Opinion
Case No. 1:98 cv 75
Dated December 13, 1999
OPINION
On January 27, 1998, plaintiff Dennis Stewart filed his pro se complaint as a qui tam action under the False Claims Act, 31 U.S.C. § 3729, ostensibly on behalf of the federal government. In reality, the lawsuit reflected Dennis Stewart's ongoing private dispute with defendants. On August 31, 1999, the court entered its judgment in favor of defendants. In its discretion, the court awarded the prevailing defendants their reasonable attorney's fees and costs pursuant to 31 U.S.C. § 3730(d)(4), because plaintiff's lawsuit was clearly frivolous, clearly vexatious, and brought primarily for purposes of harassment. (docket #'s 75, 76). The matter is now before the court upon defendants' verified statements of costs and attorney's fees incurred in defending this lawsuit. (docket #'s 77, 78, 79, 81, 82, 83, 84). Plaintiff has filed his responses (docket #'s 85, 90) and the matter is ready for decision. Also before the court are motions by defendants Soet and Kolenda (docket # 86) and Kuhn, Vander Molen, and Pestka (docket # 88) to expand injunctive relief against plaintiff.
1.
The Michigan Attorney General's Office seeks costs and fees on behalf of the following defendants in this lawsuit:
1. Judge E. Thomas Fitzgerald;
2. Judge Gary R. McDonald;
3. Judge Hilda Gage;
4. Judge William Murphy;
5. Judge Martin Doctoroff,
6. Judge Donald Passenger;
7. Judge Janet Neff,
8. Judge David Sawyer;
9. Michigan Financial Institutions Bureau; and
10. Assistant Attorney General E. John Blanchard.
These defendants request a total of $983.61 ($875.00 in attorney's fees and $108.61 in costs). (docket # 77). Plaintiff's response to this request is found in his brief, docket # 85. Plaintiff complains that the Michigan Attorney General's Office should not have represented these defendants because plaintiff believes they are guilty of criminal wrongdoing. (docket # 80 at 9-10). Plaintiff's objection is frivolous. The decision by the State of Michigan to represent its judges, executive agencies and officers against plaintiff's lawsuit is for the state to make, not plaintiff.
Next, plaintiff argues that he cannot be subjected to sanctions because, in his opinion, activist Zolton Ferency was not subjected to similar sanctions. (docket # 85 at 1, 4). Whatever Mr. Ferency may have done in his lawsuits is irrelevant. Plaintiff was sanctioned by the court pursuant to 31 U.S.C. § 3729 for filing and pursuing this clearly frivolous, vexatious lawsuit, brought primarily for purposes of harassment. Plaintiff initiated and pursued this lawsuit on his own behalf against anyone who played a role, however trivial, in the state foreclosure and eviction proceedings or subsequently ruled against plaintiff in various lawsuits having their origin in those events. Plaintiff's subterfuge of bringing this lawsuit on behalf of the United States failed. He now attempts to cloak his lawsuit with legitimacy by draping flags from coffins of dead American soldiers over it. Plaintiff states as follows:
Relator acts on behalf of Lynn Renner, Ollie Cotton, Dan Lobker, and Teddy Westbrook — all of whom were boyhood friends and fellow soldiers from a tiny village who perished in the Viet Nam war while following the dictates of duty. If these individuals were here, they would certainly have something to say about a cowardly lot that in the main refuses to serve in the military but wastes no time in greedily siphoning off the bounties earned on the sacrifice of others. But they are silent. And its a pity that black robes don't come issued with a spine; then defendants could suppose themselves as honorable men. As they stand, they are not even shadows of real men.
(docket # 85 at 1). Plaintiff's purported actions on behalf of those who, unfortunately, can no longer disagree with plaintiff, is a tool of extreme convenience. Plaintiff is responsible for his own actions. His belated assertion that he is acting on behalf of others does not excuse liability for sanctions. Plaintiff has not advanced any cogent reason for a reduction of the requested sanctions. The State of Michigan defendants are entitled to judgment in their favor against plaintiff in the amount of $983.61.
2.
Defendants Kent County Circuit Court Judges Dennis Kolenda and David Soet, through their attorneys in the law firm of Bregman Welch, seek to recover $3,546.04 ($3,380.50 in attorney's fees and $165.54 in costs). (docket # 78). Plaintiff's response is primarily devoted to an insult directed towards Judith Bregman, the attorney filing the affidavit in support of the request for fees and costs by these defendants. Plaintiff states, "Judy Bregman bills her time at $110.00 per hour. As a half-wit, she is only worth $55.00 per hour. Because she defends by choice civic scum, she is entitled to nothing." (docket # 85 at 2). Plaintiff is entitled to his opinion. Defendants Kolenda and Soet are entitled to a judgment against plaintiff in the amount of $3,546.04.
3.
Defendants Katherine Kuhn, Richard Vandermolen, Steven Petska, through their attorneys Varnum, Riddering, Schmidt Howlett, seek to recover $3,947.00 in attorneys fees. (docket # 83). Rather than engaging the issue before the court, plaintiff again contents himself with vitriolic remarks concerning defendants and their legal counsel.
Richard Butler, affiant for costs and fees on behalf of Kuhn, Pestka, and Vandermoelen might better utilize his services in his normal expertise of library matters. . . . What defendants have in fact accomplished is nothing less than to provide an occupying force (the Michigan Bar Association) which has overthrown the Constitution of the United States to the extent that it applies to Michigan residents.
Such is revealed in the fabricated August 31, 1991 order of this court which obfuscates duties in equity and allows Fleet to retain possession of criminal proceeds. Consequently, the real currency of Kuhn, Pestka, and Vandermoelen deal in is Treason — the covert counterpart to sedition, precisely like the conduct demonstrated by Puerto Rican Nationals who were recently pardoned by William Clinton.
In light of this, Butler might wish to return to his bibliophiles and turn Kuhn, Pestka, and Vandermoelen's defense over to qualified counsel; which, if they continue on their present course, they will sorely find a need for. (docket # 85 at 2). Upon review, the court finds that the amount sought by these defendants is reasonable and represents costs reasonably incurred by defendants in defending plaintiff's lawsuit.
Judgment will enter in favor of these defendants against plaintiff in the amount of $3,947.00.
4.
Defendants John Logie, Mayor, City of Grand Rapids and Kurt Kimball, City Manager for the City of Grand Rapids, seek to recover $400.00 the City of Grand Rapids expended in defense costs. (docket # 82). Plaintiff's argument in response is as follows:
The City of Grand Rapids incurred no fees in representing John Logie and Kurt Kimball. The tax payers from the City of Grand Rapids, via the city charter have underwritten such cost as a matter of policy.
Daniel Ophoff receives a salary for his services and can produce no authentic billing which supports a gratuity of one hundred dollars per hour in addition to his salary. Any grant of fees would amount to "moonlighting" which is unauthorized for his position. His contrivance in search of extra pocket money is revealed by comparing his cost for services with that of the county defendants Kuhn, Peska, and Vandermoelen. (docket # 85 at 2). Plaintiff made the decision to file and pursue this frivolous lawsuit. He, not the taxpayers of the City of Grand Rapids, should bear financial responsibility. The fees attorney Ophoff seeks to recover are reasonable. The absence of a billing statement is without consequence. Attorney Ophoff's verified bill of costs is more than sufficient. Defendants Logie and Kimball are entitled to judgment in their favor against plaintiff in the amount of $400.00.
5.
Defendants Fleet Financial Group, Fleet Finance, Inc. Fleet Management and Recovery Corp., and Attorney Dan Bylenga through their attorneys Rhoades, McKee, Boer, Goodrich Titta seek to recover $12,202.25 ($12,048.75 in attorney's fees and $153.50 in costs). (docket # 79). Plaintiff did not object to the reasonableness of the attorney's fees sought by these defendants. These defendants were the primary targets of plaintiff's lawsuit. Upon review, the court finds that the $12,048.75 in attorney's fees sought by these defendants is reasonable. Plaintiff objects to defendants' "inflated costs for photocopies." In a June 30, 1999 order, the court found that these defendants filed an excessive number of copies of exhibits with the court. Defendants filed four duplicate motions with identical briefs and exhibits rather than as single properly supported motion. (docket # 66). These defendants will not be granted general photocopying expenses. However, the bill of costs clearly seeks recovery of $52.50 as the cost of certified copies of pleadings from plaintiff's prior lawsuits. Defendants are entitled to recover this cost for certified copies. A judgment will enter in favor of these defendants against plaintiff in the total amount of $12,101.25.
6.
Defendants Royce Hammer and Re/Max Preferred, Inc., through their attorneys Morrison, Mahoney Miller, seek to recover $870.00 in attorney's fees. (docket # 81). The law firm of Plunkett Cooney, P.C. also represented these defendants and seeks to recover $1,361.95 ($1,300.00 in attorney's fees and $61.95 in costs). (docket # 84). The court's August 31, 1999 judgment gave the defendants ten days from the date of the order within which to submit a verified bill of costs. Plaintiff had ten days thereafter within which to file his response. Defendants filed the Plunkett Cooney motion on September 15, 1999, five days after the deadline set forth in the order. Plaintiff did not file his response until October 5, 1999, ten days after the deadline established by the court's order. Plaintiff's objection states as follows:
As a matter of law this court is without jurisdiction to grant defendants' untimely request. But the rule of law has been neither a hindrance to treasonous misconduct, nor to David McKeague's implacable quest for a date with the executioner. Consequently, one can hardly blame persons with criminal tendencies for attempting to harvest additional illicit proceeds.
(docket # 90). Neither party has offered a reason for not complying with the timetable set forth in the court's order. However, plaintiff is mistaken when he asserts that the court-imposed timetable is jurisdictional. Neither party has demonstrated prejudice as a result of late filings by the other. In its discretion, the court will consider the filings by these parties as if they had been submitted in a timely fashion. Upon review, the court finds that defendants' requests for costs and attorney's fees are reasonable. Judgment will enter in favor of these defendants against plaintiff in the amount of $2231.95.
7.
Having dealt with the applications for costs and attorney's fees, the court will now focus on the motions to expand the scope of the court's injunction. In light of plaintiff's documented history of clearly frivolous and vexatious lawsuits brought primarily for purposes of harassment and the failure of earlier court-imposed monetary sanctions in other cases to deter plaintiff's misconduct, the court entered a permanent injunction. Among other things, the court enjoined Dennis Stewart from filing any civil action against any defendant named in this lawsuit or any other judicial officer or employee unless plaintiff first filed a bond with the court in the amount of $25,000 to cover costs, fees, and sanctions that may be levied against him in that litigation.
Defendants' motions (docket #'s 86, 88), filed pursuant to FED R. Civ.P. 60(b)(2), seek to expand the scope of the injunction's bond requirement to include all attorneys and law firms representing the defendants in this lawsuit. The "newly discovered evidence" cited by defendants are the threats of more lawsuits contained in plaintiff's responses to defendants' bills of costs. Plaintiff has repeatedly and unambiguously expressed his intention to file lawsuits against the court and defendants' attorneys.
Nonetheless, Relator is now extending an opportunity to each counsel, including [State of Michigan Assistant Attorney General] Kenneth Ross, to withdraw all demands for costs and attorneys fees. . . . McKeague's exercise in mockery, however, will not protect the various counsel herein from a citizen's arrest pursuant to MCL 764.16(b) for assisting Lesson in escaping the consequence of his crime as an after the fact co-conspirator. People v. Beard, (1988)171 Mi App 538. Thus, absent withdrawal of fee requests, it will be all the more reason to include counsel herein as defendants in the impending racketeering and FCA case against McKeague, Blanchard, and United American. Consequently, it is suggested that counsel for defendants carefully review their participation in their clients willful, criminal acts and make an informed choice whether to take communion. Injunction and attorneys fees will not end this matter. On the contrary, they only whet the appetite for sending a larger number of persons to prison. (docket # 85 at 4-5).
Most recently, plaintiff stated that "It would be a simple enough exercise to play a cat and mouse game and sue defendants and their counsel in state court." (docket # 90 at 2). Plaintiff is expressly advised by the court that such a "game" on his part would subject him to punishment under this court's contempt powers.
Defendants filed their motions to alter or amend the judgment more than ten days after entry of judgment. Defendants' motions cannot be construed as time-tolling motions for purposes of filing a notice of appeal. See FHC Equities, L.L.C. v. MBL Life Assurance Corp., 188 F.3d 678, 681-83 (6th Cir. 1999); United States v. Grable, 25 F.3d 298, 301 n. 3 (6th Cir. 1994); see also Banfield v. Turner, Nos. 94-3663, 94-3864, 1995 WL 544085, at *4 (6th Cir. Sept. 12, 1995). Plaintiff filed a timely notice of appeal of this court's judgment to the United States Court of Appeals for the Sixth Circuit (docket # 91). FED. R. APP. 4(a)(1)(B). Plaintiff's filing of a timely notice of appeal deprives this court of jurisdiction to adjudicate defendants' Rule 60(b) motions. See Pittock v. Otis Elevator Co., 8 F.3d 325, 327 (6th Cir. 1993). In such circumstances, this court should not decide the Rule 60(b) motion, but should certify to the Court of Appeals its likely decision were the case remanded for consideration of the Rule 60(b) motion. See Kuper v. Iovenko, 66 F.3d 1447, 1452 n. 1 (6th Cir. 1995); First Nat'l Bank of Salem, Ohio v. Hirsch, 535 F.2d 343, 346 (6th Cir. 1976); compare LSJ Investment Co. v. O.L.D., Inc., 167 F.3d 320, 324 (6th Cir. 1999) (not reversible error for the district court to simply deny the Rule 60(b) motion on the basis that a timely appeal deprived it of jurisdiction). The monetary sanctions awarded in this case, like previous sanctions imposed by the court, are unlikely to dissuade plaintiff from his present contemplated course of action of filing and pursuing frivolous lawsuits against defendants' attorneys. Under the extraordinary circumstances presented, this court certifies to the Court of Appeals that it would grant defendants' Rule 60(b) motions (docket #'s 86, 88) and expand the scope of injunctive relief to protect the defendants' attorneys from the next round of frivolous and vexatious lawsuits brought by plaintiff for purposes of harassment.
JUDGMENT AWARDING COSTS AND ATTORNEY'S FEES
In accordance with the opinion issued herewith and pursuant to 31 U.S.C. § 3730(d)(4):
IT IS ORDERED that judgment be and hereby is entered in favor of defendants Judge E. Thomas Fitzgerald, Judge Gary R. MacDonald, Judge Hilda Gage, Judge William Murphy, Judge Martin Doctoroff, Judge Donald Passenger, Judge Janet Neff, Judge David Sawyer, Michigan Financial Institutions Bureau, and Assistant Attorney General E. John Blanchard against Dennis Stewart in the amount of $983.61.
IT IS FURTHER ORDERED that judgment be and hereby is entered in favor of defendants Judge Dennis Kolenda and Judge David Soet against Dennis Stewart in the amount of $3,546.04.
ORDER CERTIFYING ANTICIPATED DISPOSITION OF RULE 60(b) MOTIONS BY THE DISTRICT COURT IN THE EVENT OF REMAND BY THE COURT OF APPEALS
In accordance with the opinion issued herewith:
The filing of a timely notice of appeal by plaintiff deprived this court of jurisdiction to rule upon defendants' Rule 60(b) motions (docket #'s 86, 88). If the Court of Appeals remanded the case to this court, this court would grant defendants' motions and expand the scope of its injunctive relief to include all attorneys and law firms representing any defendant in this lawsuit. The Clerk of the Court is directed to certify a copy of this order and accompanying opinion to the United States Court of Appeals for the Sixth Circuit.