Klitzman, Klitzman & Gallagher v. Krut
Citation | 591 F. Supp. 258 |
Decision Date | 25 June 1984 |
Docket Number | Civ. A. No. 84-2180. |
Court | U.S. District Court — District of New Jersey |
Parties | KLITZMAN, KLITZMAN & GALLAGHER, Plaintiff, v. Robert J. KRUT, Vernon Holmes, W. Hunt Dumont, and Michael M. Milner, Defendants. |
DeCotiis & Philips by Alfred C. DeCotiis, West Orange, N.J., for plaintiff.
W. Hunt Dumont, U.S. Atty., by Paul J. Dillon, Asst. U.S. Atty., Newark, N.J., for defendants.
This action is before the court on the return date of an order to show cause why a preliminary injunction should not issue, which order, including temporary restraints, was issued by the court on June 5, 1984. At issue is the propriety of the government's search of plaintiff's law offices and the seizure of 2000 client files and numerous financial documents, all pursuant to three separate search warrants. Plaintiff seeks the return of the documents seized, as well as damages for violations of its constitutional rights.
Aff. of Robert J. Krut, Exh. A. Such warrant was based upon an affidavit of defendant Krut detailing particular examples of false or inflated medical bills submitted on behalf of plaintiff's clients. For example, the supporting affidavit reads:
... a former client represented by Charles B. Klitzman stated that he was never treated by Alan Lederman. A review of the insurance company file reveals that on December 8, 1980, a bill for medical services prepared on the stationery of Alan Lederman, D.C. d/b/a Matawan Chiropractic Center reporting that his client/patient had been treated forty-six times, was mailed from the Klitzman law firm to the Royal Globe Insurance Company, Shrewsbury, New Jersey.
Krut Aff., Exh. A (Rider ¶ 9).
Krut. Aff., Exh. B. Hence, open files could now be searched. Krut, however, seems to state that such files were only cursorily examined. Krut Aff. ¶ 15. The second additional warrant further extended the scope of the search to include plaintiff's storage room, "located in an alley" behind the premises already searched. This search became necessary when, based upon information provided by one of plaintiff's employees, investigators realized that certain of the closed files in which they were interested were contained in such storage room. Krut Aff., Exhibit C.
As a result of this search, a full-day occupation of plaintiff's offices occurred on May 16, 1984. Aff. of Abraham R. Klitzman (6/5/84) ¶¶ 2-4. The office was closed, and over 2000 files seized. Plaintiff alleges that the search and seizure exceeded the scope of the warrant and paints a picture of "a wholesale rummaging of all the files and other documents in the office," Klitzman Aff. ¶ 2, see also Klitzman Aff. (6/14/84) ¶ 11, including personal records. Klitzman Aff. (6/5/84) ¶ 7. The government, however, contends that plaintiffs agreed to cooperate in the search, Krut Aff. ¶ 9, and that, in fact, the government relied upon the representations of plaintiff's bookkeeper in deciding which documents were covered by the first search warrant. Id. ¶ 14. It states that plaintiff made the decision to close its own offices, id. ¶ 13, and portrays the actions of government agents as reasonable throughout. Id. ¶¶ 14, 19, 21, 23.
Plaintiff now moves for a preliminary injunction, arguing that the search here at issue was unreasonable under the circumstances, as well as per se unreasonable as a result of its violation of the attorney-client relationship. It also argues that the scope of the search was unconstitutionally broad and that, in undertaking it, the government violated certain of its own regulations. The government both disputes these claims and moves to dismiss for failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6).
The prospect of a law office search is a matter of serious concern because of the threat it poses to the nature of the attorney-client relationship, the legal devices that have evolved to promote and foster it, and the attorney's role in the administration of justice.
Bloom, The Law Office Search: An Emerging Problem and Some Suggested Solutions, 69 Geo.L.J. 1, 12 (1980). For these reasons, grounded in both constitutional law and common law privilege, the court must scrutinize the claims set forth by plaintiff with all the care demanded by such a "difficult and delicate issue." O'Connor v. Johnson, 287 N.W.2d 400, 402 (Minn.1979). Those claims are indeed serious ones. Defendants oppose them arguing first that they should be dismissed and second that, in any event, the relief requested is not warranted. These issues will be discussed below, seriatim.
Plaintiff's complaint includes three counts. The first claims a violation of its fourth amendment rights, the second, a violation of the Equal Protection clause, brought pursuant to 42 U.S.C. § 1985(3), and the third, a violation by defendants Dumont, the United States Attorney for the District of New Jersey, and Milner, an Assistant United States Attorney in this district, who allegedly neglected to prevent a search and seizure which they knew to be unlawful, in violation of 42 U.S.C. § 1986. Defendant moves to dismiss each of these claims. First, defendants argue that the allegations of Counts II and III fail to state a claim upon which relief can be granted, and that, in any event, no facts are stated constituting any claim against defendants Holmes and Dumont. Second, defendants argue that they are either absolutely or qualifiedly immune from suit, and that Count I should be dismissed for this reason.
Defendants are correct that plaintiff fails to state a claim under 42 U.S.C. § 1985(3). That provision prohibits, in pertinent part, a conspiracy to "go in disguise on the highway or on the premises of another, for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws...." However, it has been interpreted to address not all conspiracies to violate one's constitutional rights, but only those in which there is Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S.Ct. 1790, 1798, 29 L.Ed.2d 338 (1971) (footnotes omitted). See also Scott v. Rosenberg, 702 F.2d 1263, 1269-70 (9th Cir.1983); Rogin v. Bensalem Township, 616 F.2d 680, 696 (3d Cir.1980), cert. denied, 450 U.S. 1029, 101 S.Ct. 1737, 68 L.Ed.2d 223 (1981); Hauptmann v. Wilentz, 570 F.Supp. 351, 385-86 (D.N.J.1983); Mastrota v. Robinson, 534 F.Supp. 434, 437 n. 3 (E.D.Pa.1982) (Becker, J.) ( ). Here, no racial or other class-based effect whatsoever, let alone intentional discrimination, is alleged; no violation of the equal protection clause appears anywhere in the complaint. For this reason, Count II of plaintiff's complaint must be dismissed. Similarly, Count III, alleging a violation of 42 U.S.C. § 1986, must be dismissed. As the Court of Appeals for the Third Circuit has stated:
Section 1986 is a companion to § 1985(3) and provides the claimant with a cause of action against any person who, knowing that a violation of § 1985 is about to be committed and possessing power to prevent its occurrence, fails to take action to frustrate its execution. Because transgressions of § 1986 by definition depend on a...
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...909-10 (3rd Cir.1984); Lacey v. Borough of Darby, 618 F.Supp. 331, 337 (E.D.Pa.1985) (interpreting Losch); Klitzman, Klitzman & Gallagher v. Krut, 591 F.Supp. 258, 265 (D.N.J.1984) (interpreting Losch), aff'd, 744 F.2d 955. If Chief Bowers appropriated and converted Farris' property to his ......
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