HAAS v. BURLINGTON COUNTY
Filing
451
OPINION. Signed by Judge Noel L. Hillman on 10/30/2019. (tf, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
TAMMY MARIE HAAS and CONRAD
SZCZPANIAK, individually and
on behalf of a class of
similarly situated
individuals,
Civil No. 08-1102 (NLH/JS)
Plaintiffs,
OPINION
v.
BURLINGTON COUNTY, et al.,
Defendants.
APPEARANCES:
CARL D. POPLAR
CARL D. POPLAR, P.A.
1010 KINGS HIGHWAY SOUTH
BUILDING ONE
CHERRY HILL, NJ 08034
WILLIAM A. RIBACK
WILLIAM RIBACK, LLC
132 HADDON AVENUE
HADDONFIELD, NJ 08033
DAVID J. NOVACK
BUDD LARNER, PC
150 JOHN F. KENNEDY PARKWAY
CN1000
SHORT HILLS, NJ 07078-0999
Attorneys for Plaintiffs Tammy Marie Haas and Conrad Szczpaniak,
individually and on behalf of a class of similarly situated
individuals.
EVAN H.C. CROOK
CAPEHART & SCATCHARD, P.A.
142 WEST STATE STREET
1
TRENTON, NJ 08608
Attorneys for Defendants Burlington County, Burlington County
Correctional Facility, and Ronald Cox.
HILLMAN, District Judge:
There are three remaining motions before the Court in this
long-standing action.
The first two motions relate to the
status of Attorney Susan Lask’s pro hac vice admission. 1
The
Poplar Group 2 has moved to vacate Attorney Lask’s pro hac vice
admission (ECF No. 438) while the Novack Group has cross-moved
to voluntarily withdraw Attorney Lask’s admission (ECF No. 444).
The Court also has before it the Poplar Group’s motion to
reconsider 3 the Court’s September 24, 2019 Opinion and Order
1
While the Court’s September 24, 2019 Opinion suggests that
Magistrate Judge Schneider would decide the motions relating to
Attorney Lask’s admission to practice before this Court, for
purposes of judicial economy, this Court will resolve all
pending motions by way of this Opinion and accompanying Order.
2
The Court will refer to the warring factions not by party name,
but rather, and more accurately, by the name of their respective
counsel, who continue to fight over ancillary matters long after
the substantive portion of this action has been resolved.
There are two groups of counsel involved in this case. The
first group includes Carl Poplar and William Riback (“Poplar
Group”), who represent Plaintiff Conrad Szczpaniak. The second
group includes Attorneys David Novack and Susan Lask (“Novack
Group”), who represent Plaintiff Tammy Marie Haas.
Collectively, the Court refers to these two groups as “Class
Counsel[.]”
3
The Poplar Group’s motion appears to seek relief above and
beyond reconsideration of this Court’s September 24, 2019
Opinion and Order. Specifically, in addition to reconsideration
of the September 24, 2019 Opinion and Order, the Poplar Group
2
adopting and accepting Magistrate Judge Schneider’s Report and
Recommendation regarding the allocation of attorneys’ fees
between class counsel.
(ECF No. 449).
For the reasons expressed below, the Poplar Group’s motion
to vacate Attorney Lask’s pro hac vice admission (ECF No. 438)
will be denied, the Novack Group’s cross-motion to withdraw
Attorney Lask’s pro hac vice admission (ECF No. 444) will be
granted, and the Poplar Group’s motion for reconsideration (ECF
No. 449) will be denied.
I.
Relevant Background
On January 31, 2019, this Court granted final settlement
approval in this enduring class action.
(ECF No. 383).
As part
of the settlement, the Court approved a counsel fee and
litigation cost award of $925,000.
See (ECF No. 328 at 7).
Class Counsel, however, could not agree on how to share the
award among themselves.
As such, the Court attempted to
facilitate an amicable resolution of the matter, albeit
seeks consolidation of two pending motions relating to Attorney
Susan Lask’s pro hac vice admission, and perfection of the
record for purposes of appeal which the Poplar Group suggests
requires the filing on the docket of an ex parte memorandum
submitted to the Court during its efforts to facilitate an
amicable resolution of the present dispute. The Poplar Group
fails to explain how such requests are relevant to the motions
pending before this Court. Because the Court finds that these
requests for relief, to the extent they can be so categorized,
do not affect this Court’s determination of whether
reconsideration is appropriate, they will not be addressed
further.
3
unsuccessfully.
After counsel could not amicably resolve the
issue, on September 3, 2019, Magistrate Judge Schneider issued a
Report and Recommendation (the “R&R”) recommending an allocation
of the fee.
(ECF No. 441).
On September 17, 2019, the Poplar
Group filed objections to the R&R, and the Court undertook a de
novo review of it.
While the Poplar Group’s objections to the R&R remained
pending before this Court, the Poplar Group moved to vacate
Attorney Lask’s pro hac vice admission, citing what this Court
previously described as “troubling findings of Judge Loretta A.
Preska of the Southern District of New York regarding Ms. Lask
and litigation ongoing in that district[.]”
(ECF No. 438); Haas
v. Burlington Cty., 2019 U.S. Dist. LEXIS 162700, *13-14 (D.N.J.
Sept. 24, 2019) (Hillman, J.).
In response, the Novack Group
cross-moved to withdraw Attorney Lask’s pro hac vice admission.
(ECF No. 444).
On September 24, 2019, this Court issued an Opinion and
Order adopting and affirming the R&R in its entirety.
447 (Opinion) & 448 (Order)).
(ECF Nos.
On October 3, 2019, the Poplar
Group moved for reconsideration of the September 24, 2019
Opinion and Order (the “Motion for Reconsideration”).
449).
(ECF No.
The Novack Group filed opposition on October 18, 2019.
(ECF No. 450).
4
The pending motions (ECF Nos. 438, 444, & 449) – the last
three remaining in this case - are fully briefed and ripe for
adjudication.
II.
Discussion
a. Standard Governing Motion For Reconsideration
Local Rule 7.1(i) allows a party to file a motion with the
Court requesting the Court reconsider the “matter or controlling
decisions which the party believes the Judge or Magistrate Judge
has overlooked[.]”
Under Local Rule 7.1(i), the moving party
must demonstrate “the need to correct a clear error of law or
fact or to prevent manifest injustice.”
Andreyko v. Sunrise Sr.
Living, Inc., 993 F. Supp. 2d 475, 478 (D.N.J. 2014) (citations
omitted).
In doing so, the moving party must show the
“dispositive factual matter or controlling decisions of law” it
believes the court overlooked in its initial decision.
Mitchell
v. Twp. Of Willingboro, 913 F. Supp. 2d 62, 78 (D.N.J. 2012)
(citations omitted).
A mere disagreement with the Court will
not suffice to show that the Court overlooked relevant facts or
controlling law.
United States v. Compaction Sys. Corp., 88 F.
Supp. 2d 339, 345 (D.N.J. 1999).
b. The Poplar Group’s Motion for Reconsideration
The Poplar Group’s Motion for Reconsideration advances four
main arguments, none of which suggest that the Court overlooked
relevant facts or controlling law, but rather rehash arguments
5
previously raised.
Most of the Poplar Group’s arguments focus
on Attorney Lask’s involvement in this case and the relevancy of
such involvement to this Court’s decision to adopt the R&R’s
recommendation regarding fee allocation.
(“Poplar Recon. Br.”) at 2-5).
See (ECF No. 449-1
This Court previously concluded
that Attorney Lask’s involvement in this action and the status
of Ms. Lask’s admission to practice before this Court have “no
direct effect on what portion of the negotiated fee the Novak
Group is entitled to.”
*13.
Haas, 2019 U.S. Dist. LEXIS 162700, at
The Poplar Group fails to identify new facts or
controlling law that would require reconsideration of this prior
decision.
For the first time, and in a footnote, the Poplar Group
also argues that Magistrate Judge Schneider “lack[ed] the
authority to resolve” the issue of the allocation of attorney’s
fees.
The position now advanced by the Poplar Group directly
contradicts the position it took in objecting to the R&R.
Previously, the Poplar Group acknowledged that “Judge Schneider
is in the best position of any judicial officer to make an
allocation recommendation because he participated in many
aspects of the case and was an eye[-]witness to court activity.”
(Docket No. 442 at 1).
In any event, the Poplar Group’s abrupt
change in position does not warrant reconsideration.
6
In furthering its argument, the Poplar Group directs this
Court to authority from the Sixth Circuit Court of Appeals for
the proposition that “attorney fee distribution is reviewed
under [a] de novo standard[.]”
(Poplar Recon. Br. at 3, n.1).
The Court interprets the Poplar Group’s argument as suggesting
that reconsideration is appropriate because a de novo standard
of review should be applied to the R&R’s fee allocation
determination.
Reconsideration is not warranted, as the Court
applied the very standard the Poplar Group suggests is required:
In light of the unique procedural posture of this
action, the appropriate standard of review to be
applied by this Court in reviewing the Report and
Recommendation requires some discussion.
. . . .
The topic addressed by the Report and
Recommendation is the division, amongst Class Counsel,
of a negotiated lump sum of attorneys’ fees and costs
previously approved by the Court. Whether the issue
of awarding attorneys’ fees is dispositive or nondispositive appears unresolved in this District and
this Circuit. The Court believes that there is much
to support a conclusion that it is not dispositive.
As noted, while the award required the approval of the
Court, it was not a contested issue requiring
resolution by a jury or the Court. Rather, it came
before the Court as part of a mediated class action
settlement. As such, the Court’s resolution of the
remaining issue of allocation does not affect the
amount or certainty of the Court’s final judgment.
However, out of caution, the Court will apply the
higher standard of review and conduct a de novo review
of the portions of the Report and Recommendation
objected to. See City of Long Branch, 866 F.3d at 99.
Haas, 2019 U.S. Dist. LEXIS 162700, at *6-9.
7
As such, to the extent the Poplar Group argues that
reconsideration is appropriate because this Court failed to
conduct a de novo review of the R&R, that argument lacks merit.
Accordingly, the Motion for Reconsideration will be denied.
c. Motions Relating To Attorney Lask’s Pro Hac Vice
Admission
Attorney Lask’s pro hac vice admission in this action
followed a tortuous path.
On June 30, 2016, Attorney Lask
sought leave to appear pro hac vice.
(ECF No. 206).
For
reasons expressed on the record, on October 18, 2016, this Court
denied Attorney Lask’s motion.
(ECF No. 255).
Attorney Lask
later filed a renewed motion for leave to appear pro hac vice
(ECF No. 283), which Magistrate Judge Schneider ultimately
granted, but with conditions (ECF No. 297).
Thereafter, on August 27, 2019, Judge Loretta A. Preska of
the United States District Court for the Southern District of
New York entered an order in an unrelated matter recounting
concerning details about Attorney Lask’s actions before that
court. 4
See (Poplar PHV Br. at 5).
As a result, Judge Preska
ordered “the matter [of Attorney Lask’s actions be] referred to
the United States Marshal” for investigation.
See (Poplar PHV
Br. at 5).
4
Because the details of Attorney Lask’s alleged behavior lacks
relevancy to the motions pending before this Court, a
description of that behavior has been consciously and explicitly
excluded from this Opinion.
8
The Poplar Group moves to vacate Attorney Lask’s pro hac
vice admission referring the Court to Attorney Lask’s behavior
before our sister court in New York.
PHV Br.”) at 2-6).
(ECF No. 438-1 (“Poplar
In response, the Novack Group cross-moves to
withdraw Attorney Lask’s pro hac vice admission.
(ECF No. 444).
Local Civil Rule 101.1(c) governs pro hac vice admissions in
this district.
The rule provides:
Any member in good standing of the bar of any court of
the United States or of the highest court of any
state, who is not under suspension or disbarment by
any court . . . may in the discretion of the Court, on
motion, be permitted to appear and participate in a
particular case.
L. Civ. R. 101.1(c).
“Admission pro hac vice is a privilege, and as such, the
privilege may be revoked as a sanction for unethical behavior.”
In re PMD Enters., 215 F. Supp. 2d 519, 531 (D.N.J. 2002)
(citing Johnson v. Trueblood, 629 F.2d 302, 304 (3d Cir. 1980);
Data Systems Analysts, Inc. v. Netplex Group, 187 F.R.D. 181
(D.N.J. 1999)).
As for what behavior may warrant the revocation
of pro hac vice admission, the Third Circuit suggests that, “at
a minimum, a violation of any disciplinary standard applicable
to members of the bar of the court would justify revocation of
pro hac vice status.”
Id. (quoting Johnson, 629 F.2d at 304).
However, “[r]evocation of pro hac vice status should never
be sought as a litigation tactic.” See Kamienski v. AG of New
Jersey, 2015 U.S. Dist. LEXIS 74122 (D.N.J. June 9, 2015)).
9
A review of the record before this Court – including the
Poplar Group’s briefing on the Motion for Reconsideration suggests that the motion to vacate Attorney Lask’s admission is
being used as a litigation tactic to jockey for position in the
underlying fee dispute.
In fact, the Poplar Group explicitly
asks the Court to “join the PHV revocation . . . motions . . .
with the reconsideration [motion] because as submitted herein
they are interrelated.”
not.
(Poplar Recon. Br. at 5).
They are
As this Court previously determined,
the status of Ms. Lask’s admission to practice before
this Court has no direct effect on what portion of the
negotiated fee the Novak Group is entitled to. The
troubling findings of Judge Loretta A. Preska of the
Southern District of New York regarding Ms. Lask and
litigation ongoing in that district which form the
primary basis for Mr. Poplar’s application to vacate
Ms. Lask’s admission notwithstanding, this Court
previously determined that Mr. Novak could seek such
assistance in the matter as he felt was necessary to
litigate the case appropriately. The Court has no
reason to question his judgment in that regard,
especially in light of the benefits ultimately
conferred on the class through the efforts of the
Novak Group as a whole.
Haas, 2019 U.S. Dist. LEXIS 162700, at *13-14.
Either way, the Court need not address that issue further.
The Novack Group has moved to voluntarily withdraw Attorney
Lask’s pro hac vice admission, and the Court will grant that
motion. 5
5
The Court takes this opportunity to remind counsel of the
obligations set forth in Local Civil Rule 101.1(c)(1), which
10
For those reasons, the Poplar Group’s motion to vacate
Attorney Lask’s pro hac vice admission (ECF No. 438) will be
denied, the Novack Group’s cross-motion to withdraw Attorney
Lask’s pro hac vice admission (ECF No. 444) will be granted, and
the Poplar Group’s motion for reconsideration (ECF No. 449) will
be denied.
An appropriate Order will follow.
Date: October 30, 2019
At Camden, New Jersey
s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
requires that any motion to appear pro hac vice “shall contain a
statement certifying that no disciplinary proceedings are
pending against the attorney in any jurisdiction and no
discipline has previously been imposed on the attorney in any
jurisdiction” and that “[a]n attorney admitted pro hac vice
shall have the continuing obligation during the period of such
admission promptly to advise the court of the disposition made
of pending charges or of the institution of new disciplinary
proceedings.” L. Civ. R. 101.1(c)(1). Whether Judge Preska’s
order triggered Attorney Lask’s obligation to alert this Court
to pending disciplinary proceedings is an issue this Court need
not presently address. Nonetheless, Attorney Lask must ensure
that any future application to appear before this Court complies
with the Local Civil Rules.
11
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