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Pollen v. Comer

March 10, 2008

WILLIAM POLLEN, PLAINTIFF,
v.
NEAL COMER, ET AL. DEFENDANTS.



The opinion of the court was delivered by: Simandle, District Judge

OPINION

Plaintiff Dr. William Pollen, pro se, filed this action in 2005, alleging that between 1991 and 1999, his attorneys engaged in a conspiracy to defraud him of millions of dollars' worth of assets that resulted, inter alia, in Plaintiff being convicted for tax evasion and other charges. Defendant Neal Comer*fn1 moved for summary judgment on the majority of Plaintiff's claims, and in its June 27, 2007 Opinion and Order (Pollen I), the Court granted Defendant Comer's motion in its entirety.

Presently before the Court are Plaintiff's motion for reconsideration of the Court's decision granting summary judgment on Count One of the Complaint [Docket Item 87], and Defendant Comer's unopposed motion for summary judgment as to Plaintiff's remaining claims [Docket Item 85]. For the following reasons, the Court will deny Plaintiff's motion for reconsideration and grant Defendant Comer's motion for summary judgment.

I. BACKGROUND

A. Facts and Allegations

As the Court noted in its June 2007 Opinion, although this case was filed more than three years ago and the discovery period closed in July 2006, the facts underlying Plaintiff's claims are "far from fully developed." Pollen v. Comer, 05-1656, 2007 WL 1876489, at *1 (D.N.J. June 27, 2007). According to the Complaint, in 1978, Plaintiff retained Defendant Comer, an attorney, to represent him in unspecified civil and criminal matters, and Comer continued to represent Plaintiff on a variety of legal matters until 1999. (Compl. ¶ 2.) In the late 1980s or early 1990s, Plaintiff was charged with tax evasion, as a result of which the Internal Revenue Service ("I.R.S.") and United States Attorney's Office seized certain assets belonging to Plaintiff and turned them over to a court-appointed receiver. (Id. at ¶ 3.) According to Plaintiff, these assets were to be liquidated in order for the proceeds to be applied to the payment of Plaintiff's back taxes, penalties, and fines, but as a result of the I.R.S.'s and U.S. Attorneys's "erroneous[]" calculations, Plaintiff was sentenced to a longer term of imprisonment than he deserved. (Id.)

The crux of Plaintiff's legal malpractice claim is that as a result of the defendants' negligent or intentionally conspiratorial conduct, Plaintiff lost nearly all of his assets and was incarcerated for a longer period than necessary. Specifically, Plaintiff alleges that Defendant Comer: failed to obtain sufficient information from the Government pertaining to Plaintiff's unpaid taxes and seized assets, (id. at ¶ 4(a)-(b)); failed to "apply to the Court to compel the [court-] appointed receiver . . . to report and pay . . . [to] Plaintiff[] his liquidated assets in a proper manner so as to minimize or eliminate the imposition of additional taxes," (id. at ¶ 4(c)); represented co-Defendant David Young, Esq., "whose interests were in conflict with those of Plaintiff," at the same time he represented Plaintiff, in violation of certain "Rules of Ethics and Rules of Procedure," (id. at ¶ 4(f)); and "[i]n other ways . . . negligently failed, or willfully refused to carry out his responsibilities as attorney and legal representative of Plaintiff." (Id. at ¶ 4(g).)

Most importantly for purposes of Plaintiff's motion for reconsideration, Plaintiff's Complaint also alleges that Defendant Comer

failed or refus[ed] to use assets belonging to the Plaintiff which had not been seized, and which were available to Comer under a Power of Attorney and through other means and sources, to pay taxes, interest, penalties and/or fines imposed on the Plaintiff, thus resulting in the further incarceration of the Plaintiff for [his] alleged[ly] willful refusal to pay a fine.

(Id. at ¶ 4(d).) Though not especially clear from the face of the Complaint or Plaintiff's submissions in opposition to Comer's first motion for summary judgment, this allegation apparently relates to the Government's 1999 charge against Plaintiff that Plaintiff had violated the terms of his supervised release by failing to pay restitution and fines associated with his tax evasion sentence. (Pl.'s Opp'n Br. Ex. 18 at 2.) Plaintiff was incarcerated for an additional eleven months in 1999 as a result of this willful violation of the terms of his supervised release. (Pollen Cert. ¶ 23.)

Plaintiff alleges that this 1999 incarceration is traceable to Comer's malpractice. According to Plaintiff, in March of 1999, he directed Defendant Comer to fly to Europe to secure from Defendant Young certain funds, which were purportedly in Young's possession but to which Comer had access as a result of a power of attorney agreement signed by Plaintiff, in order to pay the fines associated with Plaintiff's tax evasion sentence. (Pollen Cert. ¶ 28; Compl. ¶ 4(d).) Plaintiff alleges that Comer never obtained the funds, that the fines were never paid, and that Plaintiff thus spent eleven additional months in prison as a result of Comer's malpractice. (Id.) Plaintiff was sentenced to this additional term of imprisonment at a hearing before United States District Judge Joseph H. Rodriguez on October 28, 1999, and at that hearing, Comer testified that he did not secure the funds in question from Young because Young did not possess or control any funds or assets belonging to Plaintiff. (Pl.'s Opp'n Br. Ex. 11 at 16, 22-23.) Plaintiff has not submitted any evidence of the existence of either the power of attorney agreement or the funds to which Comer allegedly had access.

In addition to Plaintiff's malpractice claims, the Complaint asserted two claims of unlawful conversion, alleging that the defendants fraudulently obtained and sold Plaintiff's title to a piece of waterfront property Plaintiff owned on the island of Grand Bahama in the British West Indies, as well as a fifty-two foot sailboat valued at $1.25 million. (Compl. Count III, ¶¶ 2-3, Count IV, ¶¶ 3-4.)

B. Procedural History

1. The June 2007 Opinion ...


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