Nicholas Malfitano Jan. 15, 2016, 8:49am


HARRISBURG – An attorney for a group of former Bucknell University students suing their alma mater and various school officials and law enforcement officers in federal court has been sanctioned by that same court.

Judge Matthew W. Brann issued a memorandum opinion and order on Dec. 16, explaining the Court’s confusion at an ongoing lawsuit filed by Bucknell alumni Kevin Wagner, Frasier Etsy and Tony Migliori, against a number of Bucknell officials (Bucknell Defendants) and members of law enforcement in both Union and Montour counties (County Defendants).

On the plaintiffs’ first version of the complaint, they missed the deadline for proposed class certification, whereas on the second version, material was stricken by the court for being “immaterial, impertinent and scandalous.”

In the third version of the complaint, the class allegation and stricken matter remained absent, but parts of the previously dismissed iterations, such as counts and portions of counts, were still present in the suit’s language.

“Plaintiffs’ failure to excise the dismissed portions of the complaint has now led to the instant Joint Motion to Strike the third amended complaint/Motion for Sanctions,” Brann said.

In that motion to strike, both the Bucknell and County defendants seek the striking of the third version of the complaint in its entirety and legal fees of $2,500 each to their respective counsel, for the plaintiffs’ and their counsel Devon Jacob’s alleged failure to abide by the Court’s April 23 order.

However, Brann stated he felt outright dismissal of the complaint was unnecessary.

“Defendants request that I sanction plaintiffs with dismissal of their case and assess attorneys’ fees for the time spent filing the motion. I do not believe that dismissal is warranted,” Brann stated.

After examining a group of six pertinent factors relating to the question of dismissal, including personal responsibility, possible prejudice to the adversary, a history of dilatoriness, whether the conduct was in bad faith, effectiveness of sanctions other than dismissal and the merit of the defense’s claim, Brann decided against dismissal of the third version of the plaintiffs’ complaint – with a caveat.

“I believe a monetary fine of $5,000.00, representing defendants’ attorney’s fees for the time expended filing the instant motion is sufficient,” Brann said.

Brann continued, “Mr. Jacob was warned after his second amended complaint that he was crossing the line with his less-than-artful pleadings. I have already had to strike portions of his second amended complaint. If plaintiffs’ counsel disagrees with the Court’s prior decision, the appropriate avenue is to request reconsideration through motions practice, not to parade witless observations in an amended pleading.”

Brann then put Jacob on notice he would be officially disqualified as plaintiff counsel if “his pleadings, discovery practice, motions practice and conduct at trial fail to conform to appropriate standards enunciated in the Federal Rules of Civil Procedure.”

Brann granted the defense’s motion to strike the third version of the complaint, ordered the plaintiffs to file a fourth version of the complaint governed by this order and the Court’s prior order of April 23, and for Jacob to personally pay the requested $5,000 in legal fees to defense counsel by Jan. 15 – or else, be further sanctioned with disqualification as plaintiff counsel.

In a Dec. 23 letter to the Court, Jacob explained he had filed a fourth version of the complaint with the Court and also forwarded a draft to opposing counsel for review, so that “the pleading complies with their understanding of the Court’s Orders, Federal Rules of Civil Procedure, and the Middle District Local Rules.”

The plaintiffs are represented by Jacob of Jacob Litigation, in Mechanicsburg.

The defendants are represented by Amy C. Foerster of Bucknell University’s Office of General Counsel in Lewisburg, Maureen P. Holland and Neil J. Hamburg of Hamburg & Golden in Philadelphia, plus David L. Schwalm and Matthew Clayberger of Thomas, Thomas & Hafer in Harrisburg.

U.S. District Court for the Middle District of Pennsylvania case 4:13-cv-03051

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nickpennrecord@gmail.com

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