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McKenna v. Curtin

United States District Court, D. Rhode Island

December 1, 2016

Keven A. McKenna
David Curtin, et al.

          Melissa E. Darigan, Esq. Michael W. Field, Esq. Keven A. McKenna, Esq. Rebecca Tedford Partington, Esq. David J. Pellegrino, Esq. Santiago H. Posas, Esq.


          Landya McCafferty United States District Judge.

         Keven A. McKenna, proceeding pro se, brings claims against twenty-two defendants in their individual capacities who are Rhode Island state court judges, members of the Disciplinary Board of the Supreme Court of Rhode Island, Chief and Assistant Disciplinary Counsel, a Supreme Court Clerk, Chief Judge of the United States District Court for the District of Rhode Island, and the Director of the Rhode Island Department of Labor and Training.[1] The claims challenge the suspension of McKenna from the practice of law and seek a stay of an order requiring him to make workers' compensation payments to a former employee.

         Currently pending before the court are the following motions: (1) McKenna's motion requesting that the court restore his license to practice law (doc. no. 16); (2) defendants' motion to dismiss (doc. no. 22); (3) defendants' motion for a permanent injunction to bar further suits against them by McKenna (doc. no. 30);[2] (4) McKenna's motion to amend his complaint (doc. no. 31); (5) McKenna's motion for sanctions to be imposed against defendants based on their motions to dismiss and for an injunction (doc. no. 39); and (6) McKenna's motion for reinstatement to the Rhode Island bar (doc. no. 40).[3]


         McKenna was admitted to the practice of law in Rhode Island in 1973. In 2009, an employee of McKenna's law firm filed a claim for workers' compensation benefits, alleging a work-related injury.

         The Workers' Compensation Court ordered McKenna to make workers' compensation payments to the employee. Over the next few years, McKenna brought several lawsuits in an attempt to avoid paying the employee, and eventually filed for bankruptcy.[4]See In re McKenna, 110 A.3d 1126, 1130-36 (R.I. 2015) (providing background of the workers' compensation and bankruptcy proceedings); Stone v. Geremia, No. 11-631, 2013 WL 1000712, at *1-2 (D.R.I. Mar. 13, 2013) (same); see also McKenna v. Powell, No. 10-017ML, 2010 WL 2474037 at *1 (D.R.I. Apr. 28, 2010) (providing background of workers' compensation proceeding).

         In 2012, ethical charges were brought against McKenna in Rhode Island, which led to an investigation by the Rhode Island Supreme Court Disciplinary Board. The charges of ethical violations against McKenna arose from McKenna's representations and disclosures during the workers' compensation proceeding and McKenna's subsequent bankruptcy proceedings. See In re McKenna, 110 A.3d at 1130-36.

         McKenna brought several cases in this court in which he unsuccessfully challenged the Disciplinary Board proceedings, which were then ongoing. See McKenna v. DeSisto, 14-cv-260, 2014 WL 3784872 (D.R.I. July 31, 2014); McKenna v. Gershkoff, 12-cv-904-JNL-LM, 2013 WL 3364368 (D.R.I. July 3, 2013); McKenna v. DeSisto, 11-cv-602-SJM-LM, 2012 WL 4486268 (D.R.I. Sept. 27, 2012). The court dismissed each case based on Younger abstention.[5]

         The Disciplinary Board recommended that McKenna's license to practice law be suspended. McKenna's license to practice law was suspended for one year beginning on March 29, 2015. In re McKenna, 110 A.3d at 1151.

         On June 16, 2016, the Rhode Island Supreme Court denied McKenna's petition for reinstatement. The court noted “that there are several disciplinary matters currently pending before the Supreme Court Disciplinary Board regarding conduct of the petitioner that occurred both before and after our order of suspension.” In re McKenna, 140 A.3d 158, 158 (R.I. 2016). The court also noted that “on March 6, 2015, a justice of the Superior Court issued sanctions against the petitioner pursuant to Rule 11 of the Superior Court Rules of Civil Procedure in a number of different cases based, in part, upon findings that the petitioner made misrepresentations to the court.”[6] Id. at 159.

         McKenna brings this suit, alleging several claims against various defendants arising out of his suspension from the practice of law and the order requiring him to make workers' compensation payments to his former employee. The parties have filed several motions.

         I. Motion for Sanctions

         McKenna moves for sanctions (doc. no. 39) against defendants and the Rhode Island Attorney General's office, which is representing defendants, under Federal Rule of Civil Procedure 11. As grounds for sanctions, McKenna cites their “failure on July 6, 2014 to withdraw their motion for a permanent injunction and attachments and, the exhibits attached to their first motion to dismiss, within twenty-one (21) days or be appropriately sanctioned.” He argues that the Office of the Attorney General provided the exhibits in violation of Rule 11(b).

         Under Rule 11(b), “an attorney or unrepresented party” certifies to the court that any pleading, motion, or other paper submitted to the court, among other things, is not being presented for an improper purpose and that the factual contentions have or will have evidentiary support. If the court determines that Rule 11(b) has been violated, it may impose an appropriate sanction. Fed.R.Civ.P. 11(c)(1). A party moving for sanctions, however, “must describe the specific conduct that allegedly violates Rule 11(b).”[7] Fed.R.Civ.P. 11(c)(2).

         McKenna finds objectionable certain exhibits filed with defendants' motion to dismiss (document no. 22) or with the motion for an injunction (document no. 30). However, McKenna does not identify those exhibits for the court. McKenna states generally that “[t]he Judicial Defendants and the Attorney General acted in bad faith by attempting to supplement their Rule 12(b)(1) and Rule 12(b)(6) motions with ‘factual exhibits of questionable veracity and characterizations, which were not formed after a reasonable inquiry.'”[8] Doc. no. 39 at 1.

         Defendants included four exhibits with their motion to dismiss: (1) the trustee's final account and distribution report in McKenna's bankruptcy proceeding; (2) McKenna's petition to the Rhode Island Supreme Court for reinstatement dated March 18, 2016; (3) the Rhode Island Superior Court decision in a consolidated case in which sanctions were imposed on McKenna for misrepresentations made in the course of representing parties in other cases; and (4) the petition of David Curtin as Chief Disciplinary Counsel for disciplinary action against McKenna. See doc. nos. 22-1 - 22-4. None of those documents violate Rule 11(b).

         Defendants included an appendix filed with their motion for a permanent injunction. See doc. no. 30-1. The appendix provides copies of orders in thirty other cases and proceedings involving McKenna. Defendants explain in their motion that they provide copies of these cases to show McKenna's litigiousness in support of their request for an injunction to prevent McKenna from filing new causes of action against them, the State of Rhode Island, or Rhode Island departments and agencies without first obtaining leave of this court.

         McKenna does not explain how the appendix or any of the attached cases violate Rule 11(b). He refers to the decisions from this court, McKenna, 2014 WL 3784872; McKenna, 2013 WL 3364368; McKenna, 2012 WL 4486268, without providing citations, and suggests that defendants provided the cases in the appendix to mislead the court in this case.

         McKenna is mistaken. The court is not misled by any of the cases provided in the appendix to the motion for an injunction, nor were they provided for that purpose. Without any explanation about the other exhibits he finds objectionable, McKenna has not carried his burden under Rule 11(c). Therefore, the motion for sanctions (doc. no. 39) is denied.

         II. Motion to Amend

         McKenna seeks leave to amend his complaint to delete certain claims and defendants and to add a new count and a new defendant. He proposes to delete the claims alleged in Counts V, VI, VII, and VIII of his original complaint and to dismiss all claims against Judge William Smith and Scott Jensen, the Director of the Rhode Island Department of Labor and Training. McKenna also proposes to add a claim, as Count VII of his proposed amended complaint, against the Rhode Island Attorney General, Peter Killmartin. Defendants object to the motion to amend on the grounds that the court lacks jurisdiction over the claims in the proposed amended complaint and that the proposed amendments are futile.[9]

         A. Standard of Review

         Under Federal Rule of Civil Procedure 15(a), leave to amend will be freely given when justice so requires. Leave to amend may be denied, however, for reasons “such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, [and] futility of amendment.” Foman v. Davis, 371 U.S. 178, 182 (1962). At this stage of a case, futility is assessed under the standard used for motions to dismiss under Federal Rule of Civil Procedure 12(b)(6). Hatch v. Dep't for Children, Youth, & Their Families, 274 F.3d 12, 19 (1st Cir. 2001).

         Under Rule 12(b)(6), the court must accept the factual allegations in the complaint as true, construe reasonable inferences in the plaintiff's favor, and “determine whether the factual allegations in the plaintiff's complaint set forth a plausible claim upon which relief may be granted.” Foley v. Wells Fargo Bank, N.A., 772 F.3d 63, 71 (1st Cir. 2014) (citation omitted). A claim is facially plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Because McKenna is proceeding pro se, the court is obliged to construe his complaint liberally. See Erikson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (internal citations omitted) (“[A] pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.”).

         B. Discussion

         McKenna's proposed amended complaint adds a single claim: Count VII. It also removes several other claims from the original complaint, and re-numbers various counts asserted in his original complaint.

         1. Count VII

         Count VII of the proposed amended complaint is titled: “Declare Conflict of Interest for Attorney General to Defend the Judiciary for Its Legislative Acts and Executive Acts and Violation of Separation of Powers.” It is asserted against the Attorney General of Rhode Island.

         McKenna argues that the Attorney General cannot represent the defendants who are judges and justices because the Attorney General is part of the executive branch of the Rhode Island government while the judges are part of the judicial branch. He further argues that the Attorney General is precluded from representing those defendants because McKenna is not suing the judges and justices for performing judicial functions but instead “for utilizing the Powers of the General Assembly and the Powers of the Governor.”

         Defendants contend that Count VII fails to state a claim. The court agrees. The issue of disqualification of the Attorney General's office from representing the state judges and justices was directly addressed and decided against McKenna in another case. McKenna v. Williams, 874 A.2d 217, 223 n.4 (R.I. 2005). In addition, to the extent McKenna intends to seek disqualification of the Attorney General's office, that matter might be raised by motion, if valid grounds existed to support it, but an issue of disqualification of counsel does not state a cause of action on which relief may be granted. See, e.g., Jackson v. Norman, 264 F. App'x 17, 21 (1st Cir. 2008); Messere v. Clarke, Nos. 11-12166-MLW, 11-11705-MLW, 2014 WL 2865803, at *3 (D. Mass. June 23, 2014); Aldrich v. Young, No. 13-10466-DPW, 2013 WL 3802436, at *3 (D. Mass. July 18, 2013); Dolan v. Tavares, No. 10-10249-PBS, 2010 WL 5281968, at *1 (D. Mass. Dec. 16, 2010).

         Therefore, Count VII in the proposed amended complaint is futile and will not be allowed.

         2. Counts I through VI

         In his motion to amend, McKenna represents that the only new claim is Count VII and that he deleted Counts V, VI, VII, and VIII, as they appeared in the original complaint, “to focus upon Separation of Powers violations” in the proposed amended complaint. McKenna does not discuss changes made to Counts I through VI from the claims in his original complaint to the corresponding claims in his proposed amended ...

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