PLAINTIFF’S BRIEF IN SUPPORT OF MOTION TO MODIFY THE JULY 24, 2012 AND AUGUST 23,
2012 ORDERS, REINSTATE THE COMPLAINT AND EXTEND DISCOVERY
Plaintiff, Trudy Miranda, (hereinafter referred to as “Plaintiff”) respectfully submits this Brief in support of her application for modification of the July 24, 2012 and August 23, 2012 Orders which conditions reinstatement of this action on the payment of fees and costs by Jeffrey Pocaro, Esq., Plaintiff’s former counsel.
Since the entry of the July 23, 2012 Order, Mr. Pocaro has informed the court that: 1) he is unable to pay the court ordered sanction; 2) he will be suspended from the practice of law for three years; 3) he is contemplating bankruptcy; and 4) he has no malpractice insurance (Plaintiff’s Cert. @ 3). Due to his non-payment of the court-imposed sanction, Plaintiff has been and will remain prejudiced unless the order is modified to allow reinstatement without payment by Mr. Pocaro.
Moreover, discovery must be extended due to Mr. Pocaro’ s utter lack of attention to this matter. In fact, Mr. Pocaro was subject to disciplinary proceedings concurrent to this litigation which was unbeknownst to Plaintiff. Mr. Pocaro admits his extreme
inattention to this matter, failure to complete discovery and submit the required expert reports in his certification, submitted in support of Plaintiff’s application.
It is entirely inequitable that Plaintiff is penalized for her former counsel’s behavior, particularly when she requested a continuance in order to obtain new counsel on or around July 19, 2012, and again on July 24, 2012 after discovering that Mr. Pocaro had only subpoenaed one witness for trial.
Furthermore, Plaintiff will be extremely prejudiced should this matter not be reinstated as Mr. Pocaro does not have malpractice insurance, and never possessed it at any point during his representation of the Plaintiff. Plaintiff will literally be left with no recourse due to her former counsel’s actions and inactions. Therefore, Plaintiff respectfully requests that the Orders be amended to reinstate Plaintiff’s complaint independent of payment by Mr. Pocaro and allow discovery to be extended.
STATEMENT OF FACTS
The facts giving rise to the within action are recited in great detail in the Certifications of Plaintiff Trudy Miranda (“Plaintiff Cert. “), Jeffrey Pocaro, Esq. ( “Pocaro Cert. “) and Edward Allen Buck (“Buck Cert.”) filed simultaneously herewith. The contents of same are therefore incorporated herein by reference and are relied upon in order not to be repetitive herein.
Based upon the facts set forth above and the supporting Certifications filed simultaneously herewith, as well as the legal authority set forth hereinafter, it is respectfully requested that this Court grant Plaintiff’s application and order all of the relief requested.
PLAINTIFF’S COMPLAINT MUST BE REINSTATED PURSUANT TO R.4:50-1(b), (e) and (f) IN THE INTEREST OF JUSTICE.
The Orders dated July 24, 2012 and August 23, 2012 must be modified in order to avoid injustice and permanent p [prejudice to
plaintiff’s claims. Rule 4:50-1, relief from judgment or order, states in pertinent part that “On motion, with briefs, and upon such terms as are just, the court may relieve a party or the party’s legal representative from a final judgment or order for the following reasons: … (b) newly discovered evidence which would probably alter the judgment or order and which by due diligence could not have been discovered in time to move for a new trial under R. 4:49; … (e) … or it is no longer equitable that the judgment or order should have prospective application ; or (f) any other reason justifying relief from the operation of the judgment or order.”
Rule 4:50-1, “is a carefully crafted vehicle intended to underscore the need for repose while achieving a just result.” DEG, LLC v. Township of Fairfield, 198 N.J. 242, 264 (2009). It “denominates with specificity the narrow band of triggering events that will warrant relief from judgment if justice is to be served. Only the existence of one of these triggers will allow a party to challenge the substance of a judgment.” Id at 261-262. “[A] motion under R. 4:50-1 is addressed to the sound discretion of the trial court, which should be guided by equitable principles in determining whether relief should be granted or denied.” Housing Authority of the Town of Morristown v. Little, 135 N.J. 274,283 (1994).
It is respectfully submitted that the enumerated subparts to this rule are applicable in this case and that the orders of July 24, 2012 and August 23, 2012, conditioning -the – reinstatement of Plaintiff’s case on the remuneration of payment by Plaintiff’s former counsel should be amended in the interest of equity and justice. Since Plaintiff’s former counsel has certified that he is unable to pay the sanction, will be suspended from the practice of law for a period of three years, is contemplating bankruptcy, and cannot even borrow the money as he does not own a home, it pins the Plaintiff into an impossible predicament through no fault of her own. It is thoroughly inequitable that Plaintiff’s case may be dismissed with prejudice because her former counsel did not pay Defendant’s three attorneys and expert for one day of their time.
Further, as Mr. Pocaro was admittedly inattentive in his handling of this matter as a result of being subject to disciplinary proceedings concurrent with this litigation, Plaintiff respectfully requests that discovery be extended for a definite period of time so that the case can properly move forward with substituted counsel.
(A) “NEWLY DISCOVERED EVIDENCE” EXISTS.DUE TO THE ADMISSIONS
OF PLAINTIFF’S FORMER COUNSEL, THEREFORE WARRANTING
MODIFICATION OF THE ORDERS.
Pursuant to Rule 4.:50-1 (b), “newly discovered evidence which would probably alter the judgment or order and which by due diligence could not have been discovered in time to move for a new trial under R. 4 :49” is also grounds to relieve a party from final
judgment or order. “Newly discovered evidence” has been defined to be “of such a nature as to have been likely to have changed the
result if a new trial had been granted.” DEG, LLC v. Township of Fairfield, 198 N.J. 242, 264 (2009) .”The party seeking relief must
demonstrate ‘that the evidence would probably have changed theresult, that it was unobtainable by the exercise of due diligence
for use at the trial, and that the evidence was not merely cumulative.'” Id at 264 citing Quick Chek Food Stores v. Twp. Of Springfield, 83 N.J. 438. 445 (App. Div. 1965).
In this instance, at issue are two Orders entered by the Honorable Peter A. Buchsbaum, J.S.C. by which Plaintiff’s former counsel is personally obligated to pay the costs and fees of defense counsel and their experts as a result of their appearance at court. Without this payment, or a modification of the Orders, the case will not be reinstated. Mr. Pocaro’s failure to pay the court ordered amount to Plaintiff’s two attorneys and expert may result in the dismissal with prejudice of Plaintiff’s complaint, through no fault of the Plaintiff.
At the time of the Order, Mr. Pocaro was the attorney of record for the Plaintiff in an action fraught with mismanagement and lack of activity by Mr. Pocaro. This culminated in the trial date of July 23, 2012, being converted into a Rule 104 hearing (N.J.R.E.
104) regarding the qualifications of Plaintiff’s expert, Edward Allen Buck. In fact, Mr. Buck was the only expert disclosed by Plaintiff at that point, as Mr. Pocaro failed to appropriately challenge Defendants assertions that their expert, Michael Poulin’s, report constituted a “net opinion”. Mr. Pocaro also failed to make a motion to extend discovery and/or submit a discovery schedule to rectify this situation, leading to the end of the discovery period.
Mr. Pocaro’s actions were such that Judge Buschsbaum expressed his concern regarding both the shape of the case and Plaintiff’s counsel’s conduct during the argument on July 24, 2012, as follows:
I am concerned with a number of anomalies I have noticed in
this case, however. Number one, when the court denied a
further extension of discovery past May seventeenth, it did
so only because no schedule ‘l was provided. It was a simple
matter at that point to – and I have had it happen tens of
times, for someone, to just simply say: Okay here’s another
motion, here’s the scheduling. And then what would have
happened is almost certainly I would have granted the motion
and there would have been the opportunity for more discovery.
It Is a piece of cake really …. And counsel you pointed it
out in your reply to Mr. Pocaro’ s papers, that he claimed that
I had forbidden any further discovery motions .. That was -just
as you pointed out, flatly inaccurate…
(Plaintiff Cert., Exhibit A,@p.16, l. 3-18:)
Further, the Court stated:
I am also concerned, and I have mentioned this in chambers,
having reviewed the complaint – – the counter, rather,
Count Four clearly was dismissible on the grounds that the
abuse of process does not lie until after the first action
is concludedr Counts One, Two and Three should have been the
subject of a motion, most likely a motion to dismiss on the
grounds that the-that the alleged slander was not specified,
which is a requirement of our pleadings, ·and yet that was never
(Plaintiff Cert., Exhibit A, p.17, 1.14-23).
During the hearing in question on July 24 r 2012, Plaintiff’s expert failed to appear from Utah. After Mr. Buck failed to appear, with regard to the disposition of the case, the Court’s initial inclination was a “two-part resolution”, as evidenced by the transcripts. The transcript states,
Number one, I do think I need to adjourn the matter and give
Ms. Miranda the opportunity to obtain new counsel, for all
the reasons I have stated as to the shape of the case as it
sits here today. But Number two, I think Mr. Pocaro should
pay for the cost of bringing you here, sir, from Tennessee,
and bringing your expert from Michigan. I don’t think that
should come out of the Plaintiff’s pocket. I think that should
come out of Mr. Pocaro’s pocket.”
(Plaintiff Cert., Exhibit A, p19, 1.14-24. (emphasis added))
The Court’s first inclination was to allow Plaintiff to obtain new counsel, and for Mr. Pocaro to personally pay for Defendant’s attorney and expert’s costs and fees. This reasoning later devolved into the reinstatement of the case being conditioned on payment of sanctions by Mr. Pocaro, not the plaintiff·.
What the Court could not have known was discovered sometime later, after the hearing. At that time Mr. Pocaro was requested to pay the sanctions, he informed Plaintiff’s present counsel that he would be suspended from the practice of law for a period of three years, and did not have the money to pay for the reinstatement. He has also recently disclosed that he is contemplating bankruptcy, has no means of borrowing money, and has no malpractice insurance (Pocaro Cert. @CJ[29, 30, 31, and 35). This newly discovered evidence, as it were, would likely have changed the result of the order since it was naturally assumed that Mr. Pocaro would still be practicing law and able to make that payment. In fact, even though Mr. Pocaro alerted only Judge Buchsbaum to his pending disciplinary proceedings in chambers on July 24, 2012, the Judge had no way of realizing the extent of Mr. Pocaro’s financial situation, nor the fact that he did not have malpractice insurance ( Pocaro Cert. @ ’28). In fact, Mr. Pocaro only later disclosed the fact to Plaintiff that he was suspended when contacted by Plaintiff’s successor counsel. It became clear that Mr. Pocaro’s ethical proceedings were occurring regarding his suspension while this litigation was progressing (Plaintiff’s Cert. @ ’13).
Plaintiff submits that had Mr. Pocaro’s financial situation been available to Judge Buchsbaum when making Plaintiff’s reinstatement contingent on payment from Mr. Pocaro, the decision would have been different. Instead, as it stands now, Mr. Pocaro’ s continuing actions, both in his mishandling of the matter, as well as his suspension and inability to pay the reinstatement costs continue to damage the Plaintiff. As such, the Orders should be amended to reinstate this matter independent of Mr. Pocaro’ s inability to pay, as well as to extend discovery in order to remedy his evident mishandling of this case.
(B) DUE TO MR. POCARO’S RECENT ADMISSIONS “IT IS NO
LONGER EQUITABLE THE ORDERS SHOULD HAVE PROSPECTIVE
APPLICATION” AND SHOULD THEREFORE BE AMENDED.
A motion pursuant to R. 4:50-l(e) must be supported by “evidence of changed circumstances.” DEG, LLC v. Township of Fairfield, 198 N.J. 242, 265 (2009). “The party seeking relief bears the burden of proving that events have occurred subsequent to the entry of a judgment that, absent the relief requested, will result in ‘extreme’ and ‘unexpected hardship'”. Id. (Citations omitted).
In the instant matter, Mr. Pocaro suspended from the practice of law, resulting from charges of unethical conduct in another case, unbeknownst to the Plaintiff at the time of the decision. He has now informed everyone, post-judgment, that 1) he does not have the money to pay for the sanctions imposed; 2) he is contemplating bankruptcy; 3) he cannot borrow any money, and;4) he does not intend to pay, all of which he failed to inform Judge Buschsbaum prior to the decision. Furthermore, he does not have malpractice insurance. If the order remains conditioned on Mr. Pocaro’s payment of fees for reinstatement, it will indeed work an “extreme” and “unexpected hardship” or the Plaintiff, since her case will be dismissed with prejudice. Not only that, there would be virtually no way for Plaintiff to recoup any losses due to Mr. Pocaro’ s suspension, pending declaration of bankruptcy, and utter lack of malpractice insurance. Surely the Orders, in their present form are “no longer equitable” as Plaintiff would be left with no way to pursue her claims against the defendant. Therefore, the only equitable solution is that the Orders must be revised to reinstate Plaintiff’s complaint independently from Mr. Pocaro’s payment of fees and extend discovery to allow Plaintiff to properly present her case and defend against Defendant’s counterclaim.
(C) PLAINTIFF’S UNIQUE CIRCUMSTANCES AND UTTER-LACK OF
RELIEF BY ANY OTHER MEANS JUSTIFIES RELIEF UNDER RULE
Rule 4:50-1 (f) provides for modification of an order because of “any other reason justifying relief from the operation of the judgment or order.” “The very essence of (f) is its capacity for relief in exceptional situations. And in such exceptional situations, its boundaries are as expansive as the need to achieve equity and justice.” Court Investment Company v. Perillo, 48 N.J. 334, 341 (1966).
In Court Investment, the Defendant’s attorney in a mortgage foreclosure suit had been subject to disciplinary proceedings which had been ongoing, unbeknownst to the client, while he was handling Defendant’s case. The attorney had advised his clients that he had taken care of their matter, when, in actuality, a default judgment. was entered against them and which they discovered years later. The court found that the balance of the equities “strongly favored the Defendants and provided an adequate basis under [4: 50-1 (f)] for the trial court’s order vacating the … judgment”” lei:_ at 347.
In Parker v. Marcus, 281 N. J. Super. 589 (App. Div. 1995), an order of dismissal was entered by the Court after plaintiff’s attorney failed to appear for an arbitration. The dismissal was vacated under R. 4:50-1 (f) as the dismissal was no fault of plaintiff but caused by the attorney’s actions. Without the relief, the plaintiff would be left with no recourse. Like the instant matter, in Parker, the passenger’s attorney was subject to disciplinary proceedings and had no malpractice insurance. In considering Plaintiff’s application by his new counsel, the Court stated that,” justice is the polestar and our procedures must ever be moulded and applied with that in mind. “Id. at 593 citing Jansson v. Fairleigh Dickinson Univ., 198 N.J. Super. 190, 195 (1985).
In Jansson, the court identified four important factors to be considered in deciding when relief should be granted. They are “( 1) the extent of the delay in making the application; ( 2) the underlying reason or cause; (3) the fault or blamelessness of the litigant; and (4) the prejudice that would accrue to the other party.” Id. at 195. The Court stated that” the factors identified in … Jansson remain important guideposts in deciding whether relief should be granted, as here, when dismissal is for reasons unrelated to a discovery-rule violation.” Parker, 281 N.J. Super at 594.
First, Plaintiff had requested a 60-day continuance in order to obtain new counsel on July 19, four days prior to the first trial date. .She did so when she first learned that Mr. Pocaro had subpoenaed only one witness for trial, even though there were many individuals with knowledge of the case (Plaintiff Cer @ 20, 21). Plaintiff again reiterated her request at the Rule 104 hearing as she realized Mr. Pocaro was thoroughly unprepared for trial. This request was made even before the trial date, and made continually thereafter, and cannot be seen as a delay on plaintiff’s part
Due to Mr. Pocaro’ s complete lack of preparation, involvement in the case, Plaintiff, a horse owner and not a legal professional, was compelled to contact her only witness/expert Mr. Buck in order to have someone at trial. In fact, Mr. Pocaro rarely had any communication with Mr. Buck, did not send him any discovery to review, nor have him review Defendant’s expert report (Buck Cert. @ 7, 9 and 10) Furthermore, Mr. Pocaro did not provide Mr. Buck with any method of payment, nor transportation to New Jersey (Buck
Cert. @ 13, 14) . It is not the Plaintiff’s job to represent herself in court and put forth her own case when she hires counsel to do
so. She should not be personally punished for the inaction of her counsel.
Furthermore, Defendants are not prejudiced by this delay. The date of July 23, 2012, was the first trial date. In fact, Defendant only produced answers to interrogatories and document demands in June, less than 2 months prior to the first trial date. If anything, Plaintiff has been prejudiced by this entire proceeding and will continue to be so if the order is not amended and discovery not extended. ” [ I.l n the absence of demonstrable prejudice to the other party it is neither necessary nor proper to visit the sins of the attorney upon his blameless client.” Jansson, 198 N.J. Super. at 196. As .in Parker, “[A] ny claim against his disbarred and uninsured former attorney would undoubtedly be futile. Thus, Plaintiff, … would be left without any viable remedy.” Parker, 281 N.J. Super. At 595.” Therefore, Plaintiff respectfully requests that her relief be granted.
THE DISMISSAL WITHOUT PREJUDICE OF PLAINTIFF’S CASE DUE TO THE UNAVAILABILITY OF AN EXPERT WITNESS ON THE FIRST SCHEDULED DAY OF TRIAL IS AN EXTREME REMEDY DISPROPORTIONATE WITH THE OFFENSE.
In Kosmowski v. Atlantic City Medical Center, 175 N.J. 568 (2003), the Superior court dismissed Plaintiff’s complaint due to the unavailability of Plaintiff’s medical expert on the first day of trial. In remanding the case to the trial court for reconsideration and with directions to reassess their discretionary ruling, the court noted, “When an attorney is unable to try a case due to the first unavailability of an expert, dismissal of the complaint with prejudice ‘is drastic punishment and should not be invoked except in those cases where the actions of the party show a deliberate and contumacious disregard of the court’s authority.” Id. at 575. (citations omitted). “Because
‘dismissal with prejudice is the ultimate sanction [when an expert is unavailable the first time] it will normally be ordered only when no lesser sanction will suffice to erase the prejudice suffered by the non-delinquent party.”
In Kosmowski, although the witness was unavailable, the attorney informed the court that the expert was in Europe when instead the expert had prior commitments in Baltimore and could be not be present at trial that day. On remanding to the trial court, the Court noted that the court should consider, “the range of sanctions to be imposed on Plaintiff’s counsel.” Id at 5 77. (emphasis added). Further, in the concurrence by Justice LaVecchia, she states, “As a general matter, the attorney, not the client,
should bear the brunt of a sanction for unethical conduct.” Id.
In Kosmowski, the Plaintiff’s counsel and not the Plaintiff was penalized for the actions of her counsel. In the present case, Plaintiff is being penalized, through no fault of her own. As such, Plaintiff requests that the sanction against Mr. Pocaro continue solely as against Mr. Pocaro, and not result in the dismissal of her action due to his continuing inaction. Plaintiff respectfully requests that the Orders of both July 24 and August 23 be revised to not condition reinstatement based on payment by Mr. Pocaro, and to extend discovery. With this relief, Plaintiff will at least have a fair opportunity to set forth her claims, as well as defend against Defendant’s counterclaim. It is the only equitable result. The sanction should lie with Mr. Pocaro individually, as was the court’s first inclination. To do so otherwise would work a grave injustice on the Plaintiff, to which she would have no avenue of recovery.
SHOULD THE CASE BE RESTORED TO THE ACTIVE TRIAL CALENDER, AN EXTENSION OF DISCOVERY IS NECESSARY IN THE INTEREST OF JUSTICE.
Rule 4: 24-1 (c) Extensions of Time, states, “On restoration of a pleading dismissed pursuant to R. 1:13-7 or R. 4:23-5 (a) (1), or if good cause is shown, the court shall enter an order extending discovery … No extension of the discovery period may be permitted after an arbitration or trial date is fixed, unless exceptional circumstances are shown”. It is submitted that the actions of plaintiff’s counsel, stated in the certifications submitted, as well as the extreme prejudice that will be experienced by the plaintiff should this matter be restore without an extension of discovery warrant relief by this court. Should there be no extension of discovery, plaintiff will be left with no way of
presenting her case, as well as no way to defend against the counterclaim alleged against her, which has not been dismissed. Further, her former counsel has no malpractice insurance. These factors warrant an extension of discovery if the case is to be reinstated. To not extend same would work an extreme prejudice and injustice on this unwitting litigant and would be extremely inequitable.
Based upon the foregoing facts and argument of law, it is respectfully submitted that Plaintiff’s requests for relief be granted.
BERMAN ROSENBACH, P.C.
ATTORNEYS FOR PLAINTIFF
WILLIAM J. BERMAN, ESQ,
September 20, 2012
Miranda v Parra
(includes certifications and court orders)
Parra drops counterclaim before trial starts
April 21, 2015
Criminal Charges pertaining to William PFF
View Amended Complaint click to read what allegedly happened to William PFF