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Malik v. Hannah

September 24, 2009

ABDUS SALAAM MALIK, PLAINTIFF,
v.
LEWIS HANNAH, ET AL., DEFENDANTS.



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

OPINION

This case clearly illustrates that an attorney, sued by his former client for legal malpractice, cannot ignore his obligations to his ex-client or to the Court. This matter is presently before the Court on two motions by Plaintiff Abdus Salaam Malik ("Plaintiff") for default judgment pursuant to Rule 55(b)(2), Fed. R. Civ. P., against Defendant Lewis Hannah ("Defendant Hannah") [Docket Items 78 and 85], who has failed to file an answer or otherwise respond to Plaintiff's complaint and amended complaints over four years of litigation and despite multiple Court orders. Plaintiff alleges, and this Court had already found, that Defendant Hannah breached his duty to Plaintiff of reasonable legal representation by failing to initiate a civil lawsuit as requested within the limitations period for doing so. For the reasons set forth below, the Court concludes that Plaintiff has sufficiently alleged that Defendant Hannah's negligence caused him harm such that default judgment is warranted and that the record supports entry of default judgment of $51,333.47, including prejudgment interest.

I. BACKGROUND

A. Facts

In support of his motion for default judgment, Plaintiff has submitted a sworn and signed declaration setting forth the following facts, along with a copy of his second amended complaint.*fn1 Taken together, Plaintiff alleges the following facts: On March 28, 2003, City of Camden police officers entered Plaintiff's home without a valid warrant and beat him, leaving him permanently injured and unable to work and causing damage to his property. (Pl. Decl., Docket Item 86, ¶¶ 2, 5.) Police burst into Plaintiff's bedroom where Plaintiff was sleeping with his wife and six-month old son, restrained him with plastic restraints, and kicked him three times in the back, head, and neck, though Plaintiff never resisted the officers. (Second Am. Compl. ¶ 14-17.) Plaintiff's house was left "in total shambles, with personal property thrown about, broken or lost." (Id. ¶ 24.) In particular, the police destroyed several doors and broke some furniture. (Id. ¶¶ 12-13.) When Plaintiff asked the officers if they had a warrant, the officers stopped their misconduct, explained that they only had a body warrant to arrest Mr. Crump, and drove Plaintiff to the hospital. (Id. ¶¶ 19-26.) At the hospital, Plaintiff was treated for bruises, contusions, and a twisted neck and back. (Id. ¶ 26.) Plaintiff was given a neck brace and released. (Id.) Due to his injuries, Plaintiff was unable to keep his job at Catelli Brokers. (Id. ¶ 47.) According to Plaintiff, this incident led to approximately $2,500,000 in damages, of which $12,452.59 were medical costs. (Pl. Decl., Docket Item 86, ¶ 5; Pl. Am. Mot., Docket Item 85, at 14.)

In April 2003, Plaintiff visited Defendant Hannah seeking legal counsel and, after explaining that he would take a contingency fee from any recovery, Hannah agreed to represent Plaintiff in an action against the individual police officers who allegedly assaulted him and the responsible government entity and to investigate the incident. (Pl. Decl., Docket Item 86, ¶ 3.) In August 2004, after Plaintiff was incarcerated on an unrelated matter, Hannah visited Plaintiff in jail and assured Plaintiff that "everything was being handled" and that his civil suit was proceeding. (Second Am. Compl. ¶ 27.) Defendant Hannah did not fulfill any of his promises to Plaintiff. He "did not investigate any facts, did not file a lawsuit [] on [Plaintiff's] behalf, and did not notify [Plaintiff] that a lawsuit had not been filed until after the statute of limitations had run on [Plaintiff's] claims." (Pl. Decl., Docket Item 86, ¶ 3.) In March 2005, Plaintiff received a letter from Defendant Hannah stating that Hannah would not represent Plaintiff in his civil action. (Second Am. Compl. ¶ 38.) In June 2005, Plaintiff's brother received the paperwork Plaintiff had left with Defendant Hannah. (Id. ¶ 40.)

B. Procedural History

On August 4, 2005, Plaintiff filed this action pro se against Lewis Hannah. The Court's jurisdiction over Plaintiff's malpractice claim is based upon diversity of citizenship, 28 U.S.C. § 1332, and New Jersey law applies. Plaintiff alleged that Hannah committed legal malpractice by failing to file a complaint on his behalf for more than two years after his March 28, 2003 incident, thereby permitting the statute of limitations to run on his claims. Plaintiff filed his first amended complaint on November 14, 2005 and added the Camden County Prosecutor's Office and the Camden County Police Department. On February 22, 2006, this Court issued an Opinion and Order denying Plaintiff's application to proceed in forma pauperis and dismissing sua sponte, pursuant to 28 U.S.C. § 1915, Plaintiff's causes of action against the Camden County Defendants, finding that they were barred by the two-year statute of limitations [Docket Items 12 and 13]. The Court held, however, that Plaintiff could proceed with his state law legal malpractice causes of action against Hannah.

On June 19, 2006, Plaintiff filed a motion for reconsideration of the February 22, 2006 Opinion and Order, arguing that the statute of limitations should be tolled as to the Camden County Defendants. This Court's January 3, 2007 Opinion and Order granted Plaintiff's motion for reconsideration insofar as it tolled the statute of limitations for Plaintiff's claims against the Camden County Defendants. This Court held that equitable tolling should apply to Plaintiff's causes of action against these parties. Nevertheless, the Court dismissed Plaintiff's claims against the Camden County Defendants that were based solely on a theory of respondeat superior because this is not a proper basis to assert a valid claim against a municipal defendant.

Plaintiff filed a second motion for reconsideration on February 2, 2007, arguing that the Court should reconsider its January 3, 2007 Opinion and Order and grant him leave to amend his complaint to include two John Doe police officers. The Court denied Plaintiff's second Motion for Reconsideration in its March 2, 2007 Opinion and Order because Plaintiff failed to allege a change in controlling law, new evidence or legal error to warrant reconsideration. The Court also denied Plaintiff's request to include claims against the John Doe police officers because (1) the claims against the John Doe police officers failed to relate back pursuant to Fed. R. Civ. P. 15(c) and were, therefore, untimely; and (2) it would be inappropriate to add fictitious defendants that still had not been identified after a year and a half of motion practice. However, Plaintiff was granted permission to seek to amend his complaint "with any timely filed claims he may have."

Plaintiff thereafter filed a motion to amend on April 10, 2007, seeking to add, for the first time, the City of Camden and the Camden Police Department, as well as, for the second time, to add John Doe officers. Judge Schneider granted the motion to amend to add the City of Camden. The other parties were barred, but not on statute of limitations grounds. To this date, Plaintiff has not named the individual officers whom he believed assaulted him.

Defendant Hannah has never responded to Plaintiff's complaints in this action. On March 2, 2007, the Clerk of Court entered default against him. On March 26, 2007, Plaintiff moved for default judgment, which eventually triggered Defendant Hannah's attention. On April 13, 2007, Hannah moved to set aside the Clerk's entry of default and opposed the entry of default judgment. On June 11, 2007, Plaintiff filed a motion for summary judgment, which of course, Defendant could not oppose until the Clerk's entry of default was removed.

In an Opinion and Order dated September 25, 2007, this Court addressed these motions. In that decision, the Court explained that the default was a result of Defendant Hannah's negligence but that "allowing default to remain would be unfair" and, therefore, vacated the clerk's entry of default and denied the motion for default judgment. The Court also ordered Defendant Hannah to submit his opposition to Plaintiff's pending summary judgment motion within fourteen days from the entry of that Order.

Defendant Hannah never opposed Plaintiff's summary judgment motion. Nor did Hannah respond to Plaintiff's reasonable demands for discovery, which included requests for information about Defendant Hannah's investigation into the March 23, 2003 incident. On February 20, 2008, the Magistrate Judge granted Plaintiff's motion to compel Defendant Hannah to respond to Plaintiff's discovery requests. Defendant Hannah never complied with this order, leading the Magistrate Judge to enter another order on June 11, 2008 requiring Defendant Hannah to respond to Plaintiff's discovery requests ...


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