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Smith v. Lynn

United States District Court, D. Delaware

June 7, 2019

GERALD I. SMITH, JR., Plaintiff,
v.
SEAN M. LYNN, THE LAW OFFICES OF SEAN M. LYNN, P.A., Defendants.

          REPORT AND RECOMMENDATION

          SHERRY R. FALLON UNITED STATES MAGISTRATE JUDGE

         I. INTRODUCTION

         Plaintiff Gerald I. Smith, Jr. ("plaintiff) proceeds pro se and has paid the filing fee. He filed this lawsuit on September 13, 2018, alleging diversity of citizenship as well as violations of federal laws, treaties, and the Constitution. (D.I. 1 at 1) Presently before the court are the following motions: (1) the motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1), 12(b)(6), and 12(b)(7), filed by defendants Sean M. Lynn ("Mr. Lynn") and The Law Offices of Sean M. Lynn, P.A., (together, "defendants") (D.I. 6);[1] (2) plaintiffs motion for sanctions for bad faith conduct (D.I. 13);[2] and (3) plaintiffs motion for a preliminary injunction and motion for sanctions (D.I. 18).[3] For the following reasons, I recommend that the court grant defendants' motion to dismiss and dismiss the action with prejudice, deny plaintiffs motions for sanctions, and deny plaintiffs motion for a preliminary injunction.

         II. BACKGROUND

         Beginning in 2015, Mr. Lynn represented plaintiffs ex-wife, Olena Smith, in proceedings before the Kent County, Delaware Family Court ("Family Court") relating to her petition for divorce and motion for joint custody of the couple's three children. (D.I. 1 at ¶ 4) On March 7, 2016, defendants filed a petition for protection from abuse ("PFA") and emergency motion for ex parte custody on behalf of Ms. Smith. (Id. at¶2;D.I. 1-1 at 118-27) Plaintiff filed a counter-petition for protection from abuse on March 22, 2016. (D.I. 1-1 at 133-44) Ms. Smith's PFA petition was granted, and plaintiffs PFA petition was denied. (Id. at 102-08, 129-31, 359) On appeal, the Delaware Supreme Court affirmed the decision of the Family Court on March 22, 2017. (Id. at 38-44) On October 12, 2017, the Family Court granted exclusive custody of the three children to Ms. Smith and ordered plaintiff to undergo a psychiatric evaluation. (D.I. 1-1 at 214-19) Plaintiff appealed the custody decision to the Delaware Supreme Court, which affirmed the ruling of the Family Court on August 1, 2018.[4] (D.I. 8 at ¶ 257-59)

         On May 9, 2018, plaintiff sent defendants a demand letter for "reimbursement for damages" for alleged "litigation misconduct" during the Family Court litigation, alleging intentional infliction of emotional distress ("IIED"), as well as violations of federal law, the Delaware Lawyer's Rules of Professional Conduct, plaintiffs constitutional rights, and the Federal Rules of Civil Procedure. (D.I. 1-1 at 2-5) Plaintiff also alleged that defendants obstructed justice by conspiring with the psychologist who conducted the court-ordered competency evaluation. (Id. at 4)

         When defendants did not respond to the May 9, 2018 demand letter, plaintiff filed a complaint against Mr. Lynn with the Delaware Office of Disciplinary Counsel ("ODC") on September 4, 2018. (D.I. 1-1 at 7-12) In the complaint, plaintiff cited Mr. Lynn's alleged professional malpractice, "intentional negligence," and IIED. (Id. at 7) Plaintiff claims that defendants and Ms. Smith harmed him by submitting false and harassing motions to the Kent County Family Court beginning on March 7, 2016. (Id. at 7-8) As a result of the filing of the PFA petition and motion for ex parte custody, plaintiff contends that he was removed from his home, he lived in a homeless shelter for veterans, he was not permitted to see his children for five months, and he incurred substantial debt and harm to his reputation. (Id. at 9, 12)

         On September 13, 2018, plaintiff initiated the instant lawsuit by filing a complaint appearing to allege causes of action for legal malpractice, "intentional negligence," IIED, violations of various federal statutes, and a civil conspiracy between defendants, Ms. Smith, the Family Court, and Dr. Zingaro to discredit plaintiffs federal whistleblower complaints. (D.I. 1) In the complaint, plaintiff asserts the following injuries: (1) loss of custody and loss of consortium with children, (2) financial hardship and homelessness, (3) interference with plaintiffs application to the Air Force Board for Correction of Military Records and/or future employment and income opportunities, (4) discrediting plaintiffs federal military whistleblower complaints, and (5) harm to plaintiffs reputation and opportunity to return to the military. (Id. at 10-11) Plaintiff seeks relief in the form of $10 million in compensatory, punitive, and nominal damages, as well as the costs and fees of litigation. (Id. at 11-12)

         III. DISCUSSION

         A. Motion to Dismiss

         1. Rule 12(b)(1)

         Federal Rule of Civil Procedure 12(b)(1) authorizes dismissal of a complaint for lack of jurisdiction over the subject matter, or if the plaintiff lacks standing to bring a claim. Once the court's subject matter jurisdiction is challenged, the plaintiff bears the burden of proving that jurisdiction exists. See Lincoln Ben. Life Co. v. AEI Life, LLC, 800 F.3d 99, 105 (3d Cir. 2015); Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977). Motions brought under Rule 12(b)(1) may present either a facial or factual challenge to the court's subject matter jurisdiction. See Lincoln, 800 F.3d at 105 (quoting Common Cause of Pa. v. Pennsylvania, 558 F.3d 249, 257 (3d Cir. 2009)).

         Defendants present a facial challenge to subject matter jurisdiction in the present case. (D.I. 7 at 11) In reviewing a facial challenge under Rule 12(b)(1), the standards relevant to Rule 12(b)(6) apply. In this regard, the court must accept all factual allegations in the complaint as true, and the court may only consider the complaint and documents referenced in or attached to the complaint. See Church of Universal Bhd. v. Farmington Twp. Supervisors, 296 Fed.Appx. 285, 288 (3d Cir. 2008); Gould Elec, Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000). A case that is "wholly insubstantial, frivolous, and completely devoid of merit" may be dismissed for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). Mikkilineni v. Gibson-Thomas Eng'g Co., 379 Fed.Appx. 253 (3d Cir. 2010) (citing Oneida Indian Nation of N.Y. v. Oneida Cty., N.Y., 414 U.S. 661, 666 (1974)). Prior to dismissing a complaint, "a district court must permit a curative amendment unless such an amendment would be inequitable or futile." Great W. Mining & Mineral Co. v. Fox Rothschild, LLP, 615 F.3d 159, 174 (3d Cir. 2010) (quoting Phillips v. Cty. of Allegheny, 515 F.3d 224, 245 (3d Cir. 2008)).

         I recommend that the court grant defendants' Rule 12(b)(1) motion to dismiss plaintiffs causes of action for violations of federal statutes. The complaint recites alleged violations of a number of federal criminal statutes under Title 18 of the United States Code which do not provide a private right of action.[5] (D.I. 1 at 2-11) (citing 18U.S.C. §§ 241, [6]245, [7] 371, [8] 1001, [9] 1509, [10] 1512-13, [11] 1519, [12] and 1621[13]). As plaintiff is aware from his previous litigation in this court, plaintiff lacks standing to bring claims pursuant to Title 18 of the United States Code:

To the extent plaintiff seeks to impose criminal liability upon defendants pursuant to the federal criminal statutes upon which he relies, he lacks standing to proceed. See Allen v. Administrative Office of Pa. Courts, 270 Fed.Appx. 149, 150 (3d Cir. 2008); United States v. Friedland, 83 F.3d 1531, 1539 (3d Cir. 1996) ("[T]he United States Attorney is responsible for the prosecution of all criminal cases within his or her district."). The decision of whether to prosecute, and what criminal charges to bring, generally rests with the prosecutor. See United States v. Batchelder, 442 U.S. 114, 124 (1979). The federal criminal claims are devoid of merit.

Smith v. Knights of Columbus, C.A. No. 15-112-SLR, 2015 WL 4043756, at *5 (D. Del. July 1, 2015);[14] see also Jones v. Crisis Intervention Servs., 239 F.Supp.3d 833, 836 (D. Del. 2017) (concluding that the plaintiff lacked standing to bring causes of action under 18 U.S.C. §§ 241, 242, 249, and 1035). This defect cannot be cured by amendment. Semiani v. United States, 2016 WL 6879574, at *3 (W.D. Pa. Nov. 22, 2016).

         Plaintiff also lacks standing to assert his claims for violations of the Delaware Rules of Professional Conduct. As a preliminary matter, plaintiff contends that he "is not asking the Court to enforce the Delaware Rules of Professional Conduct," nor is he "alleging the Defendant 'somehow' prejudiced his rights during Family Court litigation" by violating the Delaware Rules of Professional Conduct. (D.I. 10 at 5) However, plaintiff goes on to contend that these alleged violations "were the cause of Plaintiff s injuries," and he seeks relief in this court because "[t]he Office of Disciplinary Counsel does not provide legal or equitable relief." (Id. at 5, 7)

         The law is well-established that "a non-client litigant lacks standing to enforce an alleged conflict between his opponent's counsel and a third party." In re Appeal of Infotechnology, Inc., 582 A.2d 215, 220 (Del. 1990). The purpose of the Delaware Rules of Professional Conduct is "to provide guidance to lawyers and to provide a structure for regulating conduct through disciplinary agencies. They are not designed to be a basis for civil liability." Id. Nonetheless, the Delaware Supreme Court has held that "a non-client litigant does have standing to enforce the Delaware Rules of Professional Conduct in a trial court when they can demonstrate to the trial judge that the 'opposing counsel's conflict somehow prejudiced his or her rights' and calls into question the 'fair or efficient administration of justice.'" Matter of Estate of Waters, 647 A.2d 1091, 1095-96 (Del. 1994) (emphasis in original).

         Construing the allegations in the complaint in the light most favorable to plaintiff, as the court must when considering a facial challenge to subject matter jurisdiction, the complaint appears to allege that defendants' conduct prejudiced plaintiffs rights. Plaintiffs complaint alleges that defendants violated the Delaware Rules of Professional Conduct and harmed plaintiff by unlawfully obstructing plaintiffs access to evidence in his home and denying plaintiff the opportunity to complete a household inventory. (D.I. 1 at 9) Plaintiff also incorporates by reference the complaint he filed with the ODC on September 4, 2018, which alleges that Mr. Lynn filed false and harassing motions, conspired with the Family Court, compelled Ms. Smith to commit perjury, and excluded critical evidence regarding plaintiffs whistleblower complaints and mental health history. (D.I. 1-1 at 7-12) The documents attached to the complaint show that similar arguments were raised by plaintiff before the Family Court and on appeal to the Delaware Supreme Court, which ruled against plaintiff. (D.I. 1-1 at 38-44, 46-63, 102-08, 111-14, 187-212, 262-70)

         Nonetheless, plaintiff lacks standing to state a claim for violations of the Delaware Rules of Professional Conduct in this court. "There can be no dispute that the Delaware Supreme Court alone establishes and governs the Bar." U.S. v. Kossak, 275 F.Supp.2d 525, 531 (D. Del. 2003), affd, 178 Fed.Appx. 183 (3d Cir. 2006). Plaintiffs complaint is currently pending before the ODC, which does not appear to have advanced the matter before the Board on Professional Responsibility or the Delaware Supreme Court.[15] Plaintiffs complaint is based on alleged conduct occurring before the Family Court, as opposed to conduct occurring in this court. (D.I. 1-1 at 7-12) Plaintiff has not shown how this court has jurisdiction over Mr. Lynn's alleged violations of the Delaware Rules of Professional Conduct in Family Court. See Carpet Grp. Int'l v. Oriental Rug Importers Ass'n, Inc., 227 F.3d 62, 69 (3d Cir. 2000) (party asserting subject matter jurisdiction has the burden of proving its existence).

Plaintiff also denies alleging a cause of action for legal malpractice in his complaint:
The Plaintiff did list one of the causes in his cover sheet as "professional malpractice" but did not include that as an actual claim in his complaint. The Plaintiffs only goal was to demonstrate that the Defendant had committed legal malpractice. The Plaintiff did provide a "detailed summary of the professional malpractice" in the complaint, but did not make that a claim in his complaint. Therefore the Plaintiff does agree with the Defendant that he does not have a legal claim for legal malpractice.

(D.I. 10 at 8) Even if the court were to set aside plaintiffs concession that he has no claim against defendants for legal malpractice, plaintiff lacks standing to assert ...


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