Case: 11-2292

Document: 00116291138

Page: 1

Date Filed: 11/15/2011

Entry ID: 5595718

United States Court of Appeals For the First Circuit

No. 11-2292 LAURA J. MCGARRY Plaintiff - Appellant v. GERIATRIC FACILITIES OF CAPE COD INC., d/b/a Pleasant Bay Nursing & Rehabilitation Center, d/b/a Pleasant Bay Nursing Center LP, d/b/a Pleasant Bay Health & Living Centers; JOSHUA ZUCKERMAN; RENEE MIKITA; ROXANNE WEBSTER Defendants Appellees

CORRECTED OMNIBUS RESPONSE TO: (1) DOCKETING STATEMENT; (2) EMERGENCY MOTION TO CONSOLIDATE CASES; (3) MOTION TO TRANSMIT RECORD; (4) MOTION TO CORRECT DOCKETS; (5) EMERGENCY MOTION TO EXPEDITE RULING VACATING DISMISSAL OF WRIT OF MANDAMUS; AND (6) EMERGENCY MOTION SEEKING IMMEDIATE RELIEF; AND CROSS-MOTION FOR SUMMARY DISPOSITION Geriatric Facilities of Cape Cod, Inc., Joshua Zuckerman, Renee Mikita, and Roxanne Webster (collectively Defendants) file this omnibus response to the six papers filed by appellant Laura J. McGarry (Plaintiff) in this matter, Docket No. 11-2292, over the course of the previous week. Those filings are: (1) Docketing Statement, filed November 8, 2011; (2) Emergency Motion to Consolidate Cases, filed November 8, 2011; (3) Motion to Transmit Record, Filed November 9, 2011;

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(4) Motion to Correct Dockets, filed November 9, 2011; (5) Emergency Motion to Expedite Ruling Vacating Dismissal of Writ of Mandamus, filed November 9, 2011; and (6) Emergency Motion Seeking Immediate Relief, filed November 10, 2011. None of these motions has stated any basis for the relief requested therein, and they should all be denied.1 Defendants also cross-move for summary dismissal of this appeal, pursuant to Local Rule 27.0(c) of the Federal Rules of Appellate Procedure. No substantial question is presented by the orders from which Plaintiff takes her appeal, nor has any of her recently-filed motions provided a basis to delay summary disposition. I. DEFENDANTS OMNIBUS RESPONSE TO PLAINTIFFS FILINGS As Defendants discuss more fully in their cross-motion for summary disposition, below, Plaintiff has appealed six orders from the proceedings in this matter before the United States District Court for the District of Massachusetts (District Court), the last of which confirmed the dismissal of her District Court action, with prejudice, as a sanction for Plaintiffs abuse of the litigation process and for multiple acts in contempt of court orders. No substantial question is presented by the appeal of these orders. Indeed, the District Court expressly ruled that any appeal would not be taken in good faith. See Order, dated September

Plaintiff has filed copies of the same motions in a mandamus action Docket No. 11-1668. Defendants have opposed those motions in that action and cross-moved for an order precluding Plaintiff from filing additional papers in the action.
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12, 2011 (September 12 Order) (Docket No. 101). For the reasons stated below, Plaintiffs multiple motions should be denied. A. Inasmuch As Plaintiffs Motions Seek Relief In Connection With Case No. 11-1668, They Should Be Denied Because That Petition Was Dismissed, And The Time To Request Review Of The Dismissal Has Long Since Lapsed.

To the extent Plaintiff is asking the Court to vacate the denial of her Petition for a Writ of Mandamus (Petition) and to consolidate that action with this appeal, her request should be viewed as at most a request to rehear/ reconsider the denial of that Petition. It is immaterial whether such request is considered a request for rehearing or a request for rehearing en banc. In either case, the relief sought by Plaintiff is untimely. Indeed, Rule 35(c) of the Federal Rules of Appellate Procedure makes clear that the time for requesting rehearing is governed by Rule 40. Rule 40 makes clear that in a civil case, a request for rehearing must be made within 14 days, or, where the United States or its officer or agency is a party, within 45 days. Because Plaintiffs motion to vacate the judgment and to consolidate was not filed until November 8, 2011or over four months after the denial enteredthe request for relief should be denied. Plaintiffs effort to consolidate this matter with Docket No. 11-1668 is, apparently, an improper ploy to avoid the fact that Plaintiff did not request

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rehearing in a timely manner. The Petition action is closed. Plaintiffs filings seeking relief related to the action should, for that reason, be denied.2 B. Plaintiff Has Not Otherwise Established An Entitlement To The Requested Relief.

The motions that Plaintiff has filed to date should also be denied because there is no factual or legal basis for the relief they request. Rather, Plaintiffs submissions only perpetuate her campaign of unfounded attacks upon Defendants, Defendants counsel, and various judicial officers and court personnel. As noted above, it was just such a campaign that resulted in the District Court ruling that Plaintiff violated Rule 11 of the Federal Rules of Civil Procedureand eventually resulted in the contempt ruling that formed the basis for the dismissal of her case in the District Court. Finally, Plaintiffs submissions do not comply with Rules 27 or 32(a) of the Federal Rules of Appellate Procedure, in any event. III. DEFENDANTS CROSS-MOTION FOR SUMMARY DISPOSITION A. Factual And Procedural Background

The District Court dismissed Plaintiffs case, with prejudice, as a contempt sanction, after Plaintiff repeatedly and egregiously violated multiple court orders addressed to her litigation misconduct. See Order, dated June 28, 2011 (June 28 The only relief expressly requested in Plaintiffs so-called Docketing Statement is for this Court to vacate the June 20, 2011 dismissal of Plaintiffs Writ of Mandamus, in Case Number 11-1886. That request should be denied for the aforementioned reasons. The Docketing Statement should otherwise be stricken for its tendency to present substantive argument.
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Order). This conduct started very early in the District Court proceeding. It then continued until even after the June 28 Order issued, ultimately resulting in the revocation of Plaintiffs cm/ecf privileges. See September 12 Order. These

sanctions were leveled against Plaintiff despite the District Court having given Plaintiff multiple opportunities to conform her conduct to the courts orders. The history of the proceeding before the District Court is told through the orders the District Court was forced to issue. In its Order of January 19, 2011 (Docket No. 53), the District Court ruled on Plaintiffs Emergency Motion to Disqualify Counsel, Proposed Motion to Strike Answer, Motion for Default Judgment, and First Motion for Sanctions. Plaintiff, the District Observed that she: consistently ma[de] a variety of personal insults directed to the defendants and their counsel, to the point of harassment. In each of the pending motions, McGarry accuses defense counsel of committing fraud. She has also speculated that court staff are colluding with defense counsel to thwart her case. The Court finds that defendants are prejudiced in having to respond to the vexatious allegations made in McGarrys motions. The defendants commented, see Docket No. 44, that they should be spared the continued burden of footing bills for contesting such motions from plaintiff. The Court advises McGarry that under Rule 11, the Court may impose sanctions on an unrepresented party if he or she submits a pleading for an improper purpose or if the claims within it are frivolous or malicious. January 19 Order at 6-7 (citations omitted) (emphasis supplied). Notwithstanding the District Courts clear admonishment, Plaintiff persisted to file a stream of vexatious and frivolous documents. Fewer than ten days after the 5 Denying all relief requested by

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January 19 Order issued, this torrentconsisting of a Motion for Rule 16(b) Conference, Motion to Enjoin the Pro Se Staff Attorney, and a third Motion to Disqualify Counselforced the District Court to issue another order, on January 28, 2011 (January 28 Order) (Docket No. 57). In this order, the court noted that: . . . [W]hat began as an employment discrimination lawsuit has been lost and stalled amidst Plaintiffs relentless and baseless motions. The allegations and averments in the now pending motions filed by Plaintiff again demonstrate her heightened level of suspicion and hostility directed toward defense counsel as well as one of the Courts Pro Se Staff Attorneys (PSSA). Plaintiff continues her earlier speculation that defense counsel and court staff are acting to thwart her case. . . . . . . Rather than litigate her case, and not content to repeat her baseless allegations solely against defense counsel, Plaintiff has taken the occasion of her most recent filings to make an unwarranted, immaterial and unfair attack on the professional character of one of the Courts Pro Se Staff Attorneys, Barbara Morse. Needless to say, the record does not reflect any such conduct by Ms. Morse. Although McGarry believes that she has discovered a smoking gun by way of computer data, it reveals nothing more than the internal clerical and docketing system of the court. Plaintiffs conduct in making false allegations against defense counsel and Ms.Morse is in violation of Rule 11 of the Federal Rules of Civil Procedure. See Rule 11(b). Plaintiffs allegations are ungrounded in fact, totally meaningless as a matter of law, and interposed for an improper purpose, to wit, to harass without cause and to demand immediate attention from the undersigned for motions that, in her mind, require immediate adjudication. This is a civil action, and plaintiff is expected to conduct herself in a civil manner. The Court will not permit Plaintiff to continue with the personal attacks, derogatory commentary and baseless motions. Such behavior is unwarranted and completely irrelevant to the merits of this 6

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case. Plaintiff does not have the right to file pleadings for an improper purpose and in bad faith. For this, and for engaging in behavior that no reasonable person in like circumstances would have engaged in, Plaintiff is prohibited from making personal comments or attacks upon defense counsel or court staff, intimidating, harassing, or warning defense counsel or court staff in any way as to make a direct or indirect threat, or making reference to docketing information. If Plaintiff violates this order, the court will impose sanctions, which may include fines, dismissal of this civil action pursuant to Rule 41 of the Federal Rules of Civil Procedure, or any other sanction the court deems appropriate to correct the violation of its orders. January 28 Order at 2-3 (emphasis supplied). Plaintiffs filing persisted still. Shortly after the referral of the case to a Magistrate Judge, Plaintiff filed a Motion for Contempt against the Pro Se Staff Attorney and Defense Counsel as well as a letter addressed to the Clerk of Court. The Magistrate Judge ruled that each of [Plaintiffs filings] violate[d] the Courts 1/28/11 Order. Order, dated February 1, 2011, at 1 (February 1 Order) (Docket No. 61). The Magistrate Judge noted further that under Fed. R. Civ. P. 11, section 1927 of Title 28 of the United States Code, and caselaw regarding a courts inherent power to manage its own proceedings and to control the conduct of litigants who appear before it, a court may sanction behavior that constitutes bad[]faith or is vexatious, wanton or oppressive. Id. at 2. Noting that Plaintiff was continuing to engage in a pattern of filing baseless documents that harass defense counsel and court staff, the Magistrate Judge ruled that Defendants were 7

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not required to respond to Plaintiffs then-pending motion and that she was prohibited from filing any further pleadings or documents in this action until directed to do so by a judicial officer. Id. at 3. Not long after the February 1 Order issued, Plaintiff filed motions to

disqualify Judge OToole and Magistrate Judge Sorokin, in violation of the February 1 Order. Plaintiff also failed to file the only documents she had been ordered to file, e.g., certain discovery-related documents. See February 1 Order at 3-4. Defendants filed a motion for contempt, seeking dismissal of the case, on March 4, 2011. Although, as previously noted, Plaintiff had been warned on multiple occasions to refrain from vexatious and baseless allegations, her opposition to the motion for contempt included the following accusations: - usurpation by a pro se staff attorney with whom they [defense counsel and defendants] were colluding;[] - Defendants through their Defense counsel continue to conspire by a pattern of deliberate misrepresentation and deceit[;] - the reference order [was] written by the pro se staff attorney as she ruled on the injunctive relief motion;[] -multiple improprieties that indicated the pro se staff attorney and defense counsel to be in collusion; - pro se staff attorney [] was blatantly violating her rights . . . and manipulating the file date . . . along with other noted improprieties . . . she also usurped with rulings on January 20th sabotaging this plaintiffs case.[]

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Report and Recommendation on Motion for Contempt, dated March 23, 2011 (Report and Recommendation), at 5. Given this latest failure of Plaintiff to conform her litigation conduct to that requested by the court, and despite the leniency afforded to Plaintiff given her pro se status, the Report and Recommendation, at 6, concluded that Plaintiff, who denie[d] that she ha[d] violated the Courts Orders, was unable to appreciate the nature of her conduct and will be unable to conform her conduct to the Federal Rules of Civil Procedure in the future. The Report and Recommendation

suggested that the District Court should allow the motion for contempt and dismiss the action. The District Court adopted the Report and Recommendation on June 28, 2011. See June 28 Order, dated June 28, 2011 (June 28 Order) (Docket No. 86). In doing so, the court commented upon Plaintiffs persistence in ignoring lawful and reasonable orders and rules of this Court. June 28 Order at 1. The court noted that plaintiff ha[d] persisted in disregarding court orders, despite clear warnings of potential sanctions. Id. The court conluded that in light of the plaintifs willful disobedience of the court orders, dismissal with prejudice is an appropriate sanction. Id. at 2. Over two months later, after Plaintiff filed another barrage of documents not one of which stated any substantive bases for reconsideration, and all of which 9

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continued Plaintiffs pattern of harassment and frivolous argumentthe District Court entered yet another order, this time ruling that all pending motions [we]re denied and that any appeal would not [be] taken in good faith. Order, dated September 12, 2011 (Docket No. 101). The District Court further ordered that Plaintiffs cm/ecf account be terminated, and it enjoined Plaintiff from filing anything further in the District Court, except for an appeal. This appeal followed. Plaintiff has already established all-too-clearly that she will continue the pattern of abuse in which she engaged in the District Court by leveling one scandalous accusation after another against counsel to Defendants and court staff. The nature of Plaintiffs flings over the course of the previous three days reveals that the conclusion in the Report and Recommendation that Plaintiff is unable to appreciate the nature of her conduct and will be unable to conform her conduct to the applicable rules is thus already manifestly clear. Because Plaintiff has not statedand cannot stateany substantive basis for her appeal, the Court should summarily dismiss this appeal pursuant to Local Rule 27.0(c). B. Plaintiffs Appeal Should Be Summarily Dismissed Because It Is Without Merit.

There is no merit to this appeal, and it should accordingly be summarily dismissed. Local Rule 27.0(c) provides that on motion of appellee . . . , the court may dismiss the appeal . . . if it shall clearly appear that no substantial question is presented. See Jackson v. Norman, 264 Fed. Appx. 17, 21 (1st Cir. 2008) 10

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(applying L.R. 27.0(c) and summarily dismissing appeal of district courts grant of summary judgment to defendant/ appellee). Here, no such question is presented. The District Court expressly ruled that any appeal would not be taken in good faith. Order, September 12, 2001 (Docket No. 101). The barrage of motions Plaintiff filed over the last week presents the very salacious and baseless accusations that led the District Court to this conclusion. Plaintiff does not create appellate issues by regurgitating the very Fed. R. Civ. P. 11-violating arguments that led to her being ruled in contempt of the District Courts orders. And, indeed, those ordersspecifically, the five that Plaintiff identified as those she is appealingeasily pass muster under the applicable standard of review. The orders, as the District Court and Magistrate Judge carefully documented at the time, fell well within the courts established ability to manage the case. [C]ase management is a fact-specific matter within the ken of the district court . . . . Vallejo v. Santini-Padilla, 607 F.3d 1, 8 (1st Cir. 2010), quoting Robson v. Hallenbeck, 81 F.3d 1, 2-3 (1st Cir. 1996). Reversal should occur only for a clear abuse of discretion. Id. This standard of review is not appellant-friendlyand a sanctioned litigant bears a weighty burden in attempting to show that an abuse occurred. Vallejo, 607 F.3d at 8, quoting Young v. Gordon, 330 F.3d 76, 81 (1st Cir. 2003). [A]ppellate panels traditionally give district courts considerable

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leeway in the exercise of the latters admitted authority to punish noncompliant litigants. Id. Far from abusing its discretion, the District Court repeatedly accommodated Plaintiffs blatant disregard for its orders. It was only after multiple warnings documented abovethat the District Court finally ordered the case dismissed, with prejudice. The District Court was well within the proper exercise of its discretion when it so ordered. There is no basis for this appeal, and it should accordingly be summarily dismissed, pursuant to L.R. 27.0(c). C. If The Court Does Not Summarily Dismiss This Appeal, Plaintiff Should Be Precluded From Filing Further Papers In This Matter Altogether, Or At Least Without Leave Of Court.

Plaintiffs barrage of filings, in which she continues her bad-faith verbal assault of Defendants, counsel, and court personnel, are designed to harass Defendants and to increase the cost of defense unnecessarily. See Local Rule 38.0. The bad-faith nature of Plaintiffs actions is set forth in the various court orders quoted above. Because Plaintiff has proven herself be either incapable of or unwilling to adhere to the rules of procedure and governing Court orders, Defendants request, pursuant to Local Rule 38.0, that the Court in this matter sanction Plaintiff by entering an order limiting Plaintiffs ability to file in the action, as detailed in the next section.

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IV.

CONCLUSION For the foregoing reasons, Defendants respectfully request that the Court: (a) deny Plaintiffs (i) Docketing Statement, filed November 8, 2011; (ii) Emergency Motion to Consolidate Cases, filed November 8, 2011; (iii) Motion to Transmit Record, Filed November 9, 2011; (iv) Motion to Correct Dockets, filed November 9, 2011; (v) Emergency Motion to Expedite Ruling Vacating Dismissal of Writ of Mandamus, filed November 9, 2011; and (vi) Emergency Motion Seeking Immediate Relief, filed November 10, 2011; and/or (b) summarily dismiss this appeal, in its entirety, pursuant to Local Rule 27.0(c); and/or (c) pursuant to Local Rule 38.0, (i) preclude Plaintiff from making further filings in this action (Docket No. 11-2292) either altogether or without specific leave of the Court; (ii) relieve Defendants from any obligation to respond to any motions, requests, or other filings by Plaintiff in this matter unless Plaintiff obtains prior leave of this Court; and (iii) order such other relief as the Court may deem just, including but not limited to orders that Plaintiff reimburse Defendants for any legal fees and costs incurred in responding to any such filings by Plaintiff. Respectfully submitted, GERIATRIC FACILITIES OF CAPE COD, INC., JOSHUA ZUCKERMAN, RENEE MIKITA AND ROXANNE WEBSTER By their Attorneys, /s/ Brian M. Childs Guy P. Tully (Bar No. 33114) Brian M. Childs (Bar No. 119135) JACKSON LEWIS LLP 75 Park Plaza Boston, MA 02116 (617) 367-0025 13

Dated: November 15, 2011

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CERTIFICATE OF SERVICE I, Brian M. Childs, hereby certify that on November 15, 2011, I electronically filed the foregoing corrected document with the United States Court of Appeals for the First Circuit by using the CM/ECF system. The corrected document includes my e-signature in the certificate of service, attaches as exhibits the District Court orders that are referenced herein, and includes the word corrected in the title. I certify that the following is registered as an ECF Filer and that she will accordingly be served by the CM/ECF system: Laura J. McGarry.

Brian M. Childs
4820-0574-5165, v. 1

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