LOPEZ-SIGUENZA v. RODDY, ESQUIRE et al

Filing 104

OPINION. Signed by Chief Judge Jerome B. Simandle on 5/27/2016. (tf, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

CARLOS E. LOPEZ-SIGUENZA a/k/a
CARLOS E. LOPEZ-SIQUENZA,
Plaintiff,

HONORABLE JEROME B. SIMANDLE

Civil No. 13-2005 (JBS/JS)

v.
MARK E. RODDY, ESQUIRE, et al.,

OPINION

Defendants.

APPEARANCES:
Benjamin Folkman, Esq.
Folkman Law Offices, P.C.
1949 Berlin Road, Suite 100
Cherry Hill, NJ 08003
-andJames A. Barry, Esq.
Michael A. Galpern, Esq.
Locks Law Firm LLC
457 Haddonfield Road, Suite 500
Cherry Hill, NJ 08003
Attorneys for Plaintiff Carlos E. Lopez-Siguenza
Jennifer L. Gottschalk, Esq.
Law Offices of Richard Sparaco
1920 Fairfax Avenue
Cherry Hill, NJ 08003
Attorney for Defendant Mark E. Roddy, Esquire
SIMANDLE, Chief Judge:
I. INTRODUCTION
After pleading guilty, serving a term of imprisonment, and
being deported due to this conviction for sexual assault upon a
minor, Plaintiff Carolos E. Lopez-Siguenza hired a lawyer who
discovered that a purported birth certificate reflecting the

victim’s age as a minor was false and fraudulent, and that the
victim was actually older than the age of consent. Plaintiff
sued his former criminal defense lawyer alleging malpractice.
This matter comes before the Court upon a motion for summary
judgment [Docket Item 99] and a motion to seal the supporting
documents accompanying his motion by Defendant Mark E. Roddy.
[Docket Item 98.] For the reasons discussed below, the Court
will deny both of Defendant’s motions.
II. BACKGROUND
A. Factual Background 1
Plaintiff Carlos Lopez-Siguenza is a native of El Salvador,
who at all relevant times was residing lawfully in New Jersey as
a Legal Permanent Resident. (Plaintiff’s Counterstatement of
Material Facts (“CSMF”) ¶ 1; Pl. CSMF Ex. C ¶ 5.) On January 24,
2003, Melissa Aguilar Cruz (“Cruz”) reported to the police
and/or her social worker that she was a minor who had sexual
intercourse with Plaintiff at various times in 2002. (Second Am.
Compl. ¶ 6.) Plaintiff was arrested and charged in March 2003
with two counts of aggravated sexual assault, two counts of

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The Court distills this undisputed version of events from the
parties’ statements of material facts, affidavits, and exhibits,
and recounts them in the manner most favorable to Plaintiff, as
the party opposing summary judgment. Neither party has provided
the Court with copies, in whole or excerpted, of Defendant’s
deposition testimony or Melissa Cruz’s deposition testimony
cited throughout both Statements of Material Facts.
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child abuse, and two counts of endangering child welfare. (Pl.
CSMF ¶ 2; Defendant’s Statement of Material Facts (“SMF”) Ex.
1.) According to the indictment from the Atlantic County Grand
Jury, Plaintiff had engaged in sexual penetration with Ms. Cruz,
who was born on March 3, 1987, when she was at least 13 but less
than 16 years old and when Plaintiff was either 21 or 22 years
old. (Def. SMF Ex. 1.) Plaintiff retained Defendant Mark E.
Roddy to represent him in defense of the indictment. (Pl. CSMF ¶
3.) Plaintiff advised Defendant that he believed that Ms. Cruz
had reached the age of consent prior to the sexual contact and
that her age was “well-known in the community.” (Id.; Def. SMF ¶
5.)
The alleged victim’s age was the decisive issue, since the
happening of consensual sexual relations was not disputed. To
resolve the issue of Ms. Cruz’s age, Defendant requested from
prosecutors a “certified and/or notarized copy of the alleged
victim’s birth certificate.” (Def. SMF Ex. 2.) In response,
Defendant received a purported birth certificate from Assistant
Prosecutor Gravitz, which she indicated had been provided by Ms.
Cruz’s family. (Def. SMF Ex. 3.) The birth certificate was not
notarized or certified, it was handwritten in Spanish, and it
purported to originate in Honduras. (Id.) It was for an
individual named “Melissa Gabriela Aguilar Guerrero” and
contained a Spanish language inscription for the date of birth,
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which translates to English as March 3, 1987. (Id.) The birth
certificate contained a National Identification Number of
“1501870076600.” (Id.) If authentic, the document would show
that the person named therein had not attained the age of
consent of 16 years (N.J.S.A. 2C:14-2) at the time of the crimes
alleged.
On March 12, 2004, after being advised by Defendant that he
had no chance of prevailing at trial, Plaintiff pleaded guilty
to one count of second degree sexual assault of a minor and was
sentenced to three years in New Jersey State Prison. (Pl. CSMF
¶¶ 9-11.) Plaintiff served his prison term, was detained by
Immigration and Customs Enforcement, placed in removal
proceedings, and deported to El Salvador. (Id.)
Sometime in 2011, Plaintiff re-entered the United States
and was arrested in Utah for entering the country illegally.
(Def. SMF ¶ 17.) Plaintiff’s mother hired another attorney,
Jorge Coombs, Esquire, to investigate Plaintiff’s immigration
case and 2004 criminal conviction. (Id.; Pl. CSMF ¶ 12.) Mr.
Coombs noticed a discrepancy between the name Ms. Cruz had given
to police and the name on her birth certificate. (Pl. CSMF Ex.
C. ¶ 8, 10.) On July 28, 2011, Mr. Coombs sent a letter to the
General Consul of Honduras requesting verification of Ms. Cruz’s
birth certificate and guidance on how to decipher the National
Identification Number. (Id. ¶ 14.) Within a week, Mr. Coombs
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received a response which indicated that the purported birth
certificate could not be verified, that the name “Melissa
Gabriela Aguilar Guerrero” did not exist in the Honduran
National Register, and that the National Identification Number
on the birth certificate was not in the proper format. (Id. ¶¶
16-18.) Instead, the General Consul’s staff attorney located a
birth certificate for a “Melissa Gabriela Andino Munoz” born on
March 3, 1984, who was listed as living in southern New Jersey
(“the 1984 Coombs birth certificate”). (Id. ¶ 18; Def. SMF Ex.
8.)
On December 6, 2011, Defendant, on behalf of Plaintiff,
filed a motion for post-conviction relief bringing the 1984
Coombs birth certificate to the court’s attention. (Def. SMF ¶¶
19-20; Def. SMF Ex. 9; Pl. CSMF ¶ 15.) The Prosecutor’s Office
opposed Plaintiff’s motion and provided a third purported birth
certificate for Ms. Cruz, again showing her date of birth as
March 3, 1987. (Def. SMF ¶ 22; Def. SMF Ex. 10.) On August 3,
2012, the trial court granted Plaintiff’s motion and vacated the
conviction, finding that Ms. Cruz and/or her family had
perpetrated a fraud on the Prosecutor’s Office, the Court, and
Plaintiff. (Def. SMF Ex. 11; Pl. CSMF ¶ 16.) The Prosecutor’s
Office agreed to dismiss the indictment against Plaintiff. (Def.
SMF Ex. 12; Pl. CSMF ¶ 17.)
B. Procedural Background
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Plaintiff filed this action on March 28, 2013. Plaintiff’s
Complaint asserted claims against Defendant for legal
malpractice, breach of fiduciary duty, and breach of contract.
[Docket Item 1.] Plaintiff’s Complaint also asserted violations
of 42 U.S.C. § 1983 and the New Jersey Civil Rights Act by
Defendants Atlantic City Police Department, Detective John
Imfeld, Detective James Hipple, the Atlantic County Prosecutor’s
Office (“ACPO”), and Assistant County Prosecutor Janet Gravitz.
[Id.] Defendants ACPO and Assistant Prosecutor Gravitz filed a
motion to dismiss, which the Court granted by opinion and order,
dismissing all claims against the ACPO and Gravitz with
prejudice. [Docket Items 65 & 66.] Defendants Atlantic City
Police Department, Detective John Imfeld, and Detective James
Hipple filed a motion to dismiss, which was dismissed as moot
after the parties settled those claims. [Docket Items 73 & 75.]
Defendant Roddy also filed a motion to dismiss for failure
to state a claim. [Docket Item 49.] The Court granted
Defendant’s motion but granted Plaintiff leave to amend his
legal malpractice claim. [Docket Items 74 & 76.] Plaintiff
timely filed his Second Amended Complaint alleging one count of
legal malpractice. [Docket Item 77.] Discovery has now closed
and Defendant has filed for summary judgment on the remaining
claim against him.
III. STANDARD OF REVIEW
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Federal Rule of Civil Procedure 56(a) generally provides
that the “court shall grant summary judgment if the movant shows
that there is no genuine dispute as to any material fact” such
that the movant is “entitled to judgment as a matter of law.”
FED. R. CIV. P. 56(a). A “genuine” dispute of “material” fact
exists where a reasonable jury’s review of the evidence could
result in “a verdict for the non-moving party” or where such
fact might otherwise affect the disposition of the litigation.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Disputes over irrelevant or unnecessary facts, however, fail to
preclude the entry of summary judgment. Id.

Conclusory, self-

serving submissions cannot alone withstand a motion for summary
judgment. Gonzalez v. Sec’y of Dept. of Homeland Sec., 678 F.3d
254, 263 (3d Cir. 2012) (internal citations omitted).
In evaluating a motion for summary judgment, the Court must
view the evidence in the light most favorable to the non-moving
party, and must provide that party the benefit of all reasonable
inferences.

Scott v. Harris, 550 U.S. 372, 378 (2007); Halsey

v. Pfeiffer, 750 F.3d 273, 287 (3d Cir. 2014).

However, any

such inferences “must flow directly from admissible evidence
[,]” because “‘an inference based upon [] speculation or
conjecture does not create a material factual dispute sufficient
to defeat summary judgment.’”

Halsey, 750 F.3d at 287 (quoting

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Robertson v. Allied Signal, Inc., 914 F.2d 360, 382 n. 12 (3d
Cir. 1990); citing Anderson, 477 U.S. at 255).
IV. DISCUSSION
A. Motion for Summary Judgment
To recover for legal malpractice, a plaintiff must prove
(1) the existence of an attorney-client relationship creating a
duty of care by the defendant attorney, (2) the breach of that
duty by the defendant, and (3) proximate causation of the
damages claimed by the plaintiff. McGrogan v. Till, 771 A.2d
1187, 1193 (N.J. 2001); Conklin v. Hannoch Weisman, 678 A.2d
1060, 1070 (N.J. 1996). Defendant contends that summary judgment
is proper because Plaintiff cannot prove the latter two elements
of his malpractice claim: that that Defendant breached his duty
of care, and that any alleged breach caused Plaintiff’s damages. 2
The Court finds, to the contrary, that factual disputes exist
over whether Defendant’s failures rise to the level of a breach
of his duty of care and over whether Plaintiff can demonstrate
proximate cause.
To fulfill his duties, an attorney must exercise “that
degree of reasonable knowledge and skill that lawyers of
ordinary ability and skill possess and exercise.” Gilles v.

2

The parties do not dispute that an attorney-client relationship
existed between Plaintiff and Defendant, giving rise to a duty
of care owed by Defendant. (Def. SMF ¶ 4; Pl. SMF ¶ 4.)
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Wiley, Malehorn & Sirota, 783 A.2d 756, 760 (N.J. Super. Ct.
App. Div. 2001) (quoting St. Pius X House of Retreats,
Salvatorian Fathers v. Diocese of Camden, 443 A.2d 1052, 1060–61
(N.J. 1982)). An attorney’s precise duty of care varies
depending on the circumstances of the case, but will generally
include steps such as “a careful investigation of the facts of
the matter, the formulation of a legal strategy, the filing of
appropriate papers, and the maintenance of communication with
the client.” Ziegelheim v. Apollo, 607 A.2d 1298, 1303 (N.J.
1992). “Although the existence of a duty is a question of law,
whether the duty was breached is a question of fact.” Jerkins ex
rel. Jerkins v. Anderson, 922 A.2d 1279, 1290 (N.J. 2007).
Defendant has failed to meet his burden on summary
judgment: factual disputes persist over whether his failure to
investigate the authenticity of Melissa Aguilar Cruz’s birth
certificate was “reasonable” or whether it constitutes a breach
of his duty of care. The parties agree that Ms. Cruz’s age was
integral to the State’s case against Plaintiff: disposition of
Plaintiff’s sexual assault charges under N.J.S.A. 2C:14-2c
turned on whether she was “at least 13 but less than 16 years
old.” (Def. SMF ¶ 5; Pl. SMF ¶ 5.) On the one hand, Defendant
investigated Ms. Cruz’s age by seeking and obtaining a notarized
or certified copy of her birth certificate from Assistant
Prosecutor Gravitz. (Def. SMF Ex. 2 & 3.) On the other, that
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alone may have been deficient in a case like this, according to
Plaintiff’s expert (see Pl. CSMF Ex. E), where Plaintiff told
Defendant that he believed her to be above the age of consent
and that “her true age was well-known within the community” (Pl.
CSMF ¶ 3), where Defendant did not interview any other potential
witnesses to corroborate Ms. Cruz’s age (id. ¶ 4), and where Ms.
Cruz’s name did not match the name on the birth certificate
produced by the State, “Melissa Gabriela Aguilar-Guerrero.”
(Def. SMF Ex. 10.)
Plaintiff’s expert witness, Rubin M. Sinnis, Esq., opines
that Mr. Roddy failed to take reasonable steps to investigate
the authenticity of the foreign document and to ascertain Ms.
Cruz’s true age. (Pl. CSMF Ex. E, Letter of Rubin M. Sinnis,
Aug. 10, 2015.) According to Sinnis, Mr. Roddy should have paid
special attention to investigating the alleged victim’s age due
to its centrality to the defense, the claim by his client that
people in the church they attended together knew that Ms. Cruz
was over 16 years old, the suspiciousness of the alleged
Honduran birth certificate, and the inadmissibility of the
unverified foreign document under the New Jersey Rules of
Evidence. (Id.) Mr. Roddy does not speak Spanish and is
unfamiliar with Honduran birth certificates. (Id.) The document
provided to Roddy was a photocopy that was not verified by
notary or by certification of a responsive official, as required
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under N.J.R.E. 902(c), and Roddy never followed up on his demand
for a notarized or certified document. He never attempted to
interview persons familiar with Ms. Cruz’s age, nor did he ask
an investigator to do so, nor did he take any steps to question
the foreign document. The suspicious signs included the facts
that the name Cruz is nowhere mentioned, no second surname is
listed for the father (contrary to Hispanic naming conventions),
and the information is hand-written rather than typed. (Id.)
Under these circumstances, according to Sinnis, given the
central importance of this document, a reasonable defense
attorney was required to undertake further investigation, and
Roddy deviated from this standard of care. In short, giving all
reasonable factual inferences to Plaintiff, there is a genuine
dispute of material fact regarding Defendant’s negligence.
Similarly, Defendant has failed to show that there is no
factual dispute over causation. To demonstrate proximate cause,
a plaintiff must prove that his attorney’s negligence was a
“substantial factor” in bringing about his harm. Conklin v.
Hannoch Weisman, 678 A.2d 1060, 1072 (N.J. 1996). Defendant
argues that Plaintiff cannot show that his failure to secure the
1984 Coombs birth certificate was a substantial factor in
Plaintiff’s wrongful conviction because, even if Defendant had
acquired the 1984 Coombs birth certificate for trial, this would
at best only have “created another angle for cross-examination
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of the victim” at trial and would not have guaranteed that a
jury would agree with Plaintiff’s theory of her age. Defendant
argues that presenting the 1984 Coombs birth certificate would
not have conclusively proven Ms. Cruz’s age because prosecutors
continued to rely on a birth certificate showing Ms. Cruz’s
birth date as 1987 even when faced with the 1984 Coombs birth
certificate at Plaintiff’s post-conviction proceedings (Def.
SMF. ¶ 22; Def. SMF Ex. 10), because Ms. Cruz testified in a
deposition that she was born in 1987 (Def. SMF. ¶ 32; Pl. SMF ¶
32), because Ms. Cruz testified that she had never seen her
birth certificate and could not confirm or deny any of the birth
certificates presented in this case (Def. SMF ¶¶ 33-35; Pl. SMF
¶¶ 33-35), and because Ms. Cruz’s academic records produced by
the Atlantic City Board of Education show her birth date as
1987. (Def. SMF ¶ 37; Def SMF. Ex. 14). Further, defendant
argues that the challenged Honduran birth certificate was not
the only evidence of Cruz’s age, since Ms. Cruz would herself
testify that the date of her birth was March 3, 1987, and that
Plaintiff knew she was not 16 at the time in question. 3

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Defendant Roddy has also argued that Plaintiff’s plea of guilty
to the lesser charge of Count I was prudent because, in the
absence of a guilty plea he could have faced a superseding
indictment for enhanced charges of forcible sexual assault based
on evidence in the case and the notion that Ms. Cruz may have
suffered from a mental impairment that would render her age
immaterial to a charge. (Def. Br. at 16-17.) Whether such a
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Then again, Plaintiff argues that Defendant’s negligence in
not scrutinizing the 1987 birth certificate produced by the
government was a substantial factor in his wrongful conviction
because the existence of the 1984 Coombs birth certificate could
have ended Plaintiff’s criminal case before it even started. The
trial court in Plaintiff’s post-conviction proceedings called
the 1987 birth certificate used by the Prosecutor “facially
defective” (Pl. CSMF Ex. D at 57:11) and referred to the 1984
Coombs birth certificate as “clearly exculpatory evidence” and
evidence “of such import and significance that if known to the
Grand Jury, it would most certainly have led to a No Bill and no
doubts frankly that the Prosecutor would even have presented the
case to a Grand Jury with this document in his or her
possession.” (Id. at 58:14-20.) In other words, Plaintiff argues
that Defendant’s hypothesis, where the 1987 and 1984 birth
certificates would have been presented as competing pieces of
evidence at a trial, would not exist if Defendant had fulfilled
his duty to adequately investigate the legitimacy of the birth
certificate produced by Assistant Prosecutor Gravitz. Because of
these genuine disputes, the Court cannot resolve the issue of
causation as a matter of law. Accordingly, summary judgment will
be denied.

scenario was likely presents a factual issue that cannot be
resolved on summary judgment.
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B. Motion to Seal
Defendant seeks to seal the materials supporting his motion
for summary judgment. [Docket Item 98.] Local Civil Rule 5.3(c)
generally allows the Court to restrict public access to any
privileged or otherwise confidential materials or judicial
proceedings upon request by any party.

L. CIV. R. 5.3(c)(1). The

party seeking to seal documents or to otherwise restrict public
access must demonstrate: (a) the nature of the materials or
proceedings at issue; (b) the legitimate private or public
interests which warrant the relief sought; (c) the clearly
defined and serious injury that would result if the relief
sought is not granted; and (d) why a less restrictive
alternative to the relief sought is not available. See L. CIV. R.
5.3(c)(2).
Defendant seeks to seal his supporting exhibits to prevent
disclosure of Ms. Cruz’s identity. Defendant argues that sealing
is warranted on the grounds that N.J.S.A. 2A:82-46 prevents
disclosure of “any . . . public record which states the name,
address and identity of a victim” of sexual assault or abuse,
that Ms. Cruz’s identity should continue to be protected because
no court order has issued allowing disclosure of her name, and
that the use of initials or a fictitious name would be
inconvenient in this case because her identity is the crux of
Defendant’s motion and integral to the documents supporting his
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position. Plaintiff opposes the motion to seal, arguing that the
statute is inapplicable because Plaintiff’s sexual assault
conviction was overturned and therefore Ms. Cruz is not a
“victim” within the meaning of the statute.
The Court finds that Defendant has failed to demonstrate
under L. Civ. R. 5.3(c) that there is a legitimate private or
public interest in sealing this material. Ms. Cruz was not “a
victim under the age of 18 at the time of the alleged commission
of an offense,” N.J.S.A. 2A:82-46, in accordance with the
findings of the Superior Court of New Jersey in vacating
Plaintiff’s conviction. Defendant has offered no other reason to
prevent disclosure of her identity. Moreover, Ms. Cruz’s name,
alleged birth date(s), and Honduran National Identification
Number(s) have already been disclosed in the previous opinion on
the motion to dismiss. For these reasons, Defendant’s motion to
seal will be denied.
V. CONCLUSION
For the foregoing reasons, the Court will deny Defendant’s
motions to seal and for summary judgment. An accompanying order
will be entered.

May 27, 2016
Date

/s Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge

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