Liptok et al v. Bank of America
Filing
65
MEMORANDUM ORDER denying pltf's motion to recuse 64 . Signed by Magistrate Judge Martin C. Carlson on May 24, 2016. (kjn)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JOHN JOSEPH LIPTOK, et al.,
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Plaintiffs,
v.
BANK OF AMERICA,
Defendant.
Civil No. 3:15-CV-156
(Judge Munley)
(Magistrate Judge Carlson)
MEMORANDUM ORDER
I.
Factual Background
The plaintiffs, who are representing themselves in this lawsuit, filed a
complaint on January 23, 2015, which named the Bank of America as the defendant.
In their complaint the plaintiffs recited that they own and reside in one half of a
duplex property in Schuylkill County, Pennsylvania. (Doc. 1.) According to the
plaintiffs, the other half of this duplex is owned by the defendant who has failed to
care for and maintain the property, despite agreeing to do so. (Id.) As a result of this
alleged neglect and inaction by the defendant, the plaintiffs allege that their property
has been damaged. Asserting that the defendant has breached promises made to them
to properly maintain the property, the plaintiffs have sued Bank of America. (Id.)
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Throughout these proceedings, we have understood that the plaintiffs are
proceeding pro se, and, therefore, we have consistently endeavored to make
allowances for their pro se status and are liberally construing the requests and
pleadings that they may file. However, in order to ensure the fair administration of
justice we have informed that plaintiffs that they must meet certain minimum
requirements. As part of this effort to assist the parties, our duty of candor to all
parties has compelled us to repeatedly advise the plaintiffs that some of their actions,
taken through the lead plaintiff, John Joseph Liptok, are actually impeding their
efforts to fairly and promptly adjudicate this matter. We have also specifically
admonished Mr. Liptok that: “ ‘[p]ersonal attacks ... are never appropriate in any
court filing,’ Lewis v. Delp Family Powder Coatings, Inc., CIV.A 08–1365, 2010 WL
3672240 (W.D.Pa. Sept.15, 2010).” Dougherty v. Advanced Wings, LLC, No. 1:13CV-447, 2013 WL 4041589, at *3 (M.D. Pa. Aug. 7, 2013). Therefore, “the routine
use of personal invective, acerbic asides, caustic commentaries, disgruntled
digressions, and ad hominem observations” will not be permitted by the Court and
will result in pleadings being stricken by the court. Id.
In addition, we have addressed requests by the plaintiffs for appointment of
counsel. On this score, we have explained to the plaintiffs that there is neither a
constitutional nor a statutory right to counsel for civil litigants. Parham v. Johnson,
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126 F.3d 454, 456-57 (3d Cir. 1997); Tabron v. Grace, 6 F.3d 147, 153 (3d Cir.
1993). Instead, 28 U.S.C. § 1915(e)(1) simply provides that “[t]he court may request
an attorney to represent any person unable to employ counsel.” Under §1915(e)(1),
a district court’s appointment of counsel is discretionary and must be made on a caseby-case basis. Tabron, 6 F.3d at 157-58. In Parham, the United States Court of
Appeals outlined the standards to be considered by courts when reviewing an
application to appoint counsel pursuant to 28 U.S.C. § 1915(e)(1). In passing on such
requests we must first:
“[D]etermine[] that the plaintiff's claim has some merit, then [we] should
consider the following factors: (1) the plaintiff's ability to present his or
her own case; (2) the complexity of the legal issues; (3) the degree to
which factual investigation will be necessary and the ability of the
plaintiff to pursue such investigation; (4) the amount a case is likely to
turn on credibility determinations; (5) whether the case will require the
testimony of expert witnesses; [and] (6) whether the plaintiff can attain
and afford counsel on his own behalf.”
Parham v. Johnson, 126 F.3d at 457.
There is yet another practical consideration which must be taken into account
when considering motions for appointment of counsel. As the United States Court
of Appeals for the Third Circuit has aptly observed:
Finally, in addressing this issue, we must take note of the significant
practical restraints on the district courts' ability to appoint counsel: the
ever-growing number of prisoner civil rights actions filed each year in
the federal courts; the lack of funding to pay appointed counsel; and the
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limited supply of competent lawyers who are willing to undertake such
representation without compensation. We have no doubt that there are
many cases in which district courts seek to appoint counsel but there is
simply none willing to accept appointment. It is difficult to fault a
district court that denies a request for appointment under such
circumstances.
Tabron v. Grace, 6 F.3d 147, 157 (3d Cir. 1993). Mindful of this consideration it has
been “emphasize[d] that volunteer lawyer time is extremely valuable. Hence, district
courts should not request counsel under § 1915(d) indiscriminately. As the Court of
Appeals for the Second Circuit has warned: ‘Volunteer lawyer time is a precious
commodity.... Because this resource is available in only limited quantity, every
assignment of a volunteer lawyer to an undeserving client deprives society of a
volunteer lawyer available for a deserving cause. We cannot afford that waste.’
Cooper v. A. Sargenti Co., 877 F.2d 170, 172 (2d Cir.1989).” Tabron v. Grace, 6
F.3d 147, 157 (3d Cir. 1993).
In this case our analysis of these factors has led us to conclude that counsel
should not be appointed in this case at the present time. At the outset, we believe that
we should defer any such decision until after we have had the opportunity to further
assess the first benchmark standard we must address, the question of whether the
plaintiffs’ claims have arguable legal merit. In our view, it would be inappropriate
to appoint counsel until we have the opportunity to complete this legal merits analysis
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in this matter. Therefore, the appointment of counsel must await resolution of any
dispositive motions, motions which are due to be filed by July 2016. Moreover, while
we understand that the plaintiffs doubtless face some obstacles in bringing this action,
to date the plaintiffs have demonstrated an ability to effectively present this case.
Furthermore, the actual investigation that the plaintiffs have to do is minimal, since
the pleadings show that the plaintiffs are fully aware of the bases for these claims
against the defendant. Finally, we note that the tone and tenor of the plaintiffs’
pleadings reflect that the plaintiffs have emphatic, and occasionally idiosyncratic
views regarding how to proceed in this case, and suggest that the plaintiffs who are
insistent architects of their own claims may not be prepared to defer to the judgment
of any appointed counsel on matter of litigation strategy, yet another factor which
would make securing volunteer counsel for this case difficult or impossible.
We have also warned all plaintiffs that, while Mr. Liptok has undertaken the
lion’s share of responsibility for presenting the plaintiffs’ arguments and responses
and making legal filings, as a non-lawyer Mr. Liptok is only authorized to represent
his own interests in this case and is not empowered to “represent” the interests of
other unrepresented parties. This rule is, first, prescribed by statute: “In all courts of
the United States the parties may plead and conduct their own cases personally or
by counsel as, by the rules of such courts, respectively, are permitted to manage and
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conduct causes therein.” 28 U.S.C. § 1654 (emphasis added). In keeping with this
statutory language, the Third Circuit Court of Appeals has instructed that “a nonlawyer appearing pro se [is] not entitled to play the role of attorney for other pro se
parties in federal court.” Osei-Afriyie by Osei-Afriyie v. Med. Coll. of Pennsylvania,
937 F.2d 876, 882 (3d Cir. 1991) (holding father not authorized to represent the legal
interests of his children in federal court, and vacating judgment that had been entered
against unrepresented children); see also Lutz v. Lavelle, 809 F. Supp. 323, 325
(M.D. Pa. 1991) (“It is a well established principle that while a layman may represent
himself with respect to his individual claims, he is not entitled to act as an attorney
for others in a federal court.”); cf. Fed. R. Civ. P. 11(a) (requiring that all pleadings,
motions, and submissions to federal courts be signed by an attorney of record, or by
the unrepresented party himself or herself).
We have brought this black letter law to the plaintiffs’ collective attention
because they all needed to understand that although Mr. Liptok is legally entitled to
represent his own interests in this litigation, he is not permitted to represent their
individual interests. Relatedly, Mr. Liptok should be clear that his authority to
proceed pro se in this action is limited to representing his own claims. As a result we
have ordered that, going forward, all pro se parties shall be required to sign
(electronically or by hand) all pleadings, motions, and submissions made in this case
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and stated that Mr. Liptok, as a non-lawyer, is not authorized to provide these
individuals with legal representation in federal court. Furthermore, because we
believe this matter deserves a prompt resolution we have vacated the stay previously
entered in this case and set the following revised and expedited case management
deadlines in this case: The Close of Discovery was extended to July 27, 2016; Expert
Witness Report Disclosure was extended to August 10, 2016; and the Dispositive
Motions and Supporting Briefs deadline was now July 27, 2016.
Apparently dissatisfied with the progress of the litigation, and the Court’s
rulings on these issues, the plaintiffs have filed what we construe as a motion seeking
the Court’s recusal. (Doc. 64.) For the reasons set forth below, this motion will be
denied.
II.
Discussion
A.
Recusal of This Court is Not Warranted
The legal standards which govern such recusal requests are clear and clearly
compelling. These principles begin with the settled tenet that a judge “has as strong
a duty to sit when there is no legitimate reason to recuse as he does to recuse when
the law and facts require.” Bryce v. Episcopal Church in the Diocese of Colorado,
289 F.3d 648, 659 (10th Cir.2002) (quoting Nichols, 71 F.3d at 351); Cooney v.
Booth, 262 F.Supp.2d 494, 508 (E.D.Pa.2003); see also United States v. Snyder, 235
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F.3d 42, 46 n. 1 (1st Cir.2000); Curley v. St. John's University, 7 F.Supp.2d 359, 362
(S.D.N.Y.1998).
The guiding benchmarks in this field were aptly summarized in Conklin v.
Warrington Township, 476 F.Supp.2d 458 (M.D. Pa. 2007), a case which considered,
and rejected, a recusal request. In terms that are equally applicable here, the court
explained that:
The disqualification standard is set forth in 28 U.S.C. § 455, which
provides in pertinent part as follows:
(a) Any justice, judge, or magistrate judge of the United States shall
disqualify himself in any proceeding in which his impartiality might
reasonably be questioned.
(b) He shall also disqualify himself in the following circumstances:
(1) Where he has a personal bias or prejudice concerning a party....
Id. Pursuant to the above quoted language, the court must consider
whether its rulings and statements objectively produce the appearance
of bias against Conklin. As explained by the Supreme Court, these
provisions “require ... ‘bias and prejudice’ ... to be evaluated on an
objective basis, so that what matters is not the reality of bias or prejudice
but its appearance.” Liteky v. United States, 510 U.S. 540, 548, 114
S.Ct. 1147, 127 L.Ed.2d 474 (1994). This objective standard requires
recusal when a “reasonable man knowing all the circumstances would
harbor doubts concerning the judge's impartiality.” Edelstein v.
Wilentz, 812 F.2d 128, 131 (3d Cir.1987) (citing United States v.
Dalfonso, 707 F.2d 757, 760 (3d Cir.1983)); see also In re Antar, 71
F.3d 97, 101 (3d Cir.1995). If the record presents a close question, the
court must resolve the issue in favor of disqualification. Nichols v.
Alley, 71 F.3d 347, 352 (10th Cir.1995).
Id. at 462-3.
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It is clear, however, that a party’s disappointment with what the party
anticipates may be the Court’s rulings cannot form the basis for recusal. As we have
observed:
The Third Circuit has repeatedly observed that “a party's displeasure
with legal rulings does not form an adequate basis for recusal.”
Securacomm Consulting, Inc. v. Securacom, Inc.., 224 F.3d 273, 278 (3d
Cir.2000) (citing In re TMI Litig., 193 F.3d 613, 728 (3d Cir.1999) and
Jones v. Pittsburgh Nat'l Corp., 899 F.2d 1350, 1356 (3d Cir.1990)).
Subsections 455(a) and (b)(1) require the source of bias to be
extrajudicial, that is stemming from a source outside of the proceeding,
or of such an intensity as to make a fair trial impossible. Blanche Rd.
Corp. v. Bensalem Twp., 57 F.3d 253 (3d Cir.1995), cert. denied, 516
U.S. 915, 116 S.Ct. 303, 133 L.Ed.2d 208 (1995). As stated by the
Supreme Court:
[O]pinions formed by the judge on the basis of facts introduced or
events occurring in the course of the current proceedings, or of prior
proceedings, do not constitute a basis for a bias or partiality motion
unless they display a deep-seated favoritism or antagonism that would
make fair judgment impossible. Thus, judicial remarks during the
course of a trial that are critical or disapproving of, or even hostile to,
counsel, the parties, or their cases, ordinarily do not support a bias or
partiality challenge. They may do so if they reveal an opinion that
derives from an extrajudicial source; and they will do so if they reveal
such a high degree of favoritism or antagonism as to make fair judgment
impossible.
Liteky, 510 U.S. at 555, 114 S.Ct. 1147 (emphasis in original).
Id. at 463.
Furthermore, in assessing recusal requests, courts must remain mindful that, a
recusal motion may simply be a tactical tool designed to avoid the result which the
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law dictates in a case. Thus, in every instance:
[T]he court must consider whether attacks on a judge's impartiality are
simply subterfuge to circumvent anticipated adverse rulings. In re
Antar, 71 F.3d at 101; Alexander v. Primerica Holdings, Inc., 10 F.3d
155, 162 (3d Cir.1993). Indeed, a judge “has as strong a duty to sit
when there is no legitimate reason to recuse as he does to recuse when
the law and facts require.” Bryce v. Episcopal Church in the Diocese of
Colorado, 289 F.3d 648, 659 (10th Cir.2002) (quoting Nichols, 71 F.3d
at 351); Cooney v. Booth, 262 F.Supp.2d 494, 508 (E.D.Pa.2003); see
also United States v. Snyder, 235 F.3d 42, 46 n. 1 (1st Cir.2000); Curley
v. St. John's University, 7 F.Supp.2d 359, 362 (S.D.N.Y.1998).
Id. at 463.
Judged against these legal standards, we must decline the plaintiffs’ request
that we recuse ourselves from this case. Indeed, this recusal motion fails for a
fundamental reason. The plaintiffs simply cannot justify recusal based upon the
rulings made by this Court. Such a claim is plainly inadequate to justify recusal since
it is absolutely clear that “a party's displeasure with legal rulings does not form an
adequate basis for recusal.” Securacomm Consulting, Inc. v. Securacom, Inc., 224
F.3d 273, 278 (3d Cir.2000) (citing In re TMI Litig., 193 F.3d 613, 728 (3d Cir.1999)
and Jones v. Pittsburgh Nat'l Corp., 899 F.2d 1350, 1356 (3d Cir.1990).
Furthermore, the plaintiffs’ assertions that the Court is acting as a partisan for
one party are entirely incorrect, and unfounded, and simply reflect a lack of
understanding regarding the role of the Court. Moreover, the plaintiffs’ recusal
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request stems from the erroneous premise that we have delayed this case. We have
not. Quite the contrary, the delays in this litigation have sadly arisen due to the
actions of Mr. Liptok, who persists in substituting invective for reasoned discourse.
In addition, the plaintiffs concerns are often factually inaccurate. For example, the
plaintiffs voice concerns over the conduct of this litigation by former defense counsel,
but fail to appreciate that this attorney is no longer handling their case. In addition,
the plaintiffs allege that “the judge has YELLED at and threatened the plaintiffs.”
This assertion is also demonstrably incorrect since we have never spoken to any of
the individual plaintiffs aside from a single conversation instructing Joseph Liptok
to respond to questions posed to him at a deposition. Finally, and perhaps most
significantly, the plaintiffs fail to appreciate that adherence to the schedule set by this
Court is actually designed to do what they say they wish to do; namely, secure a
prompt resolution of the merits of this dispute. Indeed, the parties are admonished
to complete discovery, and file any dispositive motions, by July 27, 2016, so this case
can then be resolved on motions or set for trial.
In sum, the grounds for recusal cited by plaintiffs are factually incorrect and
legally insufficient. Therefore, since a judge “has as strong a duty to sit when there
is no legitimate reason to recuse as he does to recuse when the law and facts require.”
Bryce v. Episcopal Church in the Diocese of Colorado, 289 F.3d 648, 659 (10th
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Cir.2002) (quoting Nichols, 71 F.3d at 351); Cooney v. Booth, 262 F.Supp.2d 494,
508 (E.D.Pa.2003); see also United States v. Snyder, 235 F.3d 42, 46 n. 1 (1st
Cir.2000); Curley v. St. John's University, 7 F.Supp.2d 359, 362 (S.D.N.Y.1998), we
are duty-bound to deny this motion.
III.
Conclusion
Accordingly, for the foregoing reasons the plaintiffs’ motion to recuse (Doc.
64.), is DENIED.
So ordered this 24th day of May 2016.
S/Martin C. Carlson
Martin C. Carlson
United States Magistrate Judge
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