United States District Court, D. Delaware
GERALD I. SMITH, JR., Plaintiff,
SEAN M. LYNN, THE LAW OFFICES OF SEAN M. LYNN, P.A., Defendants.
REPORT AND RECOMMENDATION
R. FALLON UNITED STATES MAGISTRATE JUDGE
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); (2) plaintiffs
motion for sanctions for bad faith conduct (D.I.
and (3) plaintiffs motion for a preliminary injunction and
motion for sanctions (D.I. 18). 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.
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. (D.I. 8 at ¶ 257-59)
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)
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)
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)
Motion to Dismiss
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)).
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)).
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. (D.I. 1 at 2-11) (citing 18U.S.C.
§§ 241, 245,  371,  1001,  1509,  1512-13,
1519,  and 1621). As plaintiff is aware from
his previous litigation in this court, plaintiff lacks
standing to bring claims pursuant to Title 18 of the United
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
Smith v. Knights of Columbus, C.A. No. 15-112-SLR,
2015 WL 4043756, at *5 (D. Del. July 1, 2015); 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).
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)
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).
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)
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. 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
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 ...