to

also represent Thom Lewis in his personal capacity.

Somewhat later Curcillo informed petitioner that he

was contacting an attorney friend at the

Pennsylvania Disciplinary Board supposedly to see if

something could be done about Mr. Hill, Mr.

Downing, and Mr. Pacella of the AQG’s office.

This "friend" according to Curcillo, had

received complaints about Downing and Pacella

before. Additionally Janice Anderson Esq., another

attorney Curcillo claimed to know, was supposedly

knowledgeable, as a former director of the "Division

of Charitable Trusts" about "Pacella personally” and

“how they operated". Petitioner later spoke

personally with Anderson who definitively indicated

to him that what Pacella and some of the

conspirators were doing was clearly illegal.

Petitioner was present when Curcillo called his

friend and discussed these matters in a context of

complaining about how Hill, Downing and Pacella

among others were trying to "get" Thom Lewis, his

chent. According to Curcillo, Disciplinary Counsel

mentioned something about "trial support" and

getting "support from other attorneys". At some later

date the petitioner learned that this attorney

appeared to be involved in the same dog trafficking

he had complained about over the years and for

which he was suffering retahation. Petitioner later

learned also that the attorney was involved in the

transport of dogs, which, upon information and

behef, petitioner alleges were being transported

unlawfully into the state of Pennsylvania where they

were illegally marketed and sold.

To the best of petitioner's knowledge this is

still going on is It was around this period of time

that the petitioner first began to realize how

extensively a group of state employees were running

charitable organizations out of state offices, with

protection from state officials, which centered upon

the unlawful acquisition of puppies and dogs from

inside and outside of Pennsylvania. These puppies

and dogs were then unlawfully transported and

marketed within the state of Pennsylvania in

blatant violation of state law to citizens who were

unaware that they had not’ received’ proper

veterinary attention in many cases and might even

be diseased. Petitioner alleges that after he engaged

Mr. Bailey that the retaliation against him

significantly intensified, particularly at the hands of

respondents Mary Bender, Rick Burd, and John

Breiner. Breiner’ personally admitted this to

petitioner. Petitioner alleges that within the last two

years he was unlawfully treated differently than

other persons similarly situated in both’ the

acquisition and retention of his state licenses by the

respondents Bender, Breiner and Jesse Smith

Petitioner alleges that he was harassed and

maliciously prosecuted at the express direction of the

respondents Bender because of his choice of

attorneys, and because he was opposed to the

misconduct of Deb Smith, Mr. Flaherty, Mr. Sterner,

and others unlawfully transporting and selling dogs

in Pennsylvania.

The actions below were then appealed to the

Third Circuit. In an opimon which Mr. Lewis

appealed pro-se to this Court, the actions of Judge

Muir and Jones was upheld. Later it had been

learned that Flaherty had served under Jones at the

Pennsylvania Liquor Control Board. After Lewis had

appealed the “res judicata” decision to the Third

Circuit (No. 08-3800) in the succinct opinion by the

Honorable Anthony J. Scirica, the actions of the

Middle District Trial Judges were upheld.

Prior to Judge Scirica upholding the actions of

Judge Muir and Jones in the underlying civil case,

the defendants below filed (107 days later) a motion

for attorneys fees that was placed before Judge

Jones. Flaherty and = Sterners motions were

approved immediately and neither Mr. Bailey nor

Mr. Lewis were given a chance to respond. The

attorney fees actions were appealed to the Third

Circuit where they were assigned to Judge Scirica. It

is worthy to note that Judge Scirica assigned the

panel in Venesevich_v. Leonard et al. (presently

before this Court, repetitiously placing the same

group of Judges (typically Judge Ambro on a

]

consistent basis among a small group and for

himself) on panels hearing Mr. Bailey’s cases. In

Roberts us. Mentzer, (No. 10-306), Judge Scirica

personally appointed Judge Jones to sit by

designation on a case which had been assigned to the

Honorable Juan Sanchez of the Eastern District of

Pennsylvania clerk (7 cases in a row assigned to one

judge who methodically dismisses each case. Mr.

Bailey’s assigned to him just as Judge Jones did in

two dozen other cases.

In the matter appealed here the hearing on

counsels fees (assigned by Judge Scirica) to his

former law clerk M.J. Rice resulted in a hearing

where Mr. Lewis was even denied the right to

subpoena the attorney, question the appellants, who

supposedly billed the work, where Bailey was

criticized for actions of the attorney who represented

Lewis and was accused of composing his Writ to this

Court which he did not wnte, or even advise Lewis

on.

It is common knowledge that Don Bailey and

his clients are victimized by a small group of Middle

District Judges who are protected by a small group

of Third Circuit Judges who have regularly abused

the rights of Mr. Bailey and his clients. Mr. Bailey

has competent evidence to prove every accusation

that he makes in here and any other matters that he

has discussed openly and repeatedly over the years.

Mr. Bailey invites the opportunity to call witnesses

to testify to support all these accusations. Without

an opportunity to visit there matters in a detailed

brief or address them in detail in anyway or in any

forum,

the infirmities of the judicial systems inherently

flawed self disciplinary practice has flagrantly

violated the due process rights of innocent

Americans to access their Court system.

REASONS FOR GRANTING THE WRIT

1. Is the federal court system capable of disciplining

itself?

It is quite clear that the treatment afforded

attorney Don Bailey, a highly successful civil rights

lawyer, and in this particular case his client Thom

Lewis, demonstrates that the federal court system is

replete with political and personal friendships and is

so inter-politically incestuous that it cannot

adequately police itself without either’ the

intervention of this court or some sort of mechanism

set up by this court or the Congress which will

protect lawyers and citizens from _ personal

vindictiveness and ad hominum attacks by federal

judges.

The case sub judice is quite simple. Any

thorough and objective analysis of what occurred in

the background of this case would reveal that the

assault on Mr. Bailey and his client Thom Lewis was

intentional and pretextual. Belatedly discovered

interpersonal relationships between attorneys, law

firms and the original District Court judges in this

matter would raise a red flag for any reasonable and

objective jurist. The blatant disregard of due process

rights or just reasonable opportunities and or

guarantees to either Mr. Bailey and most important

to Mr. Lewis are prima facie inescapably plain.

Judge Jones had a duty to disassociate himself from

judgment in these matters. The very nature with

which Judge Muir and Jones treated the issues

before them would make any objective judge sit back

and be concerned. So widespread have these

problems become in the federal judiciary that the

Hon. Chief Justice Rehnquist (now deceased) before

who, along with the rest of this honorable court,

attorney Bailey personally appeared (with success)

in a prior case that in response to congressional

inquiries he commissioned a study into the matter.

The issue plainly and simply was can the federal

court system discipline itself? Without additional!

safeguards it cannot. The litany of mis-treatments

including rampant and excessive dismissal of

deserving cases, unfair and lack of thoroughness in

the review process before repetitive panels of Third

Circuit judges all aimed and focused upon Don

Bailey and his clients because of his_ highly

successful civil rights practice which has exposed

persistent corruption in the Pennsylvania State

Police and other state and local agencies (Mr. Bailey

represents dozens of Pennsylvania State police

officers) is a stark and unavoidable example. Implicit

in these practices are clerks who work with these

judges who see that certain cases for certain lawyers

and or cases of certain types are assigned to the

same judges over and over and in the Third Circuit

to the same panels over and over. In one case,

presently before this Court, namely Venesevich,

Petitioner v. Leonard et al.

Respondents an example of a vindictive attack by a

federal judge could not be more clearly defined and

plain. If an attorney or citizen dares to speak up they

suffer retribution. There 1s no institution, or at least

any meaningful institution, where a complaint can

be taken again without fear of retaliation.

For example the Clerk of the Eastern District

of Pennsylvania, assigned case after case of Mr.

Bailey and his chents to one Eastern District Judge,

the Hon. Juan Sanchez (seven cases in a row), 1n a

system that is supposed to assign cases by chance.

Naturally these cases are, or certainly will be,

systematically dismissed. In the case of the Hon.

John E Jones III of the Middle District of

Pennsylvania roughly 2 dozen cases to date, without

interruption, where Mr. Bailey was the attorney

were dismissed some on patently frivolous and

indefensible grounds. This is a buddy system

composed of friends supporting friends and it is not

difficult to discern what is going on. This court will

undoubtedly never read the transcript of the

proceedings before Magistrate Judge Rice nor will it,

undoubtedly, read in any detail, what occurred in

the cases in pleadings before Judges Jones and Muir.

Furthermore it should not have to, any more than it

should have to hunt for universal] or general

principles worthy of this Court's consideration. The

failure comes in the inherent structure where judges

have an inherent (as with Jones) or predilection for

any improper or non-judicial reason, to use their

courtroom and access to it as a way to punish,

obstruct, delay, and intimidate. The normal human

weakness to view any error or shortcoming, where

excessive power resides in the adjudicator

coincidental to a personal or political interest, as a

personal affront or criticism of an exceptionally

deferential public position, as a personal assault to

be rationalized into an attack on the critic makes the

reliability of the current bootstrapping posture of our

federal courts unacceptable and _ institutionally

dangerous. Resort to any sort of administrative

officer judicial misconduct board is simply not viable

and doesn't work as any person in the position of

your petitioner's can tell this court.

The sample, or report to the Chief Justice

undertaken by Associate Justice Steven Breyer is

helpful and may be the starting point but it does not

begin to address the real underlying problem and

that 1s abusive misconduct based upon political and

or personal affiliations among judges, as in this cas¢

and a reluctance to address the misconduct. At the

very least a thorough investigative process should bx

available to come plaintiffs with some standard

governor any relevant factual findings. Sadly this

matter may be one _ necessitating continuing

legislative oversight as a result of public upset

(admitting that the U.S. Supreme Court having

original constitutional jurisdiction is not in a class

with our appellate and district courts

Congress exercises significant statutory control)

Currently the federal court system which le

beneath the Supreme Court of the United States

not capable of disciplining itself in the incidence

abuse will continue to grow and augment if action °

not taken by this court in its responsibility to

discipline and police this system.

2. The Supreme Court or United States has a duty to

create an institutional mechanism for the review of

attorney discipline where serious questions of

judicial abuse arise below.

There is only one court of original constitutional

jurisdiction in our nation. That court is the Supreme

Court of the United States. The duty and

responsibility of this Court to administer and set

standards for self restraint, self-discipline, and

adjudicatory responsibility in matters pertaining to

federal court business are manifest. Instead of

circling the wagons when concerns are raised (as in

Venesevich v. Leonard et al.) this Court has a duty to

erect institutions that will protect the ultimate

matter at issue in these cases and that is the access

of American citizens by and through their lawyers to

their courts. It is an ultimate mockery of official

responsibility to have the United States Congress

establish federal district courts with the primary

responsibility to safeguard the rights of American

citizens while, as in this case, it is plain that

something wrong 1s going on in denying access to the

court system itself and attempting to intimidate or

deter American citizens in the exercise of that right.

There is not even a mechanism present in our court

system, nor in the offices of the Atty. Gen. of the

United States, to adequately look into these matters.

Lawyers 1n the United States are an intimidated and

deprived class of citizens who seek to represent and

defend American citizens, among the most important

of things, and that 1s defense against the abusive

powers of government, but yet find that if they do so,

if they complain of court access, or even if they seek

to have a court vacate and reconsider what on its

face might be a plain error, they will suffer

recrimination.

The core issue which began the pattern of

retaliation suffered by Don Bailey and his clients

was the aggressive organization by the Hon.

Christopher C. Conner to retaliate against Don

Bailey because he asked the court to vacate and

reconsider a plain error by Judge Conner which had

racial implications. This matter became transformed

into a vendetta joined by two other Middle District

Judges and a couple of willingly compliant

magistrate judges. (See Venesevich) The tragedy is

that there are innumerable other bright and

objective federal district judges, within

Pennsylvania's Middle District and at the Third

Circuit who do not receive recognition for their doing

what a judge should do and that is to be a “neutral

and detached magistrate".

3. An attorney and or his client should have the

same rights to due process 1n disciplinary issues and

procedures enjoyed by other citizens including those

An examination of the procedures and practices

which occurred below this court at No. 08-3800 in

the Third Circuit Court of appeals demonstrates a

total lack of due process guarantees available to

lawyers and their clients in cases where they are

involved in matters which incur judicial displeasure.

The hearing held before Magistrate Judge Timothy

R. Rice resulted in a hearing where Mr. Lewis (and

ostensibly Mr. Bailey is supposed) were denied the

opportunity to subpoena witnesses, incredibly,

including the witnesses who allegedly did the actual

work (which was grossly embellished) for the fees

being claimed. See Matthew Lockary, et al. vs. Paul

Kayfetz et al. 974 F.2d 1166 (1992), MacDraw, Inc. v.

CIT Group Equip. Fin. Inc. 73 F.3d 1253, 1257 (24

Cir 1996); Schoenberg, 971 F.2d at 934; Jurinko v.

Medical Protective Co., 03-CV-4053, (E.D. Pa. July

30, 2009); Introcase v. Cunningham, 857 F.2d 965,

970 (4th Cir 1988); Unanue Casual v. Unanue

132 F.R.D. 146, 151-52 (D.N.J. 1989)

(declining to award attorneys fees fro brining

sanctions motion), affd 898 F. 2d 839 (1st Cir 1990):

Cooter & Gell v. Hartmarx Corp, 496 U.S. at 406,

110 S.Ct. at 2461; Geller v. Randi, 40 F.3d 1300,

1304 (D.C. Cir 1995); Aziz v. Pa State University,

1998 WL 964483, at 3 (E.D. Pa. Nov 17, 1998);

Carbone v. Gen. Accident Ins. Co., 1996 WL 420427,

at 2 (E.D. Pa. July 25, 1996) and Puricelli vs. Morris

et al.. (D.C. Civil Action No. 99-CV-05974 Submitted

Under Third Circuit LAR 34.1(a) February 15, 2005

decision filed May 10, 2005.

It is impossible to believe that any other

proceeding in the United States of America, under

any other circumstances, would result in the denial

of an opportunity to either do discovery or bring an

opposing claimant in the court and question them. In

the case below the Hon. Judge Rice commented in

dismissive fashion that the attorney who

represented Sterner and Flaherty "supervised" him.

Why does this justify a deny all of the right to depose

or question the attorney who purportedly did the

work on these issues?

Further, it should also be noted in the

companion case Judge Jones permitted attorney

Montgomery and Schertz to file their motions for

attorney's fees months late that he also dismissed

plaintiff's objections to missing briefing

responsibilities because he claimed his law firm did

not receive their West-Law Rulebooks on time. Your

petitioners were denied the right to question

opposition attorneys and or complainants even

though Montgomery is extremely active with the

Middle District courts heading up their rules

modification committee i.e. she helped write the

applicable changes in the rules but did not complete

her work on time. Had attorney Don Bailey, or Mr.

Lewis pro se committed such an infraction they

would not only have had their submissions dismissed

they would've been sanctioned on top of it. During

the hearing when Mr. Bailey tried to explain the

abuse he had been subjected to in the Middle

District as a root cause of why he was being pulled in

before the "Master" Judge Rice, he was dismissed

out of hand and told not to proceed yet this issue was

used as a point of criticism in Judge Rice's opinion, if

memory serves. If a court wishes to take the

property of the citizen including a plaintiff before our

courts, or an attorney they should at least be entitled

to rudimentary due process opportunities.

CONCLUSION

For the foregoing reasons, Petitioner respectfully

requests that the Supreme Court grant review of this

matter.

Respectfully Submitted

Don Bailey Esquire

4311 N. 6% Street

Harrisburg, Pa 17110

717 221-9500

UNITED STATES COURT OF APPEALS FOR THE

THIRD CIRCUIT

August 24, 2010

No. 08-3800

Thorn Lewis

Vv.

Jesse Smith , et al

(M.D. Pa. No. 07-CV-02011)

Present: SCIRICA, BARRY and SMITH, Circuit

Judges

Motion by Appellees’ Dan Flaherty and Frank Sterner

for Entry of Judgment and/or Amendment of Order

dated August 5, 2010

/s/ Phyllis Ruffin

Case Manager 267-299-491

See Order dated August 5, 2010

ORDER

The foregoing motion for entry of judgment is

eranted. The Clerk is directed to transmit a certified

copy of the order filed August 5, 2010 to the District

Court for entry as a judgment on the District Court

docket.

By the Court,

/s/Anthony J. Scirica

Circuit Judge

Dated: October 6, 2010

UNITED STATES COURT OF APPEALS FOR THE

THIRD CIRCUIT

No. 08-3800

Lewis v. Smith

(M.D. PA. No. 4-07-CV-02011)

Present: SCIRICA, BARRY and SMITH,

Circuit Judges

1. Motion by Don Bailey, Counsel for Appellant, for

Rehearing of Court's Order filed August 5, 2010,

which the Court may wish to Construe as a Motion

to Submit the Order filed August 5, 2010 for En

Banc Review Pursuant to 3d Cir. 1.0.P. 10.3.3.

2. Motion by Don Bailey, Counsel! for Appellant, to

Kxceed Page Limitation For Motion for Rehearing

3 Motion by Don Bailey, Counsel for Appellant, to

Attach Exhibits to Motion for Rehearing.

4 Amended Motion with Exhibits by Don Bailey

Counsel for Appellant, for Rehearing of Court's

Order filed August 5, 2010.

/s/ Phyllis Ruffin Case Manager 267-299-4918

See attached Court's August 5, 2010 Order

ORDER

The foregoing motion to exceed the page limitation i:

hereby granted. The motion to attach exhibits to the

motion for rehearing 1s denied. Both the Court's

August 5, 2010 order and the Report and

Recommendation of the Magistrate Judge are

docketed in this appeal. The remaining proposed

exhibits are not part of the record on appeal. The

request to submit the order filed August 5, 2010 for

en banc review 1s denied. The motion for rehearing

or reconsideration of the Court's August 5, 2010

order is denied

By the Court

/s/ Anthony J. Scirica

Circuit Judge

Dated: October 6, 2010

parc All Counse|]

Date Fuled: 07/28/2010

UNITED STATES COURT OF APPEAL FOR THE

THIRD CIRCUIT

NO. 08-3800

THOM LEWIS

Appellant

JESSIE SMITH

MARY BENDER; RICK BURD: BREINER

DAN FLAHERTY; FRANK STERNER; JOHN DOF

Appellees

(WD Pa Civil Action No. 06-CV-0393)

REPORT AND RECOMMENDATION

TIMOTHY R. RICE July 28, 2010

U.S. MAGISTRATE JUDGE

Appellees Dan Flaherty and Frank Sterner (“"Appelles

seck an award of $39,565.84 in attorneys’ fees and

costs, pursuant to Fed. RK. App. P. 38, 42 U.S.C. § 1988

and 28 U.S.C. § 1927, from Appellant Thorn Lewis and

his counsel, Don Bailey ("Appellant"). Pursuant to Rule

18 of the Federal Rules of Appellate Procedure, | wa:

appointed Special Master to recommend resolution of

this matter. See Order, Lewis _v. Smith, No. 08-3800

(3d Cir. Mar. 30, 2010); see also Fed. R. App. P. 72(b)

Fed. R. Civ. P. 54(d)(2)(D)

After reviewing the record, Appellees’ Motion for

Attorneys' Fees, Appellant's Motion to Dismiss, all

responses, and the evidence and arguments presented

during the _ evidentiary hearing, I recommend

Appellant's Motion to Dismiss be DENIED, and

Appellees' Motion for Attorneys’ Fees be GRANTED in

part, and DENIED in part. Appellees should be

awarded $28,041.71, pursuant to Rule 38, and in the

alternative under 28 U.S.C. § 1988 and 42 U.S.C. §

1927.

‘. Factual and Procedural History

The facts of the underlying dispute are summarized in

the opinions of this Court and the District Court. See

Lewis v. Smith, 361 Fed. Appx. 421 (3d Cir. 2010);

Memorandum, Lewis v. Smith, No. 07-2011,2008 WL

3200836, at *]-2 (M.D. Pa. Aug. 7,2008). I will briefly

summarize the facts relevant to the fee petition.

Attorney Bailey, on behalf of his chent, filed a

complaint in the United States District Court of the

Middle District of Pennsylvania against scveral

employees and private citizens of the Commonwealth

of Pennsylvania, alleging they had used Appellant's

kenneling license for an illegal purpose ("Lewis I").

See Appellant's Appendix Volume II at 77-100, Lewis

v. Smith, No. 08-3800 (3d Cir. Feb. 17, 2009)

[hereinafter Appellant's Exh.]; see also 361 Fed.

Appx. at 422. Appellant claimed appellees were

involved in the illegal transportation and sale of dogs

in Pennsylvania and had harassed and retaliated

against him. See 361 Fed. Appx. at 422.

On August 13, 2007, Appellees moved to

dismiss the complaint under Fed. R. Civ. P. 12(b)(6).

Id at 423. Instead of filing a brief in opposition,

Appellant filed an amended complaint. Id On

September 5, 2007, the Honorable Malcolm Muir

dismissed Appellant's amended complaint under Rule

15(a) because Appellant had not obtained prior

authorization from the Court or written consent from

the Appellees. See 361 Fed. Appx. at 423 (citing Fed

R. Civ. P. 15(a)); see also Order, Lewis v. Smith, No.

07-512 (M.D. Pa. Sept. 5,2007). Judge Muir granted

Appellant an additional twenty days to file a brief in

opposition to the motion to dismiss. Id. Appellant filed

a brief, and on October 18, 2007 Judge Muir granted

Appellees' motion to dismiss. Id Appellant did not

appeal.

Instead, Appellant filed a new § 19838 civil

rights complaint two weeks later against Appellees in

the Middle District of Pennsylvania ("Lewis II"). See

id. at 423; Lewis, 2008 WL 3200836, at *1-2. Lewis II

listed the same defendants and made the same

general allegations regarding Appellees’ involvement

in the illegal transportation and sale of dogs in

Pennsylvania and their retaliation against Appellant.

See id On August 7, 2008, the Honorable John E.

Jones, III granted Appellees' motion to dismiss based

on res judicata. Lewis, 2008 WL 3200386, at *1-2.

Appellant appealed. See Brief of Appellant, Lewis v.

Smith, No. 08-3800 (3d Cir. Feb. 17, 2009)

(hereinafter Appellant Brief]. This Court affirmed,

holding Lewis II was barred by res judicata. See 361

Fed. Appx. at 423.

Appellant contended there were factual

differences between the complaints in Lewis I and

Lewis II. See 261 Fed. Appx. at 424 n.5. This Court,

however, found Appellant's additional facts were

used only to support legal theories, and did not

preclude a res judicata dismissal. Id In evaluating the

"essential similarity of the underlining events giving

rise to the various legal claims," id (citing Davis v.

U.S. Steel Supply, 688 F.2d 166, 171 (8d Cir. 1982)),

this Court considered the following factors: (1)

whether the acts complained of and the demand for

relief were the same; (2) whether the theory of

recovery was the same; (3) whether the witnesses and

documents necessary at trial were the same (that is,

whether the same evidence necessary to maintain the

second action would have been sufficient to support

the first); and (4) whether the material facts alleged

are the same. See id. (citing United States v. Athlone

Indus., Inc., 746 F.2d 977, 984 (38d Cir. 1984)). This

Court concluded there was an essential similarity in

the underlining events giving rise to Lewis I and

Lewis II, which precluded Appellant's second suit. Id.

If Appellant disagreed with Judge Muir's ruling in the

first suit, this Court stated, Appellant should have

filed a motion for reconsideration or an appeal, not a

second action. Id at 424.

On February 22, 2010, Appellees sought fees

and costs. See Motion for Attorneys' Fees and Non-

Taxable Costs, Lewis v. Smith, No. 08-3800 (3d Cir.

Feb. 22, 2010) [hereinafter Motion for Attorneys'

Fees]. An evidentiary hearing and oral argument was

scheduled for June 7, 2010. See Order, Lewis _ v.

Smith, No. 08-3800 (3d Cir. Mar. 30, 2010). On June

3, 2010, Appellant moved to dismiss Appellees’ fee

petition, arguing Appellees' claims for fees under 28

U.S.C. § 1927 and 42 U.S.C. § 1988 were abandoned

because Appellees did not list Appellant or his

attorney as witnesses for the evidentiary hearing, and

intended only to present evidence on_ the

reasonableness of their bills. See Appellant's Motion

to Dismiss at 3, Lewis v. Smith, No. 08-3800 (3d Cir.

June 3, 2010) [hereinafter Appellant's Motion to

Dismiss]. Appellant further argued I had "implicitly

ratified" the abandonment of the claims by allocating

ninety minutes to each party for the hearing, denying

Appellant's requests for subpoenas, and granting

Appellees’ request to submit affidavits for a witness

who was unable to attend the hearing. See id. at 3-4;

see also Order, Lewis v. Smith, No. 08-3800 (3d Cir.

May 6, 2010); Order, Lewis v. Smith, No. 08-3800 (3d

Cir. May 25, 2010). Appellant also claimed Appellees’

Rule 38 claim should be dismissed because Rule 38

required this Court's merits panel to deem the appeal

fnvolous in its February 17, 2009 opinion. Appellant

maintains | have no authority to find the appeal

frivolous. See Appellant's Motion to Dismiss at 4.

I held an evidentiary hearing and oral argument on

June 7, 2010. I heard testimony from Attorney Bailey,

Lewis, Appellees’ counsel, Bridget Montgomery, and

Andrew Ostrowski, Appellant's counsel for the fee

petition proceeding.! See Transcript of Evidentiary

Hearing Regarding Fee Petition Before the Honorable

Timothy R. Rice, United States Magistrate Judge,

Lewis v. Smith, 08-3800 (3d Cir. June 7, 2010)

[hereafter Transcript], On June 23, 2010,

Appellees submitted a revised statement of fees, see

Revised Statement of Fees Sought, Lewis v.

Smith, No. 08-3800 (8d Cir. June 23, 2010)

[hereinafter Revised Statement].

Il. Grounds for Attorneys' Fees and Sanctions

A. Rule 38

Rule 38 allows this court to award damages, and

single or double costs to appellees if it determines an

appeal is frivolous. In determining whether an appeal

is frivolous, I must focus on the merits of the appeal,

regardless of good faith or bad faith. Sun Ship, Inc. v.

Matson, 785 F.2d 59, 64 (3d Cir. 1986). An appeal is

frivolous if it is wholly without merit. See Fishkin v.

Susquehanna Partners G.P., 340 Fed. Appx. 110, 120

(3d Cir. Jul. 27, 2009) (citing Quiroga v. Hasbro, Inc.,

943 F.2d 346, 347 (8d Cir. 1991)); Dasilva v. Esmor

Correctional Servs., 167 Fed. Appx. 303, 309 (3d Cir.

2006). Claims that ignore contrary case law, offer no

colorable argument or support, present

incomprehensible arguments, or contain nothing of

substance or merit, are frivolous. See Dasilva, 167

Fed. Appx. at 309; see also Beam v. Bauer, 383 F.3d

106, 108 (3d Cir. 2004); Hilmon Co. v. Hyatt Int'l, 899

F.2d 250, 253 (3d Cir. 1990).

This Court has been reluctant to classify

appeals as frivolous, fearing novel theones would be

chilled and litigants deterred from advancing claims or

defenses that have colorable support under existing

10A

law or reasonable extension thereof. See Hilmon Co.,

899 F.2d at 254.

1 Attorney Robert Hoffman represented Appellees and

their counsel in the fee petition proceeding.

Nevertheless, where appeals are devoid of merit, and

lack colorable argument or support, damages and

costs are justified under Rule 38. See Dasilya, 167

Fed. Appx. at 309 (citing Hilmon Co., 899 F.2d at 253)

(appeal was frivolous when it ignored contrary case

law, "offered no colorable argument," and constituted a

"nearly incomprehensible argument"); Beam, 383 F.3d

at 108 (appeal was frivolous when it "contained

nothing of substance or merit")).

L Appellees' Motion for Attorneys' Fee

The District Court's opinion exphcitly and thoroughly

discussed the established law on res judicata. See

Lewis, 2008 WL 3200836, at *l-2. Its opinion cited

both Third Circuit and Supreme Court precedent on

res judicata. See id at 2-3 (citing Federated Dep't

Stores v. Moitie, 452 U.S. 394, 399 n.3 (1981); Post v.

Hartford Ins. Co., 501 F.3d 154, 169 (3d Cir. 2007);

Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004);

Shane v. Fauver, 213 F.3d 113, 115 (38d Cir. 2000);

Lubrizol Corp. v. Exxon Corp., 929 F.2d 960, 963 (3d

Cir. 1991)). The District Court found the elements

required for res judicata were met because: (1) the

dismissal of Lewis I for failure to state a clam under

Rule 12(6)(6) was a final judgment on the merits for

res judicata purposes; (2) the plaintiff and the

defendants were the same 1n both Lewis | and II; and

(3) Lewis I and Lewis II both alleged the same civil

11A

rights causes of action amnsing out of Lewis’

allegations of the illegal sale and transportation of

dogs. See Lewis, 2008 WL 3200836, at *2-3. This

ruling gave Appellant and Appellant's counsel notice

of the legal standard and controlling law for res

judicata. See Lewis, 2008 WL 3200836, at *2-3.

Nevertheless, Appellant failed to discuss the legal

standard or cite controlling Jaw for res judicata in his

appellate brief. See Brief of Appellant at 23-28, Lewis

v. Smith, No. 08-3800 (3d Cir. Feb. 17, 2009)

[hereinafter Appellant Bnief]. Lewis ignored contrary

case law and did not mention a single case referenced

in the Lewis II opinion. Compare id. with Lewis, 2008

WL 3200836, at *2-3. Nor did Appellant argue for a

new interpretation of established law or that the

District Court's application of the res judicata legal

standard was erroneous. See Appellant Brief at 22-29.

Appellant's brief did not argue the Lewis I decision was

not a final decision on the merits, or that the cause of

action and the parties were different. See id Appellant

did not argue an extension of the law. Id He did not

cite any cases for the proposition that the Lewis II

court's error provided an exception to clearly

established rules of res judicata. See id Instead,

Appellant argued the Lewis I court should have

permitted his second amended complaint and that the

Lewis II court should have corrected this error by not

dismissing the case. See id. As this Court held, the

proper avenue for Appellant's argument that the Lewis

I court erred was a timely appeal of Judge Muir's

order. See 361 Fec. Appx. at 424. Error does not

12A

render Lewis I's Rule 12(b)(6) judgment "anything

other than a final judgment on the merits." _ Id (quoting

Selkridge v. United of Omaha Life Ins. Co., 360 F.3d

155, 172 (8d Cir. 2004)). Appellant failed to distinguish

his case from Supreme Court precedent, which rejected

the argument that res judicata does not apply when

there has been error by the court in the previous action.

See id; see also Appellant Brief at 23-28. During oral

argument on the fee petition, Appellant claimed

Semteck Intern, Inc. v. Lockheed Martin Corp., 531

U.S. 497 (2001), supported his position that Lewis I]

was not precluded by res judicata. See Transcript at

64. Appellant did not, however, reference or cite

Semteck in his appellate briefs. See Appellant Brief at

1-29; see also Reply Bnef of Appellant at 7 1-8, Lewis v.

Smith, No. 08-3800 (Mar. 31, 2009) [hereinafter

Reply Brief].2 To the extent he now rests on Semteck,

I find his claim “nearly incomprehensible." See

Dasilya, 167 Fed. Appx. at 309; see also Hilmon Co.,

899 F.2d at 253. Semteck concerns different legal

issues, 1.e., whether the dismissal of a claim under

federal rules also precludes the assertion of the claim

under state law. See Semteck, 531 U.S. at 499-508.

These issues are unrelated to the straightforward res

judicata question here.

Appellant's appeal was frivolous because it was

devoid of merit and failed to assert any colorable

argument or support under existing law. I recommend

Appellees be awarded attorneys' fees under Rule 38.3

4 Appellant's Motion to Dismiss

Appellant nevertheless claims I have no authority to

13A

make this finding because Rule 38 requires a court of

appeals merits panel to determine the frivilousness of

a claim. See Appellant's Motion to Dismiss at 4; see

also Transcript at 190-91. Appellant's argument fails

for three reasons. First, the plain language of Rule 38

does not state an appellate court's merits panel must

assert in its opinion the claim was frivolous. Second,

Appellant cites no case law to support his argument.

Third, pursuant to Rule 48,1 was authorized by this

Court to recommend resolution of the fee petition.

Therefore, Appellant's motion to dismiss should be

denied as frivolous.

2 Further, Appellant's counsel testified he did

not remember relying’ on Semteck. See

Transcript at 153-54.

3 Although double damages may be justified,

Appellees have not requested them. See

Transcript at 112. In any event, I recommend they

not be imposed.

3. Payment of Fees

I must determine whether Appellant, his counsel, or

both should pay the fee award. Attorneys have an

affirmative obligation to research the law and

determine if an appeal is utterly without merit and

may be deemed frivolous. Quiroga, 943 F.2d at 347;

Hilmon Co., 899 F.2d at 254. If counsel ignored or

failed in this obligation to his client, he may become

personally hable to satisfy a Rule 38 award. Quiroga,

943 F.2d at 347. The test is whether, after a thorough

analysis of the record and careful research of the law,

a reasonable attorney would conclude the appeal is

14A

frivolous. Id. (citing Hilmon Co., 899 F.2d at 254).

Appellant's counsel failed to satisfy this fundamental

obligation to his client. Appellant's appellate brief

ignored contrary case law and failed to present

colorable arguments in a well-developed area of law.

Such evidence demonstrates an egregious failure by

counsel to thoroughly analyze the record and carefully

research law. Counsel purposely ignored and

disregarded law and procedure, an area of expertise

customarily committed to counsel and not the parties.

See id. have carefully considered the testimony of

Attorneys Bailey and Ostrowski concerning

Appellant's justification for filing the appeal. See

Transcript at 113-56, 172-81. I find their

explanations incredible. Both attorneys failed to

explain a sound legal basis for their decision to

appeal. See id Attorney Bailey was ambiguous and

vague in his testimony, stating he did not remember

if he consulted other attorneys about the decision to

appeal, and that he "probably bounced it off of a few

people. See id, at 119-20. Further, he could not

clearly articulate which cases he read and researched

for his brief. Id at 113-56. Attorney Ostrowski

testified Attorney Bailey consulted him about whether

Lewis II would be barred by res judicata. See id. at

173-74.

However, Attorney Ostrowski also did not

discuss or reference any cases he had relied on when

advising Attorney Bailey. See id. at 172-81.4

Moreover, the demeanor and manner of Attorneys

Bailey and Ostrowski evidenced personal hostility to

15A

Appellees, their counsel, and the judiciary in the

Middle District of Pennsylvania. For example,

Attorney Bailey's testimony, and Attorney Ostrowski's

questioning, focused on an alleged plot by Appellees,

their counsel, and judges in the Middle District to

harm Attorney Bailey. Attorney Bailey testified he

was mistreated by the District Court because of who

he is. See id. at 128 ("... I was being mistreated

because I'm Don Bailey."). On cross-examination,

Attorney Ostrowski asked Attorney Montgomery if she

had conversations about Attorney Bailey with a judge

she previously clerked for, and whether she was a

member of a secret cult. See Transcript at 55, 57.

Attorney Ostrowski asked the following:

Ostrowski: Are you a member of Mr. Flaherty's and

Mr. Sterner's cult?

Hoffman: Objection.

The Court: Say it- hold on, hold on, hold on. I

didn't hear the question.

Ostrowski: I said, are you a member of Mr. Sterner

and Mr. Flaherty's cult or any of their cults?

The Court: What's a cult?

Ostrowski: A cult is, you know, whatever these

guys run some kind of outfits up there in Central

Pennsylvania where they bring people in and they look

for spaceships and they do all kinds of wacky stuff and

The Court: They do what?

Ostrowski: They get into swimming pools naked

and wait for spaceships to

land, and they have all kinds of healing techniques

16A

and all kinds of things, and I'm just asking[,]Ms.

Montgomery about her connection with these guys. |

think its reasonable.

Hoffman: Let's assume that all that's— do I need

to say anything, You Honor?

The Court: Wow.

Hoffman: May I object, respectfully?

4 Moreover, Attorney Ostrowski's role as counsel in

this proceeding establishes bias, further discrediting

his testimony.

The Court: Let me do this. I'm going to ask you a

different question, ma'am. Are you a member of any

clubs or groups, whether formal or informal, with

either of these two gentlemen?

Witness: None whatsoever.

The Court: Okay. So the objection's sustained.

See Transcript at 55. Attorney Ostrowski stated

Appellant's defense was that the fee petition

proceeding was part of a conspiracy among judges in

Harrisburg, Pennsylvania to harm Attorney Bailey and

anyone associated with him. Id at 57-58. Throughout

the hearing, Appellant's counsel imphed Appellee,

Appellee's counsel, and this Court were connected to

this plot. See id. at 6, 70-71, 118, 132, 143, 187-88,

193. I find no such motives. To the contrary, I find

Attorney Bailey has used this appeal and the related

fee litigation to perpetuate unfounded litigation and

publicly assert his conspiracy theories. Appellant had

a right to rely on counsel for sound advice on law and

procedure. See id. I see no reason to burden him with

fees incurred because of counsel's erroneous pursuit of

L7A

a frivolous appeal. Consequently, | recommend the

award of attorneys’ fees be paid by Appellant's

counsel, Attorney Bailey.

B. 42U.58.C. § 1988

42 U.S.C. § 1988 permits an award of reasonable

attorneys' fees and costs to prevailing parties in

specified civil rights litigation. City of Riverside v.

Rivera, 477 U.S. 561, 567-68 (1986). Congress

enacted § 1988 to encourage meritorious civil rights

lawsuits that might otherwise be abandoned due to

the financial constraints of hiring competent counsel.

Id at 577-78. However, where an appeal is frivolous,

unreasonable, or without foundation, fee shifting is

permitted upon discretion of the court. See 42 U.S.C. §

1988; see also Pennsylvania v. Flaherty, 40 F.3d 57,

93 (3d Cir. 1994). Using an objective test, I must

determine whether the plaintiff knew, or should have

known, the legal or evidentiary deficiencies of his claim.

Brown v. Chambersburg, 903 F.2d 274, 277 (3d Cir.

1990). As discussed above, Appellant's appeal was

frivolous. See supra 5-11. Clearly established law on

res judicata speaks to the issue of preclusion and

whether an error in a previous ruling renders that

judgment "anything other than a final judgment on the

merits." See 361 Fed. Appx. at 424. Appellant should

have known his claim was fnvolous, unreasonable, and

without foundation because the law was presented and

discussed in the District Court. Despite the legal

standard and contrary case law, Appellant persisted

with an appeal without distinguishing his case or

arguing for a new interpretation or extension of the law

Consequently, Appellees are also entitled to attorneys’

fees under § 1988. No reasonable attorney would have

filed such a frivolous appeal

C 28 U.S.C. § 1927

Under 28 U.S.C. § 1927, "any attorney or other person

admitted to conduct cases in any court of the United

States ... who so multiplies the proceedings in any case

unreasonably and vexatiously may be required by the

Court to satisfy personally the excess costs, expenses,

and attorneys' fees reasonably incurred because of such

conduct." Section 1927 requires a finding that counsel's

conduct is of "an egregious nature, stamped by bad

faith that is violative of recognized standards in the

conduct of litigation." Grider v. Keystone Health Plan

Central, Inc., 580 F.3d 119, 142 (3d Cir. 2009) (quoting

LaSalle Nat'l) Bank v. First Connecticut Holding

Group, L.C.C. XX, 287 F.3d 279, 289 (3d Cir. 2002))

A finding of bad faith 1s required to avoid chilling an

attorney's zealous representation of his chent. Baker

Indus. Inc. v. Cerberus Ltd., 764 F.2d 204, 208 (8d Cir

1985). Absent bad faith, an attorney may be guilty of

only a mistake in professional judgment in pursuing a

chent's goals. Baker Indus. Inc., 764 F.2d at 208-09

sad faith is a factual determination. Evidence of bad

faith includes: (1) the claims advanced were meritless:

2) counsel knew or should have known the claims

were meritless; and (3) the motive for filing the suit

was for an improper purpose, such as harassment. See

In re Prudential Ins. Co. Am. Sales Practice Litig

Agent Actions, 278 F.3d 175, 188 (3d Cir. 2002).

As previously discussed, Appellant's claims were

19A

meritless and Appellant's counsel should have known

the claims were meritless based on the abundance of

case law on the issue. See supra 5-9. Appellant's bad

faith is further demonstrated in the manner in which

he has challenged the fee petition. Appellant counsel's

conduct attests to his improper motives and purpose.

Four days before the oral argument and evidentiary

hearing, Appellant filed an unfounded motion to

dismiss. See Appellant's Motion to Dismiss at 1-5;

see supra 8. His motion to dismiss did not cite or

reference any cases to support his proposition that

both 28 U.S.C. § 1927 and 42 U.S.C. § 1988 have a

"state of mind requirement" that can be waived by not

presenting certain witnesses. Id. The motion to

dismiss failed to even reference or cite the standard

for a motion to dismiss. Id. Further, Appellees’

decision not to call Appellant Lewis and his attorney to

testify was not fatal to their claims, as Appellant

contends, because other evidence, such as the

appellate bmefs and testimony from attorneys,

supports their assertion Appellant's appellate action

was filed in bad faith. Appellant's assertion that this

Court's order regarding the logistical presentation of

arguments and the submission of affidavits for

unavailable witness, see Fed. R. Evid. 611,5 somehow

ratified the abandonment of these claims

mischaracterizes and erroneously interprets the Court's

order. Such improper legal tactics employed by the

Appellant establishes the bad faith that has

characterized this appellate litigation.

20A

On behalf of Lewis and Attorney Bailey, Attorney

Ostrowski's line of questioning at the hearng

confirmed Appellant's motive to harass’ and

embarrass. During the hearing, Appellant's counsel

asked Attorney Montgomery if she was a member of a

"cult" with the Appellees - a cult Appellant alleges

wears special outfits, swims naked, waits for spaceships

to land, and has different "healing techniques.” See

Transcript at 55. I did not permit this bizarre line of

questioning. Id Further, Appellant counsel had to be

continuously reminded, throughout the hearing, to be

respectful and maimtain decorum. Seee’g. id. at 55-57,

163. Nevertheless, counsel persisted in referring to

witnesses and counsel by their first names and judges

by only their last names, see id. at 57-58, 125, 150-52,

and making sarcastic and inappropriate remarks, see

e*g. id at 4,48, 52 (characterizing evidence as

"“worthless"), 55 (questioning witness about alleged

"cult" involvement), 56-58 (alleging Court impropriety

and naming judges allegedly plotting against Attorney

Bailey), 66-71, 78, 86-87 (suggesting I was biased), 89

(inappropriate commentary after witness’ answer), 126-

27 (attempting to make fun of opposing counsel), 143,

163 (making gratuitous remarks), 187. Appellant's

counsel even questioned the existence of David Schertz,

Esq. an associate who worked on the case and whose

name appeared multiple times on the submitted

billing records. Id. at 36-38.

5 "The court shall exercise reasonable control over the

mode and order of interrogating witnesses and

presenting evidence as to (1) make the interrogation and

21A

presentation effective for the ascertainment of the truth,

(2) avoid needless consumption of time, and (3) protect

witnesses from harassment or undue

embarrassment." See Fed. R. Evid. 611(a). Appellant

unreasonably and vexatiously multiplied the appellate

litigation by presenting appellate claims which were not

well grounded in existing law. See supra at 5-12.

Appellant's appeal needlessly consumed the time of the

parties in researching, strategizing and preparing for a

frivolous appeal. Attorneys’ fees are justified under 28

U.S.C. § 1927.

IT. Award of Attorneys' Fees

A party seeking attorneys’ fees and costs must submit

evidence supporting the hours worked and rates

claimed. Specificity is crucial in _ requesting,

challenging, and granting attorneys’ fees. United Auto.

Workers Local 259 Soc. Sec. Dept., v. Metro Auto Ctr.,

501 F.3d 283, 291 (38d Cir. 2007). A fee petition must be

accompanied by "fairly definite information as to hours

devoted to various general activities ... and the hours

spent by various classes of attorneys." Id. (quoting

Evans v. Port Auth., 273 F.3d 346, 361 (3d Cir. 2001)).

In determining a reasonable fee, | begin by multiplying

the number of hours reasonably expended on the

litigation by a reasonable hourly rate. Hensley v.

Eckerhart, 461 U.S. 424, 433 (1983). Excessive,

redundant, and unnecessary hours should be excluded.

Id at 434 ("Hours that are not properly billed to one's

client also are not properly billed to one's adversary.").

The party opposing the fee petition may challenge, by

affidavit or brief with sufficient specificity, the

22A

reasonableness of the requested fee. Rode v.

Dellarciprete, 892 F.2d 1177, 1183 (3d Cir. 1990). A fee

award, however, cannot be decreased based on factors

not raised by the adverse party. Id.; see Interfaith

Cmty. Org, v. Honeywell Int'l, Inc., 426 F.3d 694, 711

(3d Cir. 2005) (court can reduce a fee award only in

response to specific objections). Once objections are

raised, the court has a great deal of discretion to adjust

the fee award in light of the objections. Rode, 892 F.2d

at 1183.

Generally, a reasonable hourly rate is

calculated according to the prevailing market rates in

the community. Washington v. Phila. Court of

fLommon Pleas, 89 F.3d 1031, 1035 (3d Cir. 1996).

The party seeking attorneys' fees has the burden of

producing sufficient evidence of what constitutes a

reasonable market rate for the character and

complexity of the legal services rendered. Id. Once the

lodestar, i.e., reasonable hours expended multiplied by

reasonable hourly rate, is calculated, I must determine

if the fee should be reduced based on the following

factors: (1) time spent pursuing unsuccessful claims

distinctly different and unrelated to the "ultimate

result achieved;" (2) time and labor required; (3)

novelty and difficulty of the questions; (4) the skill

requisite to perform the legal service properly; (5) the

preclusion of employment by the attorney due to

acceptance of the case; (6) the customary fee; (7)

whether the fee is fixed or contingent; (8) time

limitations imposed by the client or the circumstances;

(9) the amount involved and the results obtained; (10)

23A

the experience, reputation, and ability of the attorneys;

(11) undesirability of the case; (12) the nature and

length of the professional relationship with the client;

and (13) awards in similar cases. Rivera, 477 U.S. at

568 & n.3 (citing Johnson v. Ga. Highway Express,

Inc., 488 F.2d 714, 717-19 (5th Cir. 1974)); Henslev,

461 U.S. at 429-30 & n.9.

A. Reasonableness of Hourly Rates

Counsels' hourly rates are reported as_ follows:

Attorney Montgomery, $250.00 per hour; Attorney

Schertz, $150.00 per hour; and Attorney Hoffman,

$405.00 per hour. See Revised Statement at Exh. Ql-

4. Appellees submitted the declaration of an attorney,

Joseph U. Metz, who stated practitioners at regional or

national law firms with Harrisburg offices currently

have hourly rates in the mid-to-high $300s (and even

higher for certain specialized work). See Motion for

Attorneys' Fee at Exh. P. Appellant does not contest

the hourly rates of Appellees' attorneys; rather,

Appellant challenges the valdity of the fee petition

filing and my jurisdiction to adjudicate it. I accept

Attorney Metz's opinion, and find it credible.

Consequently, I also find the hourly rates for

Attorney Montgomery and _ Attorney Schertz

reasonable as they fall well below the accepted hourly

rates for practitioners in their community. Attorney

Hoffman's hourly rates, however, exceed the amount

attested to by Attorney Metz. His rates are

mconsistent with Attorney Metz's assessment of

reasonable rates for attorneys in the Harrisburg

community. See Motion for Attorneys' Fee at Exh. P.

24A

Appellees have not submitted any evidence supporting

Attorney Hoffman's high hourly rate. Although

Attorney Hoffman has worked exclusively on the fee

petition, there is no evidence his work on the fee

petition is specialized work or that this fee petition

proceeding involved complex legal issues warranting

specialized services at a higher hourly rate. See

Washington, 89 F.3d at 1035; Institutionalized

Juveniles v. Sec, of Pub. Welfare, 758 F.2d 897, 924

(3d Cir. 1985); Prandini v. Nat'l Tea Co., 585 F.2d 47,

54 (3d Cir. 1978); see also Motion for Attorneys’ Fee

at Exh. P. Therefore, because his hourly rate

contradicts appellees' own evidentiary submission, I

find Attorney Hoffman's hourly rate unreasonable and

reduce it to $300 per hour, consistent with the

prevailing hourly rate for practitioners ,in_ the

Harrisburg legal community.® )

B. Hours Reasonably Expended

Appellees request compensation for 196.55 hours of

work on the appeal, the subsequent request for

attorney's fees and sanctions, and Appellant's writ of

certiorari to the United States

6 Bridget Montgomery's hourly rate was a special lower

rate she set for these particular clients. See Transcript

at 19-22. Supreme Court. See Revised Statement at 1-

3. Appellees submitted detailed invoices describing the

different case-related work activities, the amount of

hours spent on the activities, and the attorney who

completed the tasks. See Fee Statement at Exh. QI-

4. Appellant contends fees related to his appeal to the

United States Supreme Court should not be included in

25A

the fee award. See Appellant's Motion to Dismiss at

Exh. 1. I agree. Such fees were not incurred during the

appeal to this Court. See Fed. R. Civ. P. 38. Thus, I

recommend not including those hours in the award

of fees. Appellant contests hours billed for researching

sanctions. See Appellant's Brief in Opposition to

Appellees' Motion For Sanctions and Award of

Attorneys’ Fees at 4, Lewis v. Smith, No. 08-3800 (3d

Cir. Mar. 3, 2010) [hereinafter Appellant's Opposition

Bnef].? Further, durmg the hearing, Appellant

questioned Attorney Montgomery on the reported time

spent on the appellate brief and the fees associated

with the fee petition. See Transcript at 79-90.

Construing cross-examination liberally, I find Appellant

made adequate objections to the hours Attorney Schertz

spent on the appellate brief, the fees associated with the

fee petition, and the hours spent researching Attorney

Ostrowski's suspension, see Rode, 892 F.2d at 1183; see

also Appellant's Opposition Brief at 4; Transcript at

79-90.

Fee awards should be reduced to reflect

reasonable hours for these entries. See Henslev, 461

U.S. at 434; see also Bell v. United Princeton Props..,

Inc., 884 F.2d. 713, 721 (8d Cir. 1989).

7 Appellant contested specific entries from September 8,

2008 through May 14, 2009. See Appellant's Opposing

Brief at 4. However, Appellees revised their billing

entries after the hearing, and excluded all of the

contested entries in their fee petition. Nevertheless,

because Appellant contests research spent on the issues

of sanctions, which appear on the revised fee petition

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under different dates, I will review the reasonableness

of the reported hours of work on this issue.See Rode,

892 F.2d at 1183; see also Interfaith Cmty. Org., 426

F.3d at 711 (court cannot decrease fees sua sponte).

An attorney must justify the expenditure of time in an

efficient manner consistent with the experience that

was reflected in the hourly rate. Ursic v. Bethlehem

Mines, 719 F.2d 670, 677 (3d Cir. 1983). Thus, I must

examine whether the time claimed was reasonably

expended, necessary, and not excessive or duplicative.

"A fee apphcant cannot demand a high hourly rate —

which 1s based on his or her experience, reputation,

and a presumed familarity with the applicable law

and then run up an inordinate amount of time

researching that same law." See Ursic, 719 F.2d at

677. Additionally, the award for preparing and

litigating the fee petition must be based on the time

reasonably necessary to obtain a reasonable fee award.

Institutionalized Juveniles, 758 F.2d at 924:

Prandin, 585 F.2d at 54.

I have examined Appellant's detailed fee

invoices. On a September 21, 2009 invoice, Attorney

Montgomery reported 10.50 hours of work on the

appellate brief and Attorney Schertz reported 46.10

hours of work on the appellate brief and attorneys'

fees. Given the straightforward nature of the res

judicata issues, the similarities between the issues on

the district court level and on the appellate level, and

the experience of counsel, the reported hours for the

research and drafting of the appellate brief should be

reduced. I also find Attorney Schertz's reported hours

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for research on attorneys’ fees to be excessive and

unnecessary considering the relative simplicity of

motions. Accordingly, I reduce Attorney

Montgomery's hours from 10.50 hours to 8.50 hours

and Attorney Schertz's hours from 46.10 hours to

38.10 hours on the September 21, 2009 invoice.

I examined Appellees' September 29, 2008 and

January 22, 2910 invoices, which document work

performed on the issue of sanctions. On January 22,

2010, Attorney Schertz billed the clients four hours for

reviewing rules and drafting motions for sanctions

before this Court, submitting the document to his

supervising attorney, and calculating deadlines to file

for costs and attorneys’ fees. There are several entries

from the September 29, 2008 invoices billing the

chents for almost identical work. I find the January

22, 2010 entry duplicative and recommend deducting

the four hours reported on the invoice. I also

recommend reducing Attorney Schertz's hours on the

March 31, 2010 invoice from 11.75 hours to 9.75 hours

and Attorney Montgomery's hours from 2.70 to 1.5

hours because they are duplicative entries of work

done for the attorneys' fee and sanctions petition.

According to the May 17, 2010 invoice, Appellees

spent 1.90 hours researching whether Attorney Bailey

was ever previously sanctioned and whether Attorney

Ostrowski's suspension from the District Court

affected his appearance at the fee petition hearing.

The issue of whether Attorney Bailey was previously

sanctioned is irrelevant to whether he is sanctionable

here. See Transcript at 117. Further, Attorney

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Ostrowski's District Court sanction, which did not go

into effect until after the evidentiary hearing, has no

relevance. I find these entnes unnecessary and

recommend they be excluded. Thus, Attorney

Montgomery's billable hours should be reduced from

4.3 hours to 4 hours and Attorney Schertz’s hours

from 2.9 hours to 1.30 hours for this invoice. Appellees

should be compensated for 138.55 hours of work,® that

is, the time requested reduced by the hours of work on

the writ of certiorari and the unnecessary and

excessive hours reported for the appellate brief,

research of sanctions, and the fee petition.

Accordingly, I recommend Appellee's Motion for

Attorneys’ Fees and Non-Taxable Costs

8] also found a clerical error in Exhibit Q-l, p. 16.

David Schertz's hours are recorded as 17.30 hours.

However, it should be 17 hours. See Fee Statement at

Exh. Ql. I have adjusted the attorneys’ fees award

accordingly be GRANTED in part, DENIED in part,

awarding Appellee $ 28,041.71 in attorneys’ fees.

BY THE COURT:

\s\ TIMOTHY R. RICE

TIMOTHY R. RICE

UNITED STATES MAGISTRATE JUDGE

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