United States District Court, D. New Jersey
DONNELL L. PRINCE, Plaintiff,
KEVIN C. ORR, ESQ., Defendant.
OPINION AND RECOMMENDATION
JOSEPH A. DICKSON, Magistrate Judge.
This matter comes before the Court by way of Plaintiff's Cross Motion to Amend his Complaint (ECF no. 13), which Plaintiff filed in response to Defendant's Motion to Dismiss for Lack of Subject Matter Jurisdiction (ECF no. 9). Pursuant to Federal Rule of Civil Procedure 18, no oral argument was heard. Upon review of the arguments raised in the parties' briefs, and for the following reasons, the Court denies Plaintiff's Cross Motion to Amend with prejudice. Furthermore, this Court sua sponte recommends that the Amended Complaint (ECF no. 4) be dismissed for the reasons set forth below.
I. BACKGROUND AND PROCEDURAL HISTORY
A. Factual Background
This action arises out of events that occurred on May 23, 2005, which eventually led to the filing of criminal charges against Plaintiff and a § 1983 lawsuit by Plaintiff against the individuals who brought the charges. This Court's (Linares, J.) opinion in Plaintiff's § 1983 action sets forth the events as alleged in the § 1983 action as follows. See Prince v. Aellos, no. 9-5429 (JLL), 2010 WL 4025846 (D.N.J. Oct. 12, 2010). Plain clothes police officers from the Hackensack Police Department, who claimed they were chasing a suspect in the area, attempted to enter Plaintiff's apartment after noticing the front door was ajar. Id. at *2. The officers did not knock on the door or announce themselves, and Plaintiff grabbed his gun to protect himself and turned on the lights. Id. The following night, the officers returned to Plaintiff's apartment and asked Plaintiff to go down to the police station to discuss what had happened the night before. Id.
Approximately two days later, the Bergen County Prosecutor charged Plaintiff with several crimes in connection with the May 23, 2005 incident, and Sergeant Thomas Aiellos filed a criminal complaint. Id. In connection with these charges, on June 13, 2005, Plaintiff was detained, and remained in the Bergen County Jail for approximately 2.5 months. Id. On November 15, 2005, the prosecutor downgraded the charges from aggravated assault on a police officer and possession of a weapon for unlawful purposes to simple assault and disorderly conduct, and the criminal case was remanded to the Hackensack Municipal Court. Id. at *3.
The instant action is Plaintiff's lawsuit against his former attorney, Kevin C. Orr, Esq. Plaintiff alleges the following facts in the operative complaint for the instant action. In May of 2006, Plaintiff met with Attorney Orr to discuss whether he would be interested in representing him in his criminal case and the related § 1983 civil case. See Amended Compl. ¶ 9 (ECF no. 1). On May 23, 2006, Plaintiff and Attorney Orr entered into an oral and written contract for Defendant to handle the criminal matter and prepare the civil rights case at the same time. Id., ¶ 11. Plaintiff alleges that prior to these meetings, he only saw Attorney Orr at court appearances. Id. ¶ 18. At a court appearance for the criminal matter in Hackensack municipal court, Plaintiff observed Attorney Orr "talking and laughing with... Sgt. Aiellos." Id. ¶ 15. n Plaintiff approached, Attorney Orr and Aiellos stepped into a side room where Plaintiff was n permitted to go. Id. ¶ 15. Attorney Orr later advised Plaintiff that they would meet to start preparing both cases after he concluded a trial in another matter. Id., ¶ 12. At a subsequent court appearance, Attorney Orr advised Plaintiff that there was plenty of time for him to file his civil rights claim, and that he had two years from the time his municipal criminal case was dismissed to file a civil rights claim. Id. ¶ 17.
Attorney Orr finally met with Plaintiff on September 4 and September 10 of 2007. Id. ¶¶ 12 and 19. On September 13, 2007, during the court hearing in Plaintiff's criminal matter, the Court ruled to suppress Officer Aiellos' statements and observations. Id. ¶ 21. On October 25, 2007, the Court granted Plaintiff's motion to dismiss the criminal matter. Id.
On October 23, 2009, Plaintiff commenced his § 1983 action pro se against Officer Aiellos and several other defendants. On October 12, 2010, the Court (Linares, J.) dismissed Plaintiff's false arrest and false imprisonment claims in that action because the statute of limitations expired for those claims. Prince v. Aiellos, no. 9-5429 (JLL), 2010 WL 4025846, a *6 (D.N.J. Oct. 12, 2010). On December 22, 2010, the Court (Linares, J.) dismissed Plaintiff's claim of conspiracy to maliciously prosecute and his equal protection claim against all but one defendant, leaving only his claim of malicious prosecution against Sergeant Aiellos and his equal protection claim against Defendant Behnke. Prince v. Aiellos, no. 9-5429 (JLL), 2010 WL 5392724, at *9 (D.N.J. Dec. 22, 2010).
On October 25, 2013, Plaintiff commenced the instant action against Attorney Orr, alleging breach of contract, breach of the duty of good faith and fair dealing, and breach of fiduciary duty. See Compl. (ECF no. 1). Plaintiff alleges that Attorney Orr breached the contract and the duty of good faith and fair dealing by: a) failing to prepare Plaintiff's civil right suit and refusing to refund the additional $1, 000.00 fee requested of him to handle the matter; b) failing to learn and act on the fact that Plaintiff had never been arraigned on the original criminal charges; and c) inaccurately advising him as to when the applicable two year statute of limitations would run on claims that Defendant had agreed to file for Plaintiff leaving Plaintiff with just one claim in his § 1983 action: i.e., malicious prosecution. See Amended Compl. ¶¶ 25a-c (ECF no. 4). Plaintiff alleges that Attorney Orr breached his fiduciary duty to Plaintiff by failing to fulfill his contractual obligations, to act with reasonable competence and diligence, and to deal honestly with Plaintiff, to comply with his duty of loyalty to act solely in the best interest of the client and have no conflicting loyalties, and to comply with his duty to render full and fair disclosure of all material facts, such as that he had formerly been a prosecutor for the Morris County Prosecutor's Office. See id. ¶¶ 31a-d.
On April 18, 2014, Attorney Orr filed a Motion to Dismiss Plaintiff's action for lack of subject matter jurisdiction (ECF no. 9). Plaintiff filed a Cross-Motion to Amend his Complaint with his Opposition to Plaintiff's motion to dismiss (ECF nos. 13 and 14). Plaintiff seeks to amend his complaint to add a count for Conspiracy under 42 U.S.C. § 1983 & § 1985.
B. Plaintiff's Proposed Amended Complaint
Plaintiff's proposed amended complaint would add a count for civil conspiracy under 42 U.S.C. § 1983 and § 1985. Plaintiff seeks to add allegations that Attorney Orr conspired with the Aiellos defendants to violate his constitutional rights, including but not limited to his Fourth, Fifth, and Fourteenth Amendment rights dealing with unreasonable search and seizure, and deprivation of liberty without due process of law. Second Amended Compl. ¶ 46 (ECF no. 13). The proposed second amended complaint also alleges that Attorney Orr conspired with Aiellos and/or others "for the purpose of impeding hindering, obstructing or defeating the due course of justice in the state and depriving plaintiff of his rights and privileges." Id. ¶ 47.
Plaintiff further alleges, in the proposed Conspiracy count, that Defendant breached his fiduciary duties to Plaintiff, and through his action and inactions, aided in the furtherance of a conspiracy to deprive plaintiff of his rights, and failed to prevent or aid the preventing or lessening of the harm caused to Plaintiff, in that Defendant: a) failed to comply with his duty to disclose that he had formerly been a prosecutor for the Morris County Prosecutor's office, b) failed to fulfill his contractual obligations to meet with him and review the case, c) failed to act with competence, diligence, and to deal honestly, d) failed to comply with his duty of loyalty because he had conflicting loyalties ...