MARIN v. FRAGEL et al
Filing
130
MEMORANDUM OPINION & ORDER resolving 125 , 127 defendants' Motions for Summary Judgment. Signed by Judge David S. Cercone on 8/18/14. (kak)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
MEL M. MARIN,
Plaintiff,
vs.
JOSEPH FRAGEL, SHARON CITY
COUNCIL as Officials, and Councilmen
MIKE DONATO, VICTOR
S. HEUTSCHE, ROBERT MESSINA,
DARIN D. FLOWER, FRANK P.
CONNELLY, as Individuals, and
MERCER COUNTY,
Defendants.
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2:09cv1333
Electronic Filing
MEMORANDUM OPINION
Mel M. Marin (“plaintiff”) filed a complaint in this Court on October 1, 2009, and an
amended complaint on September 13, 2010, seeking redress for purported national origin
discrimination in conjunction with plaintiff's alleged proposal to purchase condemned real estate
in and from the City of Sharon, Pennsylvania, for $10.00.1 Plaintiff's amended complaint
1
Plaintiff, also known as Melvin M. Marinkovic, is a serial pro se filer who has filed vexatious
litigation in this court in Mel Marin v. The Erie Times, et al., 1:11cv102 (Doc. No. 18), aff'd, 525
F. App'x 74 (3d Cir. 2013); In re: Joseph Fragile, et al., 2:11cv788 (Doc. No. 8); In re: Joseph
Fragile, et al., 2:11cv789 (Doc. No. 7), Mel Marin v. Tom Leslie, et al., 2:09cv1453 (Doc. No.s
57 & 58) and Melvin M. Marinkovic v. Mayor Joseph Sinnott, et al., 1:12cv139 (Doc. No. 21).
He also has filed over 70 proceedings in other jurisdictions and been placed on the "Vexatious
Litigant List" by the State of California in connection with a filing in the San Diego Superior
Court at No. 720715. See Transmittal Statement of the Bankruptcy Court to Accompany Notice
of Appeal (Doc. No. 1-14) in In re: Joseph Fragile, et al., 2:11cv789 (W.D. Pa. June 15, 2011)
at 6 n.3. Plaintiff "was once a law clerk in the federal court and a 9th Circuit extern." Verified
First Amended Complaint in Melvin M. Marinkovic v. Mayor Joseph Sinnott, et al., 1:12cv139
(Doc. No. 3) at ¶ 112. Plaintiff also has pursued an action challenging the need for him to submit
his social security number in order to receive a profession license as an Emergency Medical
Technician which this court found to be without merit at summary judgment. See Opinion of
April 11, 2014 in Mel Marin v. William McClincy and Melissa Thompson, 1:11cv132 (Doc. No.
advances an elaborate conspiratorial scheme that centers around a purported effort by Joseph
Fragel, "the head of the Sharon Office [of] Community Development," to thwart plaintiff's
proposal because of plaintiff's national origin: Serbian. Complaint at ¶¶ 1-14; Amended
Complaint at ¶¶ 1-28. The litigation has been protracted, with plaintiff filing numerous
interlocutory appeals.
On March 31, 2014, an order was entered lifting a stay that had been entered on March 17,
2011, following defendant Fragel's filing a petition in Bankruptcy. See Doc. No.s 106, 116.2
The March 31, 2014, order lifting the stay also re-instated the Case Management Order of
September 13, 2010, with amended pretrial deadlines for the submission of pretrial narrative
statements and dispositive motions.
81 in 1:11cv132).
Plaintiff also uses different addresses in different states to maintain his pending cases. He
frequently claims not to have received mail at the address he maintains in the court's docket and
seeks to reset his own deadlines for compliance with any particular pretrial deadline. A review
of his filings in the related dockets reflects the use of such tactics. See e.g. Motion for Service
(Doc. No. 13 in 1:12cv139); Motion for an Order to Allow Filing of Opposition to Motion to
Dismiss Out-of-Time (Doc. No. 17 in 1:12cv139); Notice of and Motion for Leave to Allow
Responses to Order of April 11, 2013 Out-of-Time and Request for Clerk to Send Case
Management Order and Declaration in Support (Doc. No. 51 in 2:09cv1453) at 1; Notice of and
Motion to Supplement Motion for Late Response to Order of April 11, 2013 Out-of-Time and
Request for Clerk to Send 2011 Case Management Order (Doc. No. 55 in 2:09cv1453) at 1;
Plaintiff's Notice of and Motion for Leave to File a Pre-Trail Statement Out-of-Time (Doc. No.
31 in 2:06cv690) at 1; Plaintiff's Notice of Change of Address and Motion for Remailing (Doc.
No. 52 in 1:11-cv-132); Motion for Leave to File Opposition to Summary Judgment Out of Time
(Doc. No. 64 in 1:11-cv-132 at 5-6); Motion for Leave to File Third Amended Complaint Out of
Time (Doc. No. 65 in 1:11-cv-132 at 1). The docket verifies that in accordance with the Local
Rules all orders and opinions are mailed to plaintiff at the mailing address he has provided for
the particular case (which includes a change of address upon proper notification to the Clerk).
2
On that date an order also was entered in Marin v. Fragel, et al., 2:12cv1676, denying
plaintiff's motion to proceed in forma pauperis and commence a new action on the claims
initially filed in 2:09cv1333. That order was entered without prejudice to plaintiff seeking
further relief as warranted in 2:09cv1333, such as moving to file an amended complaint in
2:09cv1333.
2
Presently before the court are defendants' motions for summary judgment, which were
filed on June 26, 2014. Plaintiff had 30 days to respond to those motions. See Section B of [52]
the Case management Order of September 13, 2010. Plaintiff has to date failed to file any
response to those motions and accompanying concise statement of material facts and briefs in
support.
The standards governing summary judgment are well-settled. Federal Rule of Civil
Procedure 56(c) provides that summary judgment may be granted if, drawing all inferences in
favor of the non-moving party, Athe pleadings, the discovery and disclosure materials on file, and
any affidavits show that there is no genuine issue as to any material fact and that the movant is
entitled to judgment as a matter of law.@ Summary judgment may be granted against a party who
fails to adduce facts sufficient to establish the existence of any element essential to that party=s
claim, and upon which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett,
477 U.S. 317 (1986). The moving party bears the initial burden of identifying evidence which
demonstrates the absence of a genuine issue of material fact. When the movant does not bear the
burden of proof on the claim, the movant=s initial burden may be met by demonstrating the lack
of record evidence to support the opponent=s claim. National State Bank v. National Reserve
Bank, 979 F.2d 1579, 1582 (3d Cir. 1992). Once that burden has been met, the non-moving
party must set forth Aspecific facts showing that there is a genuine issue for trial,@ or the factual
record will be taken as presented by the moving party and judgment will be entered as a matter
of law. Matsushita Electric Industrial Corp. v. Zenith Radio Corp., 475 U.S. 574 (1986)
(quoting Fed.R.Civ.P. 56 (a), (e)) (emphasis in Matsushita). An issue is genuine only if the
evidence is such that a reasonable jury could return a verdict for the non-moving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986).
3
Defendants' motions and supporting submissions satisfy their initial burden of
demonstrating the lack of record evidence to support plaintiff's asserted causes of action.
Plaintiff has failed to controvert defendants' concise statement of material facts as required under
Local Rule 56C and the Case Management Order of September 13, 2010. Thus, defendants'
concise statement of facts are deemed admitted under Local Rule 56E. They also are deemed
admitted as a matter of law pursuant to Matsushita Electric Industrial Corp. v. Zenith Radio
Corp., 475 U.S. 574 (1986). Consequently, the record must be taken as presented by defendants
and judgment as a matter of law will be entered in their favor.3
For the reasons set forth above, defendants' pending motions for summary judgment will
be granted. Appropriate orders will follow.
Date: August 18, 2014
s/David Stewart Cercone
David Stewart Cercone
United States District Judge
cc:
Mel M. Marin
Box 311
Reynoldsburg, OH 43608
Via: United States Mail
Charles H. Saul, Esquire
Kyle T. McGee, Esquire
Margolis Edelstein
William G. McConnell, Jr., Esquire
Marie Milie Jones, Esquire
Via: CM/ECF Electronic Filing
3
Based on the record as presented the court finds that plaintiff's pursuit of this lawsuit is
vexatious and he filed it for vindictive and obstructive purposes.
4
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