Alevras v. Tacopina
| Decision Date | 23 November 2005 |
| Docket Number | No. CIV.03-3780 WHW.,CIV.03-3780 WHW. |
| Citation | 399 F.Supp.2d 567 |
| Parties | Chris G. ALEVRAS, Plaintiff, v. Joseph TACOPINA, Tama Beth Kudman, Joseph Benfante, Individually, Jointly, and Severally Defendants. |
| Court | U.S. District Court — District of New Jersey |
Chris G. Alevras, Union, NJ, for Plaintiff.
Karin S. Riecker, Klingeman, Turano, LLC, Madison, NJ, for Defendants.
Defendants Joseph Tacopina ("Tacopina"), Tama Beth Kudman ("Kudman"), and Joseph Benfante ("Benfante") (collectively, "Defendants") move for (i) an order granting summary judgment and (ii) an order dismissing plaintiff Chris Alevras' ("Alevras") complaint for failure to state a claim. Pursuant to Fed.R.Civ.P. 78, the motion is decided without oral argument. Defendants' motion for summary judgment is granted.
This action arises out of Alevras' dissatisfaction with the legal representation provided to him by Defendants during his 1997 prosecution for fraud and firearm possession in the United States District Court, District of New Jersey, before the Honorable Judge Joseph A. Greenaway. Early in 1997, Alevras was charged in a 38-count indictment including counts of mail, bank and wire fraud (the "99 case"), and later was charged in a criminal information for one count of unlawful possession of a firearm (the "172 case"). On February 19, 1997, Alevras was arrested and brought before the court for arraignment. Pursuant to the Criminal Justice Act ("CJA"), Alevras filed an in forma pauperis application and the court assigned Jeffrey Bronster, Esq. ("Bronster") as defense counsel.
On or about March 1, 1997, Bronster and Alevras met with the government to discuss a plea agreement. On March 14, 1997, Alevras pled guilty before Judge Greenaway to bank fraud, submission of a false claim to the United States, and unlawful possession of a firearm by a convicted felon.
In June of 1997, Alevras sought and obtained Judge Greenaway's permission to replace Bronster with counsel at his own expense. Judge Greenaway conditioned Alevras' request for new counsel on his first paying Bronster the full value of his legal service. On June 30, 1997, Alevras met with Tacopina and Kudman to discuss the possibility of retaining them. Alevras alleges that, at this initial meeting, Tacopina and Kudman fraudulently induced him to retain them as defense counsel by falsely holding themselves out as experts in federal criminal law. Alevras also alleges that, during this meeting, Tacopina and Kudman promised to keep him accurately and timely informed as to all case developments and promised to obtain his consent before making any substantive decisions. In reliance on these promises, Alevras claims he retained Tacopina and Kudman as defense counsel and paid $19,000.00 of the $20,000.00 fee requested.
Alevras was initially released on bail, but a warrant for his arrest was issued after he failed to appear for a scheduled status conference on July 1, 1997. Alevras surrendered on July 2, 1997, at which point Judge Greenaway held a hearing to determine whether to revoke Alevras' bail and remand him until his sentencing. At the July 2, 1997 hearing, Alevras told the judge that he had retained Tacopina, but Judge Greenaway found that Alevras had misrepresented his financial status to the court in order to obtain a CJA attorney, and failed to pay that attorney, a condition for retaining new counsel. Alevras alleges that the judge refused to contact Tacopina, and Alevras defended himself at the hearing. Judge Greenaway revoked the defendant's bail and remanded him to custody. Alevras alleges that, based on the "uncounseled statements" he made at the July 2 hearing, his bail was revoked, and the probation department filed an application to increase his offense level by five points.
On July 11, 1997, Tacopina filed a notice of appearance with the district court and a motion to reinstate Alevras' bail pending sentencing. Alevras was represented by Benfante and Kudman, associates of Tacopina, at the July 11, 1997 hearing to reinstate bail, which was denied by the court. Alevras alleges that Benfante and Kudman were "negligently, recklessly, willfully and wantonly unprepared to effectively represent Alevras" at the July 11 hearing, including their failure to appeal the July 2 ruling.
At an August 22, 1997 hearing, Tacopina renewed the motion to reinstate Alevras' bail. Alevras alleges that Defendants again acted negligently and recklessly because they failed to appeal the July 2 order, failed to appeal the order to pay Bronster for his CJA services, and failed to contest the admissibility of Alevras'"uncounseled" statements at the July 2 hearing.
In October of 1997, Alevras met with the present Defendants to discuss the status of his criminal case. Alevras alleges that they erroneously advised him that, among other things, there was no factual or legal basis to challenge the July 2 ruling or to seek the recusal of Judge Greenaway. It is also alleged that Alevras was advised that his best interests would be served by proceeding to the plea agreement without filing objections to the presentence report. On October 7, 1997, Defendants presented to Alevras an amended plea agreement, where, in consideration for the United States withdrawing the 5 point enhancement in his sentencing, Alevras would agree to a limited waiver of his direct appeal and post-conviction rights. Alevras alleges that Defendants negligently, recklessly and willfully advised Alevras to sign the amended plea agreement. On October 14, 1997, the court accepted the amended plea agreement, and sentenced Alevras to 87 months. On October 21, 1997, Alevras surrendered and began serving his sentence.
Alevras alleges that after his sentencing, he faxed a request to Tacopina instructing Defendants to prepare a notice of appeal on the 99 and 172 cases and to transmit this notice to Alevras for him to file pro se. Defendants claim that they prepared the notice of appeal and sent it to the address Alevras provided, but it was returned to their office one week later because Alevras was no longer incarcerated at the location indicated on the fax. Defendants claim that by this time, the deadline to file an appeal had passed. Defendants also note that, despite Alevras' instruction that Defendants should not file a notice of appeal on his behalf, they drafted and filed a notice of appeal along with a motion to extend the time to file a notice of appeal on the basis of excusable neglect. Judge Greenaway denied the motion. Alevras alleges that Defendants refused to comply with the instructions contained in his October 27 fax, and that they negligently, recklessly and willfully "misprepared" and "misfiled" the notice of appeal and failed to transmit a copy of the defective notice to Alevras.
After Alevras' guilty plea was entered, he brought a 28 U.S.C. § 2255 motion, pro se, alleging ineffective assistance of counsel. The court denied Alevras' § 2255 motion on the grounds that he had entered into his plea agreement voluntarily and that he received effective assistance of counsel. Alevras appealed the denial to the Third Circuit, which directed Judge Greenaway to hold a hearing on two issues: (1) whether Alevras made a timely request of his counsel to file a notice of appeal; and (2) whether Tacopina told Alevras that the District Court would remand him immediately and give him a fivepoint upward enhancement if he refused the plea agreement, but would sentence him to the bottom of the guideline range if he accepted it.
At the hearing, Judge Greenaway found that the evidence established that Alevras had asked Tacopina not to file a notice of appeal on his behalf, and that neither the court nor Tacopina had suggested to Alevras that his acceptance of the plea agreement would influence the length of his sentence. The court denied Alevras' § 2255 petition a second time which was subsequently upheld by the Third Circuit and a petition for a writ of certiorari was denied by the Supreme Court. The civil suit now before this Court is based on the same allegations regarding the services provided to Alevras by Defendants which were challenged in Alevras' § 2255 petition. Alevras' complaint alleges seven causes of action: (1) negligence or legal malpractice; (2) willful and wanton misconduct; (3) breach of express or implied warranties; (4) fraudulent misrepresentation; (5) fraudulent concealment; (6) breach of fiduciary duty/unethical conduct; and (7) failure of consideration.
On October 28, 2003, Defendants filed a motion to dismiss, challenging the adequacy of the Affidavit of Merit filed with the complaint. That Affidavit is required by New Jersey law to begin a legal malpractice suit. The Court denied Defendants' motion on December 21, 2004. Defendants have since filed a separate motion for summary judgment based on theories of collateral estoppel, res judicata and New Jersey's Entire Controversy Doctrine. Defendants also brought a second motion to dismiss for failure to state a claim.
Summary judgment is appropriate where the moving party establishes that "there is no genuine issue as to any material fact and that [it] is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). A factual dispute between the parties will not defeat a motion for summary judgment unless it is both genuine and material. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A factual dispute is genuine if a reasonable jury could return a verdict for the non-movant and it is material if, under the substantive law, it would affect the outcome of the suit. See id. at 248, 106 S.Ct. 2505. The moving party must show that if the evidentiary material of record were reduced to admissible evidence in court, it would be insufficient to permit the non-moving party to carry its burden of proof. See Celotex v. Catrett, 477 U.S. 317, 318, 106 S.Ct....
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