Balthazar v. Atlantic City Medical Center

Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit

6-22-2005

Balthazar v. Atl Cty Med Ctr
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-3772

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 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 03-3772

ENEZ BALTHAZAR,

Appellant

v.

ATLANTIC CITY MEDICAL CENTER; ATLANTIC CITY MEDICAL CENTER
COMMUNITY HEALTH SERVICES; BARBARA HENDERSON, M.D.; JOSEPH
DESTEFANO, M.D.; ALLAN FELDMAN, M.D.; PHILLIP KORZENIOWSKI, M.D.;
DESTEFANO, FELDMAN, KAUFMAN & KORZENIOWSKI, P.A.; DESTAFANO,
FELDMAN & KAUFMAN, P.A.; UNIVERSITY OF MEDICINE &
DENTISTRY OF NEW JERSEY, SCHOOL OF OSTEOPATHIC MEDICINE;
RICHARD COOPER, D.O.,

Appellees

On Appeal from the United States District Court
for the District of New Jersey
(Dist. Ct. No. 02-CV-1136)
Before: Hon. Stephen M. Orlofsky

Argued June 9, 2005

Before: AMBRO, VAN ANTWERPEN, and TASHIMA,* Circuit Judges.

(Filed: June 22, 2005 )

* The Honorable A. Wallace Tashima, Senior United States Circuit Judge for the
United States Court of Appeals for the Ninth Circuit, sitting by designation.
 OPINION OF THE COURT

VAN ANTWERPEN, Circuit Judge.

Appellant Enez Balthazar brought a medical malpractice suit in New Jersey state court

that was dismissed with prejudice when her attorney failed to file an affidavit of merit as

required by state law. Before a state appeals court affirmed that dismissal, Balthazar brought

this action based upon the same events she had alleged in state court. Pursuant to Fed. R.

Civ. P. 12(b)(6), the District Court dismissed the complaint without prejudice, granting

Balthazar leave to move to file an amended complaint. Before she did so, a state appeals

court affirmed the dismissal of her state court action. Balthazar subsequently moved to

amend her federal complaint. The proposed amended complaint sounded not only in the

same underlying allegations already rejected by the state appellate court, but also essentially

in the same underlying allegations already once dismissed by the District Court. The District

Court denied Balthazar’s motion on several grounds, including res judicata, forming the

basis for this appeal. The District Court also sanctioned Balthazar’s attorney, requiring him

to attend continuing legal education classes. For the reasons that follow, we will affirm.

I.

The origins of this appeal may be summarized as follows. After filing a medical

malpractice action in New Jersey state court on behalf of his client, Ms. Balthazar, attorney

Frank Branella failed to file an affidavit of merit in support of his client’s action. The

omission, which has never been disputed and is required by New Jersey law, caused Ms.

2
Bathazar’s medical malpractice action to be dismissed with prejudice on May 14, 2001.

Balthazar v. Atlantic City Med. Ctr., et al., N.J. Super. Ct. Law Div., Camden County, No.

L-4527-99 (2001). A state appellate court would later affirm that dismissal on March 5,

2003. 358 N.J.Super. 13, 816 A.2d 1059 (N.J. Super. App. Div. 2003).1

While the state appellate decision was pending, Ms. Balthazar, through Mr. Branella,

filed a complaint in federal court against the same defendants. The federal complaint alleged

that defendants’ acts subsequent to their medical treatment of Ms. Balthazar established a

pattern of mail or wire fraud and other activities constituting predicate offenses under the

Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1962 et seq. (“RICO”).2

This federal complaint arose from the same conduct at issue in the dismissed state court

action; it alleged that the same defendants had attempted to conceal the same acts of medical

negligence that had occurred during the same (and only) medical procedure that defendants

had ever performed on Ms. Balthazar – an abdominal hysterectomy on January 27, 1998.

Specifically, the federal complaint alleged the defendants had conspired to use false records

to defeat Ms. Balthazar’s state court case and to defraud Ms. Balthazar by increasing the cost

1
Balthazar also filed a Petition for Certification to the New Jersey Supreme Court that
was denied on June 5, 2003.
2
The civil RICO statute allows “[a]ny person injured in his business or property by
reason of a violation of section 1962 of this chapter [to] sue therefor in any appropriate
United States district court.” 18 U.S.C. § 1964(c).

3
of litigation, thereby wasting her assets.3 In addition to this RICO claim, Balthazar’s federal

compliant alleged a conspiracy to deny her due process and equal protection under 42 U.S.C.

§ 1985 as well as related state law claims.

Subsequent to the filing of this federal complaint, a New Jersey appellate court

affirmed, in a published opinion, the dismissal of Ms. Balthazar’s state court medical

malpractice action. As discussed infra, central to our analysis in this case is the question of

what the state appellate court adjudicated as to Ms. Balthazar’s state court litigation. On its

face, the state appellate court decision states in pertinent part:

Plaintiff Enez Balthazar appeals from an order of May 23, 2000
dismissing with prejudice her claims for medical malpractice
against [the defendants] as the result of [her] failure to comply
with the requirements of the affidavit of merit statute, N.J.S.A.
2A:53A-26 through -29. Balthazar also appeals from an order
of May 14, 2001 denying her motion to amend her complaint to
allege claims of battery and fraudulent concealment. We affirm.

...

On appeal, Balthazar argues that her complaint should have
been preserved because of the allegedly fraudulent maintenance
of relevant records . . . . Balthazar also . . . claims error in the
court’s denial of her motion to amend her complaint . . . .

3
As Balthazar concedes in her briefs before this Court, she had previously filed a
state law malpractice action against the same defendants alleging the same underlying
harm arising out of a hysterectomy performed on January 27, 1998 by or through
Appellees. Balthazar named in her state court action defendants Atlantic City Medical
Center, Atlantic City Medical Center Community Health Services; Barbara Henderson;
M.D.; Joseph DeStefano, M.D.; Allan Feldman, M.D.; Phillip Korzeniowski, M.D.;
Destefano, Feldman, Kaufman & Korzeniowski, P.A.; Richard Cooper, M.D.; and
University of Medicine & Dentistry of New Jersey School of Osteopathic Medicine. Dr.
Larry Kaufman was named in the state court action but not in the federal court action.

4
 ...

. . . Balthazar argues in her brief, and counsel argued orally that:
‘The pivotal issue is whether appellant must rely on the
fraudulent medical record that has been provided by respondents
. . . . Appellant can prove the record is fraudulent and unreliable
....

Balthazar v. Atlantic City Medical Center, et al., 358 N.J. Super 13, 16-21, 816 A.2d 1059,

1061-63 (2003). With respect to these issues, the appellate court determined that:

We do not find patent the ‘fraud’ that plaintiff claims to exist,
and find no evidence that would suggest that it occurred . . . .
Thus, this is not a case in which there is evidence of deliberate
destruction or alteration of medical records in anticipation of
suit . . . .

Id. at 21, 816 A.2d at 1064. Further, as to allegedly fraudulent acts arising out of the surgery,

the appellate court also determined that the allegedly fraudulent document – a second

operative report in Balthazar’s hospital chart – was substantially similar to the first operative

report, and that defendants had provided a reasonable explanation for the presence of the

second operative report. As such, it concluded, “[a]ny ‘fraud’ was thus inconsequential.”

Id. at 22, 816 A.2d at 1064. In so concluding, the appellate court also rejected claims by

Balthazar that defendants had “deliberately misled her” about certain sutures, finding “[n]o

support for the claim of deliberate misinformation . . . in the record.” Id. at n.8. Further as

to the allegedly fraudulent acts that Balthazar had used to support her motion to amend her

complaint, the appellate court stated:

As a final matter, Balthazar argues that the court committed

5
 error in denying as lacking factual support her motion to amend
her complaint to assert causes of action for battery and
fraudulent concealment . . . .

...

. . . For the reasons discussed at length earlier in this opinion, we
find no grounds for a claim of fraudulent concealment. We thus
find no abuse of discretion by the trial court in denying
Balthazar the right of amendment.

Id. at 26-27; 816 A.2d at 1067-68. For these reasons, the state appellate court affirmed the

state trial court in its entirety, including the state trial court’s dismissal of Balthazar’s case

with prejudice for failing to comply with the requirements of New Jersey’s affidavit of merit

statute, N.J.S.A. 2A:53A-26 through -29. Id.

Meanwhile, in federal court, before the state appellate court had rendered this

decision, Appellees the University of Medicine & Dentistry of New Jersey and Dr. Richard

Cooper moved to dismiss Balthazar’s federal complaint pursuant to Fed. R. Civ. P. 12(b)(6).

Because the state appellate court had not yet rendered its opinion, summarized above, the

District Court denied the motion on the grounds that Balthazar’s federal claims were not

plainly “inextricably intertwined” with a state court adjudication.

Subsequently, Appellees the Atlantic City Medical Center and Atlantic City Medical

Center Community Health Services also moved to dismiss the federal complaint pursuant to

Fed. R. Civ. P. 12(b)(6). The District Court granted that motion on March 3, 2003,

dismissing Balthazar’s claims without prejudice and granting Balthazar leave for 30 days to

move to file an amended complaint. Balthazar does not appeal from that ruling.

6
 Two days latter, as summarized above, the state appellate court affirmed the dismissal

of Balthazar’s state court complaint and the denial of her motion to amend her complaint to

allege claims of, inter alia, fraudulent concealment. Upon learning of the state appellate

decision, the District Court in this case notified Balthazar’s attorney on March 12, 2003 that

it had reviewed the state appellate decision and that, should he move to amend based upon

the events and allegations already adjudicated therein, the District Court would carefully

scrutinize the proposed amended complaint for potential Rule 11 violations.

Ms. Balthazar, through her attorney Mr. Branella, subsequently so moved. The

District Court reviewed the proposed amended complaint and issued an order to show cause

as to why Mr. Branella had not violated Rule 11 in light of the state appellate court’s

adjudication. This prompted the defendants to file several motions for sanctions against Mr.

Branella, as well as cross-motions by the parties to disqualify their respective counsel. In an

opinion and order filed August 15, 2003, the District Court (1) denied Balthazar’s motion for

leave to file the amended complaint and (2) imposed non-monetary sanctions on Mr. Branella

pursuant to Rule 11(b)(1). The District Court determined that Balthazar’s proposed amended

complaint (I) failed to state claims under RICO and 42 U.S.C. § 1985; (ii) was barred by the

doctrine of res judicata; and (iii) was also barred by the Rooker-Feldman doctrine. The

District Court then denied the parties’ motions for sanctions and disqualifications. This

appeal followed.

II.

7
 This case presents two questions of jurisdiction that we must resolve at the outset. See

Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 95, 118 S. Ct. 1003, 140 L.Ed.2d 210

(1998) (“[E]very federal appellate court has a special obligation to satisfy itself . . . of its own

jurisdiction . . . .”) (internal quotation omitted); Benchoff v. Colleran, 404 F.3d 812, 815 (3d

Cir. 2005) (same). We first determine the status of the order from which Balthazar appeals,

the District Court’s August 15, 2003 order denying her motion for leave to file an amended

complaint. We have jurisdiction over appeals “from all final decisions of the district courts

of the United States,” 28 U.S.C. § 1291, but here, from our review of the record, it appears

there was neither a final order nor a dismissal of Balthazar’s claims with prejudice after the

District Court denied her motion for leave to file an amended complaint.

Guided by the Supreme Court's directive that we employ a “practical rather than a

technical construction” of § 1291's finality requirement, Cohen v. Beneficial Indus. Loan

Corp., 337 U.S. 541, 546 (1949), we have previously held that a plaintiff can convert a

dismissal with leave to amend into a final order by electing to stand upon the original

complaint. See, e.g., Borelli v. City of Reading, 532 F.2d 950, 951-52 (3d Cir.1976) (“Only

if the plaintiff . . . declares his intention to stand on his complaint . . . [does] the order

become final and appealable.”). Here, however, the record shows that Balthazar did not so

stand; indeed, as discussed, she sought to amend and appeals only from the denial of her

motion to do so. Nevertheless, we believe that the grounds of the District Court’s ruling,

especially as to the preclusive effect of the state court adjudication of Balthazar’s claims,

8
make plain the District Court’s intent to dismiss her federal claims with prejudice. As such,

requiring Balthazar to return to the District Court now would wastefully elevate form over

substance. See, e.g., Schrob v. Catterson, 948 F.2d 1402, 1407 (3d Cir.1991) (holding

district court’s use of transcript as a final order, while inappropriate, did not deprive us of

jurisdiction). We thus conclude that, with the 30-day amendment period in the District

Court’s March 3, 2003 order having expired, the District Court's subsequent August 15, 2003

order had the effect of dismissing Balthazar’s federal claims with prejudice, thus rendering

a final decision for purposes of 28 U.S.C. § 1291.

We believe our conclusion is supported by our decision in Shapiro v. UJB Financial

Corp., 964 F.2d 272, 279 (3d Cir. 1992) (holding “no practical purpose would be served” in

dismissing an appeal where defendants did not question the appeal’s timeliness and where

there was but little doubt that the district court would, on remand, dismiss the claims with

prejudice rather than revise its ruling). With no Appellee in this case having questioned the

timeliness of this appeal either in briefing or at oral argument, and it being clear from the

record that the District Court here would dismiss with prejudice on remand, the reasoning

of Shapiro counsels that we treat the August 15, 2003 order as a final decision for purposes

of § 1291.

Our second jurisdictional question is whether we may consider Mr. Branella’s appeal

in his own capacity, as distinct from his client’s, from the District Court’s imposition of Rule

11 sanctions against him. Citing Rule 3 of the Federal Rules of Appellate Procedure and a

9
1992 decision of this Court, Appellees contend that we lack jurisdiction to review the

imposition of sanctions on attorneys who file notices of appeal only in the names of their

clients. See Collier v. Marshall, Dennehey, Warner, Coleman & Goggin, 977 F.2d 93 (3d

Cir. 1992); Fed. R. App. P. 3(c). Generally speaking, this is true: the requirements of Rule

3(c) are jurisdictional, see Torres v. Oakland Scavenger Co., 487 U.S. 312, 320-21 (1988),

and Rule 3(c) requires that a notice of appeal identify each appellant. Mr. Branella, in turn,

observes that Torres emphasizes that “mere technicalities should not stand in the way of

consideration of a case on the merits.” Id. (internal quotations omitted). He further argues

that Rule 3(c) was amended on December 1, 1993, after our decision in Collier, and that,

under the revised rule, a notice of appeal may specify the parties taking the appeal by

“naming each one in the caption or body of the notice.” Rule 3(c)(1)(A) (emphasis added).

Mr. Branella further observes a second revision to the Rule stating that “[a]n appeal must not

be dismissed for . . . failure to name a party whose intent to appeal is otherwise clear from

the notice.” Fed. R. App. P. 3(c)(4).

While we have not applied our decision in Collier to Rule 3 as revised, we have held

that “[t]he purpose of Rule 3(c)’s identification requirement is to provide notice to the court

and the opposing parties of the identity of the appellants.” In re Continental Airlines, 125

F.3d 120, 129 (3d Cir. 1997) (citing Torres, 487 U.S. at 318). Such purpose has been

satisfied here. Notwithstanding his absence in the caption of the notice of appeal, Branella

identified himself in its body, identified with specificity the sanctions levied against him, and

10
expressly gave notice that those sanctions would be appealed, albeit by his client. We believe

that, in this case, such information, set forth in a case with a single appellant who was not

sanctioned in her own capacity, sufficiently evidences attorney Branella’s intent to appeal

alongside his client. See Rule 3(c)(4); see also Rule 3, 1993 Advisory Committee Note

(noting that the 1993 amendment to Rule 3(c) was intended to “make[] it clear that dismissal

of an appeal should not occur when it is otherwise clear from the notice that the party

intended to appeal”).

III.

Our jurisdiction satisfied, we summarize the applicable standards of review. This

Court reviews for abuse of discretion a district court's refusal to grant leave to amend a

complaint on grounds of futility. In re Adams Golf, Inc. Secs. Litig., 381 F.3d 267, 281 (3d

Cir. 2004). We likewise will not disturb a district court’s decision to impose Rule 11

sanctions absent an abuse of discretion. See Cooter & Gell v. Hartmax Corp., 496 U.S. 384,

405 (1990); Waltz v. County of Lycoming, 947 F.2d 387, 288 (3d Cir. 1992).

IV.

Ms. Balthazar first contends that the District Court abused its discretion in denying

her motion for leave to file her amended complaint. The Federal Rules of Civil Procedure

require that leave to file an amended pleading “shall be freely given as justice so requires.”

Fed. R. Civ. P. 15(a); see also Bechtel v. Robinson, 886 F.2d 644, 652 (3d Cir. 1989) (finding

a “strong liberality” in permitting leave to file an amended pleading). However, leave to file

11
is not without limits. See, e.g., Forman v. Davis, 371 U.S. 178, 182 (1962) (denial of leave

to amend is appropriate in circumstances “such as . . . bad faith, . . . undue prejudice to the

opposing party . . . , [and] futility of amendment”). Here, the District Court determined that

Balthazar’s amended complaint was futile on several alternative grounds, a determination

that appears correct in all respects. That said, the Supreme Court has instructed that, in cases

such as this involving state court adjudications, “[d]isposition of the federal action, once the

state-court adjudication is complete, [is] governed by preclusion law.” Exxon Mobil Corp.

v. Saudi Basic Indus. Corp., ___ U.S. ___, 125 S. Ct. 1517, 1527 (2005). Accordingly, we

will affirm on that basis alone.

The preclusion analysis in this case is straightforward. “‘It is now settled that a

federal court must give to a state court judgment the same preclusive effect as would be

given that judgment under the law of the State in which the judgment was rendered.’”

Walker v. Horn, 385 F.3d 321, 337 (3d Cir. 2004) (quoting Migra v. Warren City Sch. Dist.

Bd. of Educ., 465 U.S. 75, 81 (1984)); see also Paramount Aviation Corp. v. Augusta, 178

F.3d 132, 135 (3d Cir. 1999) (“federal courts should apply the general rule that the preclusive

effect of a judgment is determined by the preclusion law of the issuing court”).4 Under New

Jersey law, the following elements are required for res judicata: (1) the final judgment in

the prior action must be valid, final, and on the merits; (2) the parties in the later action must

4
Additionally, as the Supreme Court explained in Exxon, the Full Faith and Credit
Act, 28 U.S.C. § 1738, requires federal courts to “‘give the same preclusive effect to a
state-court judgment as another court of that State would give.’” Exxon, 125 S. Ct. at
1527 (quoting Parsons Steel, Inc. v. First Alabama Bank, 474 U.S. 518, 523 (1986)).

12
be identical to or in privity with those in the prior action; and (3) the claim in the later action

must grow out of the same transaction or occurrence as the claim in the earlier one. See

McNeil v. Legislative Apportionment Comm’n of the State of N.J., 117 N.J. 364, 395, 828

A.2d 840, 859 (N.J. 2003); see also Watkins v. Resorts Int’l Hotel & Casino, Inc., 124 N.J.

398, 412, 591 A.2d 592, 599 (N.J. 1991).

Here, as to the first element, it is undisputed that the state court adjudication was valid

and final, leaving only the questions of whether there has been an adjudication on the merits

and whether the claims grow out of the same transaction or occurrence. Balthazar argues

both in the negative. She first suggests that an appellate court’s affirmance of a dismissal

with prejudice for want of an affidavit of merit is not an adjudication on the merits. The

argument is unpersuasive because it is incorrect as a matter of New Jersey law. Under New

Jersey law, “a judgment of involuntary dismissal or a dismissal with prejudice constitutes

adjudication on the merits as fully and completely as if the order had been entered after trial.”

Velasquez v. Franz, 123 N.J. 498, 507, 589 A.2d 143, 148 (1991) (internal quotation

omitted). More recently, the New Jersey Supreme Court has determined that there is no

reason to depart from Velasquez’s well-settled principle in the scenario presented here, where

the action was dismissed with prejudice for failure to file an affidavit of merit as required by

the New Jersey affidavit of merit statute:

Like the dismissal addressed in Velasquez, a dismissal under the
Affidavit of Merit [statute] involves a failure to comply with
the statute that the plaintiff cannot cure merely by amending the
complaint. Non-compliance does not inhere in the complaint

13
 but in the failure to satisfy the essential, collateral affidavit
requirement. The plaintiff would be prohibited by res judicata
based on the Court's ruling in Velasquez from filing a new but
identical claim.

Cornblatt v. Barow, 153 N.J. 218, 246 708 A.2d 401, 415 (1998). In addition to this

controlling authority establishing that Ms. Balthazar’s state court case was adjudicated on the

merits as a matter of law, it is clear that the state appellate court, as discussed supra,

thoroughly considered Ms. Balthazar’s claims and evidence sounding in fraudulent

concealment with respect to both her argument against dismissal and her argument that the

trial court erred in refusing her motion to amend.

Balthazar next suggests that her federal action arises from a separate transaction or

occurrence, but we are not persuaded by her arguments that she could not raise her federal

claim in her state court action and that she did not discover the facts supporting her federal

claim until the fall of 2001. First, Balthazar could have presented her federal RICO claims

in state court. See Tafflin v. Levitt, 493 U.S. 455 (1990) (state courts have concurrent

jurisdiction over claims brought pursuant to federal RICO statute). Second, Balthazar made

fraudulent concealment claims arising out of her hysterectomy procedure as early as May 14,

2001, the date the lower state court denied her motion to amend her state complaint to allege

such claims. 816 A.2d at 1061.

The remaining element necessary for res judicata is not seriously in dispute, as the

parties in the federal action are identical to the parties in the state court action, with the minor

exception that Dr. Larry Kaufman was named as a state court defendant but not as a federal

14
defendant. In her federal complaint, Balthazar sued two practices that Kaufman was

affiliated with, DeStefano, Feldman, Kaufman & Korzeniowski, P.A., and DeStefano,

Feldman & Kaufman, P.A. Balthzar does not allege that Kaufman was negligent or

conspired to cover up the alleged negligence; she alleges that she underwent a hysterectomy

performed by Dr. Henderson, an employee of the medical group of DeStefano, Feldman,

Kaufman & Korzeniowski, P.A., with the assistance of Dr. Korzeniowski, in the presence

of a resident, Dr. Richard Cooper. Given Dr. Kaufman’s lack of direct involvement as well

as the fact that Balthazar has not argued that Dr. Kaufman’s absence prohibits preclusion,

we believe his absence is immaterial.

For all of these reasons, the elements of res judicata under New Jersey law are thus

easily satisfied by the facts of this case.

Finally, we observe counsel’s correct concession at oral argument that, even if Ms.

Balthazar were granted leave to file another amended complaint, she would not, and could

not, substantially depart from the amended complaint already rejected by the District Court.

Because no amendment to Ms. Balthazar’s federal complaint could abate the preclusive

effect arising from the adjudication of her state court complaint, her proposed amendments

were futile, as would be any future proposed amendments. Therefore the District Court did

not abuse its discretion in denying leave to amend.5

IV.

5
As such, we need not reach the District Court’s alternative grounds for denying the
motion.

15
 The final issue before us is whether the District Court abused its discretion in

imposing non-monetary Rule 11 sanctions on Mr. Branella for filing the proposed amended

complaint. Upon review of the record, we conclude the sanctions were proper in all respects.

As the District Court correctly noted in its analysis of the substantive allegations in the

proposed amended complaint, they were almost precisely parallel to Balthazar’s unsuccessful

state court claims. They were also almost identical to allegations that the District Court had

already dismissed in Balthazar’s original federal complaint. As such, the District Court acted

within its discretion, as sanctions are proper when, inter alia, a party “insist[s] upon a

position after it is no longer tenable . . . .” Fed. R. Civ. P. 11 Advisory Committee’s Note.

Under Rule 11, the appropriate sanction must be limited to one “sufficient to deter

repetition of such conduct or comparable conduct by others similarly situated.” Fed. R. Civ.

P. 11(c)(2). Among the sanctions contemplated by Rule 11 for this purpose are compulsory

attendance of legal education classes. See, e.g., Gaiardo v. Ethyl Corp., 835 F.3d 479, 482

(3d Cir. 1987). This is precisely what the District Court did here, ordering Mr. Branella to

attend two continuing legal education courses, one entitled Federal Practice and Procedure,

the other entitled Attorney Professionalism and Rules of Professional Conduct. As the titles

of these educational courses indicate, they constitute no more of a sanction than is necessary

for deterring the conduct at issue here. Accordingly, for this reason as well, we discern no

abuse of discretion on the part of the District Court with respect to the sanctions imposed

against Mr. Branella.

16
 V.

For the foregoing reasons, the August 15, 2003 order of the District Court is affirmed.

17