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Estate of Hennis v. Balicki

United States District Court, D. New Jersey

March 29, 2018

ESTATE OF DAVID HENNIS and PATRICIA HENNIS, Plaintiff,
v.
WARDEN ROBERT BALICKI, et al. Defendants. PATRICIA K. HENNIS, o/b/o ESTATE OF DAVID HENNIS, Plaintiff,
v.
CUMBERLAND COUNTY JAIL, et al. Defendants.

          Conrad J. Benedetto, Esq. Alyssa K. Poole, Esq. LAW OFFICES OF CONRAD J. BENEDETTO and John E. Kusturiss, Jr., Esq. LAW OFFICES OF CONRAD J. BENEDETTO Attorneys for Plaintiff.

          Adam M. Starr, Esq. JARVE KAPLAN GRANATO LLC Former Attorney for Plaintiff in Civil Action No. 16-3858.

          Daniel Edward Rybeck, Esq. John C. Eastlack, Jr., Esq. Georgios Farmakis, Esq. Lilia Londar, Esq. WEIR & PARTNERS LLP Attorneys for Defendants Warden Robert Balicki and Cumberland County.

          Jeffrey S. McClain, Esq. Stephen D. Holtzman, Esq. HOLTZMAN & MCCLAIN, PC Attorneys for Defendant CFG Health Systems, LLC.

          OPINION

          JEROME B. SIMANDLE, U.S. DISTRICT JUDGE

         I. INTRODUCTION

         These parallel cases arise out of the unfortunate suicide of David Hennis while he was detained at the Cumberland County Jail in July of 2014. Both actions were brought on behalf of Mr. Hennis's mother, Patricia Hennis (“Plaintiff”), as administrator of Mr. Hennis's estate and in her own right, and filed by different sets of attorneys within two weeks of each other. As detailed below, from the moment the first complaint was filed, the events that unfolded were unusual, to say the least.

         Relevant to the motions currently pending before the Court, Plaintiff named as a defendant CFG Health Systems, LLC (“CFG Health”), a medical health provider at the Cumberland County Jail, in the first case, filed on June 28, 2016, Patricia K. Hennis v. Cumberland County Jail, et al., Civil No. 16-3858 (“Hennis I”), but not in the second case, filed on July 12, 2016, Estate of David Hennis, et al. v. Balicki, et al., Civil No. 16-4216 (“Hennis II”). The statute of limitations expired on July 30, 2016, two years after Mr. Hennis's suicide. On August 2, 2016, Plaintiff filed a Voluntary Stipulation of Dismissal in the first case [Hennis I, Docket Item 8], which was signed by Plaintiff's former attorney, Mr. Adam Starr, and the case was closed by the Clerk of Court.

         For several months, Plaintiff and her new attorney, Mr. Conrad J. Benedetto, actively prosecuted Hennis II without any mention of CFG Health. Then in December 2016, well after the relevant two-year statute of limitations had run, Plaintiff sought leave to add CFG Health as a defendant in Hennis II for the first time, by way of motion for leave to amend the Complaint. [Hennis II, Docket Item 23.] Magistrate Judge Donio granted Plaintiff's unopposed motion [Hennis II, Docket Item 24], and the Amended Complaint was subsequently filed on the electronic docket on January 11, 2017. [Hennis II, Docket Item 25.] But Plaintiff did not serve CFG Health the Amended Complaint until June 8, 2017 [Docket Item 36-12], which is 148 days after the Amended Complaint was filed and well beyond the strict 90-day requirement set forth in Fed.R.Civ.P. 4(m).

         Given the statute of limitations and service of process issues at play, CFG Health moved to dismiss all claims against it in Hennis II with prejudice, pursuant to Fed.R.Civ.P. 12(b)(5) and 12(b)(6), or, in the alternative, for summary judgment under Fed.R.Civ.P. 56. [Hennis II, Docket Item 36.] One month later, CFG Health moved for sanctions against Plaintiff under Fed.R.Civ.P. 11. [Hennis II, Docket Item 46.] In response to CFG Health's motions to dismiss and for sanctions, Plaintiff cross-moved in Hennis II to vacate the Voluntary Stipulation of Dismissal filed in Hennis I, pursuant to Fed.R.Civ.P. 60(b)(6), on the basis that the Voluntary Stipulation of Dismissal was supposedly filed by Plaintiff's former attorney, Mr. Starr, without Plaintiff's knowledge or permission, and to consolidate Hennis I and Hennis II under Fed.R.Civ.P. 42(a). [Hennis II, Docket Item 51.] Reopening Hennis I and consolidating the two cases, Plaintiff reasoned, would resolve the statute of limitations or service of process issues.

         On February 27, 2018, the Court heard oral argument on the motions in Hennis II. [Hennis II, Docket Item 91.] In light of certain issues raised at oral argument, particularly those regarding Plaintiff's cross-motion to vacate the Voluntary Stipulation of Dismissal filed in Hennis I, and in the interest of judicial economy, Chief Judge Linares temporarily reopened Hennis I and reassigned the case to the undersigned. [Hennis I, Docket Item 9.] Following oral argument and in response to the new docket activity in the previously-closed and long-dormant Hennis I, Plaintiff's former attorney, Mr. Starr, electronically filed two letters on the docket [Hennis I, Docket Items 13 & 15], calling into question certain representations Plaintiff and her current counsel, Mr. Benedetto, had made in support of Plaintiff's cross-motion to vacate, including at the February 27, 2018 oral argument, regarding past communications between Ms. Hennis, Mr. Starr, and Mr. Bendetto. This, in turn, prompted the Court to issue two Orders to Show Cause addressed to Mr. Benedetto. [Hennis I, Docket Items 14 & 16; Hennis II, Docket Items 95 & 99.]

         The pending motions, including the Court's Orders to Show Cause, are now fully briefed and are ripe for consideration. For the reasons discussed below, CFG Health's motion to dismiss will be granted and Plaintiff's cross-motion to vacate and consolidate will be denied. Additionally, because Mr. Benedetto and his law firm failed to investigate its own files before filing motions or pleadings, as required by Fed.R.Civ.P. 11(b), CFG Health's motion for sanctions will be granted and fees and costs will be awarded for reasonable costs and fees expended to CFG Health from the point of oral argument until the present date.

         II. FACTUAL AND PROCEDURAL BACKGROUND

         David Hennis was arrested by the Vineland Police Department on July 22, 2014. [Hennis II, Docket Item 1 at ¶ 14.] He was subsequently incarcerated at the Cumberland County Jail on July 22, 2014, until his death by suicide on July 30, 2014. [Id. at ¶¶ 15, 18.] His mother, as administrator of Mr. Hennis's estate and in her own right, is the named plaintiff in parallel actions that were filed within two years of Mr. Hennis' death, which the parties refer to as Hennis I and Hennis II.

         A. Hennis I

         On June 28, 2016, Plaintiff filed the first of two federal actions against Cumberland County Jail, the County of Cumberland, Warden Robert Balicki, and CFG Health. [Hennis I, Docket Item 1.] That case was captioned as Docket No. 16-3853 and assigned to District Judge Joseph Rodriguez and Magistrate Judge Karen Williams. Defendant CFG Health filed an answer to the Complaint on July 28, 2016. [Hennis I, Docket Item 5.]

         Attorney Adam M. Starr initially represented Plaintiff in that action, but was terminated by Patricia Hennis by telephone in early or mid-July 2016. [Hennis II, Docket Item 51-2 at ¶¶ 3-4; Hennis I, Docket Item 13-1 at 3.] Ms. Hennis memorialized this in an undated letter addressed to Mr. Starr's law firm, requesting that he, “effective immediately, cease and desist any and all work on [Hennis I]” and instructing him to “IMMEDIATELY withdraw that complaint, as we are now represented by Conrad J. Benedetto, Esquire.” [Id.] (emphasis in original). Conrad J. Benedetto, Esquire was listed as CC'ed on the bottom of the letter. [Id.]

         On August 2, 2016, Mr. Starr filed a Voluntary Stipulation of Dismissal “at the direction of Plaintiff, Patricia K. Hennis o/b/o Est. of David Hennis, ” which was signed by Mr. Starr but not counsel for Defendants [Hennis I, Docket Item 8], as is typically required for a “stipulation of dismissal” under the Federal Rules after a defendant has answered. See Fed.R.Civ.P. 41(a)(1)(A)(ii). According to the Voluntary Stipulation of Dismissal, dismissal was with prejudice and “ha[d] no bearing on any other cause of action filed on behalf of the Est. of David Hennis.” [Id.] Counsel for CFG Health was notified on the electronic docket that Plaintiff had dismissed the complaint with prejudice on August 2, 2016. The following day, the Clerk's Office terminated the case with prejudice and without costs.

         There was no further activity in Hennis I until the case was reopened and reassigned to the undersigned by Order of Chief Judge Linares almost two years later, on March 1, 2018. [Hennis I, Docket Item 9.]

         B. Hennis II

         On July 12, 2016, Plaintiff, now represented by attorney Conrad J. Benedetto, filed a second action [Hennis II, Docket Item 1], even though Hennis I was still open and being litigated by Mr. Starr at that time. This second Complaint was filed against Warden Robert Balicki in his individual capacity, Cumberland County, and John Doe Correction Officers 1-10 (fictitious individuals) in their individual capacities. [Id.] Notably, unlike the Complaint in Hennis I, the Complaint in Hennis II did not name CFG Health was as a defendant.

         On December 9, 2016, Magistrate Judge Donio consolidated Hennis II and three other Cumberland County Jail suicide cases, [1]for discovery purposes only. [Hennis II, Docket Item 22.] Mr. Benedetto and his law firm represent the plaintiff in each of the consolidated matters. [Hennis II, Docket Item 36-3 at ¶ 16.]

         On December 19, 2016, Plaintiff filed an unopposed motion for leave to file an Amended Complaint [Hennis II, Docket Item 23], which Judge Donio granted on January 5, 2017. [Hennis, Docket Item 24.] Plaintiff filed the Amended Complaint on January 11, 2017. [Docket Item 25.] As relevant here, the Amended Complaint named CFG Health as a defendant in this case for the first time, bringing claims against CFG Health for wrongful death (Count Five), survivorship (Count Six) and negligence (Count Seven). [Id.] Plaintiff neglected to serve CFG Health with the Amended Complaint until June 8, 2017, 148 days after Plaintiff filed the Amended Complaint).[2] [Docket Item 36-12.]

         CFG Health timely filed a motion to dismiss under Fed.R.Civ.P. 12(b)(5) and (6) or, in the alternative, for summary judgment under Fed.R.Civ.P. 56, on the grounds of insufficient service of process and the expiration of the applicable two-year statute of limitations. [Hennis II, Docket Item 36.] One month later, CFG Health filed a motion for sanctions pursuant to Fed.R.Civ.P. 5 and 11. [Hennis II, Docket Item 46.]

         In response to CFG Health's motions, Plaintiff filed a cross-motion in Hennis II to vacate the Voluntary Stipulation of Dismissal in Hennis I pursuant to Fed.R.Civ.P. 60(b), on the theory that Plaintiff had not given her previous attorney, Mr. Starr, permission to dismiss Hennis I with prejudice before he filed the Voluntary Stipulation of Dismissal, and to consolidate Hennis I and Hennis II pursuant to Fed.R.Civ.P. 42(a). [Docket Item 51.] If the Court were to vacate the Voluntary Stipulation of Dismissal in Hennis I and consolidate that case with Hennis II, Plaintiff reasoned, the statute of limitations and service of process issues would be resolved and Plaintiff could proceed with her claims against CFG Health in the consolidated Hennis matter.

         In support of Plaintiff's motion, Ms. Hennis attached a certification which affirmed, in relevant part, that:

3. In early July 2017, Plaintiff decided to switch representation, from Mr. Starr to current counsel [Mr. Benedetto].
4. I informed Mr. Starr of the change in representation, thus making him aware that he no longer represented either the Estate of David Hennis or myself.
5. Mr. Starr did not consult me regarding filing a stipulation of dismissal in the action filed on June 28, 2016.
6. Nevertheless, a stipulation of dismissal with prejudice was apparently filed on August 3, 2016.
7. I did not give my permission for such a stipulation to be filed.
8. I was not aware that the action had been dismissed with prejudice.

[Docket Item 51-2.] Mr. Benedetto also attached a certification to the motion which affirmed, in relevant part, that, “I was not consulted as to the Stipulation of Dismissal that was filed by former counsel for the plaintiffs on August 3, 2016.” [Docket Item 51-3 at ¶ 4.]

         C. Subsequent Events

         On February 20, 2018, Defendant CFG Health deposed Ms. Hennis, with leave from Judge Donio, for the limited purposes of determining the details of any conversations Ms. Hennis had with Mr. Starr about the Voluntary Stipulation of Dismissal filed in Hennis I, but she could not recall any additional details about her past discussions with Mr. Starr beyond those described in her certification. [See generally Docket Item 90.] It will be apparent, for reasons discussed below, that this deposition was an unnecessary waste of time caused by the Benedetto Law Office's failure to take even a cursory review of their own file and their interactions with Plaintiff's prior counsel, Mr. Starr, which revealed Ms. Hennis' direction to Starr to dismiss Hennis I due to her decision to retain the Benedetto firm.

         The Court heard oral argument in Hennis II the following week, on February 27, 2018. [Docket Item 91.] During oral argument, Mr. Benedetto made several representations as an officer of the Court regarding his version of the events that transpired around the time the Voluntary Stipulation of Dismissal was filed in Hennis I. [Hennis II, Docket Item 96.] For example, Mr. Benedetto proffered that:

[W]hen [Ms. Hennis] came to us, she did not explain to us that she had hired Mr. Starr, who had filed suit. . . . She never told us that he had withdrawn the case. In fact she did not know that he had done that. . . . [T]he only time she contacted Mr. Starr after she came to my firm was to tell him he was dismissed. She was very clear on that. She was very clear that was her only discussion with Mr. Starr.
. . . And she also stated initially . . . that she did not have any knowledge of any discussions regarding dismissals of Hennis I with Mr. Starr and that she clearly did not give him any authority to act on her behalf following her discharging Mr. Starr.

         Oral Arg. Tr. 30:3-31:21.) Mr. Benedetto then stated that his law firm “did not become aware of [any of this] until sometime after the litigation.” (Id. at 31:21-23.) In response to further questioning by the Court, Mr. Benedetto also represented that:

• “We didn't become aware of Mr. Starr's representation till after [the statute of limitations expired on July 30, 2016].” (Id. at 32:7-14);
• That the existence of Hennis I “came to me through the former attorney [Mr. Kimmo Abbasi], I did not have any direct knowledge of Hennis I.” (Id. at 32:22-33:1};
• “Your Honor, I met Mr. Abbasi, I learned through Mr. Abbasi of Hennis I sometime after we filed. I've never had a conversation with Mr. Starr regarding these matters.” (Id. at 33:25-34:3) (emphasis added);
• Mr. Abbasi did not have any conversaitons with Mr. Starr “that I'm aware of, your Honor. We didn't receive any part of Mr. Starr's file. We've had no contact with Mr. Starr to the best of my knowledge.”

(Id. at 34:4-8) (emphasis added).

         Because this Court has no authority to vacate anything in a closed case set before a different District Judge, [3] and in the interest of judicial economy, Hennis I was reopened and reassigned to the undersigned by Order of Chief Judge Linares dated March 1, 2018, to consider Plaintiff's motion to vacate the notice of dismissal. [Hennis I, Docket Item 9.] Later that day, the Court notified counsel by letter that, in order to properly consider Plaintiff's cross-motion to vacate the Voluntary Stipulation of Dismissal in Hennis I, Plaintiff's cross-motion to vacate filed in Hennis II “will now be deemed filed in [Hennis I] . . . for judicial efficiency [and] to avoid the necessity of refiling Plaintiff's motion to vacate and arguing before another judge.” [Hennis I, Docket Item 10; Hennis II, Docket Item 92.] The Court also requested supplemental briefing from the parties on three issues involving Plaintiff's motion to vacate. [Id.]

         Alerted by the recent sudden docket activity in Hennis I, Plaintiff's previous attorney in that case, Mr. Starr, filed an unsolicited letter on the docket dated March 5, 2018. [Hennis I, Docket Item 13.] In that letter, Mr. Starr explained that he had received by ECF notification the Court's March 1, 2018 letter and was “unaware of the procedural posture of this matter, but as an officer of the Court I felt compelled to provide the information in my possession that may assist Your Honor in resolving whatever issues are before the Court.” [Id. at 2.] Copies of Mr. Starr's documents were attached to an Order to Show Cause, described below, and provided to all counsel. [Hennis I, Docket Item 14 at 3-9; Hennis II, Docket Item 95 at 3-9.]

         According to Mr. Starr's March 5, 2018 letter and the accompanying attachments, and contrary to the story that had been told by Plaintiff and Mr. Benedetto, shortly after Mr. Starr filed the Complaint in Hennis I, he received a letter dated July 15, 2016 from Mr. Benedetto advising him that Mr. Benedetto's law firm was taking over the matter and that Mr. Starr should “[k]indly forward the contents of the file to my office as soon as possible and forward an accounting of your advanced costs.” [Hennis I, Docket Item 13-1 at 1.] Mr. Starr recounts that he subsequently followed up with his client, Ms. Hennis, by letter and via telephone, during which time Ms. Hennis informed Mr. Starr that she had, in fact, retained Mr. Benedetto's firm to handle the matter. [Hennis I, Docket Item 13 at 1; Docket Item 13-1 at 2.] By undated letter, which Mr. Starr also attached to his letter to this Court, Ms. Hennis personally confirmed she retained Mr. Benedetto in July 2016 and ...


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