DUNLEAVY v. GANNON et al

Filing 88

OPINION fld. Signed by Judge Dennis M. Cavanaugh on 1/26/12. (sr, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
HARRY DUNLEAVY,
Plaintiff,

:

Hon. Dennis M. Cavanaugh

v.
EDWARD GANNON, ALAN
HANDLER, JOHN TONELLI,
CANDACE MOODY, LT. JAMES
MCINNESS, JOHN PALM, ROBERT
STOBER, CHARLES CENTfNARO,
BARRY FRANK, JOHN BRESUN,
GARY LIGHTMAN, JOHN
BARBARULA, LAURIE VEIGHT,
TIMOTHY MATTESON, PETER
ROMAINE, NEW JERSEY STATE
POLICE, NEW JERSEY BAR
ASSOCIATION, OFFICE OF
ATTORNEY ETHICS, LAKELAND
BANK,

OPINION
:

Civil Action 2:1 1-cv-0361(DMC)(MF)

Defendants.

DENNIS M. CAVANAUGH, U.S.D.J.:
This matter comes before this Court on four motions by Defendants Barry Frank (ECF No.
38), Gary Lightman (ECF No. 43), Laurie Veith (ECF No. 44), John Breslin (ECF No. 47). for
sanctions pursuant to FED.R.CIv.P. 11. Plaintiff Harry Dunleavy (“Plaintiff’) filed various
pleadings in opposition to these motions for sanctions.

(S ECF Nos. 50-1, 53-5 and 57.) Barry

Frank submitted a reply brief. (ECF No. 57.) Mr. Frank also filed a motion to enjoin Plaintiff
from filing any further motions. (ECF No. 73.) This Court filed an Order and Opinion (ECF
Nos.
82-3) dismissing Plaintiffs complaint with prejudice (hereinafter, the November

st
1

Opinion )

Dunleavy v. Gannon, No. 1 1-cv-361, 2011 WL 5321004 (D.N.J. Nov. 1, 2011).
Additionally,
Plaintiff has filed a motion for reconsideration of this Court’s November 1St Opinio
n. (ECF No.
84.) Pursuant to FED. R. Civ. P. 78, granting this Court the authority to resolve
the motion on the
papers, no oral argument was heard. Based on the following, this Court hereby
grants
Defendants’ motions for sanctions against Harry Dunleavy in the form of reason
able costs and
attorneys fees incurred by Mr. Frank, Mr. Lightman, Mr. Thomas and Mr. Breslin
in defending this
action from its inception on January 20, 201 1. Further, this Court hereby sua
sponte enjoins
Plaintiff from filing any further complaints without Court approval. This Court
hereby denies
Plaintiffs motion for reconsideration of this Court’s November
I.

1
Opinion.

BAcKGRouND

Plaintiffs claims stem from the allegation that he lost personal funds that were being
wrongfully handled by the Defendants as an investment. Plaintiff alleged that Charle
s W. Cart
fraudulently persuaded him to invest $25,000 in what Plaintiff believed to be a “health
insurance
claims company” named Skylands Administrators. (PI.’s Compi.

¶

1). From there, Plaintiff

alleged that the same funds were incorrectly or wrongfully deposited in another accoun
t named
Skylands Benefit Consultants, LLC. jc Plaintiff claimed that the funds were
then “fraudulently
and clandestinely funneled to pay debts for a strip club in Florida called the ‘Wild
Coyote.” jj.
Plaintiff has filed a multitude of lawsuits arising out of the same facts and claims
. Plaintiff
additionally instituted disciplinary action against attorneys and judicial officia
ls involved in the

‘This Court finds Rule Ii sanctions to be the most appropriate mechanism
for deterring
similar conduct, further, this case will not be reopened pursuant to Plainti
ffs motion for
reconsideration. Therefore, Mr. Frank’s cross-motion to enjoin Plaintiff from
filing any further
motions in this matter without leave (ECF No. 73) is hereby terminated as
moot.
2

suits. Plaintiff has filed almost a dozen cases in this Court and has made several unsuccessful trips
to the Third Circuit. (Breslin’s Br. in Supp. of Mot. for Sanctions 2, July 11, 2011, ECF No. 47.)
The first of suits involving claims bearing similarity to those asserted by Plaintiff in the instant
action was filed in this Court in 2005.

at 25. In 2007, Plaintiff filed in the Superior Court of

New Jersey, Sussex County against Defendants involved in prior actions (hereinafter, Superior
Court Case”). Dunleavy v. Lakeland Bank, et al., No. SSX-L-825-07 (N.J. Super. Ct. Law Div.
2009), disposal docketed. Plaintiff then filed Attorney Grievances against attorney Defendants in
the Office of Attorney Ethics and against the Honorable Edward Gannon, J.S.C. in the Advisory
Committee on Judicial Conduct (hereinafter, respectively “OAE” and “ACJC”). This Court
2
dismissed Plaintiffs complaint in the instant action on grounds of res judicata and the entire
controversy and Rooker-Feidman doctrines.

S, November

l Opinion.

On December 11, 2007, Plaintiff filed the Superior Court Case against Lakeland Bank and
others involved in the alleged investment gone wrong.

S Dunleavy v. Lakeland Bank, Ct al., No.

SSX-L-825-07 (N.J. Super. Ct. Law Div. 2009), disposal docketed. Judge Gannon dismissed
Plaintiffs complaint against all Defendants except Mr. Cart, and after trial found that Plaintiff had
“nO cause” for that remaining claim. (Frank Br. in Supp. Mot. for Sanctions 6, May 12, 2011, ECF
No. 38; see also Gannon eta!. Br. 1-2, Apr. 21, 2011, ECF No. 29-1.) Plaintiff did not appeal. jj
Plaintiff filed grievances, in March 2010, with the OAE and ACJC against attorney
Defendants bringing the instant motions for sanctions and Judge Gannon. (Gannon et al. Br. in
Supp. Mot. to Dismiss 1, Apr. 21, 2011, ECF No. 29-1.) Plaintiffs problems with attorneys and
the Judge involve a stated “conspiracy” to issue an unfavorable judgment in that case,
Judge
2 Gannon presided over the Superior Court Case, defined supra.
3

P1.’ s

Compl. ¶I 6, 21, 23, 25. Plaintiff contends here that the OAE Committee members failed to

investigate his claims of improper conduct. Id. at 2. In each grievance, the facts of the wrongfully
handled investment, and litigation pursued by Plaintiff as a result, underlie the substance of
Plaintiffs claims. (Lakeland Bank Br. Mem. in Supp. R.11 Sanctions 1, June 9, 2011, ECF No.
44-2).
In this Court, Plaintiff attempts to revitalize the fact pattern underlying his Superior Court
claims with new accusations against counsel and others involved in that litigation. Generally,
Plaintiff explains in his complaint how the unfavorable Superior Court judgment resulted from
case mishandling by attorney Defendants rather than lack of merit or frivolity of claims. Plaintiffs
complaint avers that his due process rights were violated by attorneys involved in that litigation,

pursuant to 42 U.S,C.A.

§ 1983.

PL’s Compl.

¶ 3, Plaintiff charges Defendants with

“conspiracy, cover-ups, deliberate lies, sabotage, fabrications, willful and malicious concealment
of vital documents, fraudulent removal of documents from a court file, and a judge [sic.] allowing
Defendants and their attorneys to lie to the Court and ignore Court rules and the law with
impunity,” (Pl.’s Compl.

¶

1.)

This Court granted motions to dismiss filed by Defendants Laurie Veith, Gary Lightman,
Barry Frank, Charles Centinaro, Edward Gannon, Alan Handler, Lt. James Macinness, Candace
Moody, John Palm, Robert Stober, JohnTonelli, John Breslin and the New Jersey State Police
(ECF Nos, 12, 26, 28, 29, 35, 41) and dismissed Plaintiffs complaint with prejudice in the
November

St

Opinion and Order.

1. Motions for sanctions
As Plaintiffs complaint has already been dismissed, remaining motions in this action
4

include the motions for Rule 11 sanctions filed by Barry Frank, Gary Lightman, Laurie Veith,
Timothy Matteson, Peter Romaine and John Breslin. (ECF Nos. 38, 43, 44, 47.)
Defendants assert that Plaintiff made representations to the court for improper purposes
including harassment, causing unnecessary delay and needlessly increasing the cost of litigation
under Rule 11. Defendants state that Plaintiff files merely to ‘extract.

.

.

the amount of his claim

that he was unsuccessful in pursuing against others in the New Jersey litigation” and that, in the
instant matter, Plaintiff makes frivolous arguments lacking basis in law and fact.
Içj at 2.
Defendants demonstrate the legal and factual deficiency by showing, as an example, that Plaintiff’s
“conspiracy” charge on Defendants’ alleged intent “to deprive him of his constitutional rights” is
not supported by even “a single fact” that reaches the elements of conspiracy at law. (Frank Br, in
Supp. Mot. for Sanctions 2-3, 14.) In a similar manner, Defendants show the legal deficiencies in
Plaintiffs claims under 42 U.S.C.A.

§

1983 and the Age Discrimination in Employment Act

(hereinafter, ‘ADEA”).
Most significant is the allegation that Plaintiff continues to engage in the same conduct,
filing numerous similar suits, despite adverse holdings reasoned upon Plaintiffs’ failure to state a
claim for relief. Id. at 12. Plaintiff has been warned by various Courts.

Dunleavy v. New

Jersey, No. 05-cv-3865, 2008 WL 199467, at *2 (D.N.J. Jan. 18, 2008.) Further, Defendants
Laurie Veith, Timothy Matteson and Peter Romaine sent Plaintiff a letter under the “safe harbor”
provision of Rule 11 informing him of their arguments under the Rule and their strong
recommendation that he withdraw his complaint. (Aff. of Thomas Ex. E, June 9, 2011, ECF No.
44-1.) Plaintiff did not withdraw his complaint and the same was dismissed in this Court on
November 1St, 2011. Defendants seek Court ordered sanctions against Plaintiff, pursuant to Rule
5

11, in the form of all costs and attorneys’ fees incurred in the instant litigation.
(a) Barry Frank’s Motion for Sanctions
Mr. Frank began representing James Flanagan in the State Court Case on May 5, 2008 in
substitution of Gary Lightman, Mr. Flanagan’s former attorney. According to Mr. Frank’s
arguments, which are supported by the court’s findings, Plaintiff incorrectly accused Mr. Flanagan
of having an interest in the company into which Plaintiffs personal funds were funneled. (Pl.’s
Compl.

¶

1, 22.) Mr. Frank refers to the instant action as merely “the most recent chapter in

[Plaintiffs] four-year persecution of people whom he imagines [are] responsible for his poor
investment decision, their lawyers and the judge who was assigned to adjudicate the underlying
dispute.” j 2-3. Mr. Frank further avers in his brief, that Plaintiff repeatedly presents the same
issues and is seeking to relitigate the same issues that he already had a full and fair opportunity to
litigate. (Frank Br. in Supp. Mot. for Sanctions 17-8.) Indeed, this Court dismissed Plaintiffs
complaint in the instant action on grounds of res judicata and entire controversy and Rooker
Feldman doctrines. (November

1St

Opinion, ECF No. 82-3.)

Mr. Frank asserts that Plaintiffs claim under the ADEA, prohibiting workplace
discrimination, is patently frivolous and utterly inapplicable. jç at 13. Mr. Frank makes a similar
argument regarding Plaintiffs
the

§

§

1983 claim. Since Mr. Frank is a private lawyer, not a state actor,

1983 claim is legally unsustainable.
3

at 3. Mr. Frank’s characterization supports the

contention that, “Plaintiff is more interested in attacking his victims than he is in seeking redress
for real injuries.” j4. at 13 n.5.

Further,
3 Mr. Frank demonstrates that Plaintiff previously failed to obtain relief under
§
1983 in the prior actions. See, Frank Br, 12 (citing Dunleavy v. State of New Jersey, 2007 WL
2793370 (D.N.J. Sept. 26, 2007), gfi, 251 Fed.Appx. 80 (3d Cir. 2007)).
6

Mr. Frank supplies ample evidence showing that Plaintiff has been warned that conduct
similar to what is being exhibited in the instant litigation is inappropriate. Examples include
District and Circuit Court findings that Plaintiff “made bald allegations of age discrimination
without anchoring them with specific facts that tend to prove discrimination.” Dunleav v. Mount
Olive Twp., 2005 WL 1828560, at *7 (D.N.J. July 29, 2005),

d, 183 Fed. Appx. 157 (3d Cir.

2006); see also Dunleavy v. Montville T., 2005 WL 1917610, at *5 (D.N.J. Aug. 9, 2005),
aff’d, 192 Fed. Appx, 100 (3d Cir. 2006). Dismissal of prior actions was reasoned upon such
findings.
Mr. Frank seeks sanctions in the form of all costs and attorneys’ fees incurred in defending
the instant litigation.
(b) Gary Lightman’s Motion for Sanctions
Mr. Lightman originally represented James Flanagan in the State Court Case before Mr.
Frank substituted in as counsel. (Frank Br. in Supp. Mot. for Sanctions 5.) Plaintiff sets forth no
facts or claims against Mr. Lightman that he did not allege in the Superior Court Case or in the
subsequent ethics grievance Plaintiff filed against him. (Lightman Br. in Supp. Mot. for Sanctions
2.) Plaintiff is barred from reasserting these claims by collateral estoppel, Mr. Lightman argues.
at 14. Plaintiff alleges that Mr. Lightman failed to conduct discovery as Plaintiff saw fit and
that he was involved in a conspiracy with various other attorney Defendants in contravention of
PlaintifT’s due process rights. Id at 7-8. Comparatively, during the Superior Court Case, Plaintiff

1n
4 response to both District Court decisions, Plaintiff filed a complaint against Judge
Katherine S. Hayden, who presided over Plaintiffs’ cases, which was dismissed for failure to
state a claim. Dunleavy v. Hayden, Docket No. 07-cv-3729 (D.N.J. Mar. 19, 2009), ECF No. 18
(order denying reconsideration).
7

filed many unsuccessful motions for sanctions, contempt and recusal. He accused the parties,
attorneys and Judge Gannon of various “imaginary infractions,” including alleged discovery
defaults and related procedural decisions that resulted in unfavorable decisions.
jç at 7. Plaintiff
alleges the same in the instant matter. j
Mr. Lightrnan generally alleges that Plaintiffs complaint is without support in fact or law.
(Lightman Br. in Supp. Mot. for Sanctions 10.) Moreover, Plaintiff seeks relitigation of State
Court Case claims, even though he never appealed the court’s unfavorable decision, jc Mr.
Lightman repeats Mr. Frank’s arguments, that Plaintiff cannot state a claim under the ADEA or

§

1983. j Mr. Lightman seeks sanctions in the form of all costs and fees he and his law firm have
incurred in defending this litigation.
(c) Laurie Veith, Timothy Matteson and Peter Romaine’s Motion for Sanctions
Ms. Veith was Vice President of Lakeland Bank at the time of Plaintiffs filing. (Veith et
al. Mot. For Sanctions 2, June 9, 2011, ECF No.

44•)5

Mr. Matteson was and currently serves as

General Counsel at Lakeland Bank and Mr. Romaine was and currently serves as Vice President of
Lakeland Bank. j Plaintiff alleges Ms. Veith and Mr. Romaine ignored subpoenas to appear in
Court. (Pl.’s Compl. 26, 28.) Plaintiff alleges Mr. Matteson blind-sided Plaintiff by attempting to
have Mr. Lightman take Plaintiffs deposition over the telephone.
icj,, at 27. Defendants aver
Plaintiffs allegations are “utterly bereft” of any grounding in fact or law and are insufficient to
support a claim for relief. Id. at 2.

Ms.
5 Veith currently serves as Senior Vice President at Lakeland Bank. ‘Lakeland Bank
Announces Employee Promotions,” Oct. 12, 2011, LakelandBank.com,
http://www.lakelandbank.com/Resource-Center/Press-Releases/Show-Pres
s-Release.aspx?id49
7 (last visited Jan. 18, 2012).
8

Defendants advance arguments similar to those asserted by Mr. Frank and Mr. Lightman,
showing that Plaintiff’s

§

1983 claim fails as a matter of law. j at 5-6. Further, they allege

Plaintiff can sustain no claim under the ADEA or

§

1985 given the facts supplied.

a

at 7-8.

Defendants also state that Plaintiffs claims are duplicative and, as held in this Court’s November
st
1

Opinion, are barred by res judicata. j4,, at 8-9. Ms. Veith, Mr. Matteson and Mr. Romaine seek

sanctions in the form of all reasonable costs and counsel fees incurred in defending action
instituted by Plaintiff in this Court, from its inception.
(d) John Breslin’s Motion for Sanctions
Mr. Breslin represented McIntyre & Co., accountants employed by the company in which
Plaintiff claims to have intended to invest, Mr. Breslin contends that Plaintiffs complaint fails to

set forth any claim against him that is reasonably grounded in fact or law. (Breslin’s Mot. for
Sanctions 1, July 11, 2011, ECF No. 47-3.) Moreover, Plaintiffs complaint makes no direct legal
allegations against Mr. Breslin. (Pl.’s Compl., Jan. 20, 2011, ECF No. 1; Breslin’s Mot. for
Sanctions 1.) Mr. Breslin points to the fact that Plaintiff did not appeal any of the state court
decisions, but rather filed grievances against attorneys involved in the Case and the Judge
presiding over the same. (Breslin’s Mot. for Sanctions 1.)
Mr. Breslin aptly notes Judge Debevoise’s admonishment of Plaintiff in Dunleavv v. New
Jersey, to show that he has been warned to cease similar prior conduct:
.the [Clourt wishes to note that several of Dunleavy’ s claims appear to be
frivolous and the [Cjourt is concerned that Dunleavy has caused unnecessary expense by
laundry-listing various claims without familiarizing himself with the laws underlying the
same, and without having even attempted to exhaust the various administrative procedures
prerequisite to bringing certain of these claims.” (Breslin’s Mot, for Sanctions 2 (citing
No. 05-cv-3865, 2008 WL 199467, at *2 (D.N.J. Jan. 18, 2008.)))

9

Plaintiff should have been well-aware of his obligations to the Court, opposing parties
and their
counsel in the instant matter, Mr. Breslin contends. (Breslin Mot. for Sanctions 3.) Mr.
Breslin
then goes on to describe the lengthy history of Plaintiffs inundation of Defendants with
baseless
accusations and demonstrates that exact findings in judgments of a variety of courts and
Judges.
at 23-6. Additionally, Mr. Breslin explains that Plaintiff cannot legally or factually sustain the
claims he has mounted against Defendants here. jç at 15-9.
Further, Mr. Breslin repeats the arguments of the other Defendants moving for sanctions in
the instant motions, that Plaintiffs claims are barred by res judicata and the Rooker-Feldman and
entire controversy doctrines.

at 3-4. Mr. Breslin seeks monetary sanctions against Plaintiff. jçj.

at 27-8.
2. Motion for reconsideration
This Court granted Defendants motion to dismiss in the November

St
1

Opinion and

accompanying Order. Plaintiff filed a motion for reconsideration of that Opinion and Order on
6
December 9, 2011, thirty-eight days later. (ECF No. 84.) Plaintiff contends that this Court
mischaracterized Plaintiffs claim, and due to the mischaracterization, found that Plaintiff was
attempting to relitigate claims already decided. Plaintiff points to a statement in the November

1St

Opinion where this Court explains that Plaintiff “personally deposited” funds at Lakeland Bank.

See, Opinion 3, Nov. 1, 2011, ECF No. 83. Plaintiff contends that this sentence should be

Motions
6 to dismiss were filed by Defendants Laurie Veith (ECF No. 12), Gary Lightman
(ECF No. 26), Barry Frank (ECF No. 28), and John Breslin (ECF No. 35) on March 22, April 20,
April 21 and April 28, respectively; by Defendants Charles Centinaro, Edward Gannon, Alan
Handler, Lieutenant James Macinness, Candace Moody, John Palm, Robert Stober and John
Tonelli on April 21 (ECF No. 29); and, by The New Jersey State Police on May 17 (ECF No.
41).
10

replaced with a concept: that some branch or person within or of Lakeland Bank who “to this day,”
Plaintiff “does not know,” wrongfully deposited $25,000 worth of his personal funds into an
unintended account. (Pl.’s Mot. for Recons. 1-2, Dec. 9, 2011, ECF No. 84.) Plaintiff states that
based on the mischaracterization of fact, this Court’s decision was “emotionally upsetting” and
“perhaps a clear parameter that inadequate consideration was given to Plaintiff’s claims of a
plethora of civil rights and due process violations.” j4.

ll

STANDARD OF REVIEW

1.

Motion for sanctions

The bottom line purpose of a sanction under Rule ii is deterrence. The Court must be
mindful of the proportionality of the sanction in that it is limited to what suffices to “deter
repetition of the conduct or comparable conduct by others similarly situated.” FED. R. Civ. P.
I i(c)(4) (2007). “The sanction may include nonmonetary directives: an order to pay a penalty into
court, or, if imposed on motion and warranted for effective deterrence, an order directing payment
to the movant or all of the reasonable attorney’s fees and other expenses directly resulting from the
violation.” Id. Courts have uniformly sanctioned litigants who attempt to relitigate issues already
decided against, including those under the guise of constitutional arguments and 1983 claims.
Napier v. Thirty or More Unidentified Fed. Agents, Employees or Officers, 855 F.2d 1080,
1090 (3d Cir. 1988) (upholding sanctions where claims were identical to other claims already
adjudicated and therefore legally frivolous); see also, Balthazar v. Atl. City Med. Ctr., 279 F.
Supp. 2d 574, 594 (D.N.J. 2003) (imposing Rule 11 sanctions where the Court concluded the
litigant was merely attempting to relitigate unsuccessful State Court claims).
Rule 11 contemplates, as well as orders directing payment to the movant of part or all of
11

the reasonable attorney’s fees and other expenses directly resulting from the violation, sanctions in
the form of nonmonetary directives. FED.R.Clv.P. 11. The Third Circuit has concluded that
District Courts may issue an injunction requiring a litigant who has repeatedly filed complaints
alleging claims that have already been fully litigated to receive Court approval before filing further
complaints. In the Matter of Packer Avenue Associates, 884 F.2d 745 (3d Cir. 1989) (stating that
District Court did not abuse its discretion by ordering appellant to receive its permission before
filing additional pleadings) (citing Chipps v. U.S.D.C. M.D.Pa., 882 F.2d 72 (3d Cir.1989);
jjij:
Oliver, 682 F.2d 443 (3d Cir.1982)). Other circuits have reached the same conclusion. See Filipas
v. Lemons, 835 F.2d 1145

th
6
(

Cir.1987); In re Martin-Tigona, 763 F.2d 140 (2d Cir.1985),

denied, 474 U.S. 1061, 106 S.Ct. 807, 88 L.Ed,2d 782 (1986); Pavilonis v. King, 626 F.2d 1075
(1st Cir.1980).
2.

Motion for reconsideration

Motions for reconsideration in this District are governed by L. Civ. R. 7.1(1).

U.S. v.

Compaction Sys. Corp., 88 F. Supp. 2d 339, 345 (D.N.J. 1999). A motion for reconsideration
shall be served and filed within fourteen days after the entry of the Order on the original motion by
the Judge. Local Civ. R. 7.1(I) (2012). Further, the Rule requires that a movant submit “concisely
the matter or controlling decisions which the party believes the [Judge] has overlooked.”

jc.

A

motion pursuant to the Rule may be granted in only three, very limited circumstances. Database
Am.. Inc. v. Bellsouth Adver. & Publ’g Corp., 825 F. Supp. 1216, 1220 (D.N.J. 1993). The first
involves establishment that an intervening change in the controlling law has occurred.

J The

second involves presentation of new evidence that could not have been confronted in the prior
disposition because it was not previously available. Id. The third involves correcting a clear error
12

of law or preventing manifest injustice involved in a prior order.

Ici

Reconsideration is “an extraordinary remedy” that is to be granted “very sparingly.”

S

NL Indus. Inc. v. Commercial Union Ins. Co., 935 F. Supp. 513, 516 (D.N.J. 1996) (citing
Maldonado v. Lucca, 636 F.Supp. 621, 630 (D.N.J. 1986)). Local Rule 7.1(I) does not
contemplate a recapitulation of arguments considered by the Court before rendering its original
decision. S_ç Bermingham v. Sony Corp. of Am.. Inc., 820 F. Supp. 834, 856 (D.NJ. 1992),
affd, 37 F.3d 1485 (3d Cir. 1994). It is improper, on a motion for reconsideration, to “ask the
court to rethink what it ha[sJ already thought through rightly or wrongly.” Oritani Say. & Loan
-

Ass’n v. Fid. & Deposit Co., 744 F. Supp. 1311, 1314 (D.N.J. 1990). In other words, a motion for
reconsideration is not meant to take the place of an appeal.
Hi.

DISCUSSION

All four Defendants submit the same arguments to this Court regarding the
inappropriateness of Plaintiffs’ conduct in the instant action. The pleadings are repetitive and seek
relitigation of issues already decided in the State Court Case. Further, Plaintiffs allegations are
unsubstantiated by law or fact. For example, Plaintiff brings a claim under the ADEA and fails to
provide any legal or factual support for that claim. Plaintiff mentions

§

1983 in his complaint, but

none of the Defendants who have moved for sanctions here are state actors. Plaintiff more
generally states that his due process rights were violated because, for instance, Defendant attorneys
failed to execute pre-trial discovery the way Plaintiff envisioned. Plaintiff did not appeal any State
Court decisions on these claims, rather he brought his strikingly similar complaint to this Court
seeking relitigation.
Defendants rebut all of Plaintiffs arguments which this Court has already dismissed on res
13

judicata grounds. It is clear that Plaintiff has filed frivolous claims. Further, Plaintiff has been
warned, by State Court dismissals, that his claims fail for want of a factual and legal basis. Here,
Plaintiff fails to supplement already litigated claims with any new evidence. It is clear that
Plaintiff filed pretextually and seeks rather to merely harass Defendants and obtain judgment he
was previously denied. Plaintiff has been cautioned not only by State Court dismissals, but also by
explicit warnings of the frivolous nature of his filings. Further, this Court has already concluded
that his claims are barred because they were already litigated. Still, Plaintiff files a meritless
motion for reconsideration out of time which fails to put forth any new law or fact.
This Court has granted Plaintiff as a pro se thus far, great leniency in his pleadings and
communications with this Court and with parties to this litigation. However, given Defendants’
arguments in the instant motions, this Court finds that Plaintiff has dragged the parties through
over twelve months of frivolous litigation in this case. Additionally, having made a final decision
on this matter, this Court no longer will tolerate further filings from Plaintiff on these same claims
and must take action to deter Plaintiff from behaving in such a way in the future. Rule 11 grants
this Court wide latitude to determine sanctions so long as what is ordered is limited to what
suffices to deter repetition.
Defendants have aptly shown that they have engaged with Plaintiffs’ claims for far too
long, through State Court proceedings as well as over a year’s worth of filings in this Court.
Defendants persuasively argue that costs and fees incurred in this litigation be granted to them.
This Court agrees with Defendants, and grants the motion for sanctions in the form of reasonable
costs and attorneys’ fees incurred in the instant litigation from its inception. Further, because
Plaintiff has repeatedly filed in this Court and State Court on the same claims, which thereafter,
14

were consistently dismissed on res judicata, entire controversy doctrine and collateral estoppel
grounds, this Court requires that Plaintiff seek approval from the Court before filing any future
complaints. Plaintiff is hereby enjoined from filing future complaints without said Court approval.
2. Motion for Reconsideration
Plaintiff seeks reconsideration of the Opinion and Order filed in this Court on November
1St, 2011. Plaintiff filed for reconsideration on December
9, 201 1, thirty-eight days from the Order
on the original motion. Rule 7.1(T) clearly states that a party has fourteen days to file a motion for
reconsideration from the date of entry of the Order on the original motion. Plaintiffs motion for
reconsideration is time barred.
For the sake of completeness, this Court will consider Plaintiffs argument for
reconsideration. Plaintiff contends that reconsideration is warranted because of an alleged
mischaracterization of the facts. However, Plaintiff merely parses language used in the Opinion in
an attempt to show that this Court somehow misunderstood Plaintiffs allegations. Plaintiffs
argument is unavailing and does not sufficiently reach the threshold required for reconsideration.
It would seem that Plaintiff attempts to convey that this Court’s alleged mischaracterization
involves correcting a clear error of law or preventing manifest injustice involved in a prior Order.
The appropriate legal conclusion on dismissal of Plaintiffs complaint remains exactly the same
whether Plaintiffs motion for reconsideration language or this Court’s language from the
November

Opinion is considered. In other words, Plaintiffs recapitulation of fact does not

affect the analysis performed or conclusion reached by this Court. Plaintiffs attempt to replace a
phrase with an unsubstantiated and illogical concept only speaks further to his litigious nature and
the appropriateness of serving Rule 11 sanctions upon him in the instant Opinion. Reconsideration
15

is “an extraordinary remedy” that is to be granted “very sparingly” and Plaintiff has demonstrated
no grounds on which reconsideration would be warranted here even if his motion had not been
filed outside of the fourteen day period. $ç NL Indus. Inc. v. Commercial Union Ins. Co., 935 F.
Supp. 513, 516 (D.N.J. 1996) (citation omitted).

1Y

CoNcLusioN
Based on the following, this Court hereby grants Defendants’ motions for sanctions

against Harry Dunleavy in the form of all reasonable costs and attorneys’ fees incurred by Mr.

Barry Frank, Mr. Gary Lightman, Mr. Walter E. Thomas and Mr. John Breslin in defending this
action from its inception on January 20, 2011. Further, this Court hereby

sponte enjoins

Plaintiff from filing any further complaints without Court approval. This Court denies Plaintiff’s
motion for reconsideration of this Court’s November

Date:
Orig.:
cc:

7
Opinion.

January
2012
Clerk
All Counsel of Record
Mark Falk, U.S,M.J.

This
7 Court finds Rule 11 sanctions to be the most appropriate mechanism for deterring
similar conduct, further, this case will not be reopened pursuant to Plaintiffs motion for
reconsideration. Therefore, Mr. Frank’s cross-motion to enjoin Plaintiff from filing any further
motions in this matter without leave (ECF No. 73) is hereby terminated as moot.
16