                                                                                                                           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Precedential or Non-Precedential: Non-Precedential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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Recommended Citation
"Burns v. Lavender Hill Herb" (2006). 2006 Decisions. Paper 1691.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1691


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                                       NOT PRECEDENTIAL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

                                             3
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

                                             4
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

                                              5
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

                                               6
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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