SOLOFF et al v. AUFMAN et al

Filing 89

MEMORANDUM OPINION re 75 ORDER denying 67 Plaintiffs' Motion for Recusal. Signed by Judge Arthur J. Schwab on 7/19/2018. (lmt)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
CAILIN NICOLE SOLOFF (Pro Se), and
DYLAN MICHAEL SOLOFF (Pro Se),
Plaintiffs,

17cv1500
ELECTRONICALLY FILED

v.
EDWARD J. AUFMAN, WILLIAM J.
GAFFEY, and AUFMAN ASSOCIATES,
INC.
Defendants.
MEMORANDUM OPINION
DENYING PLAINITFFS’ MOTION FOR RECUSAL (DOC. NO. 67)

I.

Summary of the Case
Plaintiffs’ Amended Complaint identifies Plaintiffs as college students currently

attending the University of Southern California. Through the statements set forth in the
pleadings submitted by the Parties, as well as the documents related to certain Trusts and
Accounts, some which have been attached to the pleadings and the various motions and
responses filed in this case, it appears that Plaintiffs are dissatisfied with their grandfather’s
provision of financial gifts to them (either directly or indirectly through their mother), but have
elected to sue Defendants – who were and are the grandfather’s financial and investment
advisors – instead of their grandfather. Plaintiffs’ pleadings, as well as their Motions and
Responses to Defendants’ Motions, illustrate their belief that Defendants exploited, extorted,
and/or misappropriated funds in said Trusts and Accounts, resulting in Plaintiffs’ inability to
obtain the funds they want from these financial vehicles.

Although it appears that Plaintiffs were not direct beneficiaries of some, if not all, of their
grandfather’s various Trusts and other investment vehicles, and although it appears that
Defendants have no fiduciary relationship with Plaintiffs or other duty to Plaintiffs, the Court has
permitted this case to proceed up to this point in time, because Plaintiffs are pro se and because
the Court believed all Parties would benefit from the mandatory Alternative Dispute Resolution
(“ADR”) process and the pre-ADR discovery which this Court ordered.
To assist the Parties in obtaining a cost-effective, independent evaluation of this case, by
a subject matter expert, the Court ordered the Parties to participate in an Early Neutral
Evaluation (“ENE”) pursuant to the ADR program established by Local Rule 16.2, and
consistent with Plaintiffs’ own request. Doc. no. 16, page 13, item 15. Further, the Court
recommended the Parties retain, as the ENE Neutral, one of Pittsburgh’s leading estates and
trusts attorneys, at a cost of $3,000 per side. Doc. nos. 19, 24, 48, 70, 74.
Instead of participating in good faith in the ENE process, Plaintiffs, through their motion
practice, began attacking Defendants, their counsel, the ENE Neutral (doc. no. 70, pages 3-4),
and now, finally, the Court (doc. no. 67), as set forth in more detail below. It has become readily
apparent that these pro se Plaintiffs are quite skilled in these legal matters, as demonstrated by
their Complaint (doc. no. 5), Amended Complaint (doc. no. 49), and their extensive motion
practice.
Presently before the Court is Plaintiffs’ Motion for Recusal (doc. no. 67) and Defendants’
Response in Opposition thereto. Doc. no. 71. After careful consideration, the Court denied
Plaintiffs’ Motion for Recusal on July 5, 2018 (see doc. no. 75), and now has prepared the
following Memorandum Opinion to explain its decision.

2

II.

Case History
A. First Federal Lawsuit in the Western District of Pennsylvania
Plaintiffs filed their first federal lawsuit in the Western District of Pennsylvania on July

10, 2017, on behalf of themselves and their two minor siblings. Doc. no. 3 in case no. 17-cv00908. At that time, Plaintiffs also filed a request to file the matter in forma pauperis, which this
Court immediately granted. Doc. nos. 1 and 2. However, after reviewing the Plaintiffs’
Complaint, Defendants’ Motion to Dismiss, Plaintiffs’ Response, and Defendants’ Reply, on
September 27, 2017, this Court held as follows:
This Court finds, based on the Adult Plaintiffs’ Complaint and other
filings, that the mother of both the Adult and Minor Plaintiffs is living and
capable of bringing claims on behalf of her two minor children. In
addition, there are no alleged facts in the lengthy Complaint, nor in any of
the Adult Plaintiffs’ Briefs, as to why the two Adult Plaintiffs have any
authority to sue on behalf of their siblings. . . . Thus, this Court concludes
that the Plaintiffs’ mother would be the best representative of the minor
children’s claims.
Given this decision, the Court will grant the Defendants’ Motion to
Dismiss without prejudice, due to the lack [of] capacity for the Adult
Plaintiffs to sue on behalf of the Minor Plaintiffs.
Doc. no. 18, p. 6-7, case no. 17-cv-00908.
B. Second Federal Lawsuit in the Western District of Pennsylvania
Shortly thereafter, on November 17, 2017, Plaintiffs filed the instant lawsuit, again by
seeking this Court’s leave to file a Complaint in forma pauperis, which this Court (again)
immediately granted. Doc. nos. 1 and 2. This time, the Complaint only asserted claims on
behalf of the Adult Plaintiffs – Cailin and Dylan Soloff – and Defendants filed an Answer to
same. Doc. nos. 5 and 9.

3

C. Rule 26(f) Conference and Report
Next, Plaintiffs, who reside in the state of California, filed a Motion to Appear via Skype,
Facetime, or conference call at the Rule 26(f) conference. Doc. no. 14. This Court granted
Plaintiffs’ request, and the Rule 26(f) conference was conducted by the Parties. Doc. nos. 15 and
16. In the Rule 26(f) Report of the Parties, filed by the Parties on March 26, 2018 (doc. no. 16),
Defendants indicated that the ADR process would likely be fruitless because they did not intend
to make “any monetary offer.” Id. In this same Report, Plaintiffs noted that “Defendants [were]
adamantly opposed to any type of Alternative Dispute Resolution, believing it would not be
fruitful to either party, as they have [sic] they do not intend on settling this matter. Plaintiffs
opposed that viewpoint and were strongly in favor of ADR. Prior to the ‘confer’ [P]laintiffs
were open to either ENE or Mediation.” Id. (emphasis added.)
D. Initial Case Management Conference and the ADR Process
On April 4, 2018, the Court held its Initial Case Management Conference in this matter at
which time Plaintiff Cailin Soloff was present, and indicated to the Court that she was authorized
to speak on behalf of her brother, Plaintiff Dylan Soloff, who could not attend due to school
commitments. During this conference, the Court discussed the Rule 26(f) Report, sided with
Plaintiffs, and ordered an ENE to take place with a qualified Neutral. The Court further ordered
as follows:
. . . (1) Plaintiffs (and Defendants) should serve and file, on the docket,
formal request for production of documents on or before April 13, 2018;
(2) The opposing Party should serve and file, on the docket, responses and
objections to those requests on or before April 23, 2018; (3) Any
documents which exist and are responsive to a request, shall be produced
by a Party to the opposing Parties by April 30, 2018; and (4) The Parties
are to attend an Early Neutral Evaluation, preferably before Sam Goncz of
Cohen & Grigsby, if Mr. Goncz can preside as the neutral evaluator in this
matter after performing a conflict check. If Mr. Goncz can handle this
matter as an evaluator, he is to be paid $6,000 in a fee, by the Parties (50%
4

of his fee to be paid by the Plaintiffs, and 50% to be paid by the
Defendants) in advance of the evaluation meeting.
See Text Order at doc. no. 19.
E. Plaintiffs’ Request for a “Free” ENE and “Free” ADR Counsel
Following this conference, on April 10, 2018, Plaintiffs filed a Motion seeking the
appointment of pro bono counsel to represent them at the ADR proceeding. Doc. no. 22. On
April 11, 2018, the Parties filed a Stipulation selecting an ADR process wherein they indicated
that they had selected ENE for their ADR process, and noted that Sam Goncz1 would serve as the
Neutral. Doc. no. 24. Also, on April 11, 2018, Plaintiffs requested that the Court also waive
their pro rata share of the Neutral’s fee. Doc. no. 25. The Court denied the Plaintiffs’ request
for a pro bono attorney (without prejudice) and for a waiver of the Neutral fee. In reaching this
decision the Court noted:
In effect [Plaintiffs] want the [N]eutral to perform an important service to
Plaintiffs for free. Given the complex nature of this case and the age of the
Trusts at issue, this case will undoubtedly cost each Party much more than
$3,000 if they proceed through discovery and ultimately to trial, and it is
unfair to expect the neutral to work for 50% of his already reduced rate. If
each Party does not pay their fair share of $3,000 to the [N]eutral by May
4, 2018, the Court will cancel the ENE Stipulation and exempt this case
from the ADR procedure.
Doc. no. 26. With respect to Plaintiffs’ Motion for a pro bono attorney, the Court held:
The Court also DENIES, without prejudice, Plaintiffs’ Motion for a Pro
Bono Attorney to Represent Plaintiffs at ADR Early Neutral Evaluation
(doc. no. 22). The Court will reconsider this Motion for a Pro Bono
Attorney if and when the record becomes clear as to whether the ENE will
proceed. In sum, the Court is denying Plaintiffs’ request for a free ENE
process and for a free attorney at the ENE, but is willing to reconsider
appointing a pro bono attorney for the ENE once the docket reflects that
the payments have been made to the neutral evaluator and that the ENE
will proceed.

1

It is noteworthy that the Court in its April 4, 2018 Order indicated that Sam Goncz was preferred, not
required, to serve as a Neutral, and that he worked for the law firm of Cohen & Grigsby in Pittsburgh.

5

Id. (emphasis added.)
F. Pre-ENE Discovery and Motions Practice
Following the entry of the April 4, 2018 Order, the Parties engaged in pre-ENE
discovery, which primarily consisted of an exchange of documents, with the goal of having a
robust and meaningful ENE. Doc. nos. 27, 28, 29, 32, 33, and 42. During the course of this
discovery, Plaintiffs and Defendants filed various Motions against one another claiming that
each side had failed to comply with the other’s document production requests. See Defendants’
Motion to Quash Subpoenas (doc. no. 30), which this Court denied as moot (doc no. 31); see also
Plaintiffs’ Motion to Compel (doc. no. 34), Defendants’ Opposition to Plaintiffs’ Motion to
Compel (doc. no. 37), Plaintiffs’ Reply to Responses filed by Defendants (doc. no. 38), which
this Court granted in part and denied in part (doc. no. 45). In addition, Plaintiffs filed a Motion
seeking additional time to pay the Neutral their fifty percent share of his fee (doc. no. 46),
Defendants filed a Response (doc. no. 47), and the Court granted Plaintiffs’ request for this
extension of time. Doc. no. 48.
G. Amended Complaint and Additional Motions Practice
On May 15, 2018, Plaintiffs filed an Amended Complaint.2 Doc. no. 49. Ten days later,
on May 25, 2018, Plaintiffs filed a Motion for Sanctions and a Motion to Compel Discovery.
Doc. no. 50. On June 1, 2018, Defendants filed a Motion to Strike attachment 1 to the Amended
Complaint. Doc. no. 52. On June 4, 2018, Defendants filed their own Motion to Compel (doc.
no. 54), an Answer to the Amended Complaint (doc. no. 56), and a Response to Plaintiffs’

2

In the Amended Complaint, Plaintiffs assert claims for conversion, fraud and/or constructive fraud,
breach of fiduciary duties, professional negligence, intentional infliction of emotional distress, and
violation of Pennsylvania’s Unfair Trade Practice and Consumer Protection Law. Plaintiffs further assert
that as alleged beneficiaries of various Trusts and Accounts, they have been harmed and are entitled to an
accounting, the appointment of a guardian ad litem, compensatory damages, punitive damages, attorneys’
fees, interests, and costs.

6

Motion for Sanctions and Motion to Compel. Doc. no. 57. Plaintiffs filed a Response to
Defendants’ Motion to Strike Attachment 1 from the Amended Complaint (doc. no. 58, filed on
June 9, 2018), a Response to Defendants’ Motion to Compel Discovery (doc. no. 59, filed on
June 11, 2018), and a Motion to Strike Defendants’ Affirmative Defenses found in the Answer to
the Amended Complaint (doc. no. 60, filed on June 18, 2018). On June 21, 2018, the Court
entered an Order denying Plaintiffs’ Motion for Sanctions and to Compel (doc. no. 50); granting
Defendants’ Motion to Strike attachment 1 to the Amended Complaint (doc. no. 52); and
granting, in part, Defendants’ Motion to Compel (doc. no. 54) and denying Plaintiffs’ Motion to
Strike (doc. no. 60). Doc. no. 63.
H. Additional Motion Practice by Plaintiffs
Following the Court’s entry of its June 21, 2018 Order, the Court was hopeful that this
matter would proceed as scheduled, and that the ENE would be held on or before June 29, 2018
(doc. no. 48), with the Parties present and actively participating as per the Court’s instruction.
However, on June 24, 2018, Plaintiffs filed a “Motion to Strike Defendants Affirmative
Defenses, [and] Reconsideration of Memorandum Order for Fraud Upon the Court” (hereinafter
“Reconsideration Motion”). Doc. no. 64.
I. Plaintiffs’ Complaint Against Neutral and the ENE Process
In their Reconsideration Motion (doc. no. 64), Plaintiffs expressed their displeasure with
the Court’s June 21, 2018 Order – the first Order of Court in which this Court did not rule in
Plaintiffs’ favor – and also indicated that they had just discovered that the Neutral had a “conflict
of interest,” and thus, claimed he could not serve as a Neutral during the ENE.3

3

Plaintiffs asked

The conflict of interest, per Plaintiffs, centered on a previous lawsuit filed by these same Plaintiffs in the
Middle District of Florida (Cailin Soloff, et al. v. Roetzel and Andress, Cathy Reiman, Esquire, Lorna
Scharlachen, Esquire and Tamara Nicola, Esquire, Civil Action No. 2:17-cv-00426 (M.D. Fla.) “the
Florida Lawsuit”). In this Florida Lawsuit, one of the Defendants named therein, Lorna Scharlachen, was

7

this Court to reconsider its Order (doc. no. 63). In addition, their Reconsideration Motion (doc.
no. 64) suggested that the alleged “conflict of interest” was proof that the Court, the Neutral, the
Florida Lawsuit Defendant(s), and the Defendants’ counsel in the instant case were all conspiring
against Plaintiffs’ interests. Finally, in this Reconsideration Motion, Plaintiff Cailin Soloff
implied that she was now too afraid to attend the ENE, by stating as follows:
The SOLE Plaintiff scheduled to appear at that “ENE’ is a twenty[-]year
old, female, college student that resides in California and attends the
University of Southern California. She will not be attending any “ENE”
in which three, male attorneys in Pennsylvania have “conspired” to
“extinguish” the claims of Plaintiffs in a Pennsylvania Federal Court. The
“three” male attorneys are beginning to frighten, the “only” female college
student, who is only twenty-years old and “not” an attorney.
Doc. no. 64, p. 12 (emphasis added). Plaintiffs’ Reconsideration Motion also stated that their
neighbor is a public defender in Orange County, California and that they feel “more safe sharing
the information with him.” Id. The last section of this Motion (doc. no. 64) states as follows:
WHEREFORE, Plaintiffs are respectfully declaring Fraud Upon the Court
and Requesting an Attorney be appointed for Plaintiffs in Pennsylvania
and Defendants[’] Affirmative Defenses be Stricken and Memorandum
Order Reconsidered for Fraud Upon the Court.
Id., p. 13.
J. Defendants’ Response and the Court’s Ruling
On June 25, 2018, Defendants filed a Response to Plaintiffs’ Reconsideration Motion
(doc. no. 65), and on June 27, 2018, this Court issued its Order denying Plaintiffs’
Reconsideration Motion, thereby upholding the decisions it rendered in the Order entered on
June 21, 2018 at doc. no. 63, as well as the Order entered on April 12, 2018. Doc. no. 66. The
Court explained that under the law, specifically Max’s Seafood Café Max’s Seafood Café by Lou

a former Cohen & Grigsby attorney, who worked for the law firm’s Naples, Florida office. The Florida
Lawsuit was dismissed by that Court on January 30, 2018, after Plaintiffs filed a Motion for Voluntary
Dismissal.

8

Ann, Inc. v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999), it could not and would not reconsider its

June 21, 2018 Order.
With respect to its April 12, 2018 Order (which denied, without prejudice, Plaintiffs’
renewed request for pro bono counsel), the Court concluded that “[g]iven the extremely late
nature of the request and the fact that this case involves a complex matter and a lengthy factual
and legal history, it would be impossible for a pro bono attorney to be first appointed, run a
conflict check, and adequately learn the factual and legal intricacies of this matter in order to be
able to provide sound legal advice and advocacy by June 29, 2018.”
K. The Benefit to the Parties of the Early Neutral Evaluation
The Court further noted in this June 27, 2018 Order (doc. no. 66), that the ADR
proceeding was an ENE with the goal of providing the Parties with an objective, impartial review
of: (1) the claims asserted by Plaintiffs, as well as (2) the defenses asserted by Defendants,” and
concluded that because settlement was not likely to be discussed – especially given the
acrimonious nature of the motions and Defendants’ earlier position that they did not intend to
make a monetary offer – an advocate for Plaintiffs was not warranted at this juncture. The Court
summed up its position on this issue stating:
The ultimate goal of the Neutral at this upcoming ENE is to convey to the
Parties the strengths and weaknesses of their respective claims and
defenses and invite discussion openly, in a non-confrontational forum.
Therefore, the need to retain an advocate for Plaintiffs is not germane to
the upcoming ENE proceedings. For all of these reasons, the Court hereby
DENIES Plaintiffs’ request for a pro bono attorney.
Id. at 66.

9

L. The Court-Ordered Court Reporter
However, the Court, in this same June 27, 2018 Order, and again, in an effort to assist the
Parties in achieving a productive ENE – and to a lesser extent, diminish the “fear” Plaintiff
Cailin Soloff claimed to be having – ordered that the Neutral:
. . . retain or hire a court reporter or stenographer to attend this ENE on
June 29, 2018, to record all that is said by the Neutral and the Parties. The
Parties will equally bear the full cost of the attendance of the court
reporter or stenographer. (This cost is in addition to the Neutral fee, which
has already been paid in full, equally, by both Parties.) Although this
transcript will not be filed on the docket, it will assist the Parties
accurately recall what is discussed by one another and the Neutral during
the ENE. By having a full and complete record of this proceeding, if the
Parties wish to pursue mediation or some other form of settlement prior to
the trial of this matter, this transcript may prove to be valuable to the
Parties’ mediator.
Id.
M. Plaintiffs’ Failure to Attend and Participate in the ENE Requested by
Plaintiffs
On June 29, 2018, Plaintiffs failed to attend the scheduled ENE. Report of Neutral at
doc. no. 70, at p. 1. They did not appear either in person or by telephone. Id.
N. Plaintiffs’ Motion for Recusal
Instead, Plaintiffs filed the instant Motion for Recusal of the Trial Judge (doc. no. 67),
and one day later, on June 30, 2018, demanded that the Neutral refund them their share of his fee
($3,000.00) for their failure to attend the ENE and their failure to comply with a Court Order.
Report of Neutral at doc. no. 70, p. 3-4. On July 3, 2018, Defendants filed a Response in
Opposition to Plaintiffs’ Motion for Recusal. Doc. no. 71). This Court denied the Motion for
Recusal on July 5, 2018, for the reasons set forth herein.

10

III.

Legal Standard
Title 28 U.S.C. § 455 reads, 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, or
personal knowledge of disputed evidentiary facts concerning the
proceeding; . . . .

IV.

Discussion of the Court-Ordered ENE Process
Plaintiffs’ Motion for Recusal primarily focuses on the fact that this Court, at Plaintiffs’

own request, ordered the Parties to attend an ADR session with an expert in the field of estates
and trusts law. Indeed, the ADR Program in the United States District Court for the Western
District of Pennsylvania mandates that every litigant attend an alternative dispute resolution
session with a qualified professional, and this Court makes very few exceptions. This Court
routinely requires litigants to utilize one of the various ADR options in every type of lawsuit,
because ADR sessions provide the opposing parties with an opportunity to voice their grievances
via a more cost-effective process than a trial, which ultimately promotes judicial economy.
Because this Court and his colleagues have years of experience compelling parties, such
as those present here, to utilize one of the ADR processes, this Court has found that once the
parties are provided with the ADR tools to settle their dispute, they frequently do so without
further need of this Court’s intervention, either during the ADR session, or in the days and weeks
that follow.

11

One of three ADR options from which litigants may choose, is an Early Neutral
Evaluation or the “ENE” process. The ADR Policies and Procedures defines the ENE process as
follows:
“Early Neutral Evaluation” refers to a nonadjudicative, third-party
intervention by an impartial experienced attorney, selected by the parties,
with subject matter expertise. After reviewing concise presentations of the
parties’ claims, the neutral provides a non-binding evaluation of the case
and thereafter is available to assist the parties in reaching an agreement.
Section 1.2 of the ADR Policies and Procedures.
The ENE process is described in Section 4.1 of the Court’s ADR Policies and
Procedures as a confidential session wherein the parties and their counsel “make compact
presentations of their claims and defenses, including key evidence as developed at that
juncture, and receive a non-binding evaluation by an experienced neutral lawyer, selected
by the parties, with subject matter expertise. The evaluator also helps identify areas of
agreement, offers case-planning suggestions and, if requested by the parties, settlement
assistance.” Sections 4.2 and 4.3(A) of the Court’s ADR Policies and Procedures note
that the only civil cases eligible for an ENE process are those where a Judge assigns an
evaluator with subject matter expertise who is available during the appropriate time
period and has no apparent conflict of interest.
The ENE process is further described as an informal session where the Rules of
Evidence do not apply, where there is no formal examination or cross-examination of
witnesses, and where no recording of the presentations or discussions is made. Section
4.1(B) of the ADR Policies and Procedures. Finally, the actual ENE Procedure itself is
outlined in Section 4.9(A) of the ADR Policies and Procedures as follows:
Unless otherwise agreed to by the parties and evaluator, the evaluator
must:
12

1. Permit each party (through counsel or otherwise), orally and through
documents or other media, to present its claims or defenses and to describe
the principal evidence on which they are based;
2. Help the parties identify areas of agreement and, where feasible, enter
stipulations;
3. Assess the relative strengths and weaknesses of the parties’ contentions
and evidence, and explain the reasoning that supports these assessments;
4. Estimate, where feasible, the likelihood of liability and the dollar range
of damages;
5. Help the parties devise a plan for sharing the important information
and/or conducting the key discovery that will equip them as expeditiously
as possible to enter meaningful settlement discussions or to position the
case for disposition by other means;
6. Help the parties assess litigation costs realistically;
7. If the parties are interested, help them, through private caucusing or
otherwise, explore the possibility of settling the case; and
8. Determine whether some form of follow up to the session would
contribute to the case development process or to settlement.
In this case, prior to the Initial Case Management Conference, Defendants were opposed
to attending an ADR session, claiming it would be “fruitless,” because Defendants did not
intend to make a monetary offer. 4 See doc. no. 16, p. 4-5. Conversely, Plaintiffs
communicated their desire to have an ADR session on or before May 31, 2018. Id., p. 5. The
Report of the Rule 26(f) meeting reads in relevant part:
Plaintiffs opposed [Defendants’] viewpoint and were strongly in favor of
ADR. Prior to the “confer” plaintiffs were open to either ENE or
Mediation. Based on Defendants negative views of the ADR process,
plaintiffs now feel that neither party would benefit from mediation and
would best be served by an Early Neutral Evaluator with expertise in the
subject matter. Plaintiffs anticipate that the time frame should begin as
early as possible with resolution occurring on or before May 31, 2018.
Section 2.8 of the Court’s ADR Policies and Procedures reads, “A refusal to make an offer or a demand
shall not exempt ADR participation. The parties may either elect to move forward with the mediation
session or proceed to Early Neutral Evaluation (ENE).”
4

13

Id.
The above-quoted Report, in conjunction with discussion with the Parties’ and their
counsel during the Court’s April 4, 2018 Initial Case Management Conference, this Court
indicated in its minute entry that during the conference the Parties were ordered to attend and
participate in an ENE session. See Minute Entry at doc. no. 19. The Court also recommended
during the conference that the Parties select a Neutral with expertise in estates and trusts law and
suggested:
. . . Sam Goncz of Cohen & Grigsby, if Mr. Goncz can preside as the
neutral evaluator in this matter after performing a conflict check. If Mr.
Goncz can handle this matter as an evaluator, he is to be paid $6,000 in a
fee, by the Parties (50% of his fee to be paid by the Plaintiffs, and 50% to
be paid by the Defendants) in advance of the evaluation meeting.
Id.
In addition, based on comments made by counsel for Defendants and Plaintiff Cailin
Soloff at the Initial Case Management Conference, the Court ordered pre-ADR session
discovery, primarily in the form of document exchanges and provided the Parties with deadlines
for compliance. Id. All of the documents this Court ordered produced, sought by either side,
were due to the opposing side by April 30, 2018, thereby keeping this matter on track for an ENE
session on or before May 31, 2018 – the ADR deadline requested by Plaintiffs.
On April 10 and 11, 2018, Plaintiffs requested a pro bono attorney attend the ENE on
their behalf (doc. no. 22), and also requested that the Court waive their pro rata share
($3,000.00) of the Neutral’s fee. Doc. no. 25. As this Court explained in its Memorandum
Order, the Neutral had agreed to review, at reduced rate, all relevant materials – which would
necessarily have included the pleadings, the documents comprising two different Trusts that
were described in the Complaint (a 1978 Trust instrument and a 1994 Trust instrument), and any
14

other documentation provided by the Parties at their behest or as requested by the Neutral. Id.
Documentation of this sort would have been necessary to provide the Neutral with sufficient
data, so that he could, in turn, provide the Parties with a neutral evaluation of their respective
claims and defenses. Because this Court deemed this case to be a more complex estates and
trusts matter, due to the number and nature of the claims raised by Plaintiffs, and thus, the
volume of documents which would need to be reviewed by the Neutral in evaluating the merit of
those claims and asserted defenses, the Court ordered that the Parties pay their pro rata share of
the Neutral’s fee by May 4, 2018.5 Id.
With respect to Plaintiffs’ Motion for the Appointment of a Pro Bono Attorney, the Court
indicated that it would deny the request for an attorney until the record was clear that the Neutral
had been paid and that an ENE session would actually take place. Doc. no. 25. The Court
summarized its decision in its April 12, 2018 Memorandum Order stating that, “[i]n sum, the
Court is denying Plaintiffs’ request for a free ENE process and for a free attorney at the ENE, but
is willing to reconsider appointing a pro bono attorney for the ENE once the docket reflects that
the payments have been made to the neutral evaluator and that the ENE will proceed.” Id.
Plaintiffs chose to wait until five days prior to the ENE session to renew their request for
a pro bono attorney. Doc. no. 64. Plaintiffs did not file a separate Motion renewing their request
for a pro bono attorney; rather, they embedded this request within their June 24, 2018
Reconsideration Motion. In this compound Motion, Plaintiffs: (1) asked the Court to reconsider
one of its prior Orders related to discovery, based on a “smoking gun document,” (2) accused the

5

This Court extended the payment deadline to May 15, 2018, upon Plaintiffs’ request. See doc. no. 48.

15

Neutral of a conflict of interest; and (3) claimed Plaintiff Cailin Soloff was “afraid” to attend the
ENE.6 Id.
Finding no intervening change in controlling law, no new evidence, previously
unavailable, no necessity to correct a clear error of law or to prevent manifest injustice, on June
27, 2018, the Court denied the portion of this Motion seeking reconsideration of the Court’s
Prior Order. Doc. no. 66. The Court also denied the Plaintiffs’ renewed and embedded request
for a pro bono attorney, stating:
Given the extremely late nature of the request and the fact that this case
involves a complex matter and a lengthy factual and legal history, it would
be impossible for a pro bono attorney to be first appointed, run a conflict
check, and adequately learn the factual and legal intricacies of this matter
in order to be able to provide sound legal advice and advocacy by June 29,
2018. However, given that the purpose of the upcoming ENE is for the
Neutral to provide the Parties with an objective, impartial review of: (1)
the claims asserted by Plaintiffs, as well as (2) the defenses asserted by
Defendants, settlement will likely not be discussed and thus, advocacy will
not be needed. The ultimate goal of the Neutral at this upcoming ENE is to
convey to the Parties the strengths and weaknesses of their respective
claims and defenses and invite discussion openly, in a non-confrontational
forum. Therefore, the need to retain an advocate for Plaintiffs is not
germane to the upcoming ENE proceedings.
Doc. no. 66.

6

As to the Plaintiff Cailin Soloff’s fear, Plaintiffs stated in their Motion:
The SOLE Plaintiff scheduled to appear at that “ENE’ is a twenty[-] year old,
female, college student that resides in California and attends the University of
Southern California. She will not be attending any “ENE” in which three, male
attorneys in Pennsylvania have “conspired” to ”extinguish” the claims of
Plaintiffs in a Pennsylvania Federal Court. The “three” male attorneys are
beginning to frighten, the “only” female college student, who is only twentyyears old and “not” an attorney.

Doc. no. 64. Based on the above statements, regardless of whether a pro bono attorney was appointed by
the Court to attend the ENE, Plaintiffs indicated they would not attend the ENE.

16

In an effort to further assist the Parties, especially Plaintiff Cailin Soloff, who implied she
feared attending the ENE, the Court ordered that the Neutral retain or hire a court reporter or
stenographer to attend this ENE, to record all that was said by the Neutral and the Parties. Id.
The Parties were to equally bear the full cost of the attendance of the court reporter or
stenographer. Id. The Court further ordered that the transcript of the ENE was not to be filed on
the docket, so that it could be used solely by the Parties to enable them to accurately recall what
was discussed among the Parties and Neutral during the ENE, thereby protecting the confidential
nature of the ENE discussions. Id. In sum, the Court Reporter’s presence should have provided
Plaintiffs with an elevated comfort level in terms of attending the ENE.7
On June 29, 2018, Plaintiffs failed to attend the scheduled ENE. Report of
Neutral at doc. no. 70, at p. 1. In his Report, the Neutral notes that neither Plaintiff
appeared either in person or by telephone. Id. Instead, Plaintiffs filed the instant Motion
for Recusal of the Trial Judge (doc. no. 67), and one day later, on June 30, 2018,
Plaintiffs demanded that the Neutral refund them their share of his fee ($3,000.00) for
their failure to attend the ENE and their failure to comply with a Court Order. Report of
Neutral at doc. no. 70, p. 3-4.

In their Motion for Recusal, Plaintiffs cite to the Western District of Pennsylvania’s ADR Policies and
Procedures for the proposition that Court could not order the presence of a Court Reporter at their ENE.
To this end, the specific policy referenced by Plaintiffs states in relevant part:
7

Process Rules. The session must be informal. Rules of evidence must not apply.
There must be no formal examination or cross-examination of witnesses and no
recording of the presentations or discussion must be made.
See section 4.9 (B). This is a policy not a rule of law, and therefore the Court had the right (and several
sound reasons) to order a court reporter’s presence at the ENE.

17

Like every Mediator/Neutral, because the Neutral in this case had to prepare, in advance,
for the June 29, 2018 ENE session with the Parties, he received payment in advance of the
session. The fee paid to him by the Parties in this case – like every other case – is for the hours
and/or days of time spent by the Neutral in advance of the ENE session reading, reviewing,
analyzing, conducting legal and other research, communicating with the Parties, etc. The $6,000
(total) Neutral fee in this case was not only for the Neutral’s time – it was for his expertise and
thirty years of experience in the area of estates and trusts law.
Despite the fact that Plaintiffs requested an ENE with an expert, that Plaintiffs were
informed by this Court through a Court Order that the Neutral was performing these services at a
discounted rate, and that a court reporter was to attend the ENE solely for the benefit of the
Parties (in particular Plaintiffs) – no transcript would be filed on the docket – Plaintiffs exhibited
blatant disregard for the Court’s efforts and Orders, as well as the time the Neutral spent
preparing for the ENE, by failing to attend the session.
Although the Neutral had no obligation to do so, especially in light of the fact that
Plaintiffs simply chose not to attend the ENE (either in person or via telephone), the Court, sua
sponte, ordered the Neutral to “prepare a confidential, written . . . [e]valuation of the case (not to
exceed 5 pages), on or before July 13, 2018, for the parties and counsel only, in light of his
extensive work on the case, and the failure of the [ENE] to proceed because of the nonattendance and non-participation of Plaintiffs at the [ENE] on June 29, 2018.”
In this case, despite the lengths to which this Court has gone to assist Plaintiffs with the
procedures of this District, Plaintiffs incorrectly assume that this Court is part of a conspiracy
and/or is colluding with the Neutral (and the legal community at large), to strip them of the
monies they believe they are entitled to receive through the Trusts and Accounts they have

18

placed at issue. Doc. no. 64 and doc. no. 67. Although this Court employs less stringent
standards when considering pro se pleadings, motions, and arguments than when judging the
work product of an attorney, Haines v. Kerner, 404 U.S. 519, 520 (1972), Plaintiffs in this case
have gone too far.

V.

Discussion of the Motion for Recusal
Turning now to Plaintiffs’ arguments as to why this Court should recuse itself, the Court

notes there are essentially four main arguments to address.
A. Alleged Order Regarding the Selection of Neutral
For this argument, Plaintiffs focus on the minute entry entered by Court personnel at doc.
no. 19 of the docket in this case. This is not an Order of Court. Rather it is a text-only minute
entry which recaps what transpired at the Initial Case Management Conference “(ICMC”) on
April 4, 2018. As noted in this minute entry, the Court orally, during the ICMC, ordered the
Parties to attend an ENE – which was the ADR process Plaintiffs had requested during their Rule
26(f) conference, but Defendants had refused to consider. During the ICMC, the Court also
informed the Parties that Sam Goncz, from the Pittsburgh office of the law firm Cohen &
Grigsby, was the Court’s suggested Neutral, due to his expertise in the subject matter. The
minute entry reflects this information as well. The minute entry also summarizes the discussion
the Court had with the Parties concerning the Neutral’s fee, as well as some pre-ENE discovery
matters. After recapping the substantive matters that occurred at the ICMC, the minute entry
reads, “Signed by Judge Arthur J. Schwab on 05/22/17. . . .”
Plaintiffs make much of the fact that the “signed by” line contains a 2017 date.
Regrettably, the “signed by” line was an inadvertent clerical error. Because this minute entry
19

was not an Order, there was no need for a signature. As noted, doc. no. 19 was simply a minute
entry made by Court staff which included an incorrect date. Thus, Plaintiff’s argument does not
constitute a basis for recusal under 28 U.S.C. § 455(a) or (b)(1).
B. Alleged Conflict of Interest of Neutral
Next, Plaintiffs contend that the Neutral had a conflict of interest, and thus, was not truly
“neutral.” As noted above, the Neutral selected by the Parties for the ENE in this case was Sam
Goncz, who works in the Pittsburgh office of Cohen & Grigsby. Plaintiffs’ claim that Attorney
Lorna Scharlachen, who worked for Cohen & Grigsby’s law firm in Florida until May 30, 2018,
and was a defendant in the Florida Lawsuit (see footnote 3, above) had a two-day overlap with
Mr. Goncz’s active involvement in the instant case, and thereby creates a conflict of interest.
This Motion for Recusal is the second time that Plaintiffs have attempted to explain their
conflict of interest/conspiracy theory. In their earlier-filed Motion for Reconsideration, Plaintiffs
wrote as follows:
Plaintiffs reviewed Defendants ENE answers Thursday night. Much ado
had been made of the fact that Plaintiffs filed a Florida Lawsuit and a
Pennsylvania Lawsuit. What was “clearly” forgotten is that not only did
Plaintiffs have Pennsylvania Trusts, but Plaintiffs Father left a Florida
Estate, because he was deceased. Not only were Pennsylvania and Florida
lawyers commingling, those assets were also being commingled.
Now, in what can only be termed an EXTRAORDINARY set of
circumstances, Pro Se litigants have discovered that Pennsylvania and
Florida Attorneys are “likely” commingling again to quash, each and
every claim in both States. Plaintiffs are beginning to be believe there may
be more to their claims than meets the eye. Some people have a tendency
to forget, four fatherless children, were the receptacles, transfering [sic.]
Pennsylvania assets into Florida assets and vice versa. The Court may
remember that two of those children are Plaintiffs in this litigation.
*

*

20

*

On Thursday, Plaintiff Cailin Soloff had the day off and reviewed the
Florida lawsuit. It was like being punched in the gut. Never fear, the
connection was made immediately, Defendants wanted it known,
that the lawyer Plaintiffs are suing in Florida and the Evaluator who is
both parties,“Neutral” and a lawyer in Pennsylvania, are both individuals,
doing business at the law firm of Cohen and Grigsby. Additionally, the
Florida attorney we are suing is the Director of the Cohen and
Grigsby Firm and a member of its Estates and Trusts Group while the
Evaluator “assisting” us, in Pennsylvania, chairs the Cohen and Grigsby
Private Wealth Client Sector, which includes its Estates and Trusts.
Plaintiffs are doubtful, that not one person, knew about that conflict of
interest.
Doc. no. 64 (emphasis in original).
As this Court set forth above, the Florida Lawsuit was brought by these very Plaintiffs in
the Middle District of Florida (Cailin Soloff, et al. v. Roetzel and Andress, Cathy Reiman,
Esquire, Lorna Scharlachen, Esquire and Tamara Nicola, Esquire, Civil Action No. 2:17-cv00426 (M.D. Fla.)), and notably, Lorna Scharlachen was a named Defendant in the Florida
Lawsuit.8 However, the Florida Lawsuit was dismissed upon Plaintiffs’ Motion for Voluntary
Dismissal on January 30, 2018 – months before this Court held its Initial Case Management
Conference in the instant matter.
At the April 4, 2018 Initial Case Management Conference, when the Court suggested Mr.
Goncz from the Pittsburgh office of Cohen & Grigsby as a Neutral, no objections or concerns
were raised by Plaintiffs. When the Court published its recommendations in its minute entry at
doc. no. 19 on April 4, 2018, Plaintiffs failed to raise any concerns or objections about an alleged
conflict of interest relating to the Neutral. Plaintiffs knew as of that date that the proposed
Neutral was a member of Cohen & Grigsby, Pittsburgh; and that their dismissed Florida Lawsuit

8

The pro se Plaintiffs in the Florida Lawsuit, which include Plaintiffs in the instant case, identified Ms.
Scharlachen as a Cohen & Grigsby attorney, and therefore, knew this information at least as of July 26,
2017 – well before selecting Sam Goncz to serve as the Neutral in this case on April 11, 2018. See
17cv426 (M.D. Fla.), doc. no. 1.

21

contained a defendant who had at one time been a member of the Naples, Florida office of Cohen
& Grigsby.
If Plaintiffs had genuine concerns with regard to a potential conflict of interest, they
should have raised their conflict concerns much earlier than June 21, 2018. Instead, Plaintiffs
raised their conflict of interest concern only after this Court entered an Order which Plaintiffs
deemed to be unfavorable to them. Doc. no. 63. This timing raises doubt as to the sincerity of
Plaintiffs’ conflict of interest argument.
Further, Plaintiffs offer no support for the alleged bias of the Neutral, other than that he
and a one-time defendant in a dismissed lawsuit both worked for the same law firm, albeit in two
offices located over 1,100 miles apart. Without any evidence of bias, there can be no conflict of
interest.
Finally, this argument does not supply a basis for recusal under 28 U.S.C. § 455(a) or
(b)(1).
C. Alleged Tainting of the Neutral by Defendants
Plaintiffs next argue that Defendants’ attorney attempted to taint the ENE process and/or
the Neutral by providing the Neutral with public court documents from the Florida Lawsuit so
the Neutral would be made aware that a former employee of the Naples branch office of the
Cohen & Grigsby law firm, Lorna Scharlachen, was a Defendant. This argument is akin to the
argument made immediately above and will not support an argument for recusal for all of the
same reasons.
D. Court’s Order Denying Plaintiffs’ Reconsideration Motion (doc no. 66)
Finally, Plaintiffs contend that this Court should have granted their pre-ENE discovery
Motion to Compel/Motion for Sanctions, as well as their Motion to Strike Defendants’

22

Affirmative Defenses. Plaintiffs also argue that the Court should have granted their Motion to
Reconsider its Order, denying them the relief they sought, due to a “smoking gun document”
they produced.
The “smoking gun” document appears to be a statement from PNC Advisors showing a
summary of investments as of December 29, 2000 for Meghan Ellen Holtz Soloff Agency.9
Again, regrettably, Plaintiffs who paid their pro rata share of the Neutral’s fee would have
potentially benefitted greatly from an explanation of this document (and possibly other
documents) by the Neutral. They would have also benefitted from his explanation as to the
impact – or lack thereof – this and other documents may have on Plaintiffs’ claims and/or
Defendants’ defenses.
The Court finds this document to be benign from a recusal standpoint, and notes that this
document did not and does not assist the Court in reaching a conclusion different from the one it
reached in its prior Orders of Court. Accordingly, it does not form a basis for recusal.

VI.

Conclusion
Based on the foregoing, the Motion for Recusal (doc. no. 67) was denied by the Court.
s/Arthur J. Schwab
Arthur J. Schwab
United States District Judge

cc:

All ECF Registered Counsel of Record
and
Cailin and Dylan Soloff
31622 Fairview Road
Laguna Beach, CA 92651

9

There is a second document which is a single page from a larger document filed with a different court.
The page contains a chart which purportedly depicts the “balance” in “brokerage statements” for the years
1996 through 2008. The document was prepared by “Petitioner” (presumably Plaintiffs in this case), and
thus, is a self-serving document.

23