Burns v. Lavender Hill Herb , 167 F. App'x 891 ( 2006 )

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
1-31-2006
Burns v. Lavender Hill Herb
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-2651
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 05-2651
________________
THOMAS J. BURNS,
Appellant
v.
LAVENDER HILL HERB FARM, INC.;
PENNSYLVANIA CERTIFIED ORGANIC;
MARJORIE S. LAMB; *SUZANNE I. SEUBERT;
*CHRISTINE K. DEMSEY; *DEMSEY & SEUBERT;
KATHRYN E. LAMB; HELEN CALDER LAMB;
LESLIE ZUCK
*(Amended as of 6/23/05)
____________________________________
On Appeal From the United States District Court
For the Eastern District of Pennsylvania
(D.C. Civ. No. 01-cv-07019)
District Judge: Honorable Cynthia M. Rufe
_______________________________________
Submitted Under Third Circuit LAR 34.1(a)
January 26, 2006
Before: FISHER, ALDISERT AND WEIS, CIRCUIT JUDGES
(Filed: January 31, 2006)
_______________________
OPINION
_______________________
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PER CURIAM.
Appellant, Thomas Burns, appeals from the District Court’s orders
dismissing his complaint and entering judgment in favor of appellees, as well as several
orders relating to discovery issues. For essentially the same reasons set forth by the
District Court, we will affirm the judgment.
The background and factual allegations underlying this cause of action are
well known by the parties and need not be detailed here. Briefly, in December of 2001,
Burns – who had recently gone through divorce proceedings – filed the underlying civil
action against the following defendants: his ex-wife, Marjorie Lamb; his ex-wife’s sister
and mother, Kathryn Lamb and Helen Calder Lamb; his ex-wife’s organic produce
business, Lavender Hill Herb Farm, Inc. (“Lavender Hill”); a now defunct Delaware law
firm that represented his ex-wife during the divorce proceedings, Demsey & Seubert, P.A.
(“D&S”), and its attorneys, Suzanne Seubert and Christine Demsey; a Pennsylvania
corporation engaged in the business of inspecting and certifying organic farms and
produce, Pennsylvania Certified Organic (“PCO”); and PCO’s executive director, Leslie
Zuck. According to Burns, the Lambs conspired with Zuck, PCO and the other co-
defendants to misbrand and sell “conventional” produce as organic, causing him to lose
his business and allowing defendants to monopolize the organic food industry. Burns
alleged thirteen different causes of action in his complaint, including claims based on the
False Claims Act (“FCA”), the Sherman Antitrust Act, the Racketeer Influenced and
Corrupt Organization Act (“RICO”), trade libel, interference with commercial relations,
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abuse of process, civil conspiracy, fraudulent concealment, and assault and battery.
In an order entered on October 31, 2002, the District Court granted a
motion filed by defendants Demsey, Seubert, and D&S to dismiss the claims against them
for lack of personal jurisdiction under Fed. R. Civ. P. 12(b)(2). The District Court found
that these defendants lacked sufficient contacts with Pennsylvania to justify the exercise
of personal jurisdiction over them given the fact that they were all Delaware residents,
and that the extent of any involvement on their part was limited to Seubert’s
representation of Marjorie Lamb in divorce proceedings before the Delaware Family
Court. See Imo Indus., Inc. v. Kiekert AG, 155 F.3d 254, 259 (3d Cir. 1998); Time Share
Vacation Club v. Atlantic Resorts, Ltd., 735 F.2d 61, 66 n.9 (3d Cir. 1984). The court
also dismissed the FCA claims with prejudice for Burns’ failure to follow the requisite
statutory procedures for advancing such claims as set forth by 31 U.S.C. § 3730(b). See
also United States ex rel Pilon v. Martin Marietta Corp., 60 F.3d 995, 998-99 (2d Cir.
1995). Burns’ antitrust claim was likewise dismissed since he failed to allege an
“antitrust injury.” See Eichorn v. AT&T Corp., 248 F.3d 131, 140 (3d Cir. 2001), citing
Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 489 (1977). Appellant’s
RICO claims fared no better given his failure to allege a specific and determinable injury
to his business or property as required by 18 U.S.C. § 1964(c). See Holmes v. Sec.
Investor Protection Corp., 503 U.S. 258, 268 (1992); Maio v. Aetna, Inc., 221 F.3d 472,
494-95 (3d Cir. 2000). Finally, the District Court declined to exercise supplemental
jurisdiction over Burns’ remaining pendent state law claims. See Borough of W. Mifflin
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v. Lancaster, 45 F.3d 780, 788 (3d Cir. 1995). Those claims, like the antitrust and RICO
claims, were dismissed without prejudice and Burns was granted leave to file an amended
complaint.
Burns filed an amended complaint reasserting his antitrust and RICO
claims, as well as claims alleging abuse of process, trade libel, interference with business
relationships, civil conspiracy, conversion, fraudulent concealment, and assault and
battery. Once again, the District Court determined that Burns’ claims were fatally
deficient and could not survive the motion for summary judgment filed by the remaining
defendants. The reasons supporting the District Court’s decision are detailed in its
thorough 18-page Memorandum Opinion and Order entered on April 29, 2005, and we
see no reason to reiterate them. The District Court thus dismissed Burns’ amended
complaint. In that same order, the court denied discovery motions filed by Burns during a
sixty day extension period that was actually intended to allow the PCO defendants the
opportunity to investigate the authenticity of an exhibit (Exhibit T) Burns had only
recently submitted and to compel Burns to appear for a deposition. In particular, the
District Court denied as moot Burns’ requests for admissions and interrogatories
regarding Lavender Hill’s accountant, and admissions regarding, inter alia, Helen and
Kathryn Lamb’s residency and a state court judge’s alleged financial interest in Lavender
Hill. The PCO defendants were also granted leave to file a motion for reasonable costs
incurred in bringing their motion related to Burns’ Exhibit T (an exhibit actually stricken
by the District Court). Burns filed a timely appeal, and amended that notice to include the
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District Court’s subsequent order awarding fees and costs to the PCO defendants.
We have jurisdiction pursuant to 28 U.S.C. § 1291, and exercise plenary
review of an order granting summary judgment. McLeod v. Hartford Life and Acc. Ins.
Co., 372 F.3d 618, 623 (3d Cir. 2004). A grant of summary judgment will be affirmed if
our review reveals that “there is no genuine issue of material fact and that the moving
party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). We view the facts
in the light most favorable to the party against whom summary judgment was entered.
See Reitz v. County of Bucks, 125 F.3d 139, 143 (3d Cir. 1997). The District Court’s
discovery orders are reviewed for an abuse of discretion. Holmes v. Pension Plan of
Bethlehem Steel Corp., 213 F.3d 124, 138 (3d Cir. 2000). Burns raises a myriad of issues
on appeal. However, because we have determined that those issues are without any legal
and/or factual merit, we dispose of them with little or no discussion.
Burns devotes a large portion of his informal brief and reply brief to his
argument that the District Court erred in allowing defendants to “withhold” the identity of
Lavender Hill’s certified public accountant, together with documents that are allegedly in
that accountant’s possession. However, we must agree with the contention of PCO and
Zuck, as well as the determination of the District Court, that any such identification is
irrelevant to the issues of this case. As the District Court correctly concluded, Burns’
request for the identification of a different accountant appears to have been tied to his
mischaracterization of the PCO defendants’ claim regarding the fabrication of Exhibit T.
However, Burns failed to establish how any such individual would shed light on whether
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defendant Zuck’s signature was indeed a forgery. Moreover, the information Burns
insists that this accountant could provide relates almost entirely to the statements set forth
in Exhibit T, a document that was stricken by the District Court after the PCO defendants
submitted affidavits attesting to the forged signature it contained. Thus, we must agree
with the District Court that Burns failed to demonstrate how learning the identity of such
an individual would have altered its analysis of any his claims.
Burns’ assertion that the District Court erroneously imposed sanctions on
him twice for the same discovery violation is equally meritless. A review of the court’s
orders entered September 11, 2003 and May 27, 2005, show that the earlier order was
issued as a result of the court’s finding that Burns acted in bad faith in failing to provide
substantive responses to PCO’s and Zuck’s initial discovery requests and to produce
requested documents. The fees and costs awarded by the May 27th order, on the other
hand, were the result of the trouble and expense that the PCO defendants were put
through in addressing and investigating the authenticity of Burns’ Exhibit T (a document
that was not provided until after the initial discovery period had closed) and because of
Burns’ failure to actively participate in PCO’s deposition after being ordered to do so by
the court. We can find no abuse of discretion on the part of the District Court in
sanctioning Burns on two separate occasions given the facts presented.
Burns’ challenge to the court’s decision to dismiss Demsey, Seubert, and
D&S for lack of personal jurisdiction can likewise be disposed of easily given appellant’s
utter failure to meet his burden in establishing that these defendants had sufficient
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contacts with Pennsylvania to warrant the exercise of personal jurisdiction over them.
See Miller Yacht Sales, Inc. v. Smith, 384 F.3d 93, 94 (3d Cir. 2004). See also Remick v.
Manfredy, 238 F.3d 248, 255 (3d Cir. 2001) (Pennsylvania’s long-arm statute, 42 Pa.
Cons. Stat. Ann. § 5322(b), authorizes its courts to exercise personal jurisdiction over
nonresident defendants to the constitutional limits of the due process clause of the 14th
Amendment, but due process requires that the defendant have “minimum contacts” in the
forum state, and that the exercise of jurisdiction comport with “traditional notions of fair
play and substantial justice.”)(internal citations omitted). Burns offers nothing to support
his contention that he is entitled to go on a court-endorsed fishing expedition in an
attempt to meet this obligation through the discovery process.
We find it unnecessary to address Burns’ remaining issues as we have
carefully reviewed his claims and find them to be meritless. Accordingly, for essentially
the reasons set forth in its well-reasoned Memorandum Opinion entered on April 29,
2005, we will affirm the District Court’s judgment and its order imposing discovery
sanctions against Burns. The request for oral argument is denied.
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