Polidoro v. Saluti

Decision Date04 December 2015
Docket NumberCiv. No. 09-6392 (KM)
CourtU.S. District Court — District of New Jersey
PartiesJAMBS POLIDORO, Plaintiff, v. GERALD SALUTI, Defendant.

This case comes before the court on the motion of the plaintiff, James Polidoro, for a default judgment in this legal malpractice case. (ECF Nos. 43, 44, 55) Though unopposed, the case has been delayed by a stay in bankruptcy, changes of counsel, and multiple requests for adjournments. Indeed, this motion for a default judgment was filed only after one dismissal for failure to prosecute the case, and a second threatened dismissal.

Polidoro essentially alleges that his attorney failed to file a civil rights action within the statute of limitations. I will enter a default judgment that compensates Polidoro for $12,820.13 in fees and expenditures occasioned by his attorney's deficient representation. I find, however, that the underlying civil rights action had little or no chance of success. I assign it a value of $5000. Judgment will be entered in a total amount of $17,820.13.

I. Allegations of the Complaint

In 1999, Polidoro pled guilty in this District to certain federal charges. See Crim. No. 98-560. (What charges, he says, are at issue; I'll explain below.) He was sentenced to a term of imprisonment of 21 months. Released from custody on December 21, 2000, he began serving a three year term of supervised release.

Polidoro alleges that he met with an attorney, defendant Gerald Saluti,1 shortly after his release, in January 2001. His intent was to file a "multicount civil action," arising from the events surrounding his guilty plea and imprisonment. Defendants were to include the United States District Court for the District of New Jersey, the U.S. Attorney's Office, and Polidoro's defense attorney, Pasquale Giannetta. (Amended Complaint ("AC") ¶ 2)2 Saluti allegedly advised Polidoro that he would file a notice of claim, that the two-year statute of limitations for filing Polidoro's action would be tolled until December 21, 2003, and that it would expire on December 21, 2005. (AC ¶ 7)

On April 5, 2003, Polidoro and Saluti came to an agreement on the terms of Saluti's retention, and Polidoro gave Saluti a check for $1000. (AC ¶¶ 9-10; id. ¶ 17 ("Gerald M. Saluti accepted James J. Polidoro's written offer on April 5th, 2005, to represent him [and] Gerald M. Saluti received consideration in the amount of $1,000....")) The two remained in touch by telephone, and Saluti assured Polidoro that he would timely file the civil action. (AC ¶ 12) Saluti did not file the action within the limitations period, or indeed ever.3 In January 2006, Saluti allegedly called Polidoro and apologized, stating that he "fell off the wagon in terms of alcohol use."

Polidoro filed this legal malpractice action pro se on December 18, 2009.4 The Amended Complaint5 asserts causes of action for breach of contract, breach of contract/client instructions, breach of implied contract, negligence, and negligent infliction of emotional distress. It asserts two more counts of fraud and negligent misrepresentation in connection with lifting the automatic stay in Saluti's subsequent bankruptcy case, when Saluti purposely or negligently represented that malpractice insurance would cover the loss.

The gist of the damages claim is that, if Saluti had filed the action against the federal defendants, Polidoro would have received damages or a settlement. Saluti's malpractice allegedly deprived Polidoro of such an award, and also resulted in out of pocket expenses that Polidoro seeks to recoup.

II. Default Judgment

"[T]he entry of a default judgment is left primarily to the discretion of the district court." Hritz v. Woma Corp., 732 F.2d 1178, 1180 (3d Cir. 1984) (citing Tozer v. Charles A. Krause Milling Co., 189 F.2d 242, 244 (3d Cir. 1951)). Because the entry of a default judgment prevents the resolution of claims on the merits, "this court does not favor entry of defaults and default judgments." United States v. $55,518.05 in U.S. Currency, 728 F.2d 192, 194 (3d Cir. 1984). Thus, before entering default judgment, the Court must determine whether the "unchallenged facts constitute a legitimate cause of action" so that default judgment would be permissible. DirecTV, Inc. v. Asher, 2006 WL 680533, at *1 (D.N.J. Mar. 14, 2006) (citing 10A Wright, Miller, Kane, Fed. Prac. 8b P. Civil 3d § 2688, at 58-59, 63).

A. Prerequisites to entry of default judgment

Before a court may enter default judgment against a defendant, the plaintiff must have properly served the summons and complaint. In addition, the defendant must have failed to file an answer or otherwise respond to the complaint within the time provided by the Federal Rules, which is ordinarily twenty-one days. See Gold Kist, Inc. v. Laurinburg Oil Co., Inc., 756 F.2d 14, 18-19 (3d Cir. 1985); Fed. R. Civ. P. 12(a).

Service of an individual may be made under the Federal Rules by doing any of the following:

(A) delivering a copy of the summons and of the complaint to the individual personally;
(B) leaving a copy of each at the individual's dwelling or usual place of abode with someone of suitable age and discretion who resides there; or
(C) delivering a copy of each to an agent authorized by appointment or by law to receive service of process.

Fed. R. Civ. P. 4(e)(2).6

The record contains an affidavit of service for both the original and the amended complaint. According to those affidavits: (1) the original complaint was served personally on Mr. Saluti by a professional process server on February 12, 2010 (ECF No. 6), and (2) the amended complaint was served on Saluti's authorized agent by a professional process server on September 3, 2014 (ECF No. 41).

Neither complaint has been answered. No one has entered an appearance on behalf of the defendant, Mr. Saluti. On December 29, 2014, the Clerk entered default as to Mr. Saluti for failure to plead or otherwise defend the action. (Unnumbered Docket entry following ECF No. 45)

The prerequisites for a default judgment have therefore been met.

B. Factors governing appropriateness of default judgment

After the prerequisites have been satisfied, a court must evaluate the following three factors: "(1) whether the party subject to default has a meritorious defense, (2) the prejudice suffered by the party seeking default, and (3) the culpability of the party subject to default." Doug Brady, Inc. v. N.J. Bldg. Laborers Statewide Funds, 250 F.R.D. 171, 177 (D.N.J. 2008) (citing Emcasco Ins. Co. v. Sambrick, 834 F.2d 71, 74 (3d Cir. 1987)). Those factors, considered in light of the record of this case, weigh in favor of entry of a default judgment.

1. Factor 1 - Meritorious defense

The legal malpractice claims pled in the amended complaint appear to have legal merit.7 In assessing them, I must take the factual allegations of the complaint as true, and defendant is deemed to have admitted them. See Comdyne I, Inc. v. Corbin, 908 F.2d 1142, 1149 (3d Cir. 1990); Doe v. Simone, 2013 WL 3772532, at *2 (D.N.J. July 17, 2013) (citing Chanel, Inc. v. Gordashevsky, 558 F. Supp. 2d 532, 536 (D.N.J. 2008)). Applying that standard, I find that Polidoro has stated claims for, e.g., breach of contract and negligence.

No extensive legal discussion is required. Under New Jersey law, the elements of a breach of contract are that (1) the parties entered into a valid contract; (2) the defendant failed to perform its contractual obligation; and as a result, (3) the plaintiff sustained damages. Sheet Metal Workers Int'l Ass'n Local Union No. 27, AFL-CIO v. E.P. Donnelly, Inc., 737 F.3d 879, 900 (3d Cir. 2013) (citing Coyle v. Englander's, 488 A.2d 1088 (N.J. Super. Ct. App. Div. 1985)). Considered as a claim of negligence, legal malpractice has three essential elements: "(1) the existence of an attorney-client relationship creating a duty of care upon the attorney; (2) the breach of that duty; and (3) proximate causation." Conklin v. Hannoch Weisman, 678 A.2d 1060, 1070 (N.J. 1996) (quoting Lovett v. Estate of Lovett, 593 A.2d 382 (N.J. Super. Ch. Div. 1991)).8 Accepting a case, entering into a legal engagement, depositing the client's retainer check, disregarding the client's instructions, and doing literally nothing to pursue the case clearly constitute malpractice. Such conduct breaches the contract between attorney and client, and also falls short of any reasonable standard of professional care. See, e.g., Hoppe v. Ranzini, 385 A.2d 913, 916 (N.J. Super. Ct. App. Div. 1978) ("Failure to file suit before the running of the period of the statute of limitations plainly constitutes malpractice where there is no reasonable justification shown therefor.") As for proximate cause and damages, Polidoro has at the very least articulated a claim to recover what he paid the attorney. I further discuss the issues of proximate cause and damages below.

2. Factors 2 and 3

The second and third factors—prejudice to Polidoro, and the culpability of Saluti for the default—also weigh in favor of a default judgment.

Polidoro has been prejudiced by Saluti's failure to participate because he has been "prevented from prosecuting [the] case, engaging in discovery, and seeking relief in the normal fashion." See Teamsters Pension Fund of Philadelphia & Vicinity v. Am. Helper, Inc., 2011 WL 4729023, at *4 (D.N.J. Oct. 5, 2011) (finding that a defendant's failure to answer prejudices the plaintiff); see also Gowan v. Cont'l Airlines, Inc., 2012 WL 2838924, at *2 (D.N.J. Jul. 9, 2012) ("Plaintiff will suffer prejudice if the Court does not enter default judgment as Plaintiff has no other means of seeking damages for the harm allegedly caused by Defendant."). The prejudice factor, then, weighs in favor of a default judgment.

The culpability factor, too, weighs in favor of a default judgment. Absent any evidence to the contrary, "the Defendant's failure to answer evinces the Defendant's culpability in [the] default." Teamsters, 2011 WL 4729023 at *4. Here, as in...

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