Opinion
Civil Action No. 02-8508.
May 18, 2004
MEMORANDUM
In this civil rights case, in which Plaintiff proceeds pro se, four motions are presently before the Court:
1. Plaintiff's Motion for Partial Summary Judgment by Default on the Pleadings (re: Defendant Office of the Prothonotary) (Docket No. 49);
Plaintiff also filed a "Request for Judgment by Default Upon This Application to the Court Pursuant to Federal Rules of Civil Procedure Rule 55(b)(2) against Defendant Office of the Prothonotary" (Docket No. 58), which was filed on February 3, 2004. The Court docket does not recognize this Request for Judgment as an outstanding motion. In view of the Court's disposition, this request is moot.
2. Defendant Office of the Prothonotary's Cross-Motion to Dismiss (Docket No. 53);
3. Defendant Catherine Lonergan's Motion for Summary Judgment (Docket No. 54); and
4. Plaintiff's Motion in Limine to Strike and Exclude Tainted Audio Tape Evidence (Docket No. 59).
I. Background
A. Factual and Procedural History
Approximately seven years ago, Kenneth C. Ferber, a representative of Jacques Ferber, Inc. (collectively "the Ferber Defendants"), allegedly misplaced a fur coat that had been held in storage for Plaintiff, a customer of the Ferber Defendants. (First Am. Compl. ¶ 6.) After unsuccessful negotiations and settlement talks, Johnson initiated suit against the furrier in order to secure compensation. (Id.) Judging from the allegations within Plaintiff's First Amended Complaint, the lawsuit and the accompanying arbitration hearings had been marked by severe enmity. (Id. ¶ 9.) Thereafter, on February 9, 2000, Plaintiff filed a pro se civil action against the Ferber Defendants for defamation, fraud, and slander in the Philadelphia Court of Common Pleas. (Id. ¶ 15.) According to Plaintiff, the Ferber Defendants had uttered defamatory, perjurious testimony during the preceding breach of contract trial.
On the morning of August 20, 2001 (a Monday), Johnson and the Ferber Defendants appeared before the Honorable Gene D. Cohen ("Judge Cohen") for trial. (Id. ¶ 18.) As Plaintiff had received the Ferber Defendants' answer to her state court complaint that previous Saturday afternoon, she requested a continuance during which she could review the furrier's answer and respond appropriately. (Id.) Plaintiff avers that corrections were made to the state docket that apparently excused the Ferber Defendants' allegedly untimely response, and that these corrections deprived her of default judgment against the Ferber Defendants. (Id. ¶ 20.) Plaintiff attributes these alleged corrections to Defendant Office of the Prothonotary, and these alleged corrections form the basis of her pending claim against that defendant. (Id.)
Judge Cohen firmly ruled that the case had been assigned to him for trial and the parties would resolve their dispute that day in his courtroom. (Tr. at 6, 7-8, 10.) That day, Plaintiff withdrew her claim against the Ferber Defendants without prejudice. She withdrew her complaint in the case which was scheduled for trial before Judge Cohen because it allegedly had become obvious that she could not receive fair, objective treatment. "[I]t was glarenly [sic] evident that from the personal bias, prejudice and ill will of Judge Cohen, that he was not going to allow [Johnson] the opportunity to present a defense [sic] on her behalf nor to present evidence for default judgment. . . ." (First Am. Compl. ¶ 18.) Plaintiff thereafter secured the transcript of the proceedings before Judge Cohen and was allegedly surprised to learn that the transcript did not comport with her recollection of the proceedings.
Plaintiff filed an original complaint in this Court against Kenneth C. Ferber and Jacques Ferber, Inc. on November 18, 2002. (Docket No. 1.) By motion, Plaintiff was allowed to add additional Defendants and filed her First Amended Complaint on August 8, 2003 (Docket No. 16), adding Judge Cohen; Catherine Lonergan, the court reporter; and the Office of the Prothonotary as defendants. In its Order of November 26, 2003, this Court directed the plaintiff to file an amended complaint against Defendant Lonergan only, limited to a "short and plain statement" of her claim. On December 16, 2003, Plaintiff filed her Amended Complaint Against Defendant Catherine Lonergan Pursuant to Title 42 U.S.C. § 1983. (Docket No. 46) (hereinafter "Lonergan Complaint").
According to Plaintiff's Lonergan Complaint,
Plaintiff was deprived of her rights, privileges, an/or [sic] immunities secured by the Constitution, and laws of this United States, and the State of Pennsylvania, when Defendant, Catherine A. Lonergan did under color of state law, tamper/altered Plaintiff's trial transcripts, and destroyed the audio tape of Plaintiff's trial proceedings, thereby subjecting Plaintiff, or caused Plaintiff to be subjected to a clear deprivation of her rights, privileges, an/or [sic] immunities secured by the 5th 14th Amendments of the United States Constitution, and the Law of State of Pennsylvania, in her state civil trial proceedings, thereby denying Plaintiff of due process, and equal protection under the law.
(Lonergan Complaint, at 3.) Plaintiff asserts that Defendant Lonergan's actions caused severe injury to Plaintiff's state law claim (which alleged fraud, defamation, and slander against the Ferber Defendants), and that Defendant Lonergan's behavior is actionable under Section 1983.
B. Jurisdiction and Previous Opinions
This Court has jurisdiction over Plaintiff's claims pursuant to 28 U.S.C. § 1331 and 42 U.S.C. § 1983. 42 U.S.C. § 1983 provides, in pertinent part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. . . .42 U.S.C. § 1983 (2003). "The purpose of Section 1983 is to provide a civil cause of action to protect persons against the misuse of power possessed by virtue of state law and made possible because the defendant was cloaked with the authority of the state." Douris v. Dougherty, 192 F. Supp.2d 358, 363 (E.D. Pa. 2002). Venue is appropriate under 28 U.S.C. § 1391(b).
The Court already has issued two opinions. On October 15, 2003, the Court granted Defendant Judge Cohen's Motion to Dismiss, primarily on the grounds of judicial immunity. Johnson v. Jacques Ferber, Inc., No. 02-8508, 2003 U.S. Dist. LEXIS 19589 (E.D. Pa. Oct. 15, 2003). On November 26, 2003, the Court denied as moot the Ferber Defendants' Motion to Dismiss, having found that there existed no federal jurisdiction over Plaintiff's claims with respect to them. Johnson v. Jacques Ferber, Inc., No. 02-8508, 2003 U.S. Dist. LEXIS 22191 (E.D. Pa. Nov. 26, 2003).
In this second opinion, the Court also denied Defendant Lonergan's Motion to Dismiss, finding that as a court reporter, Defendant Lonergan was not entitled to absolute judicial immunity and that Plaintiff had pleaded sufficient facts, if proved, to support a finding that Plaintiff's rights, as secured by the Constitution and federal laws, had been violated by defendant Lonergan acting under color of state law.
Defendants Lonergan and the Office of the Prothonotary are the only remaining Defendants to this action. Both Defendants have filed dispositive motions.
The Court notes that Counts Four and Five of Plaintiff's First Amended Complaint charge that the Superior and Supreme Courts of Pennsylvania abused their discretion in their respective review of Plaintiff's state court lawsuit. Even though these courts likely would be entitled to judicial immunity, assuming they could be proper defendants (as Section 1983 only allows suits against a "person," see infra note 6), the Court will not rule on Counts Four and Five, as neither of these courts is named a defendant within the case caption, nor was either court served with process by Plaintiff.
II. Plaintiff's Motion in Limine to Strike and Exclude Tainted Audio Tape Evidence (Docket No. 59)
During the discovery period in this case, Plaintiff requested various documents and things from Defendants including an audiotape of the proceeding before Judge Cohen on August 20, 2001. Plaintiff initiated no other discovery. According to the documents before the Court, court reporter Lonergan initially could not find the audiotape, but it was subsequently found in December 2003 and an intelligible copy of the original audiotape was promptly turned over to the Plaintiff. Although the Plaintiff alleges prejudice from this late delivery of the audiotape, the Court has not been able to discern any prejudice from the record. Plaintiff has filed a Motion in Limine to strike and exclude the audiotape, asserting that it is tainted and false. The Court scheduled a hearing on this Motion, originally scheduled for April 5, 2004, but continued until April 15, 2004. The Order setting the hearing specifically said, "At this hearing, the parties shall be prepared to present evidence in support of or in opposition to Plaintiff's Motion in Limine to Strike and to Exclude Tainted Audio Tape Evidence." (Docket No. 63).
In support of her Motion, Plaintiff presents several arguments, and asks this Court to draw certain inferences from the late production of the evidence. Plaintiff argues that this Court should exclude the audiotape because it was not timely produced in response to her discovery requests, and because Plaintiff had structured the presentation of her case wholly dependent on Defendant Lonergan's alleged representations that the tape had been destroyed.
The Court agrees that the tape was eventually produced after the close of discovery, but finds that Plaintiff was not prejudiced by the late production. Plaintiff took no depositions during the discovery period. After the tape was produced, Plaintiff never pursued anything with regard to the audiotape, such as a request to take the deposition of Defendant Lonergan, or to submit a report by an expert who could have examined the tapes (both the original and the copy shared among the parties) to see if there was any evidence that the tapes had been tampered with or were otherwise fraudulent. According to her affidavit, Ms. Lonergan recorded onto audiotape the August 20, 2001 proceedings before Judge Cohen, and later used this audiotape on November 29, 2001, when she transcribed the Official Notes of Testimony. (Lonergan Aff. ¶¶ 4-5.) Lonergan's affidavit makes no mention of any form of reporting other than audiotape. Plaintiff never pursued any issue as to whether there exists a steno tape or other method of reporting. Ms. Durbin (Ms. Lonergan's attorney) has had the original audiotape in her possession since December 2003, after collecting it from Lonergan order to reformat the audiotape to play at a more intelligible speed, before distributing these copies among the parties and the Court. (Durbin Aff. ¶¶ 4, 7-9.) Through discovery, Plaintiff could have requested the original audiotape and could have subsequently submitted it to an expert whose examination might have uncovered deletions or evidence of tampering. Plaintiff's failure to pursue an independent expert review of materials readily available to her well before the April 15, 2004 hearing severely prejudices her Motion in Limine. E.g., Mummau v. Aul, No. 95-0988, 1996 U.S. Dist. LEXIS 5905 (E.D. Pa. May 1, 1996) (granting summary judgment in favor of a court reporter where the plaintiff failed to retain an expert witness to read the court reporter's notes and determine whether the transcript accurately reflected the notes and whether any physical breaks in the notes indicated possible deletions).
Even without discovery, Plaintiff could have subpoenaed Ms. Lonergan, Bruce E. Rodger, Esq. (counsel for the Ferber Defendants), or for that matter, Judge Cohen, to the hearing held on April 15, 2004. It appears from the tape that a court crier was present in the courtroom on that date. Plaintiff subpoenaed none of these people for the April 15, 2004 hearing. It also appears from the transcript that James R. Urquhart, Esq. was present in the courtroom on that date. Plaintiff listed Mr. Urquhart as a witness for trial in her revised pretrial memorandum (Docket No. 66), but he was not subpoenaed to testify at the April 15, 2004 hearing.
At the hearing on April 15, 2004, Plaintiff testified to her version of events, basically repeating what she has asserted in her complaints and in her various briefs. However, she had no other evidence to present, and Plaintiff's version of the events before Judge Cohen is completely contrary to the audiotape and the written transcript. The Court finds that Plaintiff is not credible with respect to her recollection of what took place at the hearing, and also finds that the evidence before this Court shows that the audiotape is an accurate rendition of what occurred before Judge Cohen on August 20, 2001, and that the transcript, except for a few missing words of no substance, is a completely accurate transcript of what is on the audiotape. There is no evidence whatsoever that supports Plaintiff's version of events except for Plaintiff's own testimony. Plaintiff could have, by either discovery and/or by calling witnesses at the April 15, 2004 hearing, corroborated her version of events if her version was true. However, failing to do so, the Court finds against Plaintiff, as to the Motion in Limine.
Plaintiff has failed to prove that Defendant Lonergan played the tape for Judge Cohen, concocted a plan to modify the written transcripts to remove all references to Judge Cohen's alleged partiality, and then erased the tape — presumably at Judge Cohen's request — in order to eliminate evidence. Considering that Plaintiff has always alleged that the transcript does not accurately reflect what transpired before Judge Cohen, Plaintiff argues that the audiotape itself — which perfectly corresponds with the written transcript save minor, non-substantive variations — is a product of the same conspiracy that existed to alter the written transcript. Plaintiff continues to allege that the audiotape is
false, tainted and the product of and official fabrication by defendant Catherine A. Lonergan, Attorney Jean Y. Durbin, Esq., and District Attorney Mark Gilland, who now have mysteriously produced an [Audio Tape] of plaintiff's trial proceeding in which but dose [sic] not present the true fact of said proceedings where Judge Cohen did in fact display a persoanl [sic] bias, ill will and partially [sic] of Judge Cohen, which is the bases [sic] of plaintiff Amended Complaint against defendant Catherine A. Lonergan.
Mr. Gilland is a paralegal at the Philadelphia District Attorney's Office who made copies of the audiotape such that they could be played on a regular tape recorder at the request of defense counsel, the original tape being formatted for play on special machines. (Def. Lonergan's Mem. Supp. Summ. J. at 5 n. 1.)
(Pl.'s Mot. at 3-4.) Plaintiff offers nothing to substantiate this claim beyond her personal recollection of the court proceedings, and the timing of the audiotape's production.
Defendant Lonergan submitted an affidavit responding to Plaintiff's arguments as part of her Motion for Summary Judgment. (Docket No. 54). Notwithstanding the fact that she produced the audiotape relatively late in the litigation, Defendant Lonergan contends that she immediately produced the audiotape to her counsel in December 2003 upon finding it for purposes of disclosure to Plaintiff. Defendant Lonergan asserts she never "sat on" relevant evidence as Plaintiff implies, nor told Plaintiff at any stage in the litigation that she destroyed the audiotape of the state court proceedings. Defendant Lonergan argues that the audiotape is highly relevant to this case as it demonstrates Defendant Lonergan's transcription was consistent with what actually occurred in the courtroom. Regarding Plaintiff's accusations that the audiotape is a fraud perpetrated on the Court, Defendant Lonergan emphasizes that Plaintiff has no support for her claims.
Although the Court will consider Defendant Lonergan's affidavit in connection with her Motion for Summary Judgment, discussed below, because Defendant Lonergan did not appear at the hearing on Plaintiff's Motion in Limine, the Court will not consider the affidavit on the latter issue, as it is hearsay. However, as Plaintiff has failed to sustain her burden of proof on the Motion in Limine, the Court finds that the Motion in Limine is without any basis in fact. Plaintiff's Motion in Limine will be denied.
III. Dispositive Motions
A. Plaintiff's Motion for Partial Summary Judgment by Default on the Pleadings (re: Defendant Office of the Prothonotary) (Docket No. 49)
Plaintiff has filed a motion for default judgment pursuant to Federal Rules 55 and 56 against the Office of the Prothonotary, claiming that the Defendant has failed to respond in a timely manner, as required by law in a civil matter. Attached to her motion are several exhibits. Exhibit A contains photocopies of certified mail receipts apparently showing that Plaintiff mailed the summons and copies of every successive filing to the Office of the Prothonotary, where an office employee signed for each mailing. Regarding its "failure" to respond to Plaintiff's complaint, motions, or papers, Defendant Office of the Prothonotary argues that it never was properly served with the summons, complaint, or amended complaints, as required by Rules 4(d) and 4(j) of the Federal Rules of Civil Procedure.
Plaintiff claims that service via certified mail is proper, but she is mistaken. Service by mail is not proper.
"Absent waiver, the Federal Rules require either personal service or, pursuant to FED. R. CIV. P. 4(e)(1), service that complies with state law." Boley v. Kaymark, 123 F.3d 756, 757 (3d Cir. 1997). Under Pennsylvania law, service by mail is only permitted where the defendant(s) reside outside of Pennsylvania. PA. R. CIV. P. 404.King v. Timmoney, No. 02-6669, 2003 U.S. Dist. LEXIS 20193, at *21 (E.D. Pa. Oct. 27, 2003). A default judgment entered when there has been no proper service of the complaint is void. See, e.g., Gold Kist, Inc. v. Laurinburg Oil Co., 756 F.2d 14, 19 (3d Cir. 1985). Given that the Court concludes that Plaintiff had not properly served the Defendant Office of the Prothonotary, the Court will deny Plaintiff's Motion for Default Judgment.
B. Defendant Office of the Prothonotary's Cross-Motion to Dismiss (Docket No. 53)
1. Legal Standard
When deciding a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the Court may look only to the facts alleged in the complaint and its attachments. Jordan v. Fox, Rothschild, O'Brien Frankel, 20 F.3d 1251, 1261 (3d Cir. 1994). The Court must accept as true all well-pleaded allegations in the complaint and view them in the light most favorable to the plaintiff. Angelastro v. Prudential-Bache Sec., Inc., 764 F.2d 939, 944 (3d Cir. 1985). A Rule 12(b)(6) motion will be granted only when it is certain that no relief could be granted under any set of facts that could be proved by the plaintiff. Ransom v. Marrazzo, 848 F.2d 398, 401 (3d Cir. 1988).
A pro se complaint, "however inartfully pleaded," must be held to no less stringent standards than formal pleadings drafted by lawyers and can only be dismissed for failure to state a claim if it appears "beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)).
2. Analysis
Defendant Office of the Prothonotary has appeared, represented by the Philadelphia City Solicitor. Its principal argument in support of its Motion to Dismiss is that Plaintiff has stated no cognizable claim against the office, which itself is not a suable entity.
With respect to its argument that it is not a suable entity, Defendant Office of the Prothonotary proffers several legal theories in support. First, if the defendant is treated as an operating department within the City and County of Philadelphia, it is not a separate legal entity capable of being sued individually. Under Pennsylvania statute, no city department shall have a separate corporate existence, and any suit against a city department must be in the name of the City of Philadelphia. 53 PA. CONS. STAT. § 16257 (2003). See generally Douglas v. Healy, No. 01-7039, 2003 U.S. Dist. LEXIS 4922, at *2 n. 1 (E.D. Pa. Mar. 3, 2003) (Baylson, J.) (recognizing that the Philadelphia fire department is not a separate legal entity against which suit can be maintained under Section 16257);Scirrotto v. City of Philadelphia, No. 88-7774, 1989 U.S. Dist. LEXIS 3976 (E.D. Pa. Apr. 13, 1989) (dismissing the Philadelphia City Council and the Board of Mental Health and Mental Retardation as neither constituted a suable entity under Section 16257).
However, the Court concludes that the Office of the Prothonotary is unable to assert this Section 16257 privilege, as the Pennsylvania Supreme Court has held that the Office of the Prothonotary is an arm of the state judiciary, and not a city office within the scope of municipal government and municipal affairs. Commonwealth ex rel. Specter v. Martin, 232 A.2d 729 (Pa. 1967); Lennox v. Clark, 93 A.2d 834 (Pa. 1953). Because the Office of the Prothonotary is not a city office, the Court need not address its arguments for dismissal under Monell v. Dept. of Social Servs., 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), or the Political Subdivision Tort Claims Act. 42 PA. CONS. STAT. §§ 8541 et seq.
In Walsh v. Tate, 282 A.2d 284 (Pa. 1971), the Pennsylvania Supreme Court modified its ruling in Lennox in light of the Pennsylvania Constitution's transformation of the Office of the Prothonotary from a state office to a city office. Section 16(y) of the Schedule to the Judiciary Article of the 1968 Constitution, as relied upon in Walsh, states:
The Offices of the prothonotary and register of wills in the City of Philadelphia shall no longer be considered constitutional offices under this article, but their powers and functions shall continue as at present until these offices are covered in the Home Rule Charter by a referendum in the manner provided by law.
The court in Walsh concluded that the Section 16(y) language, while indicating a preference for conversion of these offices into city offices, provided for the continuation of the status quo until the electorate decides when, and if, the offices should be covered in the Charter. 282 A.2d at 291. Since there has yet to be a referendum approved by the Philadelphia electorate on this issue these two positions remain "state offices." E.g., McMenamin v. Tartaglione, 1991 Phila. Cty. Rptr. LEXIS 25, at *14 n. 10 (Mar. 26, 1991).
The City Solicitor also argues that if the Prothonotary's Office is treated as an agency of the Commonwealth of Pennsylvania, instead of a city department, it enjoys Eleventh Amendment immunity. The Prothonotary is appointed by the Court of Common Pleas, 42 PA. CONS. STAT. § 2732(b), and the government of the Commonwealth includes its courts and other offices and agencies of the unified judicial system. 42 PA. CONS. STAT. § 102. The Eleventh Amendment bars Plaintiff's Section 1983 damages claim against the Office of the Prothonotary. Federal courts cannot consider suits by private parties against states and their agencies unless the state has consented to the filing of such a suit. Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 241, 105 S.Ct. 3142, 87 L.Ed.2d 171 (1985); Edelman v. Jordan, 415 U.S. 651, 662, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). This immunity extends to suits asserting civil rights violations where the state is named as a defendant. Laskaris v. Thornburgh, 661 F.2d 23, 26 (3d Cir. 1981). "Under the Eleventh Amendment, a plaintiff other than the United States or a state may not sue a state in federal court without the latter state's consent unless Congress abrogates the state's Eleventh Amendment immunity pursuant to a constitutional provision granting Congress that power." Chittister v. Dep't. of Cmty. Econ. Dev., 226 F.3d 223, 226 (3d Cir. 2000).
The Eleventh Amendment states:
"The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State."
The Commonwealth of Pennsylvania has not waived its rights under the Eleventh Amendment. "By statute Pennsylvania has specifically withheld consent [to be sued]." Laskaris, 661 F.2d at 25 (citing PA. CONS. STAT. ANN. § 8521(b)). Additionally, Section 1983 does not abrogate the Eleventh Amendment. Quern v. Jordan, 440 U.S. 332, 345, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979). Further, the Eleventh Amendment immunizes state officials acting in their official capacity from Section 1983 damages claims by individuals. Kentucky v. Graham, 473 U.S. 159, 169, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985). There has been no activity that could constitute waiver of this immunity. E.g., Lapides v. Bd. of Regents of the Univ. Sys. of Ga., 535 U.S. 613, 122 S.Ct. 1640, 152 L.Ed.2d 806 (2002) (a state's removal of a suit to federal court constitutes waiver of its Eleventh Amendment immunity).
Plaintiff did not name as a defendant the individual who holds the prothonotary position. The Court notes that an essential element of any claim under Section 1983 is that the alleged wrongdoing was committed by a "person." 42 U.S.C. § 1983. "[N]either a State nor its officials acting in their official capacities are 'persons' under § 1983." Will v. Mich. Dep't. of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989); Callahan v. City of Philadelphia, 207 F.3d 668 (3d Cir. 2000) (holding that the Warrant Division and Eviction Unit of the Court of Common Pleas and the Municipal Court Eviction Unit of the First Judicial District are state government entities not constituting "persons" under Section 1983). It seems that the Office of the Prothonotary would not qualify as a "person" for Section 1983 purposes.
Notwithstanding Plaintiff's response that alleged willful misconduct overcomes these arguments in favor of dismissal, the Court will grant the Motion to Dismiss filed by the Office of the Prothonotary, and need not consider its argument that it is entitled to both qualified and quasi-judicial immunity.
C. Defendant Catherine Lonergan's Motion for Summary Judgment (Docket No. 54)
In support of her Motion for Summary Judgment, Defendant Lonergan offers two arguments: (1) Plaintiff cannot sustain her burden of proving that Defendant Lonergan tampered with or altered the notes of testimony; and (2) Defendant Lonergan, as an official court reporter, is entitled to qualified immunity.
1. Legal Standard
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c). An issue is "genuine" if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A factual dispute is "material" if it might affect the outcome of the case under governing law. Id. A party seeking summary judgment always bears the initial responsibility for informing the district court of the basis for its motion and identifying those portions of the record that it believes demonstrate the absence of a genuine issue of material fact.Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Where the non-moving party bears the burden of proof on a particular issue at trial, the moving party's initial burden can be met simply by "pointing out to the district court that there is an absence of evidence to support the non-moving party's case." Id. at 325. After the moving party has met its initial burden, "the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." FED. R. CIV. P. 56(e). Summary judgment is appropriate if the non-moving party fails to rebut by making a factual showing "sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322. Under Rule 56, the Court must view the evidence presented on the motion in the light most favorable to the opposing party. Anderson, 477 U.S. at 255.
2. Plaintiff's Burden of Proof
Regarding her first argument, that Plaintiff presents no evidence sufficient to raise a genuine issue of fact for trial, Defendant Lonergan emphasizes that the recently produced audiotape is virtually identical to and consistent with the written transcript already provided to the Court, thus indicating that no sub rosa alterations had been performed. Defendant Lonergan has submitted her own affidavit, stating that she never altered the official court record in the Jacques Ferber, Inc. defamation proceedings. (Lonergan Aff. ¶¶ 12-15.) She also contends that she never told Plaintiff that she played the audiotape of the proceedings for Judge Cohen and then subsequently destroyed the tape. (Id. ¶ 8.) Jean Durbin, Esq. (Ms. Lonergan's attorney) asserts that defense counsel never destroyed, altered, or tampered with the original or duplicated audiotapes or Official Notes of Testimony at issue in this case, nor did counsel instruct anyone to do so. (Durbin Aff. ¶ 12.)
Plaintiff asserts Defendant Lonergan told Plaintiff over the telephone that the original audiotape had been erased. In her Memorandum in Opposition to Defendant's Motion, Plaintiff describes the telephone conversation as follows: "Plaintiff then ask[ed] wasn't this proceeding audiotaped, defendant Lonergan said yes, but if you want that you will not get it. Plaintiff asked why not, defendant repl[ied],'I PLAYED IT FOR THE JUDGE, THEN I ERASED IT'." (Pl.'s Mem. Opp'n Summ. J. at 3.) The Court notes that Plaintiff submitted no affidavits or depositions in opposition to the defendant's Motion for Summary Judgment. In fact, the only prior testimony currently in the record supportive of Plaintiff's claims is Plaintiff's own testimony before this Court during the April 15, 2004 hearing on Plaintiff's Motion in Limine.
Although Plaintiff's version of her telephone conversation with Defendant Lonergan raises an issue of fact for trial as to that conversation, Plaintiff's evidence does not raise an issue of fact as to the accuracy of the transcript itself. Even though Plaintiff forcefully asserts that the written transcript does not comport with her recollection of the state court proceedings, Plaintiff's recollection alone does not constitute a genuine issue of fact requiring a trial. Plaintiff alleges that the audiotape now offered is a manufactured fraud produced by a nefarious conspiracy in order to dupe the Court and to perpetuate the deprivation of Plaintiff's civil rights:
This audiotape went from ERASED status, to a hush, hush MISPLACED status, and now a FOUND status. Is justice really that BLIND. The tape could not have been misplaced on October 1, 2001, defendant had just used it. It had not been erased yet. The audiotape, just had not been edited, spliced, and dubbed. To support the altered and or tampered with transcript.
(Pl.'s Mem. Opp'n Summ. J. at 3-4) (emphasis added). Conspicuously absent from Plaintiff's papers is any evidence, produced during discovery or otherwise, that would support Plaintiff's claims. Plaintiff presents nothing more than her own self-serving statements, which are contradicted by objective facts.
In her response to Defendant Lonergan's Motion for Summary Judgment, Plaintiff requests that this Court grant Plaintiff a private investigator to locate a favorable witness and to ensure this witness's presence during any ensuing federal trial. (Pl.'s Mem. Opp'n Summ. J. at 5.) Plaintiff never filed a formal motion to this effect, and assuming arguendo the Court had authority to grant such relief, the Court would not do so in light of the record in this case.
To the extent that Plaintiff's claims depend on the falsity of the transcripts, she has failed to present evidence indicating that any of the changes materially altered the substance or tone of the transcripts. As the party opposing the Motion for Summary Judgment, Plaintiff is required to adduce evidence sufficient to establish a triable dispute regarding some material factual issue. Celotex Corp, 477 U.S. at 322-23. Plaintiff cannot successfully overcome the Motion based upon her mere assertions that changes were made and that those changes were material.
In support of her Motion, Defendant Lonergan has submitted the audiotape, the transcript, and three affidavits (by herself, her counsel Ms. Durbin, and Mr. Gilland, a paralegal at the Philadelphia District Attorney's Office). The transcript itself is evidence of what took place. FED. R. EVID. 803(8). "Although Rule 56(c) does not expressly contemplate use of a certified transcript of a prior judicial proceeding, it may be considered when deciding a motion for summary judgment. It is at least as reliable as testimony found in a sworn affidavit." Wrobel v. Conner (In re Conner), 302 B.R. 509, 510 (Bankr. W.D. Pa. 2003) (citations omitted). Under Federal Rule of Evidence 201, this Court will take judicial notice of the transcript of Plaintiff's hearing before Judge Cohen. "Materials from a proceeding in another tribunal are appropriate for judicial notice." Biggs v. Terhune, 334 F.3d 910, 915 n. 3 (9th Cir. 2003). The Court also notes that the transcript does not constitute inadmissible hearsay under the Federal Rules of Evidence, as the transcript is not being offered to prove the fact of the matter asserted, but simply to demonstrate that certain statements were (and were not) made. E.g., Cal. Pub. Employees' Ret. Sys. v. Chubb Corp., No. 00-4285, 2002 U.S. Dist. LEXIS 27189, at *40 (D.N.J. June 26, 2002).
At the hearing on Plaintiff's Motion in Limine, Plaintiff testified as to her version of the proceedings before Judge Cohen, and the Court will consider her testimony as if it had been submitted in opposition to Defendant Lonergan's Motion for Summary Judgment. As noted above, Plaintiff's testimony is wholly without support in the record. Plaintiff has failed to demonstrate that a genuine issue remains for trial. Plaintiff's testimony alone is insufficient to overcome Lonergan's Motion for Summary Judgment. As the non-moving party, Plaintiff "may not successfully oppose a summary judgment motion by simply replacing 'conclusory allegations of the complaint or answer with conclusory allegations of an affidavit.'" Arnett v. Aspin, 846 F. Supp. 1234, 1237 (E.D. Pa. 1994) (quoting Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888, 110 S.Ct. 3177, 111 L.Ed.2d 95 (1990)). Since Plaintiff could have corroborated her version of events, if it was correct, but did not do so, and all objective evidence contradicts Plaintiff, she has not presented a genuine issue for trial.
In Mummau v. Aul, No. 95-0988, 1996 U.S. Dist. LEXIS 5905 (E.D. Pa. May 1, 1996), a plaintiff accused a court reporter of altering a transcript in order to deprive the plaintiff of evidence of the judge's bias against him. The court reporter moved for summary judgment, contending that the plaintiff had uncovered no evidence to support his claims, other than the plaintiff's own accusatory letters and statements, which the court reporter claimed were insufficient to create a jury issue. The court in Mummau agreed with the court reporter that the plaintiff's unsupported accusations were insufficient to overcome summary judgment, emphasizing in particular the plaintiff's failure to produce evidence, beyond his own recollection, in support of his claims. The court wrote:
Rather than attempting to oppose summary judgment by speculation and fanciful theories that the defendant might have tampered with the notes or made up an entirely new set of paper notes and destroyed the original computer disc to conceal such tampering, plaintiff could have retained an expert witness to read defendant Brown's notes and determine whether the transcript accurately reflected the shorthand on the note paper and whether any physical breaks in the paper indicated possible deletions.
1996 U.S. Dist. LEXIS 5905, at *9. Obviously, this Court considers the instant case highly similar to Mummau and finds no reason to deviate from its analysis or its disposition.
3. Qualified Immunity
As a matter of law, court reporters are not entitled to absolute judicial immunity simply by virtue of their position.Antoine v. Byers Anderson, Inc., 508 U.S. 429, 113 S.Ct. 2167, 124 L.Ed.2d 391 (1993). While Antoine might foreclose Defendant Lonergan from asserting absolute judicial immunity, that case does not prevent her from asserting qualified immunity.Id. Antoine left open the issue whether court reporters are entitled to qualified immunity. Id. at 432. This Court notes that the Court of Appeals for the Third Circuit has not yet decided whether court reporters are entitled to qualified immunity.
Within this court there exists some conflict regarding whether court reporter defendants are entitled to qualified immunity.Compare Thomas v. Mengel, No. 94-6721, 1996 U.S. Dist. LEXIS 2176, at*4 (E.D. Pa. Feb. 27, 1996) (Huyett, J.) (court reporters accused of altering criminal court transcripts "do not enjoy immunity"), with Davis v. Philadelphia County, 195 F. Supp.2d 686, 688 (E.D. Pa. 2002) (Joyner, J.) ("Clerk of Official Records" accused of failing to provide an accurate transcript entitled to immunity because "judicial or quasi-judicial immunity applies to court staff who are acting in their official capacities"). In Sullivan v. Sokolski, No. 91-2321, 1994 U.S. Dist. LEXIS 3753, at *10-11 (E.D. Pa. Mar. 30, 1994) (Hutton, J.), the Court held that, pursuant to Antoine, a court reporter whose distribution and processing of transcripts had been challenged was entitled to assert a qualified immunity defense. In light of Davis and Sullivan, the Court concludes that court reporters are entitled to assert qualified immunity when charged with Section 1983 violations.
Interestingly, the Court in Sullivan originally held that the court reporter was entitled to absolute immunity. That decision, upheld by the Third Circuit, was eventually vacated and remanded for reconsideration in light of the Supreme Court ruling in Antoine. 1994 U.S. Dist. LEXIS 3753, at *3-4. The March 30, 1994 decision in Sullivan (now cited by this Court) was affirmed without opinion by the Third Circuit. Sullivan v. Sokolski, 40 F.3d 1241 (3d Cir. 1994).
The Court's analysis in this situation follows the two-step framework established in Saucier v. Katz, 533 U.S. 194, 121 So. Ct. 2151, 150 L.Ed.2d 272 (2001). See also Bennett v. Murphy, 274 F.3d 133 (3d Cir. 2002). As a threshold matter, the Court must consider whether the facts alleged — when viewed favorably toward the apparently harmed party — demonstrate that the defendant violated a constitutional right. Saucier, 533 U.S. at 201; Bennett, 274 F.3d at 136. If a constitutional violation could have occurred under the facts alleged, the court then must resolve whether that constitutional right supposedly violated is "clearly established." Id. In order to qualify as a "clearly established" right, the constitutional right must be articulated with enough particularity and specificity such that it would be clear to a reasonable court reporter that her conduct was unlawful in the situation she confronted. Id. These are questions of law properly decided by the Court. See, e.g., Bartholomew v. Pennsylvania, 221 F.3d 425, 428 (3d Cir. 2000).
In this case, in light of the totality of evidence in the record, the Court concludes as a matter of law that Plaintiff has failed to make out a constitutional violation. Therefore, the Court's inquiry ends and Defendant is entitled to qualified immunity. E.g., Bennett, 274 F.3d at 136. Nothing in the record indicates that the legitimacy of the official transcript remains subject to genuine dispute.
IV. Conclusion
Regarding Plaintiff's Motion for Partial Summary Judgment by Default on the Pleadings (re: Defendant Office of the Prothonotary), the Court concludes that Plaintiff had failed to effect proper service under the Federal Rules. Plaintiff is not entitled to default judgment against a defendant whom she failed to serve properly, and her Motion accordingly will be denied.
As to Defendant Office of the Prothonotary's Cross-Motion to Dismiss, having concluded that Plaintiff failed to sue a "person," that the defendant is a state office, and that the Commonwealth has not waived its Eleventh Amendment immunity from suit, Defendant's Motion will be granted.
With regard to Defendant Catherine Lonergan's Motion for Summary Judgment, the Court concludes that Plaintiff has not established a material issue of fact for trial regarding the legitimacy of the audiotape and transcript. Alternatively, the Court concludes the Defendant Lonergan is entitled to qualified immunity. Defendant's Motion will be granted.
Regarding Plaintiff's Motion in Limine to Strike and Exclude Tainted Audio Tape Evidence, the Court concludes that Plaintiff has failed to sustain her burden of proof. The Court will deny Plaintiff's Motion, having found that the Motion is without any basis in fact.
An appropriate Order follows.
ORDER
AND NOW, this 18th day of May, 2004, it is hereby ORDERED as follows:1. Plaintiff's Motion for Partial Summary Judgment by Default on the Pleadings (re: Defendant Office of the Prothonotary) (Docket No. 49) is DENIED;
2. Defendant Office of the Prothonotary's Cross-Motion to Dismiss (Docket No. 53) is GRANTED;
3. Defendant Catherine Lonergan's Motion for Summary Judgment (Docket No. 54) is GRANTED; and
4. Plaintiff's Motion in Limine to Strike and Exclude Tainted Audio Tape Evidence (Docket No. 59) is DENIED.
All other outstanding Motions are DENIED AS MOOT.
Judgment is entered against Plaintiff and for Defendants.