Polidi v. Mendel

1

RICHARD POLIDI, Plaintiff, v. ELIZABETH U. MENDEL, et al., Defendants.

No. 5:23-CV-518-M

United States District Court, E.D. North Carolina, Western Division

September 26, 2024

MEMORANDUM AND RECOMMENDATION

Robert B. Jones, Jr. United States Magistrate Judge

This matter is before the court on the motion to dismiss Plaintiff Richard Polidi's first amended complaint by Defendants Elizabeth Mendel, James Payne, Michelle Lee, Kimberly Weinreich, John Heaton, the United States of America, the United States Patent and Trademark Office (“USPTO”), and Kathi Vidal's (collectively “Defendants”). [DE-12, -15], Polidi responded to the motion, [DE-22], and Defendants replied, [DE-25]; thus the matter is ripe for review. The motion to dismiss has been referred to the undersigned for a memorandum and recommendation to the district court pursuant to 28 U.S.C § 636(b)(1)(B) and Local Civ. R. 72.3(c)(1), E.D. N.C. For the following reasons, it is recommended that the motion be allowed.

I. Background

Polidi is a former North Carolina licensed attorney who was disbarred by the North Carolina State Bar (“NCSB”) in 2014 for misuse of client funds, then reciprocally disbarred from practicing before the USPTO in 2015. Am Compl. [DE-12] ¶¶ 9-17, 24-49. The instant action- in which Polidi asserts violations of the Federal Tort Claims Act (“FTCA”), the Administrative Procedure Act (“APA”), and the Privacy Act of 1974 (“Privacy Act”) and seeks monetary damages, declaratory relief under the Declaratory Judgment Act (“DJA”), and production of “all known exculpatory material in connection with this matter”-is one of many that Polidi has brought since then to challenge his disbarment. See, e.g, Polidi v. Boente, et al., 5:22-cv-519-M (E.D. N.C. ).^[1]

Polidi filed the instant case on September 22, 2023, asserting violations of the FTCA and APA and seeking, inter alia, declaratory relief under the DJA. [DE-1], Defendants moved to dismiss in lieu of answering the complaint. [DE-9], Shortly thereafter, Polidi amended his complaint to add additional defendants and a Privacy Act claim. [DE-12]. Defendants renewed their motion to dismiss to incorporate both the memorandum found at [DE-10] and new arguments related to Polidi's Privacy Act claim. [DE-15]. The renewed motion was referred here on September 9, 2024, and the court issued an order denying Defendants' original motion to dismiss as moot without prejudice on September 10, 2024, [DE-28]. The facts alleged in the amended complaint are difficult to decipher but are summarized below.^[2]

i. Facts Related to Polidi's FTCA, APA, and DJA Claims

During the initial NCSB disciplinary proceeding, Polidi admitted to committing misconduct and voluntarily surrendered his law license. Am. Compl. [DE-12] ¶¶ 9-16. However, Polidi now disputes the misconduct and alleges that the NCSB, and later the USPTO, dishonestly prosecuted him and manipulated him into surrendering his law license, at least in part because of nefarious “ulterior motives.” Id. ¶¶ 16-49. Specifically, Polidi contends that “parties who were never disclosed to the plaintiff' improperly influenced the NCSB ethics prosecution, id. ¶¶ 18-19, and that, in turn, the NCSB concealed the impropriety, id. ¶¶ 20-21. As relevant here, Polidi believes that this alleged misconduct and attempts to conceal it then persisted in the USPTO's reciprocal disciplinary proceeding, as well as in subsequent judicial proceedings reviewing the disbarment decisions and related investigations, because Polidi's former attorney and the two agencies have an “understanding” to never disclose any exculpatory materials to Polidi. Id. ¶¶ 24-49, 138.

Polidi describes in depth two sets of events that purportedly support his claims: the alleged concealment of an NCSB report, and the alleged concealment of communications between his former counsel and the NCSB. Turning first to the report allegations, Polidi claims that during the USPTO's preliminary investigation, he advised Kimberly Weinreich, staff attorney for the USPTO, that he had “substantial concerns relating to a lack of due process in North Carolina.” Id. ¶¶ 25-27. At this time, he also requested to review a “report” that he believes was made by NCSB's deputy counsel and investigator and submitted to the NCSB's grievance committee (referred to herein as the “NCSB report”). Id. Polidi believes that, as a part of the USPTO investigation, Weinreich obtained a copy of this report from the NCSB but did not disclose this information to Polidi or respond to any correspondence he initiated prior to the USPTO disciplinary proceeding. Id. ¶¶ 28-30. Instead, Weinrich violated “basic duties owed to the plaintiff and to all members of the USPTO” and, in an effort to conceal the improprieties revealed in the report, “tortiously refused to disclose those matters to the plaintiff or to any proper authority.” Id. ¶ 31.

Polidi asserts that Weinreich shared her findings regarding the allegedly flawed NCSB disciplinary proceeding and NCSB report with Elizabeth Mendel, the USPTO's Associate Solicitor. Id. ¶ 32. According to Polidi, Mendel encouraged Weinreich to “conceal such evidence in order to succeed at obtaining a successful prosecution of the plaintiff,” and the two proceeded with their investigation despite knowing that “the undisclosed evidence was exculpatory in the disciplinary matter in view of the USPTO regulations.” Id. ¶¶ 32-34. Polidi attempted to push back against the alleged obfuscation by seeking leave from the USPTO to “request the issuance of a subpoena by the Eastern District of Virginia to obtain the report, and he simultaneously requested discovery from the Office of Enrollment and Discipline.” Id. ¶ 37. However, the USPTO's Deputy General Counsel, James Payne, denied these requests, and the agency has since denied or outright ignored subsequent requests for similar information. Id. ¶¶ 3 8-40.

Turning next to the concealed communications allegations, Polidi alleges that his former counsel in the underlying NCSB disciplinary proceeding “avoided [his] request for communications he had with the North Carolina State Bar during the representation, not providing a single one for nearly three years after the request. Those communications, with the opposing party, during the representation, belong in the client file and constitute client property in North Carolina.” Id. ¶ 128. Believing these communications to be exculpatory, at some point during the USPTO investigation, Polidi contacted Kimere Kimball and “indicated to Ms. Kimball that he planned to file a motion in a pending matter requiring his former counsel to comply with the applicable Rules of Professional Conduct and duly provide him with copies of documents belonging in his client file.” Id. ¶ 134. Kimball indicated to Polidi that she would oppose the motion, “obviating what [Polidi believes] to be her ethical and legal duties.” Id. ¶ 135. Polidi contends that “the foregoing conduct has aided the secreting of documents and information to which the plaintiff has always been entitled. The Defendants have had a duty to assist with ending the improper secreting of those documents.” Id. ¶ 137.

Polidi describes Defendants' additional allegedly tortious conduct in less detail. Namely, he asserts that “Defendant James O. Payne entered each Order without due authority for its adjudication and entry under the regulations of the USPTO, whether by a delegation of authority from Defendant Michelle K. Lee or otherwise”; that “Defendant John Heaton, counsel with the USPTO Office of General Law, acted in concert with Defendant Payne in connection with the entry of Orders and otherwise in connection with the subject prosecution”; that “Ms. Lee did not exercise due supervision over Defendant Payne nor over the other parties in connection with the instant matter”; and that Defendants “committed substantial wrongful acts and omissions in connection with appeal before the Federal Circuit, including a continued withholding material exculpatory evidence from multiple filings with the Federal Circuit as well as at an oral argument before the Court in Washington, DC.” Id. ¶¶ 43-48. Polidi argues that because of Defendants' allegedly improper acts and omissions, he “could not meet his burden in connection with the USPTO disciplinary proceeding,” and consequently was reciprocally disbarred without adequate process. Id. ¶¶ 41, 49.

ii. Facts Related to Polidi's Privacy Act Claim

According to Polidi, in 2022, he made a request to the USPTO “specifically under the Privacy Act” for production of, inter alia, the NCSB report. Id. ¶ 177. Despite receiving clarification from Polidi on the legal authority compelling the request, the USPTO “provided a response with an analysis under the Freedom of Information Act [‘FOIA'], claiming exemptions under FOIA, with no due analysis under the Privacy Act.” Id. ¶¶ 178-79. The USPTO's response “to the FOIA request was limited. The USPTO provided a total of 103 responsive pages with large portions of those pages claimed as exempt.” Id. ¶ 181.

Polidi administratively appealed the document production to the USPTO, indicating that “the exemptions were analyzed improperly. Each of those exemptions were made under FOIA. No analysis appears to have been conducted under the Privacy Act.” Id. ¶ 182. However, Polidi claims that the USPTO never responded to this appeal. Id. ¶¶ 183-84. Moreover, Polidi contends that,

[the] requested and exempted information shows official misconduct. Not only were the exemptions made improperly, but the USPTO intentionally did not even account for the single report made to the North Carolina Bar's Grievance Committee as the plaintiff has sought since the outset. None of the 103 pages appears to comprise that report. At the same

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