ELD-026 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 15-1271

___________

KEITH DOUGHERTY; KEITH DOUGHERTY INVESTMENTS & 

CONSULTING LLC (SMLLC) ASSIGNEE OF BILL'S MECHANICAL AND 

WELDING, (Fictitious Name) SOLE PROPRIETOR LARRY RUNK, II

v.

ERIE INSURANCE EXCHANGE, also known as Erie Insurance; 

GREG GARRITY, Erie Agent; JIM BURKHOLDER; 

ROBERT SIMMONDS, Erie Investigator; 

NICOLE R. GEHRET, Erie Sr. Liability Adjuster; 

R. G. SMITH, Cumberland County Insurance Fraud Investigator; 

CUMBERLAND INSURANCE FRAUD UNIT

Keith Dougherty;

Larry Runk, II,

Appellants

____________________________________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Civ. No. 1-14-cv-00480)

District Judge: Honorable J. Frederick Motz

____________________________________

Submitted for Possible Summary Action

Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6 

April 30, 2015

Before: RENDELL, SLOVITER and GREENBERG, Circuit Judges

(Opinion filed: May 22, 2015)
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_________

O P I N I O N*

_________

PER CURIAM

Keith Dougherty and Larry Runk II appeal from the order of the District Court 

denying reconsideration of its dismissal of their complaint. We will affirm.

I.

In Dougherty’s appeal at C.A. No. 15-1123, we separately address his attempt to 

assert a claim that Runk purportedly assigned to him. This appeal concerns one of 

Dougherty’s attempts to represent Runk’s interests more directly. In this case, Dougherty 

and Runk filed suit pro se under 42 U.S.C. § 1983 and later filed an amended complaint 

(which, like all their other joint filings, appears to have been prepared by Dougherty). 

The amended complaint is premised on a dispute between Runk and Erie Insurance 

Exchange (“Erie Insurance”) regarding insurance claims that Runk submitted following 

an automobile accident and on an apparently related Pennsylvania criminal proceeding in 

which Runk is being prosecuted for insurance fraud.1 

Plaintiffs named as defendants Erie Insurance, certain of its employees, the 

Cumberland County, Pennsylvania, District Attorney Insurance Fraud Unit, and one of its 

 

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent.

1 Runk has been charged with insurance fraud, theft by deception and other offenses in 

the Pennsylvania Court of Common Pleas for Cumberland County at No. CP-21-CR0001189-2014. Those charges remain pending.
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investigators. (Plaintiffs’ filings in this Court also purport to identify as defendants the

Cumberland County Chief Deputy District Attorney and two state-court judges, but they 

were not parties to this proceeding in the District Court.) The amended complaint is not a 

model of clarity, but plaintiffs appear to allege that Erie Insurance conspired with 

Cumberland County investigators to bring unfounded charges against Runk in order to 

coerce him into accepting an undervalued settlement of his claims and that the Insurance 

Fraud Unit has denied him due process by conducting an inadequate investigation and by 

pressuring him to plead guilty to a “legally impossible” crime. The amended complaint 

requests $5 million in damages and injunctive relief, apparently against Runk’s continued 

prosecution.

As for Dougherty’s alleged interest in this dispute, the amended complaint alleges 

that Dougherty and Runk “have engaged in long term business dealings” and that Runk 

“has been forced to seek Keith Dougherty’s assistance in protecting his/their mutual 

rights in the Courts of PA” because Runk has been mistreated by lawyers in the past. 

(ECF No. 5 at 8-9 ¶¶ 8, 9.) The amended complaint further alleges that Dougherty has 

“purchased” Runk’s claim against Erie Insurance (id. at 13 ¶ 20), and it attaches the same 

agreement between Dougherty and Runk that we address in C.A. No. 15-1123 (ECF No. 

5-1 at 58-60). 

Several defendants moved to dismiss the amended complaint on the grounds, inter 

alia, that it fails to state a claim and that the purported assignment of Runk’s claim 

against Erie Insurance to Dougherty is champertous. The District Court dismissed the 

amended complaint with prejudice for failure to state a claim, and then later denied by 
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text-only orders plaintiffs’ several post-judgment motions, including their motions for 

reconsideration and to disqualify the District Judge. Both Dougherty and Runk appeal 

from those rulings.2

II.

In dismissing the amended complaint, the District Court focused on Dougherty 

and noted that Runk’s purported assignment of his claim to Dougherty appears to be 

champertous. That assignment is indeed champertous for the reasons we explain in C.A. 

No. 15-1123, so Dougherty is not permitted to litigate any claims that Runk may have 

against Erie Insurance. Dougherty also does not have standing to challenge Runk’s 

alleged denial of due process in his ongoing criminal proceeding. We will affirm the 

dismissal of the amended complaint as to Dougherty for these reasons. 

As for Runk, the District Court did not identify his potential claims but, having 

done so ourselves, we agree that the amended complaint does not set forth a plausible 

claim for relief.3 Plaintiffs already have amended their complaint once and nothing 

 

2 We have jurisdiction under 28 U.S.C. § 1291. Plaintiffs’ appeal from the order denying 

reconsideration brings up for review the underlying order dismissing the amended 

complaint. See Long v. Atl. City Police Dep’t, 670 F.3d 436, 446 n.20 (3d Cir. 2012). 

We exercise plenary review over the dismissal of a complaint under Rule 12(b)(6) and 

ask whether it “contain[s] sufficient factual matter, accepted as true, to state a claim to 

relief that is plausible on its face.” Capogrosso v. Sup. Ct. of N.J., 588 F.3d 180, 184 (3d 

Cir. 2009) (per curiam) (quotation marks omitted). In doing so, we may review certain 

documents attached to the complaint. See Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir. 

2010). To the extent that plaintiffs’ filings can be read to challenge the District Judge’s 

denial of their post-judgment motion for disqualification, we review that ruling for abuse 

of discretion and discern none here. See United States v. Ciavarella, 716 F.3d 705, 717 

n.4 (3d Cir. 2013), cert. denied, 134 S. Ct. 1491 (2014).

3 Plaintiffs’ allegations are largely conclusory and inadequate on their face but, even if 

properly supported, they still would fail to state a claim as a matter of law. Runk’s only 
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contained in their amended complaint or their filings on appeal suggests that Runk could 

further amend the complaint to assert a plausible claim. Thus, we will affirm the 

dismissal of the amended complaint as to Runk for failure to state a claim.

We close by noting one concern. The style and content of plaintiffs’ joint filings 

suggest that they were prepared by Dougherty. Although Runk apparently has adopted 

them as his own by signing them, it appears that Dougherty may be engaging in the 

unauthorized practice of law.4 Thus, it may be that Dougherty’s apparent advice has led 

Runk astray and jeopardized whatever claims Runk may legitimately have against Erie 

 

conceivable federal claim against Erie Insurance would appear to be that it conspired 

with the Insurance Fraud Unit to maliciously prosecute him without probable cause in 

violation of his Fourth Amendment rights. See Johnson v. Knorr, 477 F.3d 75, 81-82 (3d 

Cir. 2007). One of the elements of such a claim is the termination of the proceeding in 

the accused’s favor, see id., and Runk has not alleged and cannot allege that here. Runk’s 

claims for damages against the Insurance Fraud Unit fails for the same reason. Finally, 

as for Runk’s apparent request for an injunction against his prosecution, federal courts 

“must not intervene by way of either injunction or declaratory judgment in a pending 

state criminal prosecution” absent exceptional circumstances not alleged here. Kugler v. 

Helfant, 421 U.S. 117, 123 (1975) (discussing Younger v. Harris, 401 U.S. 37 (1971)). 

4 Both the Erie Insurance defendants and the District Court raised this concern, and we 

share it. The agreement between Dougherty and Runk states that Dougherty will provide 

Runk with “recommendations and representation in the efforts to collect bad debt” with 

the “specific intent” of instituting legal proceedings (ECF No. 5-1 at 58), and the 

amended complaint alleges that Dougherty is assisting Runk “in protecting his/their 

mutual rights in the Courts of PA” (ECF No. 5 at 8-9 ¶ 9). In addition, plaintiffs have 

attached to their motion for a preliminary injunction in this Court the transcript of an 

August 28, 2014 hearing in Runk’s criminal proceeding. At the hearing, the Cumberland 

County Chief Deputy District Attorney informed the trial court that Dougherty (who was 

present in the courtroom) had been “injecting himself in this case in filing motions” and 

that “I am going to tell you right now, he is under investigation for unauthorized practice 

of law. Mr. Runk is seriously in jeopardy from his advice.” (Mot. for Preliminary 

Injunction, “Transcript” at 5-6.) We express no opinion on whether Dougherty in fact 

has engaged in the unauthorized practice of law.
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Insurance (an issue on which we express no opinion). The District Court noted 

Dougherty’s apparent unauthorized practice of law but did not take any measures to 

protect Runk’s potential rights. We see no need to do so now because Runk has long 

been on notice of these concerns and has filed nothing personally in either the District 

Court or this one disavowing Dougherty’s filings or attempting to assert anything other 

than the claims contained therein. If Runk believes that he has legitimate claims to assert 

in the future, he would be well advised to assert them without Dougherty’s assistance. 

See Dougherty v. Snyder, 469 F. App’x 71, 73 (3d Cir. 2012) (per curiam) (noting that 

Dougherty’s legal arguments “serve only to demonstrate the wisdom” of the requirement 

that business entities be represented by counsel in federal court).

III.

For these reasons, we will affirm the judgment of the District Court. Appellants’ 

motions pending in this Court are denied.5

 

5 We have reviewed the arguments contained in appellants’ various filings, including 

their arguments that the assignment of Dougherty’s prior appeals to certain panels of this 

Court was the product of a “political conspiracy” to deny his claims, and conclude that 

they lack merit for reasons that do not require discussion.