Opinion
Civil Action Nos. 01-10868-DPW, 03-10061-DPW
March 13, 2003
MEMORANDUM AND ORDER
The plaintiff, a repetitive litigant in this court, initiated the second of the above captioned matters, Civil Action No. 03-10061, on January 9, 2003. He filed contemporaneously a document entitled "ex parte application for leave to proceed to prosecute ancient writ of audita querela persuant (sic) to Federal Rules of Civil Procedure #3 and #60(b)."
Civil Action No. 03-10061 appears to be an effort to revive the first of the above captioned matters, Civil Action No. 01-10868, a case filed in 2001 against some of the same defendants concerning an alleged violation of the plaintiff's civil rights arising out of a dispute over the empty bottles plaintiff was collecting for redemption. Koplow v. Dana, et al., Civil Action No. 01-10868-DPW. By Memorandum and Order dated September 4, 2002, I granted summary judgment for the defendants in that case.
After unsuccessfully seeking reconsideration in this court through the purported invocation of antiquarian writs, the plaintiff appealed, first on October 8, 2002, in First Circuit No. 02-2429, and then on January 11, 2003, in First Circuit No. 03-1010. Having unsuccessfully sought to hold those appellate proceedings in abeyance and facing a deadline for the filing of his appellate brief, the plaintiff-appellant moved to dismiss the appeals voluntarily. The Court of Appeals granted that motion. Meanwhile, through Civil Action No. 03-10061, the plaintiff sought to begin proceedings anew in this court, to re-litigate issues that he abandoned in the Court of Appeals. On March 12, 2003, the plaintiff filed an "Application for voluntary dismissal contra res adjudicarta [sic] (without prejudice) because wrong writ. So action may be refiled properly." Because I dismiss the action on the merits, this motion is moot.
As a substantive matter, I will direct the clerk to enter judgment against the plaintiff in Civil Action No. 03-10061 on res judicata grounds, finding no basis to apply Fed.R.Civ.P. 60(b) to the judgment in Civil Action No. 01-10868. Moreover, I will use this occasion to allow the outstanding motion of the defendants in Civil Action No. 01-10868 to require the plaintiff to seek approval of the court before filing further civil actions. As reasons for that motion, the defendants allege continued harassment by the plaintiff. Specifically, the defendants claim that plaintiff continually threatens to make defendants' attorney, Gerald Fabiano, himself a defendant in the ongoing litigation. In this connection, I note that on October 1, 2002 the plaintiff filed suit (Civil Action 01-11694-DPW) claiming that Attorney Fabiano was a "stranger to the record" and "no more than an onlooker, a sidewalk superintendent." I dismissed that action. In Civil Action No. 03-10061 the plaintiff again makes good his threat.
It is well settled that "federal courts have the discretionary power to regulate the conduct of abusive litigants." Elbery v. Louison, 201 F.3d 427 (1st Cir. 1999), quoting Cok v. Family Court of Rhode Island, 985 F.2d 32, 34 (1st Cir. 1993). In extreme cases, which impinge upon the limited time and resources of the court and the other parties, an injunction from filing frivolous and vexatious lawsuits is proper. See Castro v. United States, 775 F.2d 399, 408 (1st Cir. 1985);Pavilonis v. King, 626 F.2d 1075, 1078 (1st Cir. 1980);Gordon v. U.S. Dept. of Justice, 558 F.2d 618 (1st Cir. 1977). See also Sires v. Gabriel, 748 F.2d 49 (1st Cir. 1984); Rudnicki v. McCormack, 210 F. Supp. 905, 908-912 (D.R.I. and D. Mass. 1962), appeal dismissed sub nom,Rudnicki v. Cox, 372 U.S. 226 (1963).
The pattern of litigation commenced in this court by the plaintiff over the past four and a half years requires such an injunction. The plaintiff has filed thirteen actions in this court. He has variously failed to effect service, been unable to demonstrate subject matter jurisdiction, proved incapable of setting forth a short and plain statement of his claims, filed frivolously duplicative actions and used the litigation vexatiously. His efforts to draw defense counsel into the role of litigant serves to underscore his inability to conduct litigation properly without direct supervision.
The Appendix to this Memorandum and Order provides a list of each of these cases and their disposition.
Accordingly, it is hereby ORDERED
1. that Civil Action No. 03-10061 be dismissed, and
2. that Plaintiff David L. Koplow be precluded from filing any additional papers, claims, cases, files, complaints, or anything resembling those pleadings, or any other documents in the United States District Court for the District of Massachusetts, in any manner, way or form, without first obtaining the prior written approval of the Miscellaneous Business Docket Judge of the United States District Court for the District of Massachusetts; and it is
FURTHER ORDERED that in order to obtain the approval required by paragraph 2, supra, and before filing any additional papers in this Court, the Plaintiff shall file a written petition seeking leave of court to do so. The petition must contain a copy of this Memorandum and Order including the attachments, together with the papers sought to be filed, and a certification under oath that there is a good faith basis for their filing. The Clerk of Court shall accept the documents, mark them received, and forward them to the Miscellaneous Business Docket Judge for approval or disapproval of the petition.
A copy of this Order shall be distributed to each District Judge's session.
Failure of the plaintiff to comply with these requirements may result in additional sanctions being imposed upon the plaintiff.
APPENDIX
The following is a summary of the disposition of cases commenced in this court by the plaintiff, docketed both under the name David Koplow and David Kaplow:
97cv12059-JLT Kaplow v. Congregation Shomrai Linath, filed September 10, 1997.
This case was dismissed for lack of subject matter jurisdiction on September 16, 1997.
97cv12183-JLT Koplow v. Commonwealth of Mass., filed September 23, 1997.
This case, related to 97cv12059-JLT, was dismissed on December 5, 1997 for failure to demonstrate subject matter jurisdiction.
97cv12184-JLT Koplow v. Commonwealth of Mass., filed September 23, 1997.
This case, related to 97cv12059-JLT, was dismissed on December 5, 1997 for failure to demonstrate subject matter jurisdiction.
98cv11934-JLT Koplow v. Joseph Cooney, Director of Inspectional Services, City of Chelsea, Amy Santagate, Ben Gopin, Scott Harshbarger, and Donald Stern, U.S. Attorney, filed September 21, 1998.
This case was dismissed on September 15, 1999 for lack of subject matter jurisdiction.
98cv11971-JLT Koplow v. Edward Rizzo, Joseph Cooney, Director of Inspectional Services, City of Chelsea, Inhabitants of City of Chelsea, Ben Gopin, Lenus Hazedek, Attorney General, and the United States Attorney.
This case, related to 98cv11934-JLT, was dismissed on September 15, 1999 for lack of subject matter jurisdiction.
98cv12550-JLT Koplow v. Edward Rizzo, filed December 15, 1998.
This case was closed on March 14, 2001 for failure to make timely service.
99cv11800-JLT Koplow v. Congregation Shomri, filed August 26, 1999.
This action was dismissed on October 23, 2000 for failure to comply with FRCP Rule 4.
99cv12169-JLT Kaplow v. Edward Rizzo, filed October 16, 1999.
This case was dismissed on October 18, 1999 for failure to state adequate grounds for removal jurisdiction.
01cv10868-DPW Koplow v. Officer Dana et al., filed May 1, 2001.
The defendants in this case include Officer Dana, City of Chelsea and the City's Inhabitants, Chief of Police for the City of Chelsea, Thomas F. Reilly, Attorney General. Plaintiff alleged a violation of Plaintiff's civil rights, arising out of an alleged assault and battery by a police officer, responding to a dispute between the Plaintiff and Rizzo over the collection of empty bottles which Plaintiff was collecting for redemption.
On September 4, 2002, I issued a Memorandum and Order granting Defendant's motion for summary judgment, a copy of which is attached hereto as Exhibit A. A Judgment for the defendants issued.
On September 20, 2002 Plaintiff's motion to alter or amend judgment (#65, filed September 17, 2002) was denied.
On October 8, 2002, Plaintiff's "Motion to federal common law court of justice of procedure for writ of audita querela to rid plaintiff of defendants' oppression, past and present by excusing plaintiff from operation of judgment for now pursuant to FRCP60(b) and to serve interrogatories" (#67, filed October 4, 2002) was denied.
On October 24, 2002, Plaintiff's second subsequent writ of audita querela (#68, filed October 21, 2002) was denied.
On October 28, 2002, Plaintiff's motion to hold judgment and second successive audita querela in abeyance to allow plaintiff to apply for allowance coram nobis of an independent action of audita querela (#69, filed October 28, 2002) was denied.
On November 27, 2002 Plaintiff filed an application for leave to proceed to prosecute ancient writ of audita querela (#81), and on December 6, 2002 he filed for leave to amend that application. These motions were denied on December 16, 2002.
On January 14, 2003, Plaintiff voluntarily dismissed his appeals (1st Cir. Nos. 02-2429 and 03-1010) and Mandate issued (#89).
01cv11694-DPW Koplow v. Fabiano, et al., filed October 1, 2001.
This case is related to 01cv10868-DPW and includes the same defendants, with the addition of defense counsel, Gerald Fabiano, Esq. and the United States District Court for the District of Massachusetts. Plaintiff contested the right of Attorney Fabiano to file papers on behalf of the defendants in 01cv10868-DPW, and complained that this Court accepted such documents for filing in 01cv10868-DPW. On January 20, 2002 the defendants' motion to dismiss was granted, for failure of plaintiff to state grounds upon which relief could be granted.
01cv11879-DPW Kaplow v. Shomrei Lenns Hazedek, et al., filed October 23, 2001.
This case is being dismissed by a Memorandum and Order entered this day, a copy of which is attached hereto as Exhibit B.
02cv12149-DPW Koplow v. Congregation Shomrei, et al., filed November 1, 2002.
This case is being dismissed by a Memorandum and Order entered this day, a copy of which is attached hereto as Exhibit B.
03cv10061-DPW Koplow v. Dana William, Officer, et al., filed January 9, 2003.
This ex parte application to prosecute ancient writ of Audita Querela is related to 01cv10868-DPW and is being dismissed by the instant Memorandum and Order.
It should be noted that Plaintiff's pleadings are holographic, which apparently accounts for the alternative spellings of his last name in various dockets.