Heghmann v . Rye, N H , et a l . CV-04-100-SM 03/18/05 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Robert A . Heghmann, Plaintiff

v. Civil N o . 04-100-SM Opinion N o .

Town of Rye, New Hampshire; Rye Board of Selectmen; Earl Rinker; Alan Gould; Kevin Walsh; Priscilla Jenness; Joseph G. Mills; John W . Moynahan; Djamel Hafiani; Ronald P. Indorf; Stephen M . Morrison; Hon. Susan DeVries; and the Law Firm of Gregoire, Morrison & Indorf, Defendants

O R D E R

By order dated November 8 , 2004, the court dismissed all of

plaintiff’s federal claims and declined to exercise supplemental

jurisdiction over his state law claims. Heghmann v . Town of Rye,

(D.N.H. Nov. 8 , 2004) (“Heghmann I ” ) . Defendants

Earl Rinker, Alan Gould, Kevin Walsh, Priscilla Jenness, Joseph

Mills, John Moynahan, and the Town of Rye (the “Rye Defendants”)

move for an award of costs and attorney’s fees. Similarly,

Attorney Ronald Indorf, Attorney Steven Morrison, and the Law

Firm of Gregoire, Morrison & Indorf (the “Law Firm Defendants”)

also move for an award of costs and attorney’s fees. Although those motions have been pending for more than three months,

plaintiff has not filed an objection.

Background

The factual background to this litigation is described in

detail in the court’s order dated November 8 , 2004, as well as in

the Bankruptcy Appellate Panel’s opinion in Heghmann v . Indorf,

BAP N o . 03-73,

(B.A.P. 1st Cir. 2004). Because the

factual background makes a difference in the court’s resolution

of defendants’ motions, it should probably be recounted in some

detail. The Bankruptcy Appellate Panel’s summation serves that

purpose well:

I . Eviction Proceedings and Robert Heghmann's Chapter 13 Petition

Robert and Beatrice Heghmann leased residential property owned by Appellee Djamel Hafiani. In February 2003, M r . Hafiani filed an eviction proceeding against the Heghmanns in the Portsmouth, New Hampshire District Court (the “State Court”) for failure to pay rent. On March 3 , 2003, after a hearing, the State Court [Judge Susan DeVries presiding] ordered the Heghmanns to pay rental arrears of $5,700 to M r . Hafiani by March 1 5 , 2003, or a writ of possession would issue as of March 1 7 , 2003, without further hearing.

The Heghmanns neither paid the $5,700 nor appealed the judgment. Instead, on March 1 3 , 2003, Robert Heghmann filed a voluntary Chapter 13 petition. Notwithstanding the filing of the bankruptcy petition, on March 1 7 ,

2 2003, the State Court issued a Notice of Default Judgment and a Writ of Possession in accordance with its March 3rd order.

On May 1 9 , 2003, Robert Heghmann filed a motion in the State Court to quash the writ of possession, alleging that the writ was void because it issued in violation of the automatic stay. However, on May 2 1 , 2003, the bankruptcy court dismissed Robert Heghmann’s Chapter 13 case for failure to file the required bankruptcy schedules and Chapter 13 plan. Accordingly, on May 2 3 , 2003, the State Court denied the Motion to Quash and issued a new Writ of Possession in accordance with its March 3rd order. The next day, the Heghmanns were evicted from the premises. The Heghmanns did not appeal.

On May 2 2 , 2003, the Heghmanns filed a complaint in the United States District Court for the District of New Hampshire alleging violations of the automatic stay by Mr. Hafiani and seeking a temporary restraining order. On May 2 8 , 2003, the district court issued an order sua sponte dismissing the complaint, finding that it lacked subject matter jurisdiction. The Heghmanns did not appeal.

On June 2 , 2003, Robert Heghmann filed two motions with the bankruptcy court: (1) a motion to “set aside” the dismissal of his bankruptcy petition, and (2) a motion for contempt against M r . Hafiani and his counsel, Attorney Ronald Indorf, for alleged violations of the automatic stay. The bankruptcy court denied both motions, concluding that Robert Heghmann had not established sufficient grounds to overturn the dismissal and that dismissal rendered moot the motion for contempt. Robert Heghmann did not appeal these orders, nor did he appeal the dismissal of his Chapter 13 case.

I I . Beatrice Heghmann’s Bankruptcy Proceedings

On June 1 9 , 2003, Robert Heghmann filed a voluntary pter 13 petition on behalf of his wife, Beatrice Chapt

3 Heghmann (hereafter, the “Debtor”). Thereafter, the Debtor filed three motions: (1) a Motion for Order Implementing Automatic Stay (the “Motion to Implement Stay”), (2) a Motion for Contempt, and (3) an Application for Partial Relief from Stay (the “Motion for Partial Stay Relief”). The Motion to Implement Stay sought an order allowing the Debtor to return to her previous residence and requiring M r . Hafiani to return the Debtor’s possessions. The second motion, although styled as a motion for contempt, alleged violations of the automatic stay by M r . Hafiani and Attorney Indorf and sought punitive and compensatory damages. The Motion for Partial Stay Relief sought relief from the automatic stay to allow the Debtor to pursue a federal civil action against M r . Hafiani and Attorney Indorf.

On August 1 2 , 2003, the bankruptcy court held a hearing on the three motions, at which Robert Heghmann and M r . Hafiani apparently testified. On August 1 9 , 2003, the bankruptcy court entered one order with respect to both the Motion for Contempt and the Motion to Implement Stay (the “Order”). On that same day, the bankruptcy court also issued an order denying the Motion for Partial Relief without further discussion.

In the Order, the bankruptcy court refused to consider any pre-petition stay violations. Rather, the bankruptcy court focused on post-petition actions taken by M r . Hafiani as landlord in handling the Debtor’s personal property. The bankruptcy court concluded that Mr. Hafiani had “pleaded” with the Heghmanns to pick up their personal property, making numerous telephone calls to the Heghmanns and even leaving the premises open several times. Finding M r . Hafiani’s testimony to be credible, the bankruptcy court concluded that there were no stay violations until M r . Hafiani sold some of the Debtor’s property at yard sales on July 12 and 1 9 , 2003. Accordingly, the bankruptcy court ordered him to pay damages of $1,200. The bankruptcy court also concluded that although M r . Hafiani’s actions were taken on the advice of his counsel, Attorney Indorf did not violate the automatic stay as he did not take any actions against the estate. This appeal ensued.

4 Subsequently, the Debtor’s bankruptcy case was dismissed for failure to file the required schedules and Chapter 13 plan.

at 398 - 400 (emphasis supplied) (footnotes omitted).

In March of 2004, plaintiff brought this suit. He filed a

48-page complaint against numerous defendants, including his

former landlord (Mr. Hafiani), the Town of Rye, New Hampshire,

the Rye Board of Selectmen, a sitting state court judge (Judge

DeVries), two attorneys, and a law firm. That complaint set

forth four federal claims and two state law claims, over which

plaintiff implicitly asked the court to exercise supplemental

jurisdiction.

Through his federal claims, plaintiff sought (again) to

recover damages for alleged violations of the Bankruptcy Code’s

automatic stay provisions and alleged violations of his

constitutionally protected rights to due process and equal

protection. Specifically, plaintiff’s complaint set forth the

following federal claims:

Count 1 : Alleged violations of the Bankruptcy Code’s Automatic Stay provisions by his former landlord (Djamel Hafiani), Chief of Police Alan Gould, Judge DeVries, and Sergeant Walsh.

5 Count 6: Alleged violations of the Bankruptcy Code’s Automatic Stay provisions by the Law Firm Defendants, Landlord Hafiani, the Town of Rye, and various Town officials.

Count 3 : Alleged violations of his constitutionally protected rights to equal protection and due process by Judge DeVries, Attorney Indorf, and Landlord Hafiani (the court assumed that this count was brought pursuant to

).

Count 4 : Alleged violations of Article VI of the U.S. Constitution (which provides, in part, that “all executive and judicial officers, . . . shall be bound by oath or affirmation to support this Constitution”) by Judge DeVries and Attorney Indorf (again, the court assumed that this count was brought pursuant to

).

The court dismissed all of plaintiff’s federal claims and,

although it noted that his state law claims were “of questionable

merit,” it did not rule on them, electing, instead, not to

exercise its supplemental jurisdiction.

As the court noted in its prior order, although plaintiff is

representing himself in this litigation, he is not the typical

pro se litigant.

Mr. Heghmann is an attorney, admitted to practice before the federal district courts in New York and Connecticut, the Court of Appeals for the Second Circuit, and the United States Supreme Court. Heghmann v . Fermanian,

at * 1 , n.1 (D.Me. Nov. 2 7 , 2000). He is no stranger to pro se litigation, at least some of which has been meritless. See

at * 4

6 (awarding sanctions against Heghmann and concluding that his “claims in this action were without merit from the beginning and would have been perceived as such by any objectively reasonable attorney.”). Nor is this the first time that litigation has flowed from Heghmann’s failure to honor rent and/or mortgage obligations. See Connecticut Sav. Bank v . Heghmann,

5 7 ,

(1984).

Heghmann I , at 2 n.1.

Standard of Review

Pursuant to Fed. R. Civ. P. 54(d) and

,

defendants move for an award of attorney’s fees and costs,

asserting that “plaintiff ignored prior unambiguous court rulings

and unreasonably initiated this frivolous and baseless litigation

in a court that has no jurisdiction to consider plaintiff’s

claims.” Rye Defendants’ motion for fees (document n o . 55) at 1 .

Although section 1988 vests the court with discretion to

award costs and fees to a “prevailing party,” the court of

appeals for this circuit has observed that “decisions to grant

defendants their fees are, and should b e , rare.” Tang v .

Department of Elderly Affairs,

, 13 (1st Cir. 1998).

The Supreme Court has held that, before a court may award

attorney’s fees to a prevailing defendant under section 1988, it

7 must first conclude that the plaintiff’s action was “frivolous,

unreasonable, or without foundation, even though not brought in

subjective bad faith.” Hughes v . Rowe,

, 14 (1980)

(quoting Christiansburg Garment C o . v . EEOC,

1 2 , 421

(1978)). The Court went on to observe:

The plaintiff’s action must be meritless in the sense that it is groundless or without foundation. The fact that a plaintiff may ultimately lose his case is not in itself a sufficient justification for the assessment of fees. As we stated in Christiansburg, . . . . “a plaintiff should not be assessed his opponent’s attorney’s fees unless a court finds that his claim was frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate after it clearly became so.”

Hughes,

.

Discussion

Prior to filing this action, plaintiff knew (or certainly

should have known) that his claims were frivolous, groundless,

and wholly without merit. Even if he were not a licensed

attorney, his prior experience in this and other courts should

have made it plain that the claims advanced in this case lacked

any legal or factual support.

8 In prior bankruptcy proceedings plaintiff litigated (and

then attempted to relitigate) his claims that various defendants

had violated the provisions of the automatic stay. With regard

to defendant Hafiani he actually prevailed (at least to a modest

degree). Consequently, to the extent he sought the same relief

from the same parties in this forum, he knew (or certainly should

have known) that his claims were barred by principles of res

judicata and/or the Rooker-Feldman doctrine. See Rooker v .

Fidelity Trust Co.,

(1923); District of

Columbia Court of Appeals v . Feldman,

6 2 , 476 (1983).

More to the point, however, in prior litigation in this

court Judge DiClerico specifically informed plaintiff that the

federal district court lacks subject matter jurisdiction over

claims involving alleged violations of the automatic stay.

Nevertheless, rather than appeal that order, plaintiff elected to

file this repetitive suit, in which he again asserted that

various defendants had violated the automatic stay. Such

conduct, particularly on the part of an attorney, i s , to say the

least, surprising.

9 In addition to his bankruptcy-related claims, plaintiff also

elected to file claims under

which any

reasonable attorney would have immediately recognized as entirely

without legal basis. First, his claims against the state court

judge were little more than a thinly veiled attack on the state

court’s order directing him to pay the rent he owed to Hafiani or

face eviction - an order plaintiff elected not to appeal. Those

claims were facially barred by the Rooker-Feldman doctrine.

Moreover, as the court noted in its order of dismissal,

plaintiff’s claims against the state court judge were undeniably

barred by the doctrine of absolute judicial immunity.

As to plaintiff’s remaining section 1983 claims (counts

three and four) the named defendants (Landlord Hafiani and

Attorney Indorf) are unquestionably private, rather than state,

actors. Plaintiff knew or should have known that state action

was not provable, and he certainly made no effort to plead that

the named private actors might be held liable under section 1983

because, for example, they acted in concert with state actors (of

course nothing suggests support for such a claim).

10 Based upon his training as an attorney and based upon prior

orders of this and other courts in related litigation, plaintiff

is presumed to understand that this court lacks jurisdiction over

claims alleging violations of the automatic stay. He is also

presumed at this point to understand the basic legal principle

that

attaches liability only to state actors, or

those acting under color of state law. Under the circumstances,

it is apparent that plaintiff initiated this baseless and

frivolous litigation fully aware of its character.

Discerning plaintiff’s motives (e.g., whether he seeks to

harass or intimidate the defendants, or whether he hopes to

extract something in settlement) would, of course, be somewhat

speculative on this record. But, one thing is clear: the federal

claims asserted in his complaint were frivolous from the start

and plaintiff did recognize, or should have recognized them as

such prior to filing his complaint. As was the case in

litigation brought by plaintiff in Maine, his “claims in this

action were without merit from the beginning and would have been

perceived as such by any objectively reasonable attorney.”

Heghmann v . Fermanian,

at *4 (D. M e . Nov. 2 7 ,

2000).

11 Conclusion

To be sure, awards of costs and attorney’s fees in favor of

prevailing defendants are reserved for rare cases. This is a

rare case.

Notwithstanding his pro se status, plaintiff is a licensed

and presumed competent attorney, who has, it would seem,

substantial experience. As an attorney, and given his prior

experience, plaintiff is charged with the basic understanding

that his constitutional rights cannot be violated by private

citizens (unless, for example, they act in concert with state

actors). He is also charged with knowledge of the substance of

the court’s orders in his cases. In prior litigation brought by

plaintiff, this court (DiClerico, J.) specifically held that it

lacked subject matter jurisdiction over his claims involving

alleged violations of the automatic stay. Nevertheless,

plaintiff filed virtually identical and repetitive claims in this

action, forcing defendants to expend resources and time in

addressing entirely baseless claims. He has failed to articulate

any good faith reason for doing s o , and the court can discern

none. But, regardless of plaintiff’s subjective motivation in

12 filing this suit, the claims he advanced were objectively

frivolous, unreasonable, and without legal foundation.

The Rye Defendants unopposed motion for costs and fees in

the amount of $15,952.88 (document n o . 55) is granted. The Law

Firm Defendants’ unopposed motion for reasonable costs and

attorneys fees (document n o . 56) is also granted, subject to the

court’s review of supporting documentation which counsel has

represented he will provide.

SO ORDERED.

Steven J. McAuliffe Chief Judge

March 1 8 , 2005

cc: Robert a. Heghmann Charles P. Bauer, Esq. Daniel J. Mullen, Esq. William C . Saturley, Esq.

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