for the eastern district of pennsylvania mÁximo jÚsto guevara … · 2004-02-27 · breneman,...

1 Guevara I incorrectly cites to § 1915(d). The “frivolous or malicious” provision wascodified at § 1915(d) until 1996. It is now codified at § 1915(e)(2)(B)(i).

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IN THE UNITED STATES DISTRICT COURTFOR THE EASTERN DISTRICT OF PENNSYLVANIA

MÁXIMO JÚSTO GUEVARA :: CIVIL ACTION

v. : No. 00-5975:

METROPOLITAN LIFE INSURANCE :COMPANY, et al. :

O’Neill, J. January , 2001

M E M O R A N D U M

I.

Máximo Jústo Guevara is a pro se/in forma pauperis plaintiff who has previously filed

more than two dozen lawsuits in the Eastern District of Pennsylvania. By Memorandum and

Orders dated April 26, 2000, I dismissed all of Mr. Guevara’s pending suits without prejudice

and with leave to amend so as to consolidate all of his claims in a single suit. See Guevara v.

Metropolitan Life Ins. Co., No. 99-2155, 2000 WL 502709 (E.D. Pa. Apr. 26, 2000) (“Guevara

I”). At that time, I noted four independent grounds that likely would have justified the outright

dismissal with prejudice of most, if not all, of Mr. Guevara’s suits:

1) The complaints persistently and significantly failed to conform to Fed. R. Civ. P.

8(a). Id. at *2;

2) The complaints were repetitive and therefore “frivolous or malicious” under the in

forma pauperis statute, 28 U.S.C. § 1915(e)(2)(B)(i).1 Id.;

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3) The complaints were likely jurisdictionally deficient. Id. at *3-*4; and

4) Many of the claims were likely barred by res judicata. Id. at *4.

Despite these circumstances, I did not dismiss any of Mr. Guevara’s claims with

prejudice. Instead, I dismissed the suits without prejudice and with leave to amend in a single

consolidated complaint. I also specifically reserved the option of later severing some of the

claims for trial pursuant to Fed. R. Civ. P. 42(b), if warranted. Id. at *2 n.4. Finally, I offered

Mr. Guevara some “words of guidance” in hopes that he would “refine and narrow” his claims in

his amended complaint. Id. That advice included the following points:

1) The tone of the pleadings was inappropriate because Mr. Guevara was quick to

rely on insulting and inflammatory characterizations of defendants and their

counsel. Id. at *3;

2) The shear length of the pleadings was inappropriate, at least in part because of the

inclusion of a great deal of “wholly irrelevant” information. Id. at *2-*3; and

3) Mr. Guevara wrongly believed that every response to his pleadings by an adverse

party gave rise to a new cause of action against the opposing party’s attorneys. Id.

at *2.

I concluded Guevara I with the following admonishment:

Fed. R. Civ. P. 12(f) gives a court the authority to sua sponte strike “anyredundant, immaterial, impertinent, or scandalous matter” from any pleading. Iwill not hesitate to invoke this Rule to strike all or part of Mr. Guevara’s amendedcomplaint or to dismiss it with prejudice if my advice is not accepted and actedupon by him.

Id. at *4.

Mr. Guevara did not follow my advice. Instead, he: 1) appealed Guevara I; 2) filed a

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number of new suits in this Court; and 3) filed a number of new suits in state court that were

removed to this Court. Where appropriate and where requested by the parties, I have stayed Mr.

Guevara’s new suits pending the Court of Appeals’ disposition of Guevara I. See, e.g., Guevara

v. Martini, No. 00-2633, 2000 WL 830724, at *2 (E.D. Pa. June 27, 2000) (“Guevara II”).

The Court of Appeals has since affirmed Guevara I in all respects. See Guevara v.

Metropolitan Life Ins. Co., No. 00-1565, slip op. (3d Cir. Nov. 2, 2000). The Court emphasized

that a district court has “wide discretion” in dismissing cases as frivolous under § 1915(e) of the

in forma pauperis statute. Id. at 4. It went on to state:

The lawsuits brought in this case by Guevara are exactly the types of claims which§ 1915(e) was designed to address. As mentioned before, the 15 cases dismissedby the District Court contained similar allegations, the complaints wereunnecessarily voluminous and some defendants were needlessly sued multipletimes for no legitimate reason. There is no doubt in our mind that the DistrictCourt acted properly under the in forma pauperis statute when considering thenumber of actions filed and the allegations contained therein . . . We [] commendthe District Court for instructing Mr. Guevara as to pleading requirements so thathe may file one coherent complaint. Mr. Guevara should keep in mind that shouldhe fail to heed the District Court’s instructions he may subject himself tosanctions.

Id. at 4-5 (emphasis added). Finally, the Court of Appeals granted Mr. Guevara twenty days to

comply with my original Order in Guevara I and emphasized that “[f]ailure to do so will result in

a judgment on the merits.” Id. at 5.

Technically, compliance with the Court of Appeals’ Order would have required Mr.

Guevara to file an amended complaint in Civil Action No. 99-2155. Instead, he filed a first

complaint in this new action which appears to be his attempt to comply with the Court of

Appeals’ Order, and I will treat it as such.

However, for the reasons stated below I will dismiss the complaint and all of Mr.

2 “Plaintiff had ambitions, and was realizing them while at Merrill Lynch, to elevate awhole class of people, unsophisticated, and some not even very well educated; lifelong deprivedof information and access, to a higher socio-economic level not previously available to them. Plaintiff was doing the human betterment and the public good.” Complaint ¶ 167.

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Guevara’s other pending cases that are substantially duplicative of this case.

II.

The first basis for dismissing the complaint in this case is Mr. Guevara’s continued,

substantial noncompliance with Rule 8(a). I have previously explained the requirements of Rule

8(a) to Mr. Guevara in this way:

Rule 8(a) merely requires a “short and plain” statement of the grounds for relief,and Rule 8(a) requires that each averment of a pleading “shall be simple, concise,and direct.” In other words, Mr. Guevara need not plead the contents of everyevent and conversation he has had in connection with these events, and obviouslyshould not include irrelevant averments.

Guevara I, 2000 WL 502709, at *3.

Despite my previous advice, Mr. Guevara filed a 128 page, 620 paragraph complaint that

-- not surprisingly -- includes paragraph upon paragraph of wholly irrelevant information. For

example, Mr. Guevara discusses his own altruistic goals,2 the alleged “rudeness” of one of the

3 “During the reception after the seminar, one of plaintiff’s biggest clients for many yearsat plaintiff’s former employer, MetLife and Merrill Lynch, Addrienne Morrison, elderly andusing a cane to walk, decided she had had enough of defendant Berg’s rude and abusivebehavior, asked plaintiff to point out his boss, the Regional VP, defendant Botte, to complainabout the abusive treatment they all had been getting at the hands of defendant Berg, Ms.Morrison had to sometimes chase defendant Botte because he would duck and run from her as ifshe was going to attack him with her cane. When she finally rounded him up and she finishedcomplaining, she brought defendant Botte to our table and he apologized to all the ladies invitingthem to come to his office and register a formal complaint.” Complaint ¶ 159 and 188 (repeatedverbatim).

4 See Complaint at 127 (unnumbered paragraph under the heading “Punitive Damages”).

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defendants,3 and President Clinton’s legal problems.4 Mr. Guevara also included, word for word,

an averment that I previously singled out as an example of an irrelevant event that need not be

plead. Compare Guevara I, 2000 WL 502709, at *2 (discussing an averment regarding Mr.

Guevara’s visit to a church after passing a securities exam) with Complaint ¶ 136. Moreover,

whole paragraphs of the complaint are repeated verbatim multiple times. Compare Complaint ¶

159 (“During the reception after the seminar . . .”) with Complaint ¶ 188 (same); compare

Complaint ¶ 168 (“defendants . . . sent an agent to the home of plaintiff’s client of many years”)

with Complaint ¶ 197 (same); compare Complaint ¶ 470 (“The misconduct of the defendants and

their attorneys began in October 1994 . . .”) with Complaint at 126 (unnumbered paragraph under

the heading “Punitive Damages”) (same). However, even more remarkable than what Mr.

Guevara pleads is what he does not plead. Many of the named defendants (for example, Brian

Breneman, Frank G. Zarb, Rudolph C. Sander, Max Mahoney, Terri L. Nelson, etc.) are named

in the caption but then do not appear in the substantive averments at all or only appear in passing.

In short, Mr. Guevara has flagrantly disregarded my previous admonitions, the Court of

Appeals’ admonitions, and Rule 8(a). This flagrant disregard justifies dismissal of the complaint

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with prejudice.

III.

Though I believe that Mr. Guevara’s violation of Rule 8(a) is an independent and

sufficient justification for dismissing his complaint, it is also clear that dismissal on the merits

would be appropriate.

The gravamen of Mr. Guevara’s complaint is that his rights were violated when the

National Association of Securities Dealers (“NASD”) fined and barred him from future

employment with NASD members. The basis for NASD’s actions was a complaint by defendant

Mrs. Mary Davis, a former client of Mr. Guevara’s. Mrs. Davis alleged that while Mr. Guevara

was employed at MetLife, he recommended that she invest $40,000 of her $60,000 retirement

account in a high-risk general partnership which later became insolvent. After arbitration

proceedings, MetLife paid Mrs. Davis the full $40,000 plus legal fees. Mr. Guevara’s claims

arising out of this incident fail for two reasons. First, the NASD has absolute immunity from

suits claiming that it violated its own rules or for other actions taken in conjunction with its

regulatory role. See In re Olick, No. 99-5128, 2000 WL 354191, at *4 (E.D. Pa. Apr. 4, 2000).

Second, Mr. Guevara’s claims arising out of this incident were fully and fairly adjudicated on the

merits and dismissed by Judge Katz in Guevara v. Nat’l Ass’n of Sec. Dealers, Inc., No. 99-2154,

slip op. (E.D. Pa. Apr. 4, 2000). Judge Katz’s decision must be afforded full res judicata effect

and bars any further claims arising out of this incident.

Mr. Guevara also makes Title VII claims against a number of former employers. With

the exception of the claim against Caesar’s Hotel and Casino, Mr. Guevara has not included right

5 Those cases are: 1) Guevara v. Union Central Life Ins. Co., et al., No. 99-2153; 2)Guevara v. Metropolitan Life Ins. Co., et al., No. 99-2155; 3) Guevara v. Merrill Lynch, et al.,No. 99-2157; 4) Guevara v. Securities America, Inc., et al., No. 99-2231; 5) Guevara v. Caesar’sHotel & Casino, No. 00-117; 6) Guevara v. Metropolitan Life Ins. Co., et al., No. 00-477; 7)Guevara v. Lee Kim & Pac, P.C., No. 00-836; 8) Guevara v. McVan, No. 00-838; 9) Guevara v.

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to sue letters with his complaint. This justifies dismissal of his Title VII claims. See generally

42 U.S.C. §§ 2000e-5(e)(1) and 2000e-5(f)(1); Guevara I, 2000 WL 502709, at *4. As to the

claim against Caesar’s, Mr. Guevara has not plead sexual harassment that was sufficiently severe

or pervasive to constitute an actionable hostile work environment. See Bonora v. UGI Utilities,

No. 99-5539, 2000 WL 1539077, at *3-*5 (E.D. Pa. Oct. 18, 2000).

The remaining claims involve attorneys who represent or represented parties adverse to

Mr. Guevara in earlier litigation. As I previously observed, Mr. Guevara wrongly believes that

“every response to his pleadings by an adverse party [gives] rise to a new cause of action against

the opposing party’s attorneys.” Guevara I, 2000 WL 502709, at *2. This is obviously a

mistaken belief, and those claims are without merit.

Therefore, even if dismissal under Rule 8(a) was not appropriate, I would dismiss Mr.

Guevara’s claims on the merits pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) (granting courts the

authority to sua sponte dismiss in forma pauperis complaints that fail to state a claim on which

relief may be granted).

IV.

Most of Mr. Guevara’s other pending suits are duplicative of the complaint in this case.

Therefore, those cases will also be dismissed pursuant to § 1915(e).5 However, two of his

NASD, Inc., et al., No. 00-1213; 10) Guevara v. NASD, Inc., et al., No. 00-1625; 11) Guevara v.NASD, Inc., et al., No. 00-1626; 12) Guevara v. Metropolitan Life Ins. Co., No. 00-1822; 13)Guevara v. Brennan, et al., No. 00-1823; 14) Guevara v. Martini, et al., No. 00-2047; 15)Guevara v. Martini, et al., No. 00-2633; 16) Guevara v. Connolly, et al., No. 00-3169; 17)Guevara v. Brennan, No. 00-3178; 18) Guevara v. Martini, et al., No. 00-3407; 19) Guevara v.Merrill Lynch, No. 00-4343; 20) Guevara v. Metropolitan Life Ins. Co., No. 00-4512; 21)Guevara v. Securities America, Inc., et al., No. 00-4773; 22) Guevara v. NASD, Inc., No. 00-4963; and 23) Guevara v. Union Ins. Co., No. 00-5607.

6 However, Guevara v. A.G. Edwards and Sons, Inc., No. 00-5606, is duplicative of No.00-4964 and will therefore be dismissed.

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pending cases involve new claims against new parties, and, unlike the complaint in this case, Mr.

Guevara has apparently made a good faith effort to comply with Rule 8(a) in those complaints.

Therefore, I will allow Guevara v. A.G. Edwards, No. 00-4964, and Guevara v. PNC Bank Corp.,

No. 00-5608 to continue at this time.6

V.

The only remaining question is whether Mr. Guevara should be sanctioned for his

conduct up to this point and/or be ordered to show cause why he should not be enjoined from

filing any additional lawsuits in this Court without prior leave. See Guevara I, 2000 WL 502709,

at *3; Guevara II , 2000 WL 830724, at *2. I have no doubt that Mr. Guevara has engaged in

conduct that would more than justify either option. However, now that the proverbial slate has

been wiped clean, I am hopeful that Mr. Guevara will end those tactics. If he does not, then one

or both of these options is sure to follow.

Appropriate Orders follow.

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:MÁXIMO JÚSTO GUEVARA :

: CIVIL ACTION v. : No. 00-5975

:METROPOLITAN LIFE INS. CO., et al. :

:

O R D E R

AND NOW, this day of January, 2001, for the reasons contained in the

accompanying Memorandum, it is ORDERED that:

1) plaintiff’s motion to proceed in forma pauperis is GRANTED; and

2) the complaint is DISMISSED pursuant to 28 U.S.C. § 1915(e).

______________________________Thomas N. O’Neill, Jr., J.

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:UNION CENTRAL LIFE INS. CO., et al. :

:

O R D E R


Memorandum filed today in Guevara v. Metropolitan Life Ins. Co., et al., No. 00-5975, it is

ORDERED that the complaint is DISMISSED WITH PREJUDICE pursuant to 28 U.S.C. §

1915(e) and any pending motions are DENIED AS MOOT.


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:

O R D E R






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:MERRILL LYNCH, et al. :

:

O R D E R






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:SECURITIES AMERICA, INC., et al. :

:

O R D E R






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:CAESAR’S HOTEL & CASINO :

:

O R D E R






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:

O R D E R






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:LEE KIM & PAC, P.C. :

:

O R D E R






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:BRIAN P. McVAN :

:

O R D E R






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:NATIONAL ASSOCIATION OF :SECURITIES DEALERS, INC., et al. :

:

O R D E R






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:NATIONAL ASSOCIATION OF :SECURITIES DEALERS, INC. :

:

O R D E R






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:

O R D E R






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:METROPOLITAN LIFE INS. CO. :

:

O R D E R






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:DANIEL J. BRENNAN, et al. :

:

O R D E R






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:ELIZABETH F. MARTINI, et al. :

:

O R D E R






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:ELIZABETH F. MARTINI, et al. :

:

O R D E R






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:WILLIAM M. CONNOLLY, et al. :

:

O R D E R






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:DANIEL J. BRENNAN, et al. :

:

O R D E R






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:MERRILL LYNCH :

:

O R D E R






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:METROPOLITAN LIFE INS. CO. :

:

O R D E R






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:SECURITIES AMERICA, INC., et al. :

:

O R D E R






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:

O R D E R






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:A.G. EDWARDS AND SONS, INC. :

:

O R D E R






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:UNION CENTRAL LIFE INS. CO. :

:

O R D E R






for the eastern district of pennsylvania mÁximo jÚsto guevara … · 2004-02-27 · breneman,...

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