Opinion
Civil Action Nos. 02-959(JWB), 02-960(JWB), 02-961(JWB), 02-962(JWB), 02-963(JWB).
June 30, 2004
REITMAN PARSONNET, By: Bennett D. Zurofsky, Esquire, Newark, New Jersey, Attorney for Plaintiffs, Stephen W. Yost, Mark A. Speeney, David M. Oestreicher, Elizabeth Jones Eaker and Adriana Greci Green.
CARPENTER, BENNETT MORRISSEY, By: Irving L. Hurwitz, Esquire, Newark, New Jersey, Attorneys for Defendants, Rutgers-The State University.
WEISSMAN MINTZ, By: James M. Cooney, Esquire, Somerset, New Jersey, Attorneys for Defendants, William Powers and Lakota Books Publishing Co.
MORGAN, MELHUISH, MONAGHAN, ARVIDSON, ABRUTYN LISOWSKI, By: Elliott Abrutyn, Esquire, Livingston, New Jersey, Attorneys for Defendants Carpenter, Bennett Morrissey, Irving Hurwitz and Linda Celauro.
SACHS, MAITLIN, FLEMING, GREENE WILSON, By: Peter A. Greene, Esquire, West Orange, New Jersey, Attorneys for Defendants, Katich, Werse Petillo, Douglas Katich and Stanley Werse.
STEVENS SCHWAB, By: David R. Cosgrove, Esquire, Secaucus, New Jersey, Attorneys for Defendants, Alman Michaels and Emily Alman.
LINDABURY, McCORMICK ESTABROOK, By: Steven Backfisch, Esquire, Westfield, New Jersey, Attorney for Defendant Michelle Burger Wood.
OPINION
This matter comes before the Court on plaintiffs' and Defendant CBM's motions for reargument of this Court's September 29, 2003 Opinion and Order. Plaintiffs, Stephen M. Yost, Mark A. Speeney, David M. Oestreicher, Elizabeth Jones Eaker and Adriana Greci Green, challenge paragraph (3.) of the Order insofar as (1) it grants partial summary judgment to Defendant Carpenter, Bennett Morrissey ("CBM") as to Count 18 of their complaints and (2) it stays proceedings against CBM as to Count 7 of their complaints. CBM's motion for reargument claims that the Court overlooked several matters in connection with its September 29, 2003 opinion.
Plaintiffs' brief states that since the time when this motion was argued, Ms. Jones Eaker has filed for personal bankruptcy in Des Moines, Iowa and Thomas L. Flynn has been appointed as her Chapter 7 Bankruptcy Trustee. Pl. Br. at 1 n. 1. Although there has been no formal announcement that Mr. Flynn will continue this litigation on behalf of Ms. Jones Eaker's bankrupt estate, plaintiffs have decided to include Ms. Jones Eaker as a party seeking reargument because her case presents no issues that differ in any way from the issues presented by the other plaintiffs. Id.
Count 18 is an attorney malpractice claim.
Count 7 is a breach of constructive trust/fiduciary duty claim.
Plaintiffs do not seek reargument for paragraph three's grant of partial summary judgment as to Count 19 of their complaints or for any other portion of the Court's September 29, 2003 Order.
FACTS AND BACKGROUND
A complete recitation of the facts and procedural history of this case can be found in this Court's Opinion of September 29, 2003 (the "Opinion"). In that Opinion and corresponding Order, this Court granted CBM's motion for summary judgment/dismissal of plaintiffs' Counts 18 and 19, denied said motion as to Count 7, and granted CBM's motion to stay Count 7. In doing so, this Court held that plaintiffs were barred by the doctrine of collateral estoppel from relitigating the issue of whether they had an attorney-client relationship with CBM and accordingly dismissed plaintiffs' Count 18 claim. This decision was based on the Court's finding that the New Jersey Superior Court had considered the identical issue in March 2000 on plaintiffs' motion to remove CBM as counsel for Rutgers, The State University ("Rutgers" or the "University"). See Opinion at 22. However, the Court did conclude that while CBM had a duty to be forthcoming in its communications with plaintiffs regarding its role in the Powers dismissal hearing, the issue of whether Defendant CBM breached that duty was not ripe for summary disposition. Id. at 25. Instead, the Court concluded that plaintiffs' Count 7 claim against CBM must be stayed until the resolution of the underlying matter. Id. at 27. Finally, in determining that a cause of action cannot be based solely on a violation of the Rules of Professional Conduct, the Court dismissed plaintiffs' Count 19 claim because it was based exclusively on CBM's alleged violation of the New Jersey Rules of Professional Conduct regarding an attorney's ethical obligations to non-clients. Id. at 25 n. 9.
In this Opinion and Order, the Court also granted Defendants Katich, Werse Petillo's ("KWP") motion to stay plaintiffs' claim and denied Defendants Alman Michaels (AM) motion for summary judgment/dismissal and to file a third-party complaint against Julius Oestreicher, Esq. The Court did grant AM's motion to stay. However, the Court's decisions with respect to the KWP and AM defendants are not relevant to the present motion for reargument.
Plaintiffs' claims are derived from their alleged mistreatment by William Powers, a former Rutgers professor. See Opinion, at 5. Powers exercised his right to a public hearing on the charges against him and this hearing lasted for approximately sixty days. Id. at 6-7.
DISCUSSION
I. Standard for Motions for Reconsideration
A motion for reconsideration is governed by Local Civil Rule 7.1(g). It requires that the moving party "set forth concisely the matters or controlling decisions which counsel believes the [Court] has overlooked." Pittston Co. v. Sedgwick James of New York, Inc., 971 F. Supp. 915, 918-919 (D.N.J. 1997). Thus, a party "must show more than a disagreement with the court's decision." Panna v. Firstrust Sav. Bank, 760 F. Supp. 432, 435 (D.N.J. 1991). A mere "recapitulation of the cases and arguments considered by the court before rendering its original decision fails to carry the moving party's burden." Carteret Sav. Bank, F.A. v. Shushan, 721 F. Supp. 705, 709 (D.N.J. 1989). "Only where the court has overlooked matters that, if considered by the court, might reasonably have resulted in a different conclusion, will it entertain such a motion." Re: United States v. Compaction Sys. Corp. et al., 88 F. Supp.2d 339, 345 (D.N.J. 1999).
II. CBM's Motion for Reargument
Defendant CBM contends that the Court made incorrect findings of fact and overlooked undisputed facts in the record. First, CBM draws the Court's attention to pages 26 and 27 of the Opinion and the statements made at the Powers hearing by CBM attorney, Ms. Celauro. The Court accurately quoted Ms. Celauro's statement from the hearing. Ms. Celauro stated "I don't represent Adriana Greci Green, nor do I represent Christopher DeFrancisco or any of the other witnesses, I represent the President of the [U]niversity." The Court then added "[i]t is not known whether any Plaintiff was in attendance when she made that statement, however." See Opinion at 26-27.
Defendant avers that (1) this observation by the Court is inconsistent with the Court's earlier factual findings as set forth on page 7 of the Opinion and (2) the Court overlooked the portion of Ms. Celauro's sworn statement where she stated that both Plaintiffs Green and Oestreicher were in attendance when the above statement was made. The first full paragraph on page 7 of the Opinion reads:
"[t]he hearing lasted for approximately sixty days, and much of the time was filled with testimony directly related to Plaintiffs. Emily Alman, Esq. appeared at the hearing on behalf of Plaintiff Greci Green. (Supp'l Certif. Of Elliott Abrutyn, Esq. Ex. 23 at 418-19, 421, 5272, 5498 ("This is Dr. Alman. I am her attorney as well as her advisor for the university."), 7069.) Plaintiff Oestreicher and his father Julius Oestreicher, Esq., who arguably represented him, were also present throughout the hearing." (Footnote omitted).
CBM contends that the foregoing is inconsistent with the Court's inquiry (on pages 26 and 27 of the Opinion) as to whether any of the Plaintiffs were present to hear Ms. Celauro's remarks at the Powers dismissal hearing on August 15, 1997.
Second, CBM avers that when writing its Opinion, this Court overlooked a portion of Ms. Celauro's Certification in which Ms. Celauro swore that when she made the statement that she did not represent any of the witnesses, both Ms. Greci Green and Dr. Oestreicher were in attendance. See Aff. of Linda Celauro, Attached to Abrutyn Cert., Ex. L. ¶ 42A. Finally, CBM maintains that the Court's statement on page 25 of the Opinion, wherein the Court stated that it "concludes that Defendant CBM did have a duty to be forthcoming in its communications with Plaintiffs regarding its role in the hearing especially since CBM presumably was not aware that several Plaintiffs might have representation until they testified to it at the hearing" is not an accurate reflection of the information contained in the record. See Opinion at 25.
CBM avers that if the Court had not overlooked these matters it would have concluded that plaintiffs could not have had any subjective belief about CBM's alleged representation of them.See Def. Br. at 9. While the Court acknowledges that it did misstate certain facts, those misstatements, when considered with the totality of the information in the record, do not lead the Court to a different conclusion. As the Court noted on page 27 of the Opinion, "there are far too many disputed facts surrounding this issue to permit its summary adjudication."
By relying on Ms. Celauro's statements, CBM fails to take into consideration the factual inconsistencies that plaintiffs claim are inherent in her certification. Ms. Celauro alleges that she and other members of CBM had either direct or indirect knowledge that Plaintiffs Green, Yost, Eaker and Oestreicher were either represented by or had consulted with other attorneys.See Def. Br. at 6-8. Nevertheless, there are sufficient facts contained within the plaintiffs' certifications that indicate that despite having sought the advice of outside counsel, plaintiffs harbored the belief that throughout the course of the Powers hearing, CBM was representing their interests. See March 21, 2003 Certification of David M. Oestreicher; February 1, 2000 Certification of Adriana Greci Green; January 28, 2000 Certification of Elizabeth Jones Eaker; January, 31, 2000 Certification of Stephen W. Yost; March 10, 2000 Certification of Mark A. Speeney. The fact that plaintiffs had consulted with or hired attorneys other than CBM does not exclude the possibility that plaintiffs maintained a subjective belief that CBM represented them in the Powers dismissal hearing.
Defendants' argument that Ms. Celauro's unequivocal denial that CBM represented the plaintiffs amounts to sufficient evidence that summary judgment be awarded to all plaintiffs' Count 7 claims or at the very least to Plaintiffs Oestreicher and Greci Green's claims also fails. Ms. Celauro's public statements at the Powers dismissal hearing must be considered in conjunction with the statements made by her and other members of CBM to plaintiffs while preparing for the hearing. Plaintiffs' briefs and accompanying certifications are replete with evidence that there was at least an impression given to plaintiffs by CBM that they pledged a duty to represent them in the Powers dismissal hearing. These facts must be considered and weighed against those alleged by CBM through Ms. Celauro's certification. Thus, because disputed facts remain, this issue cannot be adjudicated on a summary judgment motion.
In considering a motion for reconsideration, "[o]nly where the court has overlooked matters that, if considered by the court, might reasonably have resulted in a different conclusion, will it entertain such a motion." Re: United States v. Compaction Sys. Corp. et al., 88 F. Supp.2d 339, 345 (D.N.J. 1999). The Court finds that the issues raised by CBM in this motion for reargument do not warrant a determination by this Court that it rendered the incorrect conclusion. Even considering the "misstated" items, this Court finds that there are substantial factual disputes which remain and therefore this Court reaffirms the portion of its Opinion denying Defendant CBM's motion for summary judgment on plaintiffs' Count 7 for breach of constructive trust/fiduciary duty.
III. Plaintiffs' Motion for Reargument
Plaintiffs seek reargument of paragraph (3.) of the Order because it (1) grants partial summary judgment to the CBM defendants as to plaintiffs' attorney malpractice claims and (2) stays proceedings against CBM as to plaintiffs' breach of constructive trust/fiduciary duty claims. Pl. Br. at 1. The basis for this motion is plaintiffs' allegation that the Court misunderstood the proceedings in the New Jersey Superior Court and the inter-related nature of the claims brought against CBM and Rutgers. Pl. Br. at 1-2.
A. This Court Improperly Granted Summary Judgment to CBM for Plaintiffs' Count 18 Claim
Plaintiffs claim that the Court misunderstood the history of this litigation and therefore reached the incorrect conclusion that the doctrine of collateral estoppel barred their Count 18 claims. Plaintiffs suggest that the Court inaccurately viewed New Jersey Superior Court Judge Bryan D. Garruto's March 29, 2000 ruling as having decided issues that had actually been litigated. Pl. Br. at 3-4. Plaintiffs argue, as they did in their original briefs to the Court, that Judge Garruto's decision did not address any of the disputed facts and the facts that were considered were viewed most favorably to CBM. Pl. Br. at 4. Plaintiffs fail to suggest any matters that the Court overlooked in reaching this conclusion, but merely attempt to reargue their original position. Accordingly, the Court once again rejects plaintiffs' position and finds that the issue was fully briefed before Judge Garruto.
Plaintiffs also contend that the Opinion mistakenly states that "the Appellate Division affirmed the Superior Court's decision." See Opinion at 11. Plaintiffs indicate that Judge Garruto's opinion was never affirmed by the Appellate Division but rather plaintiffs' motion for interlocutory appeal was denied. Pl. Br., Ex. 2. The Court acknowledges that the motion for leave to appeal the decision was denied.
Plaintiffs additionally proffer that the Opinion's treatment of Judge Garruto's opinion as a "final judgment on the merits" is inaccurate for the following reasons: (1) the decision was rendered early in the discovery phase of this case; (2) because the case was removed to this Court, the Superior Court never rendered a final judgment on any aspect of the case; and (3) Judge Garruto, in a subsequent decision, held that plaintiffs' attorney malpractice claims against CBM were not barred. Pl. Br., Ex. 3. After careful consideration, this Court finds that while Judge Garruto's opinion was issued as a final judgment on the merits, special circumstances arose after that opinion was rendered which preclude this issue from being barred under the collateral estoppel doctrine. Thus, for the reasons outlined below, the Court finds that the doctrine of collateral estoppel does not bar plaintiffs' Count 18 claim.
Plaintiffs filed a Third Amended Complaint on April 21, 2001.See Third Amended Complaint, Attached to Certification of Elliott Abrutyn, Esq., Ex. B. On September 5, Judge Garruto held,inter alia, that plaintiffs could not pursue the claims set forth in Count 16 (an attorney malpractice claim) of the Third Amended Complaint. See September 5, 2001 Order, Attached to Certification of Elliott Abrutyn, Esq., Ex. R. However, on a motion for reconsideration, Judge Garruto ordered that "[p]laintiffs may pursue the claims set forth in County XVI of their proposed Third Amended Complaint against the defendants Carpenter, Bennett Morrissey, Irving L. Hurwitz, Esq. and Linda B. Celauro, Esq." See November 27, 2001 Order, Attached to Pl. Br. at Ex. 3. Thus, although a final judgment on the merits was reached by Judge Garruto in the March 29, 2000 Opinion, the circumstances which occurred the following year contradict his original findings.
Judge Garruto further ordered that "each Plaintiff shall file an individual new Complaint in which each may state all his or her surviving claims against any and all of the defendants. . . . See November 27, 2001 Order, Attached to Pl. Br. at Ex. 3.
Under the doctrine of collateral estoppel, or issue preclusion, a judgment in a prior suit precludes relitigation of issues actually litigated and necessary to the outcome of that action.Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326 n. 5 (1979);Tonka Corp. v. Rose Art Indus., Inc., 836 F. Supp. 200, 210 (D.N.J. 1993). "`Absent significant changes in controlling facts or legal principles or other special circumstances, the prior resolution of issues is conclusive.'" Tonka Corp., 836 F. Supp. at 211 (quoting In re Convertible Rowing Exerciser Patent Litig., 814 F. Supp. 1197, 1202 (D. Del. 1993)). The "special circumstances" surrounding the litigation of plaintiffs Count 16 claim bar the application of the collateral estoppel doctrine.
Count 16 of the Third Amended Complaint is nearly identical to Count 18 of the Complaint at issue in the instant action. Count 16 states, in pertinent part, "CBM Attorneys either represented to plaintiffs that they were their attorneys or led them to believe that they were their attorneys or did nothing to change the belief that CBM attorneys knew or should have known that plaintiffs had that they were their attorneys. By such conduct CBM effectively became plaintiffs' attorneys and had a duty to represent them properly." The only difference between the two is that Count 16 of the Third Amended Complaint refers to all "plaintiffs" collectively while the subsequently filed complaints refer to each plaintiff individually.
Although Judge Garruto originally found that plaintiffs did not share an attorney-client relationship with CBM, he later determined that plaintiffs could pursue the claim within Count 16 of the Third Amended Complaint. Accordingly, the doctrine of collateral estoppel cannot bar plaintiffs Count 18 claim. For the reasons articulated in the Opinion, however, plaintiffs' claims against Defendant CBM must be stayed until the resolution of the underlying matter against Rutgers and Powers.
B. This Court Properly Stayed Plaintiffs' Count 7 Claim
Plaintiffs argue that their Count 7 claim against CBM is "inextricably intertwined" with their Count 7 claim against Rutgers and therefore the prosecution of the Count 7 claim against CBM should not be stayed. Pl. Br. at 14. Plaintiffs aver that a great deal of the evidence that must be pursued in discovery and at trial with regard to this claim, including the taking of depositions of attorneys and other employees of CBM, intimately involves CBM. Id. at 15. This evidence, plaintiffs suggest, is also relevant to trying plaintiffs' claims against Rutgers. Id. Therefore, the stay of litigation as to CBM's claims will lead to the duplication of proofs as the same facts are relevant to both parties. Id.
Plaintiffs' brief is nothing more than a "mere recapitulation" of the arguments that were made in its March 21, 2003 brief in opposition to the defendant law firms' motions for partial summary judgment. Plaintiffs do not suggest that the Court has overlooked any matters but rather use this motion for reconsideration as an attempt to reargue what has already been decided by the Court. This Court carefully considered and rejected plaintiffs' position when drafting the Opinion. Accordingly, the Court will not grant plaintiffs' motion and plaintiffs' claims against CBM are stayed until the resolution of the underlying matter against Rutgers and Powers.
CONCLUSION
For the foregoing reasons, Defendant CBM's motion for reargument is denied; Plaintiffs' motion for reargument is denied as to Count 7; and Plaintiffs' motion for reargument of Count 18 is granted, and that claim is restored to this action.ORDER
For the reasons set forth in the Court's Opinion filed herewith,It is on this 30th day of June, 2004, ORDERED that:
1. The motion of defendant Carpenter, Bennett Morrissey for reargument of this Court's September 29, 2003 Opinion and Order is hereby denied;
2. Plaintiffs' motion for reargument of the September 29, 2003 Opinion and Order is hereby denied as to Count 7, and granted as to Count 18; and
3. Count 18 of plaintiffs' Complaint is hereby restored to this action.