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Mruz v. Caring

September 26, 2001


The opinion of the court was delivered by: Orlofsky, District Judge



Plaintiffs, John Mruz, Vasilike D. Nika, and Jane Johnson, as well as their attorney, Gary Green, Esq., individually, have appealed the Order of Magistrate Judge Robert B. Kugler which granted Defendants' motion to revoke the pro hac vice admission of Mr. Green. The issue presented by this appeal is whether Judge Kugler's invocation of the traditional inherent power of federal courts to sanction attorneys, in this case the revocation of a pro hac vice admission of an unruly and offensive attorney, survives the Third Circuit's recent decision in Saldana v. Kmart Corporation, 260 F.3d 228 (3d Cir. 2001). For the reasons set forth below, I reluctantly conclude that Saldana compels me to reverse the decision of the Magistrate Judge because I find that it is now contrary to the law of this Circuit. My reversal of Judge Kugler's Order, however, does not, in any way, condone Mr. Green's offensive behavior. As this Court recently noted: "While Rambo may be a success at the box office, lawyers who appear in this Court and adopt Rambo as a role model do so at their peril." Murphy v. Housing Authority and Urban Redevelopment Agency of the City of Atlantic City, 2001 WL 984786 (D.N.J.).


The facts and procedural background giving rise to this protracted lawsuit are set forth in detail in this Court's January 28, 1998 opinion, Mruz v. Caring, Inc., 991 F. Supp. 701 (D.N.J. 1998) ("Mruz I") *fn1 , and, therefore, will not be repeated here. What follows is a summary of the facts relevant to this appeal.

On March 21, 1997, Plaintiffs, John H. Mruz, Vasilike D. Nika, and Jane A. Johnson ("Plaintiffs"), filed this action, which arises out of their discovery and investigation of alleged Medicaid and tax fraud by their employers and Plaintiffs' subsequent termination. The Defendants included *fn2 Plaintiffs' employer, Caring, Inc.; Caring, Inc. Board Members; Caring, Inc.'s law firm, Fox Rothschild, O'Brien & Frankel; and Ian Meklinsky, Esq. ("Meklinsky"), the Fox Rothschild attorney who represented Caring, Inc. in the circumstances giving rise to this case.

On July 7, 1997, Judge Kugler grante1d the unopposed motion of Gary Green, Esq. of Sidkoff, Pincus & Green, P.C., to be admitted pro hac vice, pursuant to Local Civil Rule 101.1(c) *fn3 , as counsel for Plaintiffs. The Order granting Mr. Green's pro hac vice admission stipulated that Mr. Green, a member of the bar of the Supreme Court of the Commonwealth of Pennsylvania, would be bound by the Local Civil Rules of the United States District Court for the District of New Jersey, including provisions concerning Judicial Ethics and Professional Responsibility *fn4 and Discipline of Attorneys *fn5 . See Order 7/7/97.

On May 18, 2000, Defendants moved to revoke Mr. Green's pro hac vice admission. The Revocation Motion was founded on Defendants' allegation that throughout the course of discovery, Mr. Green engaged in "highly uncivil and abusive behavior clearly designed to intimidate witnesses and counsel and to obstruct the discovery process." Mruz v. Caring, 107 F. Supp. 2d 596, 600 (D.N.J. 2000). Mr. Green denied these allegations. He argues that whatever inappropriate behavior he may have engaged in was justified as a response to the equally egregious conduct of his adversaries. Even if true, that argument is absurd, not to mention petulant. Indeed, it is clear from the record before me that for Mr. Green, this case is no longer about his clients' legal interests. It has become his own all-consuming personal crusade for vindication.

After the third day of the deposition of Meklinsky, Defendants filed a Motion to revoke Mr. Green's pro hac vice admission for his misconduct. The parties submitted extensive briefs, exhibits, certifications, and supplemental certifications, the relevant portions of which are set out in all their unseemly detail in Judge Kugler's Opinion. Judge Kugler heard Oral Argument on the Pro Hac Vice Revocation Motion on July 7, 2000.

After a "meticulous[] review[] of all transcripts, audio tapes and papers submitted", 107 F. Supp. 2d at 614, Judge Kugler found that Mr. Green's behavior was "venomous, abusive, outrageous and personal" id. at 613, and violated the Rules of Professional Conduct, specifically RPC 3.2, which Mr. Green agreed to abide by under the terms of his pro hac vice admission. Judge Kugler further found that Mr. Green "purposefully disregarded the admonitions and warnings of [this Court issued in Mruz v. Caring, 991 F. Supp. 701, 721 (D.N.J. 1998)(Orlofsky, J.) ("Mruz I") and Mruz v. Caring, 39 F. Supp. 2d 495, 507 (D.N.J. 1999)(Orlofksy, J.)("Mruz II")], thereby violating an Order of this court," id. at 614; that his relentless sarcasm "render[ed] the fact-finding process of a deposition virtually meaningless and his briefs incredible," id.; and that his overall behavior "clearly resulted in prejudice to defendants and to the administration of justice." Id. Relying on the Court's inherent power to sanction attorney conduct, Judge Kugler granted Defendants' Motion to revoke Mr. Green's pro hac vice admission. Mruz, 107 F. Supp. 2d at 614-15. Judge Kugler considered lesser sanctions under Fed. R. Civ. P 26(e)(5) and 30(d)(2), but found none "would rectify the grievous harm caused by Green's actions." Id. at 614.


The Federal Magistrates Act of 1968 (the "FMA") created the position now known as Magistrate Judge and allowed District Courts to refer a host of matters to Magistrate Judges for determinations subject to various levels of review by the District Courts. See 28 U.S.C. § 636(b)(1)(2000). Congress has amended the FMA several times since 1968 to expand the scope of the duties of Magistrate Judges in order to alleviate the increased burdens on District Courts. See, e.g., H.R. Rep. No. 94-1609 (1976), reprinted in 1976 U.S.C.C.A.N. 6162; see generally 12 Wright, Miller & Marcus, Federal Practice and Procedure: Civil 2d § 3066.

Subparagraph A of § 636(b)(1) governs a District Court's review of a Magistrate Judge's determination of a non-dispositive order, while subparagraph B governs the review of a Magistrate Judge's report and recommendation concerning a dispositive order. *fn6 The Federal Rules of Civil Procedure and the Local Civil Rules of the District of New Jersey each contain corresponding provisions. See Fed. R. Civ. P. 72(a), 72(b); Local Civ. R. 72.1(c)(1), 72.1(c)(2). "Matters concerning the disqualification of counsel and pretrial discovery matters are invariably treated as non-dispositive pretrial motions by courts in this jurisdiction and elsewhere." Andrews v. Goodyear Tire & Rubber Co., Inc., 191 F.R.D. 59, 68 (D.N.J. 2000)(citing cases).

The FMA provides that a District Court may reverse a Magistrate Judge's determination of a non-dispositive issue only if it is "clearly erroneous or contrary to law." 28 U.S.C. § 636(b)(1)(A)(2000); accord Fed. R. Civ. P. 72(a); Local Civ. R. 72.1(c)(1); see, e.g., Cipollone v. Liggett Group, Inc., 785 F.2d 1108, 1113 (3d Cir. 1986); see also Cooper ...

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