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Hinker v. County of Cape May

United States District Court, D. New Jersey, Camden Vicinage

January 14, 2020

COUNTY OF CAPE MAY, et al., Defendants.

          GEORGE J. SINGLEY, ESQUIRE, SINGLEY & GINDELE ATTORNEYS AT LAW LLC, Attorneys for Plaintiffs Jonathan and Jacqueline Hinker

          RUSSELL L. LICHTENSTEIN, ESQUIRE COOPER LEVENSON, P.A., Attorneys for Defendants County of Cape May and Cape May County Sheriff's Department.



         This matter having come before the Court upon the Motion [Docket Number 15] by Plaintiffs, Jonathan and Jacqueline Hinker, for an Order disqualifying the law firm of Cooper Levinson, P.A. (“Cooper Levenson”) from representing Defendants, County of Cape May and Cape May County Sheriff's Department, in this matter. The Court notes that Defendants oppose the Motion. The Court has reviewed the parties' submissions and held a hearing on December 11, 2019, and, for the reasons that follow, Plaintiffs' Motion is DENIED.

         I. BACKGROUND

         The following facts are established based upon the record presented, particularly, from the certifications and exhibits submitted to the Court in support of the current Motion and in opposition thereto. The Court limits its discussion and analysis to only those facts that bear upon Derek G. Timms, Esquire's representation of Plaintiffs and his relationship with Cooper Levenson. However, given the gravity of the matter and the importance of Timms's expansive email communications with Cooper Levenson, this Order must precisely capture Timms's relationship with Cooper Levenson.

         Plaintiffs filed the underlying Complaint on August 17, 2018. Complaint [Dkt. No. 1]. Plaintiffs are represented by the law firm Singley & Gindele Attorneys at Law, L.L.C. (“Singley & Gindele”). The Docket lists Matthew J. Gindele, Esquire and Derek G. Timms, Esquire[1] as counsel of record for Plaintiffs.[2] According to Singley, “Derek Timms, Esquire was assigned primarily [sic] responsibility for the prosecution of Plaintiffs' claims.” Certification of George J. Singley, Esquire (“Singley Cert.”) [Dkt. No. 15-2], at 2, ¶6. Defendants are represented by Cooper Levenson, and Russel L. Lichtenstein, Esquire is listed as counsel of record.

         A. Timms's Communications and Interactions with Cooper Levenson

         In or before May 2019, Cooper Levenson placed an advertisement seeking to fill a position in the firm's Negligence Defense Department. Certification of Kenneth J. Calemmo, Jr. (“Calemmo Cert.”) [Dkt. No. 18-3], at 1, ¶2. That department is chaired by Carmelo Torraca, Esquire. Id. Timms learned of this opening and emailed Torraca on May 8, 2019. Timms email dated Wednesday, May 8, 2019, at 1:12 P.M. [Dkt. No. 15-2], Exhibit A. Timms's email describes his various frustrations with Singley & Gindele and his overall interest in seeking “a little more stability” at Cooper Levenson. Id. On Friday, May 10, 2019, Torraca responded with an encouraging email that Timms would be a good fit and advised Timms to call to “get this started!!!” Torraca email dated May 10, 2019, at 9:12 A.M. [Dkt. No. 15-2], Exhibit B (emphasis in original).

         On Monday, May 13, 2019, at 9:59 A.M., Timms emailed Cooper Levenson's Chief Operating Officer, Kenneth J. Calemmo, Jr., [3]expressing his interest in the firm and the kind of work he hoped to develop. Timms email dated May 13, 2019, at 9:59 A.M. [Dkt. No. 15-2], Exhibit C. Calemmo responded at 1:32 P.M. and set a morning meeting for Wednesday, May 15, 2019. Timms and Calemmo email chain dated May 13, 2019, at 1:19 P.M. and 1:32 P.M. [Dkt. No. 15-2], Exhibit D.

         Calemmo interviewed Timms on Wednesday, May 15, 2019. Calemmo Cert. [Dkt. No. 18-3], at 2, ¶¶3-6. Calemmo certifies that:

During my interview with Mr. Timms, he indicated that he had “a case with Russell” who I understood to be the firm's partner Russell L. Lichtenstein, Esquire. Mr. Timms did not advise me what the case was or who our client was during the meeting. I asked Mr. Timms if he would be leaving that file with his previous firm and he indicated he would. At that time, I did not have any further conversations with Mr. Timms or anyone at Cooper Levenson concerning this issue. Mr. Timms did not indicate to me that there was a second matter in which he represented a client adverse to a firm client. The second matter was being handled by partner Steven D. Scherzer, Esquire.

         Calemmo Cert. [Dkt. No. 18-3], at 2, ¶7. Later that same day, at 12:43 P.M., Timms emailed a thank you note to Calemmo. Timms email dated May 15, 2019, at 12:43 P.M. [Dkt. No. 15-2], Exhibit E. Calemmo replied at 1:16 P.M., stating “everyone is on board and we would like to move forward. I will get you over a[n] [sic] offer letter before the end of the day. Let us know of your acceptance [and] [sic] your start date. Also[, ] I am assuming that you will be primarily working here in AC. Welcome Aboard[.]” Calemmo email dated May 15, 2019, at 1:16 P.M. [Dkt. No. 15-2], Exhibit F.

         At 1:23 P.M., Timms responded enthusiastically to the informal offer. Timms email dated May 15, 2019, at 1:23 P.M. [Dkt. No. 15-2], Exhibit G. Timms requested a start date of June 1 or June 3 and stated he would “start this week to discuss the move with my clients to make the transition a smooth one.” Id. At 1:47 P.M., Calemmo emailed Timms the formal offer letter. Offer Letter and Calemmo email dated May 15, 2019, at 1:47 P.M. [Dkt. No. 15-2], Exhibit H. At 2:48 P.M., Timms replied, accepting the offer, and requested a June 3, 2019 start date. Timms email dated May 15, 2019, at 2:48 P.M. [Dkt. No. 15-2], Exhibit I. Timms's acceptance email again emphasized that he would begin “reaching out to my various clients to insure a smooth transition to Cooper.” Id.

         On Thursday, May 16, 2019, Calemmo circulated an internal email among Cooper Levenson's partners and senior management advising them that Timms was joining the firm. Calemmo Cert. [Dkt. No. 18-2], at 2, ¶9. That same day, Scherzer informed Calemmo that Timms presented a conflict, id. at 2, ¶10, and, either that evening, or the morning of Friday, May 17, 2019, Lichtenstein called Calemmo “indicating that there was a non-waivable conflict with respect to Mr. Timms and that the firm would need to promptly withdraw any offer of employment.” Certification of Russell L. Lichtenstein, Esquire (“Lichtenstein Cert.”) [Dkt. No. 18-2], at 1-2, ¶4. Lichtenstein certifies that he had a “second conversation with Mr. Calemmo on Friday, May 17, 2019 along the same lines. I once again specifically instructed Mr. Calemmo to withdraw any offer of employment that had been made at that time.” Id. at 2, ¶5. Calemmo also certifies that Lichtenstein expressed these concerns and instructions. Calemmo Cert. [Dkt. No. 18-3], at 2, ¶¶10-11.

         On Monday, May 20, 2019, Calemmo contacted Timms and “advised him that as a result of the firm's assessment of the conflicts that would be created if he were to join the firm, Cooper Levenson was withdrawing the offer of employment.” Id. at 3, ¶12.

         In response, Timms relentlessly attempted to overcome the withdrawal. Timms sent numerous emails to Calemmo, Torraca, Lichtenstein, and Lloyd D. Levenson, [4] each time emphasizing his frustrations with the situation and ultimate desire to join Cooper Levenson per the terms of the offer. Throughout these emails, Timms mentioned the Hinker case, stating:

• Timms to Torraca:
I am freaking out and now may be without a job very soon. Russell told me that the cases were “big” cases and Cooper would [not] [sic][5] step away from them. That bothers me because oneis a BS case where a combat vet (my client) suedCape MayCounty for kicking his service dog out of a park. Itisn't worth shit.
I cannot believe that Cooper may end up screwing my career up and leaving me without a job to keep one case that is a nothing case and one where I did not even sue Cooper's client.
Timms email dated May 20, 2019, at 1:01 P.M. [Dkt. No. 15-2], Exhibit J (emphasis added).
• Timms to Calemmo:
[T]his whole situation has placed me in a very difficult position. I know you have been very supportive and helpful and I appreciate that. I will be honest, however, that it is frustrating that essentially two minor cases are keeping me in limbo.
Timms email dated May 22, 2019, at 2:07 P.M. [Dkt. No. 15-2], Exhibit K (emphasis added).
• Timms to Torraca:
I'm glad [Calemmo] is still on this. No explanation, though, about why Russell's got him by the balls and is opening Cooper up to a big problem for a shit case.
Timms email dated May 22, 2019, at 2:51 P.M. [Dkt. No. 15-2], Exhibit L (emphasis added).
• Timms to Levenson:
[Calemmo] called me and told me that there was a problem. Essentially, Cooper would need to “punt” any case where I was on [t]he [sic] other side. That would mean Russell would have to transfer his file so that there would be no conflict. I am fully familiar with the case and candidly I[t] [sic] is not a huge matter.
Timms email dated May 24, 2019, at 1:20 P.M. [Dkt. No. 15-2], Exhibit M ...

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