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KLEIN v. ROBINSON

June 4, 1971

Ernest KLEIN, Plaintiff,
v.
Wilbert ROBINSON, Defendant


Dooling, District Judge.


The opinion of the court was delivered by: DOOLING

MEMORANDUM AND ORDER

DOOLING, District Judge.

 The earlier of the above actions was commenced in this Court and the later one was commenced in the Supreme Court, County of Kings, and removed to this Court. The defendant is a deputy United States Marshal of this Court and District. The actions arise out of the defendant's attempt to serve and later service on plaintiff on January 15, 1970 of a memorandum and order of January 7, 1970 signed by the Honorable Thomas F. Murphy, United States District Judge, in three actions in the United States District Court for the Southern District of New York, 69 C 3116, 69 C 3153 and 68 C 4970. The present actions seek damages of $1,200,000 against defendant for slander, assault, and false imprisonment.

 Judge Murphy's memorandum and order were made in disposing of motions to dismiss the complaints of Ernest Klein in 69 C 3116 and 69 C 3153 on the grounds that they were commenced in bad faith, were vexatious and abused process or were barred by the Statute of Limitations. The Memorandum and Order, a certified copy of which later was put in defendant's hands for service upon plaintiff Ernest Klein, said among other things

 
"Plaintiff was, at the time complained of, an active stock market investor and trader and allegedly lost heavily when his margin accounts were liquidated. Today he is a litigious plaintiff nominally appearing pro se, and has filed some 40 lawsuits in this Court and in the New York State Courts * * *
 
Plaintiff is not a bona fide pro se litigant. On oral argument before us, he admitted that he had been receiving legal advice from two sources. We think he said they were relatives. His papers are expertly typed, and bear the hallmark of a lawyer's supervision. We are satisfied that he brings these multitudinous actions to harass and possibly intimidate the defendants into a settlement.
 
Rather than dismiss for such a reason, assuming we have such power, we hereby enjoin the plaintiff "from prosecuting any of the actions pending in this Court against these defendants, except 69 Civ. 3116, 69 Civ. 3153 and 68 Civ. 4970; and in actions 69 Civ. 3116 and 69 Civ. 3153 he is hereby stayed from further proceedings until he files a Corporate Undertaking in the sum of $5000 as security for costs and reasonable counsel fees * * *".

 The memorandum and order of Judge Murphy concluded with the following language:

 
"These are orders. No settlements are necessary. The Marshal is directed to personally serve a certified copy of this order on the plaintiff at his home #5517 15th Avenue, Brooklyn, N.Y. 11219."

 The order was dated January 7, 1970.

 The log of the Marshal's office for the Eastern District of New York, shows that the process was received in his office on January 13, 1970, and that it was served on January 15, 1970 and returned on January 19, 1970. The log indicates that the defendant was the Marshal effecting the service and it recorded his out-of-pocket charges for the service. Defendant executed two forms USM-282, "Return on Service of Writ", with respect to his attempted service and service of the certified copy of the order. One return reads in its narrative portion,

 
"Endeavored to serve, Thursday, January 15th, 1970. Could not get anyone to answer. Car was in front of house, while upstairs, some girls were admitted to the lower floor door. Investigation revealed that he was in said house, but was evading service. Note: service made later in the evening."

 In the lower left hand corner of the form USM-282 no marshal's fees or mileage amounts were filled in. This "Endeavor to Serve" return was retained in the office of the Marshal for the Southern District of New York and was not put into the file of the District Court for the case because, it is said, the "Endeavor to Serve" did not involve any charge of Marshal's fees.

 Another form USM-282, "Return of Service of Writ", was executed by defendant and filed in the Court files of the actions in the Southern District. The return was a regular certificate and return of service upon Ernest Klein and stated that service had been made by handing to and leaving a true copy of the order with "Ernest Klein a/k/a Rabbi Klein in his 1966 Blue Dodge Sedan with lic. plates number DB-843 (N.Y.) personally at the corner of Flatbush Avenue and ...


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