Keith Dougherty v. Carlisle Transportation Produc, et al

Filing

NOT PRECEDENTIAL PER CURIAM OPINION Coram: RENDELL, SLOVITER and GREENBERG, Circuit Judges. Total Pages: 6. ELD-025. Dougherty's motions pending in this Court are denied.

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ELD-025

Date Filed: 05/15/2015

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 15-1123
___________
KEITH DOUGHERTY, Assignee of Bill’s Mechanical and
Welding (Fictitious name) Sole Proprietor Larry Runk II,
Appellant
v.
CARLISLE TRANSPORTATION PRODUCTS, INC.
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civ. No. 1-13-cv-00857)
District Judge: Honorable J. Frederick Motz
____________________________________

Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
April 30, 2015
Before: RENDELL, SLOVITER and GREENBERG, Circuit Judges
(Opinion filed: May 15, 2015)
_________
OPINION*
_________
PER CURIAM
Keith Dougherty appeals pro se from the District Court’s order denying
*

This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

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reconsideration of its entry of summary judgment in favor of Carlisle Transportation
Products, Inc. (“Carlisle Transportation”). We will affirm.
I.
We previously found it necessary to characterize Dougherty as a “frequent and
frequently vexatious litigator.” In re Dougherty, 563 F. App’x 96, 97 (3d Cir. 2014) (per
curiam), cert. denied, 135 S. Ct. 409 (2014) & 135 S. Ct. 426 (2014). Dougherty is not a
licensed attorney, and much of his previous litigation has involved his attempts to
represent his business entities pro se in federal court. See, e.g., Dougherty v. Snyder, 469
F. App’x 71, 72-73 (3d Cir. 2012) (per curiam). Dougherty also sometimes attempts to
represent the interests and assert the claims of other individuals.
Larry Runk II is one such individual. In this case, Dougherty asserts that Runk
assigned to him a claim for $254,563.30 that Carlisle Transportation allegedly owes
Runk’s company Bill’s Mechanical and Welding for unpaid repair work. Dougherty filed
suit against Carlisle Transportation seeking to recover the alleged debt as well as treble
damages for Carlisle Transportation’s alleged fraud. 1 Carlisle Transportation ultimately
filed a motion for summary judgment raising, inter alia, the defense that the purported

1

Dougherty filed suit under his own name and in the name of Keith Dougherty
Investments & Consulting LLC. By order entered March 21, 2014, the District Court
dismissed all claims by the LLC because Dougherty alleged that he personally was the
assignee of Runk’s claims. Dougherty has not purported to appeal pro se on behalf of his
LLC and has not otherwise challenged that ruling. Unlike in the appeal at C.A. No. 151271, which we address in a separate opinion, Runk himself was not a plaintiff in the
District Court and is not an appellant on appeal.
2

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assignment is invalid as champertous under Pennsylvania law. The District Court agreed
and entered judgment in favor of Carlisle Transportation for that reason. The District
Court later denied Dougherty’s motion for reconsideration, and Dougherty appeals from
that ruling. 2
II.
The District Court did not explain in detail its conclusion that the purported
assignment of Runk’s claim to Dougherty is champertous but, having conducted our
plenary review, we agree. Under Pennsylvania law, which no one disputes governs the
assignment, “an arrangement offends public policy against champerty and is illegal if it
provides for the institution of litigation by and at the expense of a person who, but for
that agreement, has no interest in it, with the understanding that his reward is to be a
share of whatever proceeds the litigation may yield.” Kenrich Corp. v. Miller, 377 F.2d
312, 314 (3d Cir. 1967) (applying Pennsylvania law in diversity and citing, inter alia,
Richette v. Solomon, 187 A.2d 910 (Pa. 1963)). “A plaintiff who sues on what would be

2

The District Court had diversity jurisdiction under 28 U.S.C. § 1332, and we have
jurisdiction under 28 U.S.C. § 1291. Our review of the entry of summary judgment is
plenary. See Rosano v. Twp. of Teaneck, 754 F.3d 177, 184 (3d Cir. 2014). Dougherty
also challenges the District Court’s text-only denials of reconsideration and a postjudgment motion for a preliminary injunction, which was in the nature of a motion for
reconsideration as well. We review de novo the District Court’s legal conclusions and
review its ultimate decision to grant or deny reconsideration for abuse of discretion. See
Wiest v. Lynch, 710 F.3d 121, 128 (3d Cir. 2013). We perceive no abuse of discretion
for the reasons explained herein. Dougherty referred in his motion for a preliminary
injunction to a Chapter 13 bankruptcy proceeding but sought no specific relief in that
regard. We note that Dougherty’s most recent bankruptcy proceeding (M.D. Pa. Bankr.
No. 1-14-bk-04781) was dismissed on December 30, 2014.
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another’s claim except for such a champertous agreement will not be permitted to
maintain an action.” Id.
Though rarely invoked in recent times, “the common law doctrine of champerty
remains a viable defense in Pennsylvania” and, “[u]nder Pennsylvania law, if an
assignment is champertous, it is invalid.” Frank v. TeWinkle, 45 A.3d 434, 438 (Pa.
Super. Ct. 2012). “An assignment is champertous when the party involved: (1) has no
legitimate interest in the suit, but for the agreement; (2) expends his own money in
prosecuting the suit; and (3) is entitled by the bargain to share in the proceeds of the suit.”
Id. at 438-39.
Dougherty’s agreement with Runk is contained in the record (ECF No. 93-5), and
it satisfies each of these elements. First, Dougherty alleges that he purchased Runk’s
claim in order to litigate it, and there is no indication that Dougherty has any personal
interest in the dispute between Runk and Carlisle Transportation or has any dispute with
Carlisle Transportation of his own. Second, “[a]ppellant is using his own money to
finance the suit[], as he is the pro se plaintiff and is therefore responsible for filing fees
and other associated costs.” Frank, 45 A.3d at 439. The agreement provides that “Keith
Dougherty will be responsible for any prepayment of fees as required” (ECF No. 93-5 at
1), and Dougherty paid the docketing and filing fees in the District Court. Finally, the
agreement provides that Dougherty is entitled to “the sum of 1/3 of the sums Collected.”
(Id.) Thus, the assignment of this claim to Dougherty was champertous and Dougherty is
not permitted to litigate it.
4

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Dougherty argues that he may do so under Sprint Communications Co. v. APCC
Services, Inc., 554 U.S. 269 (2008). In that case, the Court held that “an assignee of a
legal claim for money owed has [Article III] standing to pursue that claim in federal
court, even when the assignee has promised to remit the proceeds of the litigation to the
assignor.” Id. at 271. The assignments at issue in that case were not champertous or
otherwise invalid, however, and the Court addressed only Article III standing to assert a
validly assigned claim, not the effect of a champertous agreement on the validity of an
assignment. For similar reasons, the Pennsylvania Superior Court has concluded that
Sprint Communications does not affect Pennsylvania’s doctrine of champerty and that
champerty “remains a valid defense in Pennsylvania.” Frank, 45 A.3d at 440. We
predict that the Pennsylvania Supreme Court would agree. Dougherty certainly has
standing to assert the validity of Runk’s assignment but, once the assignment is deemed
invalid, Dougherty does not have standing to assert the underlying claim. See Kenrich
Corp., 377 F.2d at 314. 3
One final matter requires discussion. Dougherty has filed a motion requesting that

Dougherty’s complaint in the related appeal at C.A. No. 14-4378, which we address in a
separate opinion, suggests that Pennsylvania state courts already have rejected his
assertion of claims purportedly assigned by Runk. In that case, Dougherty alleged that
state-court judges have refused to permit him to litigate other claims that Runk
purportedly assigned to him under the same agreement (including the claim against Erie
Insurance Exchange at issue in C.A. No. 15-1271), and he sought an injunction requiring
the state courts to recognize the validity of those purported assignments. We do not
address whether these apparent judgments have preclusive effect in this proceeding,
however, because Carlisle Transportation has not raised the issue and the record on
appeal does not permit its resolution.
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(1) this appeal and No. 15-1271 be assigned to different panels and (2) the Court either
reveal the composition of those panels in advance or transfer these appeals to the United
States Court of Appeals for the District of Columbia. Dougherty cites 28 U.S.C. §§ 46(b)
and 2077, but those statutes are plainly inapposite to his requests and there is otherwise
no basis for them. 4 Of less concern to us than the substance of this motion, however, is
its tone. The motion is rife with vituperative attacks on the integrity of this Court and,
more disturbingly, apparent threats of lethal violence if this Court denies his requests.
We will not dignify Dougherty’s specific comments by repeating them here. We
previously cautioned Dougherty that we might consider imposing sanctions if he persists
in filing documents in closed cases. See In re Dougherty, 563 F. App’x at 98. We now
caution him that future threatening and abusive filings of this nature may subject him to
sanctions as well. Such sanctions may include a substantial monetary penalty.
III.
For these reasons, we will affirm the judgment of the District Court. In doing so,
we hold only that the purported assignment at issue here is invalid for purposes of
Dougherty’s ability to assert Runk’s claim in court, and we express no opinion on the
validity of the assignment for other purposes or on any rights or obligations of Dougherty
and Runk as between themselves. Dougherty’s motions pending in this Court are denied.

For Dougherty’s benefit, we note that we are considering the appeals together for
purposes of efficiency given their related background and overlapping issues.
4

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