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Thomason v. Lehrer

October 27, 1998

CHARLES L. THOMASON,
PLAINTIFF,
V.
NORMAN E. LEHRER, P.C., AND NORMAN E. LEHRER,
DEFENDANTS.



The opinion of the court was delivered by: Stephen M. Orlofsky United States District Judge

HON. STEPHEN M. ORLOFSKY

OPINION

ORLOFSKY, District Judge

On August 21, 1998, Plaintiff, Charles L. Thomason, Esq. ("Thomason"), was Ordered to Show Cause by this Court why the remaining state-law counts of his Second Amended Complaint against Defendants, Norman E. Lehrer, P.C. and Norman E. Lehrer, Esq. (collectively "Lehrer"), should not be dismissed based upon the "litigation privilege" recognized by New Jersey law. In Thomason v. Lehrer, ___ F.R.D. ___; Civ. Action No. 98-2336, 1998 WL 518504, at *2, 14-15 (D.N.J. Aug. 21, 1998), Count I of the Second Amended Complaint, which alleged a federal civil rights claim for abuse of process, was dismissed by this Court for failure to state a claim upon which relief can be granted. Counts II through IV of the Second Amended Complaint allege only state-law claims against Lehrer: negligent misrepresentation (Counts II-III); and tortious interference (Count IV). The Court has supplemental jurisdiction over Thomason's state law claims pursuant to 28 U.S.C. § 1367(a).

Thomason's state-law claims against Lehrer are based upon statements made by Lehrer in an amended answer and counterclaim filed on behalf of a client in another action pending before this Court. See Waterloov Gutter Protection Systems Co., Inc. v. Absolute Gutter Protection, LLC, et al., Civil Action No. 97-2554 (SMO) ("Waterloov action"). Rather than seeking redress in this Court against Lehrer, Thomason filed a civil rights action against Lehrer in the Superior Court of New Jersey. Lehrer removed the case to this Court. For the reasons set forth below, I will dismiss Thomason's remaining state law claims for failure to state a claim upon which relief can be granted based upon New Jersey's "litigation privilege" which affords absolute immunity to attorneys, parties, and their representatives for statements made in the course of judicial proceedings.

In addition, in the exercise of this Court's inherent powers, I hold that an attorney who seeks to assert an abuse of process claim against an attorney-adversary based upon conduct which occurred in a case pending before a United States District Court, must seek redress in the District Court, and not in state court.

A United States District Court possesses an arsenal of remedies to address such litigation abuse by members of its bar. To allow such claims to be brought in state court unnecessarily burdens the state courts with "satellite litigation" produced by the unseemly acrimony between counsel in a federal court proceeding. More importantly, to allow such disputes to spill over into state court encourages forum shopping, judge shopping, and the unfortunate multiplication of litigation. Attorneys who engage in such conduct dishonor the legal profession and should understand that judges will no longer tolerate the presentation of abusive and baseless litigation against a colleague. A vendetta masquerading as a lawsuit is not likely to escape judicial scrutiny. As Justice Cardozo once noted: "[W]e are not to close our eyes as judges to what we must perceive as men." People ex rel. Alpha Portland Cement Co. v. Knapp, 129 N.E. 202, 207 (N.Y. 1920).

I. BACKGROUND

The facts and procedural history giving rise to Thomason's claims against Lehrer are set forth in detail in this Court's August 21, 1998, opinion, Thomason v. Lehrer, ___ F.R.D. ___; Civ. Action No. 98-2336, 1998 WL 518504, at *2, 14-15 (D.N.J. Aug. 21, 1998) ("Thomason I"), and, therefore, shall only be summarized below.

Thomason represented the plaintiff, Waterloov Gutter Protection Systems Co., Inc. ("Waterloov"), in the Waterloov action. See Thomason I, 1998 WL 518504, at * 2. In response to Waterloov's amended complaint, the defendants in the Waterloov action, through their attorney, Lehrer, filed an answer, affirmative defenses and counterclaims. See id. at *3. The counterclaims not only asserted claims against Waterloov and its president, but also alleged claims against Thomason, his law partner, and his law firm. See id. Because of the counterclaims, Thomason was forced to withdraw from the representation of Waterloov. See id.

On or about March 4, 1998, prior to withdrawing as counsel in the Waterloov action, Thomason filed a complaint against Lehrer in the Superior Court of New Jersey, Monmouth County, Law Division. See id. The complaint asserted the following claims against Lehrer: a 42 U.S.C. § 1983, civil rights violation for abuse of process (Count I); two claims for negligent misrepresentation (Counts II and III); and a claim for tortious interference (Count I). See Thomason I, 1998 WL 518504, at *4-5. Specifically, Thomason alleged that, by filing the counterclaims in this Court, Lehrer had violated Thomason's civil rights, negligently misrepresented that Thomason had "a financial interest in Waterloov or a related company[;]" and tortiously interfered with Thomason's "reasonable expectation of prospective work and fee income from acting as attorney [for Waterloov]." See Thomason I, 1998 WL 518504, at *4; see also Second Amended Complaint (filed May 28, 1998), ¶¶ 21, 34, 45. *fn1

On May 18, 1998, Lehrer removed the state court action to this Court, alleging that this Court had original federal question jurisdiction over the case pursuant to 28 U.S.C. § 1331, based on Thomason's § 1983 claim. See Thomason I, 1998 WL 518504, at *5. Removal was unopposed. See id.

On May 26, 1998, "I ordered Thomason to show cause: why Count I of the [Second] Amended Complaint should not be dismissed for failure to state a claim upon which [relief] can be granted and why Counts II through IV should not be dismissed pursuant to 28 U.S.C. § 1367(c)(3)." See id. (citation omitted) (second alteration not added). "I [also] ordered Thomason to show cause: why sanctions should not be imposed against [him] pursuant to: (1) Rule 11 of the Federal Rules of Civil Procedure; (2) 28 U.S.C. § 1927; and (3) the Court's inherent powers." See id. (citation omitted).

On May 28, 1998, Thomason filed the Second Amended Complaint in this Court deleting all references to 42 U.S.C. § 1983 from Count I. See id. Accordingly, by letter, I amended the Order to Show Cause to require the parties to brief the additional question of why Count I of the Second Amended Complaint should not be dismissed for lack of subject matter jurisdiction. See id. (citation omitted).

On August 21, 1998, I held that the complaint as amended, which deleted all references to § 1983, was "minimally sufficient to invoke the Court's jurisdiction under 28 U.S.C. §§ 1331, 1343(a)." *fn2 Thomason I, 1998 WL 518504, at *6. I "exercis[ed] subject matter jurisdiction over Count I of the Second Amended Complaint, and supplemental jurisdiction over Counts II through IV" pursuant to 28 U.S.C. § 1367(a). Id. at *8. Subsequently, "I conclude[d] that Count I of the Second Amended Complaint [did] not even begin to approach stating a claim upon which relief can be granted" because the filing of a pleading by a private attorney on behalf of a private entity could not reasonably be construed as state action. Id. at *8-9. As a result, the claim for abuse of process allegedly resulting in a violation of Thomason's federally protected civil rights was dismissed with prejudice. See id. at *9.

In addition, I imposed sanctions against Thomason pursuant to Rule 11(b)(1) *fn3 of the Federal Rules of Civil Procedure because I found that "the only purpose to including [his] allegations as part of [a] separate action was to harass Lehrer." Thomason I, 1998 WL 518504, at * 11. I also imposed sanctions against Thomason pursuant to Rule 11(b)(2) because I concluded that he "could not reasonably believe or in good faith have thought that every factually baseless lawsuit necessarily gives rise to a section 1983 action." Id. at *12. As a consequence, I imposed the following sanctions:

I will . . . sanction Thomason pursuant to Rule 11 and impose upon him a fine of $2,000, $1,000 of which is to be paid directly to Lehrer and $1,000 to be deposited into the Court's Registry pursuant to Local Civil Rule 67.1, both of which shall be paid within thirty days of the date of this Opinion. Additionally, I will require Thomason to attend both a course on federal practice and procedure and a course on attorney professionalism and professional conduct within eighteen months of the date of this Opinion. Thomason shall file an affidavit with the Court attesting to his attendance at and satisfactory completion of the required courses. Thomason I, 1998 WL 518504, at *14.

Furthermore, I ordered Thomason "to show cause why Counts II through IV of the Second Amended Complaint should not be dismissed pursuant to the so-called `litigation privilege' which is firmly established under New Jersey law. See Peterson v. Ballard, 292 N.J. Super. 575, 581 (App. Div. 1996), certif. denied, 147 N.J. 260 (1996)." Thomason I, 1998 WL 518504, at *14. I further noted:

This privilege affords to attorneys, parties, and their representatives absolute immunity for statements made in the course of judicial or quasi-judicial proceedings. See [Peterson, 292 N.J. Super. at 581] (discussing Erickson v. Marsh & McLennan Co., Inc., 117 N.J. 539 (1990), and Hawkins v. Harris, 141 N.J. 207 (1995)). Counts II through IV of the Second Amended Complaint, based on state law, appear to assert noting more than claims for relief predicated on statements made by Lehrer during the course of the [Waterloov action]. Thomason I, 1998 WL 518504, at *14.

In compliance with the Order to Show Cause, on September 18, 1998, Thomason filed his brief opposing the dismissal of his state-law claims on the basis of the litigation privilege. See Plaintiff's Brief (submitted Sept. 18, 1998) ("Pl. Brief"). Specifically, Thomason contends: (1) that the Court should decline to exercise supplemental jurisdiction and remand the remaining state-law claims to state court; and (2) that the litigation privilege does not apply to Counts II-IV, citing Baglini v. Lauletta, ___ N.J. Super. ___; 1998 WL 614618, at *1 (N.J. Sup. Ct., Law Div., June 9, 1998). See Pl. Brief at 2, 5-7, 8-9.

In opposition to Thomason's contentions, Lehrer argues: (1) that the Court's jurisdiction is no longer in issue; (2) that the Baglini case is irrelevant because it applies only to claims for abuse of process, and that claim was dismissed by the Court on August 21, 1998; and (3) that application of the litigation privilege requires dismissal of Thomason's remaining state common-law tort claims. See Defendants' Brief in Opposition to Plaintiff's Brief Regarding Litigation Privilege (submitted Oct. 2, 1998) ("Defs. Brief") at 2-3, 5-7.

II. THE LEGAL STANDARD GOVERNING DISMISSAL FOR FAILURE TO STATE A CLAIM

Thomason has been ordered to show cause why Counts II-IV of the Second Amended Complaint "should not be dismissed pursuant to the litigation privilege as recognized under New Jersey law[.]" Order of the Court (filed Aug. 21, 1998). The nature of this Court's inquiry is governed by Rule 12(b)(6) of the Federal Rules of Civil Procedure, dismissal for failure to state a claim upon ...


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