Comuso v. National Railroad Passenger Corporation

Marvin I. Barish, counsel for the plaintiff Mario Comuso,
seeks immediate appellate review of the District Court's
order dated April 25, 2000 imposing sanctions against him.
We must determine whether we have jurisdiction to hear
this appeal under 28 U.S.C. S 1291, and, if not, whether we
should issue a writ of mandamus as requested.

I.

FACTS AND PROCEDURAL BACKGROUND

Comuso filed an action against the National Railroad
Passenger Corp. ("Amtrak") under the Federal Employer's
Liability Act, 45 U.S.C. S 51 et seq., alleging that he
suffered personal injuries while working for Amtrak. The
trial commenced on January 11, 1999 before Judge Herbert
J. Hutton in the United States District Court for the
Eastern District of Pennsylvania. Comuso was represented
by Barish, and Amtrak was represented by Paul F.X.
Gallagher.

According to Barish, the trial began poorly for Gallagher,
as testimony from the plaintiff 's witnesses showed that
certain representations that Gallagher had made during his
opening statement were false. Gallagher responded by
cross-examining the plaintiff with a line of questioning that
Barish believed was improper and which angered him. After
the cross-examination, the court called a recess.

It is the events that took place during that recess on
January 12, 1999 that ultimately led to the sanctions
against Barish. These facts are not really disputed by the
parties. Outside the presence of the District Judge or the
jury, but apparently in the presence of several witnesses,
Barish approached Gallagher with his fists cocked and
threatened to kill him. Barish was screaming when he
threatened Gallagher. Barish called Gallagher a"fat pig", a

"mother f-----," and "lower than whale s----." App. at 456-
459. These threats culminated with Barish's assistant,
Randy Zevin, having to physically pull Barish away from
Gallagher. According to Barish's own testimony at the
hearing he stated that he said "if you come around me, I'm
going to kill you," J.A. at 454, which in his brief before this
court he explains as meant to be "a warning to Mr.
Gallagher (albeit in an admittedly heated and hyperbolic
fashion) to stay away from him in the future." Br. of
Appellant at 15 n.10.

After the recess, the court summoned a United States
Marshal and declared a mistrial. The court stated,"The
constant bickering and lack of gentlemanly conduct in the
courtroom in front of the jury was of such a nature that I've
never seen it before." App. at 257-258. Barish objected, but
the court noted that Barish threatened Gallagher's life in
the presence of witnesses. Barish denied that he threatened
Gallagher's life. The court, however, declared that the
matter was over and asked both counsel to leave the
courtroom.

Amtrak, after obtaining new counsel, moved for sanctions
against Barish. The District Court held a hearing on March
2, 2000 at which both Barish and Gallagher testified.
Barish stated that his conduct "was not appropriate. I
shouldn't have done it. I should have been able to control
myself. . . . it's never going to happen again, I can tell you
that." App. at 449. In addition, he admitted that"I think
most of the things he said that I said, I did." App. at 454.
However, Barish said that he would not have really killed or
attacked Gallagher, as they were friends. Gallagher testified
that Barish did threaten to kill him and that even though
"as big as I am, I shouldn't have been that fearful of being
stricken, . . . I felt I was going to take a hit." App. at 489.

* * *

After Barish filed a timely appeal to this court, Amtrak
filed a motion to dismiss the appeal on the basis of lack of
jurisdiction. Subsequently, the District Court determined
that Barish should pay $13,285.61 in reasonable fees and
costs to Amtrak. Comuso v. Nat'l R.R. Passenger Corp., No.
97-7891, slip op. at 10 (E.D. Pa. filed Nov. 22, 2000). The
court also placed the underlying case on its civil suspense
file pending resolution of Barish's appeal. App. at 510.

* * *

Click the case caption above for the full text of
the Court's opinion.

For the foregoing reasons, we will dismiss the appeal for
lack of jurisdiction and deny the petition for a writ of
mandamus.

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