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Levy v. Weissman

decided: February 23, 1982; As Amended March 18, 1982.

ARTHUR J. LEVY, PETITIONER
v.
MILTON H. WEISSMAN, RESPONDENT HON. LOUIS C. BECHTLE, UNITED STATES DISTRICT JUDGE, EASTERN DISTRICT OF PENNSYLVANIA, NOMINAL RESPONDENT



PETITION FOR WRIT OF MANDAMUS

Before Hunter and Higginbotham, Circuit Judges, and Ackerman,*fn* District Judge.

Author: Hunter

Opinion OF THE COURT

Petitioner/defendant herein, Arthur J. Levy, seeks a writ of mandamus vacating the order which remanded his case to state court. Because we believe that the result in this case is governed by Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336, 96 S. Ct. 584, 46 L. Ed. 2d 542 (1976), we are constrained to grant the writ and order Judge Bechtle to vacate his order filed October 6, 1981, insofar as that order remanded this case to state court. Our action is of course without prejudice to the imposition of appropriate sanctions on petitioner for his failure to obey Judge Bechtle's order filed August 3, 1981, requiring him to comply with Rule 18(b) of the Local Rules of the United States District Court for the Eastern District of Pennsylvania (although no time limit was explicitly stated).

Respondent/plaintiff Milton H. Weissman sued petitioner Levy in state court for maliciously filing a complaint with the Disciplinary Board of the Supreme Court of Pennsylvania. Both petitioner and respondent are attorneys. Petitioner removed the case to federal court. The case was properly removed to federal court under 28 U.S.C. ยง 1441(a), because the case could have initially been brought in federal court pursuant to federal diversity jurisdiction.*fn1

By letter dated June 15, 1981, from the Clerk's Office to petitioner, petitioner was notified of Local Rule 18(b) of the United States District Court for the Eastern District of Pennsylvania (Exhibit A to Exhibit C of the Petition for Mandamus). With its letter, the Clerk's Office enclosed a copy of Rule 18(b), which provides:

Any party who appears pro se shall file with his appearance or with his initial pleading an address within the district where notices and papers can be served.

Local Rule 18(b) applies to petitioner Levy, who is appearing pro se, as it applies to all pro se litigants in the Eastern District of Pennsylvania.*fn2

On June 17, 1981, petitioner Levy wrote to the Clerk's Office (Exhibit B to Exhibit C of the Petition for Mandamus). In his letter, petitioner construed Rule 18(b) as impinging upon his right of self-representation, and argued that Rule 18(b) was therefore unconstitutional.

On or about July 29, 1981, petitioner Levy filed a motion and supporting materials seeking a declaration that Local Rule 18(b) not be enforced with regard to him (Exhibits C and D to the Petition for Mandamus). In his affidavit accompanying the motion, petitioner Levy conceded that he had not complied with Local Rule 18(b). In his Memorandum of Law (Exhibit D to the Petition for Mandamus), petitioner argued that Local Rule 18(b) is unconstitutional because it interferes with the right of self-representation.

In an order filed August 3, 1981, Judge Bechtle denied petitioner's motion to dispense with Local Rule 18(b) (Exhibit E to the Petition for Mandamus). By that written denial, the court reaffirmed the applicability of Local Rule 18(b) to petitioner. Petitioner, however, ignored the August 3 order.

According to his petition in this court, petitioner completely disregarded the court's August 3 order until September 24, 1981.*fn3 By a letter dated September 25, 1981, he wrote to inform Judge Bechtle that he would be out of the country from September 25 (the date of the letter) until mid-October, 1981 (Exhibit F to the Petition for Mandamus), and to ask the trial court to give him an extension to permit him to answer any motion filed by respondent in his absence. Petitioner neither complied with Local Rule 18(b) nor referred to the August 3 order in his letter.*fn4 On September 24, 1981, respondent Weissman's attorney mailed to petitioner and filed what was apparently a response to the removal petition, entitled Plaintiff's Motion to Dismiss Defendant's Petition To Transfer (Exhibits G and H to the Petition for Mandamus).*fn5 Plaintiff's motion was based upon petitioner's failure to comply with Local Rule 18(b).

In an order filed October 6, 1981, the trial court construed plaintiff's motion as a motion for remand and granted it solely as a sanction for petitioner's failure to obey Local Rule 18(b) and the court's order that he comply with Local Rule 18(b). This petition for mandamus followed.

The reasoning of the trial court in remanding the case to state court is attractive. Petitioner, a lawyer, chose to remove this case to federal district court, but, once there, refused to comply with the rules of that court. Petitioner also refused to comply with (and, indeed, completely ignored) an order of the ...


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