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National Security Systems, Inc. v. Iola

November 6, 2009

RE: NATIONAL SECURITY SYSTEMS, INC., ET AL.
v.
ROBERT L. IOLA, JR., ET AL.



The opinion of the court was delivered by: Tonianne J. Bongiovanni United States Magistrate Judge

CHAMBERS OF TONIANNE J. BONGIOVANNI UNITED STATES MAGISTRATE JUDGE

LETTER OPINION & ORDER

Dear Counsel:

Pending before the Court is Defendants Beaven Companies, Inc., Raymond J. Anker and CJA Associates Inc.'s (collectively the "CJA Defendants") motion to permit the pro hac vice admission of Jeffrey I. Bleweis, Esq. The Court has fully reviewed all of the papers submitted in support of and in opposition to the CJA Defendants' motion, and considers same without oral argument pursuant to FED.R.CIV.P. 78. For the reasons stated below, the CJA Defendants' motion is DENIED.

I. Background

The CJA Defendants argue that Mr. Bleiweis, who is a member of the Bar of the state of Illinois, should be permitted to appear and participate in this matter pro hac vice because he "is not a necessary witness in this case" and as such New Jersey Rule of Professional Conduct ("RPC") 3.7 does not bar him from representing the CJA Defendants at trial. (CJA Defs.' Br. at 1). In this regard, the CJA Defendants claim that "Mr. Beiweis' testimony is not essential and would only be cumulative" because "any information about which he would testify also can be provided by CJA President, Raymond J. Anker." (Id. at 1-2). Consequently, "because the subject of [Mr. Bleiweis'] anticipated testimony could be presented through a different witness," the CJA Defendants argue he is "not a necessary witness." (CJA Defs.' Reply Br. at 2 (citing J.G. Ries & Sons, Inc. v. Spectraserv, Inc., 384 N.J. Super. 216, 231 (App. Div. 2006))).

Further, the CJA Defendants argue that they have "a compelling reason" for seeking the pro hac vice admission of Mr. Bleiweis (CJA Defs.' Reply Br. at 1); namely the CJA Defendants "cannot afford to pay current counsel to represent it at the trial of this case." (CJA Defs.' Br. at 1). Indeed, the CJA Defendants claim that "[i]t would work a substantial financial hardship on CJA to have present counsel try this case." (CJA Defs.' Reply Br. at 1). The CJA Defendants argue that "[t]he financial hardship which would result to CJA were its motion denied constitutes good cause for granting" same. (Id. at 2). Thus, in light of this hardship along with the fact that Mr. Bleiweis is not a necessary witness and the "deference shown by courts for a party's choice of counsel[,]" the CJA Defendants request that the Court grant the instant motion. (Id. at 3).

Plaintiffs oppose the CJA Defendants' motion, arguing that the Court should deny Mr. Bleiweis' pro hac vice admission in this matter because he is a necessary witness. Plaintiffs note that Mr. Bleiweis is the Vice President and General Counsel of Beaven Companies, Inc. and CJA Associates, Inc. Plaintiffs argue that "[d]uring his tenure as Vice President and General Counsel of CJA, Bleiweis negotiated a written agreement between CJA and Tri-Core which memorialized the long-standing business relationship between those parties." (Pls.' Opp'n Br. at 2). Plaintiffs claim that on February 16, 1996, Mr. Bleiweis sent a letter to the then General Counsel for Tri-Core which "forwarded a draft agreement between Tri-Core and CJA Associates which recited, among other things, that 'pursuant to an oral agreement, Tri-Core and CJA have an on-going relationship regarding the marketing of the Gear Program . . . ." (Id. at 2-3 (quoting Trial Ex. P-269)). Plaintiff contends that Mr. Bleiweis "not only helped negotiate this agreement but also wrote a series of letters [also trial exhibits] that reflected the involvement of CJA in working with Tri-Core to market the EPIC Plan[,]" the plan at issue in this litigation, which Plaintiffs allege was a fraudulent benefit plan. (Id. at 3). Plaintiffs argue that "[b]ecause these documents . . . were prepared and signed by Bleiweis, only Bleiweis can testify about their meaning." (Id.)

Indeed, Plaintiff's argue that the importance of Mr. Bleiweis' testimony can be seen by looking at the District Court's September 28, 2007 Memorandum and Order denying the CJA Defendants' motion for summary judgment. Plaintiffs argue that in that Memorandum and Order, "the Court specifically found that factual disputes existed concerning the nature of the business relationship reflected in the written agreement between Tri-Core and CJA that Bleweis had negotiated." (Id. at 5). Again, Plaintiffs argue that "[b]ecause Bleiweis is the individual who drafted and negotiated that agreement, he is the only witness who can testify concerning the background that led to it and its meaning. (Id). Further, Plaintiffs claim that "a number of [their] trial exhibits . . . were drafted and signed by Bleiweis and Bleiweis alone" and that consequently, "there is no other witness who can testify about the nature or meaning of those exhibits." (Id. at 5-6).

Plaintiffs contend that given the necessity of Mr. Bleiweis' testimony, Plaintiffs listed him as a trial witness in the Joint Final Pretrial Order entered in this matter. In fact, Plaintiffs note that not only did they list him as a witness, but both the Monumental Defendants as well as the CJA Defendants themselves listed Mr. Bleiweis as a witness.

Plaintiffs argue that the CJA Defendants' basis for seeking Mr. Bleiweis' pro hac vice admission -that they can no longer afford to pay current counsel to represent them at trial - is insufficient. In this regard, Plaintiffs' request that Paragraph 8 of Richard Hertzberg's Declaration filed in support of the present motion be stricken. That paragraph reads as follows:

8. I am advised that CJA's financial condition necessitates this application.

CJA cannot afford to pay this firm to represent it at trial and wishes to have its in-house counsel try the case on its behalf. (Hertzberg Decl. at ¶ 8). Plaintiffs argue that this statement, which is the only basis for the CJA Defendants' claim that they cannot afford to pay current counsel, is "plainly inadmissible hearsay and should be stricken and disregarded as violative of L. Civ. R. 7.2(a)." (Pls.' Opp'n Br. at 7).*fn1

Plaintiffs also argue that regardless of the reason the CJA Defendants seek to have Mr. Bleiweis admitted pro hac vice, their motion must be denied because, as previously explained, Mr. Bleiweis is a necessary witness. In this regard, Plaintiffs claim that the CJA Defendants' motion fails to address "the important role that Mr. Bleiweis will play at trial with respect to the disputed role of the CJA Defendants in this case, does not mention the Court's earlier denial of their Motion for Summary Judgment and does not explain why the CJA Defendants themselves have listed Mr. Bleiweis as a trial witness in the JFPO." (Id.) Plaintiffs argue that given Mr. Bleiweis' central role in negotiating, preparing and signing the agreement between CJA and Tri-Core as well as other documents, he will be a ...


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