JINGOLI & SON, INC. v. BEAL

Filing 123

MEMORANDUM OPINION. Signed by Magistrate Judge Elizabeth A. Pascal on 3/5/2025. (sms2, n.m.)

[ECF No. 57]
THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
JINGOLI & SON, INC.,
Plaintiff,
v.

Civil No. 23-21364 (ESK/EAP)

ERICA L. BEAL, et al.,
Defendants.
MEMORANDUM OPINION
This matter comes before the Court by way of pro se Defendant Erica L. Beal’s Motion to
Quash, Exclude Evidence, Disqualify Counsel, and Request Sanctions, ECF No. 57 (“Def.’s
Motion”). The Court has reviewed Defendant’s brief in support of her Motion, ECF No. 57-1
(“Def.’s Brief”); Plaintiff Joseph Jingoli & Sons Inc.’s opposition, ECF No. 59 (“Pl.’s Opp.”); and
Defendant’s reply, ECF No 60 (“Def.’s Reply”). The Court has also reviewed Defendant’s motion
seeking permission to file a sur-reply 1 and the sur-reply itself, ECF No. 89 (“Def.’s Sur-reply”), and
Plaintiff’s letter supplement in response to the Court’s inquiry. ECF No. 116 (“Pl.’s Letter”). The
Court decides this matter without oral argument pursuant to Federal Rule of Civil Procedure 78(b)
and Local Civil Rule 78.1.

For the reasons that follow, Defendant’s Motion is DENIED

WITHOUT PREJUDICE.

1

The Court has granted Plaintiff’s separate motion to file a sur-reply in connection with the
present motion. See ECF No. 89. The Court has issued a separate order on that motion. See ECF
No. 122.

FACTUAL HISTORY
The facts underlying this case are complicated and involve litigation and arbitration in
multiple jurisdictions. Because not all facts are immediately pertinent or necessary to the resolution
of this matter, the Court summarizes only the relevant facts.
A.

The AVIVV Arbitration

In September 2019, Defendant Beal and non-party Jingoli Power, LLC (“JPOW”) formed
AVIVV, LLC (“AVIVV”), a two-member New Jersey limited liability company. ECF No. 33
(“Am. Compl.”) ¶ 16. Beal and JPOW formed AVIVV to “provide project execution services for
private and public utility projects, specifically electric transmission, substation, and distribution
projects.” Id. ¶ 17. JPOW, a New Jersey limited liability company, is a subsidiary of Plaintiff in
this matter, Joseph Jingoli & Son, Inc. (“Jingoli”). Id. ¶ 12. Plaintiff operates within several
different industries, to include power and energy. Id. ¶ 11. JPOW engages in the business of
assisting “clients with complex electrical transmission, distribution/substation projects, and
programs.” Id. ¶ 12.
At its formation, Defendant Beal was the managing member of AVIVV, owning a 51%
interest, while JPOW owned the remaining 49%. Id. ¶ 16. On June 16, 2023, as a result of
Defendant’s alleged breach of AVIVV’s Operating Agreement, JPOW “filed a Demand for
Arbitration . . . against Beal before the American Arbitration Association to resolve” Defendant’s
alleged breaches. Id. ¶¶ 19-21. JPOW sought to “settle distributions to be made under the AVIVV
Operating Agreement, wind down the affairs of AVIVV, and dissolve AVIVV” in the arbitration.
Id. ¶ 21 & Ex. 1 (Demand for Arb.).
B.

The Defamatory Emails

Shortly after Defendant and JPOW entered arbitration, Plaintiff alleges that Defendant
“began making false, misleading and unsubstantiated claims against Jingoli and JPOW executives,
2

including but not limited to JPOW’s CEO, Karl Miller.” Id. ¶ 22. On June 27, 2023, Defendant
allegedly “sent correspondence to Jingoli and JPOW executives” alleging that Jingoli and JPOW
engaged in “bullying, retaliation, fraud, discrimination, victimization, harassment, threats, coercion,
and debt bondage.” Id. ¶ 23. Defendant allegedly sent the same correspondence to other non-parties,
such as the Military Chamber of Commerce, the Women’s Business Enterprise Counsel, the
California Public Utilities Commission, and the Western Regional Minority Supplier Development
Council. Id.
On June 28, 2023, non-party JPOW responded to the allegations, denying the claims made
against it and its executives. Id. ¶ 24. The following day, on June 29, 2023, counsel for JPOW
contacted Defendant’s counsel and “demand[ed] that Beal cease and desist from making further
defamatory comments.” Id. ¶ 25. Defendant again allegedly sent correspondence reiterating her
claims to JPOW, Plaintiff, and other non-party entities. Id. ¶ 26.
On August 8, 2023, Defendant filed a request for a Temporary Restraining Order (“TRO”)
against JPOW CEO Karl Miller with the California Superior Court, San Diego County. Id. ¶ 29.
Defendant “voluntarily dismissed” her request for a TRO on October 26, 2023. Id. ¶ 32. Defendant
also filed a lawsuit against JPOW CEO Karl Miller and Plaintiff’s counsel, Eckert Seamans Cherin
& Mallot, LLC (“Eckert”), in the California Superior Court, San Diego County, asserting, among
other things, claims for sexual harassment, retaliation, and fraud against JPOW and CEO Karl
Miller. Id. ¶ 33.
C.

The Cox and Google Subpoenas

The current Motion arises out of events that coincide with and follow shortly after the
commencement of the AVIVV Arbitration and the court proceedings in California. On October 7,
2023, Plaintiff alleges that Defendant and Defendant’s mother, Maria Dolores Merrell, “acted in
concert and caused two e-mails to be sent to clients and/or business partners of Jingoli . . . from an
3

anonymous e-mail address” identified as [e-mail]. Id. ¶ 42. According
to Plaintiff, Defendant and Merrell allegedly attached an “unconfirmed” copy of Defendant’s
Complaint filed in the California Superior Court, San Diego County and entitled the email “Billion
Dollar NJ Contractor exploits Diversity & Inclusion Program.” Id. ¶ 43. The second email, sent
the same day, had Defendant’s TRO application against Karl Miller attached to it, and the document
was entitled “Sexual Harassment Lawsuit Explotation [sic] of Minority Women.” Id. Plaintiff
forensically traced the emails as being sent from IP Address 72.220.140.190 from Cox Cable
Service. Pl.’s Opp. at 9-10. Further, Plaintiff ascertained that the email address did not belong to
any business organization and was unable to identify any organization named “Justice 4 Women of
Color.” Id. at 10.
On November 16, 2023, Plaintiff issued subpoenas to Cox Communications, Inc. (“Cox”)
and Google, LLC (“Google”) to produce subscriber information and documents related to
[e-mail] that were sent to or from the designated IP address and the email
address on October 7, 2023, at 5:01 PM PST. See ECF No. 59-2, Certification of Karlee M. Martin
(“Martin Certif.”). Ex. 4 at 66-80 (Subpoenas). 2 On the same day, Plaintiff provided notice to
Defendant’s then-counsel regarding the subpoenas. See id. at 65, 73. According to Plaintiff, the
information produced by Cox and Google confirmed that the email address and the IP address used
to send the emails belonged to Defendant Beal. Am. Compl. ¶¶ 56-57. Plaintiff’s investigation also
linked

Defendant’s

personal

e-mail

address

as

the

recovery

email

address

for

[e-mail]. Id. ¶ 57. The return date for the subpoenas was November 30,
2023. See Martin Certif., Ex. 4 at 66, 74. Defendant’s counsel did not object to the subpoenas or
file any motions to quash on Defendant’s behalf. Pl.’s Opp. at 12.

2

The Court refers to the ECF-generated page numbers for the exhibits to the Martin
Certification because the exhibits are not paginated sequentially.
4

On April 19, 2024, Defendant filed a declaration from her mother, Merrell, in which Merrell
stated that she was the creator of the [e-mail] email address and sent the
October 7, 2023 emails. Am. Compl. ¶¶ 60-61. As a result, Plaintiff amended its complaint to
include Merrell as a co-defendant. See generally Am. Compl.
On August 8, 2024, Defendant Beal, proceeding pro se in this litigation, filed the present
Motion to quash the subpoenas, to exclude the information produced from those subpoenas, to
disqualify Plaintiff’s counsel, and to seek sanctions against Eckert. Def.’s Motion at 1. Defendant
alleges that Plaintiff’s counsel, Robert P. Zoller, Esquire, “conducted discovery without Ms. Beal’s
consent” when Plaintiff issued the two subpoenas to Cox and Google. ECF No. 57-1 (“Def.’s
Brief”) at 1. Defendant further alleges that Plaintiff’s counsel “falsely claimed that Ms. Beal had
given consent and was aware of the subpoenas.” Id. at 2. According to Defendant, the document
production for the Cox subpoena was accompanied by language from Cox stating that “[t]he
information provided by Cox systems of records is maintained for its business purposes and not for
law enforcement or litigation matters.” Id. at 3.
Defendant also claims that Plaintiff’s counsel “collud[ed] with other attorneys to share the
evidence obtained from these unauthorized subpoenas in multiple cases across the United States,”
arguing that this conduct was demonstrative of “a pattern of unethical conduct and disregard for
legal standards across jurisdictions.” Id. at 4. Similarly, Defendant alleges that Plaintiff’s counsel
is also involved in the filing of several lawsuits against her, which she asserts are “identical claims
in different jurisdictions” to include New Jersey, California, and Texas. Id. at 5. Defendant further
contends that JPOW and Jingoli are the “same entity,” and that Plaintiff’s denial of such is
“misleading and undermine[s] the integrity of the court.” Id. Finally, Defendant requests that the
Court disqualify Plaintiff’s counsel, Eckert, and specifically Attorney Zoller due to a conflict of

5

interest, id. at 15-19, and impose sanctions for alleged wrongful conduct by Plaintiff’s counsel, id.
at 11, 23.
On September 3, 2024, Plaintiff filed opposition to the Motion. ECF No. 59, Pl.’s Opp.
Plaintiff argues that Defendant’s Motion is untimely, id. at 19-21; Defendant fails to meet her burden
to quash the Cox and Google subpoenas, id. at 16-19; and that Defendant lacks standing to quash
the subpoenas, id. at 21-22. Further, Plaintiff argues that the Rules of Professional Conduct do not
warrant Plaintiff’s counsel’s disqualification in this matter. Id. at 22-29. Finally, Plaintiff argues
that sanctions are inappropriate. Id. at 29-31.
On September 9, 2024, Defendant filed a reply in support of her Motion. ECF No. 60, Def.’s
Reply. On November 4, 2024, while the Court was reviewing the parties’ submissions, Defendant
filed a request seeking leave of Court to file a sur-reply in support of her pending motions. ECF
No. 89, Def.’s Sur-Reply.
DISCUSSION
Defendant raises multiple allegations in her Motion, 3 many of which involve matters outside
the purview of this litigation. The Court will address only the relief sought by Defendant as to the
following: (1) quashing the subpoenas and/or excluding evidence resulting from those subpoenas;
(2) seeking disqualification of Plaintiff’s counsel; and (3) imposing sanctions on Plaintiff’s counsel.
A.

Motion to Quash Subpoenas and/or Exclude Evidence Obtained

Defendant first seeks to quash the subpoenas to Cox and Google and/or to exclude any

3

Defendant’s other arguments allege “use of illegally obtained evidence in other
jurisdictions,” “filing frivolous and duplicative lawsuits,” “perjury and misrepresentation to the
Court,” “retaliatory amendment to add a party to the Complaint,” “failure to resolve dispute,”
“unauthorized removal from banking and financial management,” “filing false criminal charges and
manipulating the justice system,” and “concerns regarding intimidation and influence.” Def.’s
Motion at i.
6

evidence obtained from those subpoenas. In response, Plaintiff asserts that the motion is untimely
and, notwithstanding, the information produced pursuant to the subpoenas is not privileged or
otherwise protected. 4
Federal Rule of Civil Procedure 45 establishes the rules for discovery directed to individuals
and entities that are not parties to the underlying lawsuit. Fed. R. Civ. P. 45. When a party serves
a subpoena under Federal Rule of Civil Procedure 45, the information and documents sought must
fall within the scope of proper discovery under Rule 26(b)(1). In re Novo Nordisk Sec. Litig., 530
F. Supp. 3d 495, 501 (D.N.J. 2021). Rule 26 provides:
Parties may obtain discovery regarding any nonprivileged matter that
is relevant to any party’s claim or defense and proportional to the
needs of the case, considering the importance of the issues at stake in
the action, the amount in controversy, the parties’ relative access to
relevant information, the parties’ resources, the importance of the
discovery in resolving the issues, and whether the burden or expense
of the proposed discovery outweighs its likely benefit.
Fed. R. Civ. P. 26(b)(1). “‘Rule 26 [clearly] establishes a liberal discovery policy’ and ‘[t]he federal
courts have . . . long permitted broad and liberal discovery.’” Khal Anshei Tallymawr Inc. v. Twp.
of Toms River, Nos. 21-2716, 23-3239, 2024 WL 3728069, at *3 (D.N.J. Aug. 8, 2024) (internal
citations and quotations omitted). However, the scope of discovery “is not unlimited . . . and should
not serve as a fishing expedition.” Burgess v. Galloway, No. 20-6744, 2021 WL 2661290, at *2
(D.N.J. Jan. 28, 2021) (quotation and internal quotation marks omitted).
Federal Rule of Civil Procedure 45(d)(3)(A) provides for when a court must quash a
subpoena.
On timely motion, the court for the district where compliance is
required must quash or modify a subpoena that:
(i)
fails to allow a reasonable time to comply;
(ii) requires a person to comply beyond the geographical limits
4

Plaintiff also argues that Defendant lacks standing to quash the subpoenas. Because
resolution of Plaintiff’s other arguments disposes the matter, the Court need not address standing.
7

(iii)
(iv)

specified in Rule 45(c);
requires disclosure of privileged or other protected matter,
if no exception or waiver applies; or
subjects a person to undue burden.

Fed. R. Civ. P. 45(d)(3)(A)(i-iv).
Given these standards, the Court finds that Plaintiff’s Motion to quash the Cox and Google
subpoenas must be denied. Primarily, the Motion is untimely. A motion is timely if it is made
within the time for which a party must comply with a subpoena. Khal Anshei Tallymawr Inc., 2024
WL 3728069 at *5 (quotation omitted). Defendant served the subpoenas in question on Cox and
Google on November 16, 2023, with a return date of November 30, 2023. See Martin Certif., Ex. 4
at 66, 74. Defendant had two weeks during which she could have filed an objection to the subpoenas
or a motion to quash. She failed to do so for nine months. At this juncture, the information has
already been produced to and used by Plaintiff.
Moreover, the Court is unpersuaded by Defendant’s argument that she did not have proper
notice of the subpoena. When a party issues a subpoena on a non-party, the party seeking the
discovery must provide “prior notice to all parties to the litigation.” Coleman-Hill v. Governor
Mifflin Sch. Dist., 271 F.R.D. 549, 552 (E.D. Pa. 2010). Under Federal Rule of Civil Procedure
5(b), service of the notice can be made on the opposing party’s attorney. McCurdy v. Wedgewood
Cap. Mgmt. Co., No. 97-4304, 1998 WL 964185, at *6 (E.D. Pa. Nov. 16, 1998). If an opposing
party is not provided notice prior to service of a subpoena on a non-party but still has “notice and
sufficient time to object, they are not prejudiced.” Id. at *7.
Here, Plaintiff served notice of the subpoenas on Defendant’s then-counsel before serving
the subpoenas on Cox and Google. Pl.’s Opp. at 12; see also Martin Certif., Ex. 4 at 73. Defendant’s
argument that her attorneys did not inform her about the subpoenas does not undermine the propriety
of the notice. Def.’s Reply at 1. The Court will not quash the subpoenas or exclude evidence based
8

on any alleged oversight or inaction of Defendant’s prior counsel.
Finally, even assuming the current motion was timely, Defendant has failed to articulate any
legitimate ground of privilege to avoid disclosure of the information subpoenaed. Although as a
general rule people have a “legitimate privacy interest in their online activity,” Strike 3 Holdings,
LLC. v. Doe, No. 18-12585, 2020 WL 3567282, at *10 (D.N.J. June 30, 2020), that privacy interest
cannot serve as “a shield behind which internet users can commit unabated, legally actionable
behavior.” Id. (citing Arista Recs., LLC v. Doe 3, 604 F.3d 110, 119 (2d Cir. 2010)). Where a
subpoena seeks subscriber information such as real names and physical addresses associated with
an IP address, such information is not protected by a privilege. See Baseprotect USA, Inc. v. Swarm
# 06159132D21BBC88ED40B6E51278879F25243F, No. 11-7288, 2012 WL 13032936, at *3
(D.N.J. Oct. 18, 2012) (holding that no privilege attached to IP addresses obtained pursuant to a
subpoena for the purpose of identifying the “names and physical addresses only” of the IP
addresses); see also U.S. v. Christie, 624 F.3d 558, 574 (3d Cir. 2010) (stating that “no reasonable
expectation of privacy exists in an IP address, because that information is also conveyed to and,
indeed, from third parties, including ISPs”).
Here, Defendant does not have a reasonable expectation of privacy in her subscriber
information associated with her IP Address. Contrary to Defendant’s argument, see Def.’s Reply at
3, the Stored Communications Act, 18 U.S.C. § 2701, does not codify a legitimate privacy interest
in subscriber information associated with a person’s IP address or email address. Additionally,
Defendant has no support for her allegation that Plaintiff’s extraction of her IP Address from the
metadata in the headers of the emails sent from [e-mail] constitutes an
unlawful acquisition of personal information, particularly since that information was included in the
metadata of the email Plaintiff herself sent. See Def.’s Reply at 11. Finally, Defendant’s reference
to the Cox and Google policies regarding the use of information produced pursuant to the subpoenas
9

is unpersuasive, see id. at 3, as none of those policies creates a privacy interest on which Defendant
can rely to quash the subpoenas.
For these reasons, Defendant’s Motion to quash the subpoenas is denied.
B.

Motion to Disqualify Counsel

Defendant next seeks to disqualify Plaintiff’s counsel. The disqualification of counsel is an
“intensely fact-specific” question and must be “‘approach[ed] . . . with a keen sense of practicality
as well as a precise picture of the underlying facts.’” Irene Schneider Family Tr. v. PNC Bank, N.A.,
No. 23-3146, 2024 WL 712562, at *2 (D.N.J. Feb. 20, 2024) (quotation omitted). “‘The district
court’s power to disqualify an attorney derives from its inherent authority to supervise the
professional conduct of attorneys appearing before it.’” Jonathan v. Cnty. of Cape May, No. 1812918, 2020 WL 205901, at *7 (D.N.J. Jan. 13, 2020) (quoting U.S. v. Miller 624 F.2d 1198, 1201
(3d Cir. 1980)). The decision to disqualify an attorney is left to the “‘sound discretion of the district
court.’” Id. (quoting Miller, 624 F.2d at 1201).
In the District of New Jersey, attorney ethics are governed by Local Civil Rule 103.1. In
particular, Local Civil Rule 103.1(a) states that “the conduct of the members of the bar admitted to
practice in this Court,” are governed by the “Rules of Professional Conduct of the American Bar
Association as modified by the New Jersey Supreme Court.” 5 See Irene Schneider Family Tr., 2024
WL 712562, at *2. “‘[A] party seeking to disqualify counsel carries a heavy burden and must satisfy
a high standard of proof.’” Fragoso v. Zhejun Piao, 433 F. Supp. 3d 623, 627 (D.N.J. 2019) (quoting
Essex Chem. Corp. v. Hartford Accident & Indem. Co., 993 F. Supp. 241, 246 (D.N.J. 1998)).
Further, “an appearance of impropriety must be something more than a fanciful possibility and must

5

The New Jersey Rules of Professional Conduct (“RPC”) are available at
https://www.njcourts.gov/sites/default/files/rpc.pdf (last visited Mar. 4, 2025), archived at
https://perma.cc/2QD6-H2RT.
10

have some reasonable basis.” In re Cendant Corp. Sec. Litig., 124 F. Supp. 2d 235, 246 (D.N.J.
2001) (cleaned up).
Here, Defendant argues that Plaintiff’s counsel “previously represented [her] and her
company, AVIVV, from 2021 until the end of 2022.” Def.’s Brief at 15. RPC 1.9, which governs
conflicts of interest between an attorney and former clients, states: “A lawyer who has represented
a client in a matter shall not thereafter represent another client in the same or a substantially related
matter in which that client’s interests are materially adverse to the interests of the former client . . .
.” RPC 1.9(a). A matter is substantially related if:
(1) the lawyer for whom disqualification is sought received
confidential information from the former client that can be used
against that client in the subsequent representation of parties adverse
to the former client, or (2) facts relevant to the prior representation
are both relevant and material to the subsequent representation.
City of Atl. City v. Trupos, 201 N.J. 447, 467 (2010).
Before a court can consider disqualification on these bases, however, a prior or current
attorney-client relationship must exist. See Killion v. Coffey, No. 13-1808, 2014 WL 2931327, at
*4 (D.N.J. June 30, 2014) (noting that before the Model Rules can be applied and disqualification
considered, “an attorney-client relationship had to exist”). An attorney-client relationship can be
explicit or implied. Id. An explicit attorney-client relationship is formed when a person manifests
their intent to have the lawyer provide her legal services and the lawyer consents. Speeney v.
Rutgers, 673 F. App’x 149, 153 (3d Cir. 2016) (citation omitted). An implied attorney-client
relationship is formed when a person manifests the same, and the lawyer “‘fails to manifest lack of
consent to do so, and the lawyer knows or reasonably should know that the person reasonably relies
on the lawyer to provide the services.’ Id. (quoting Dixon Ticonderoga Co. v. Estate of O’Connor,
248 F.3d 151, 169 (3d Cir. 2001)). Under RPC 1.13(a), “a lawyer employed or retained to represent

11

an organization represents the organization as distinct from its directors, officers, employees,
members, shareholders or other constituents.”
1.

Former Client Relationship

Applying these principles to the facts presented by the parties, the Court finds that
disqualification of Plaintiff’s counsel is not appropriate because no explicit or implied attorneyclient relationship existed between Plaintiff’s counsel and Defendant Beal. The engagement letter
between AVIVV and Eckert disposes of the question entirely. The Terms of Engagement for the
letter states in relevant part that, “if you are a corporation or partnership, we do not represent . . .
your officers, directors, shareholders, employees, partners, or agents, unless specified as a Client.”
Martin Certif., Ex. 1(A) at 30 (Terms of Engagement). Although the body of the letter to Defendant
transmitting Eckert’s Terms of Engagement states, “[w]e want to make it clear that Eckert is
representing you in this engagement,” the letter further clarifies that Eckert’s “engagement is to
provide legal representation to AVIVV, LLC in relation to a trademark filing. Our acceptance of
this engagement does not involve an undertaking to represent you or your interests in any other
matter other than described above.” Id. at 27. Nothing in the transmittal letter or the Terms of
Engagement suggests that Eckert had formed an attorney-client relationship with Defendant Beal as
an individual.
Nor has Defendant provided a factual basis to suggest that an implied attorney-client
relationship existed.

The engagement letter between Eckert and AVIVV limited the firm’s

representation to the trademark filing. While Eckert extended the courtesy of offering to assist
AVIVV or any other party not then represented with other legal matters, nothing in the record shows
that Defendant took advantage of that offer. See id. (“In the event a need arises for Eckert to
represent you in respect to another matter or legal issue, I would be pleased to discuss it with you.”).

12

Finally, Eckert’s prior representation of AVIVV in a trademark matter is not substantially
related to its representation of Plaintiff in a defamation suit. Although Defendant alleges that Eckert
had access to confidential information including “business strategies, financial data, and internal
communications that are critical to the defense of this case,” Def.’s Brief at 15-16, the record does
not show that Eckert had access to AVIVV or Beal’s confidential records that would be of any
relevance in the defamation suit before this Court. See ECF No. 59-2, Certification of Linda J.
McGuinness at 53-55 (“Ms. Beal never disclosed any confidential information to me”; “any
conversation I had with Ms. Beal was solely about AVIVV’s trademark applications”).
Therefore, the Court finds that no former attorney-client relationship exists between
Plaintiff’s counsel, and thus, the Court denies Defendant’s requested relief.
2.

Current Client Relationship

In her sur-reply, Defendant raises for the first time that a current client relationship exists
between her and Plaintiff’s counsel. See Def.’s Sur-Reply at 2. Defendant provided the Court with
a letter dated November 2, 2024, sent to Plaintiff’s counsel from her attorney in the AVIVV
Arbitration, M. Cris Armenta, Esquire. According to the letter, Ms. Armenta “discovered that,
contrary to statements made in the Opposition, [Plaintiff’s counsel] is presently counsel of record
to AVIVV, LLC, the entity of which Defendant Beal is the Chief Executive Officer.” Id. (emphasis
in original). Ms. Armenta demanded that Plaintiff’s counsel withdraw from both this matter and the
arbitration based on the understanding that Plaintiff’s counsel still represented AVIVV before the
USPTO. See ECF No. 89-1, Declaration of Erica Beal ¶ 2 and Ex. 1 (Letter). On February 20,
2025, in response to an inquiry by the Court, Plaintiff filed a copy of its letter response to Ms.
Armenta’s November 2, 2024 letter. See ECF No. 116.
After reviewing Defendant’s sur-reply and Plaintiff’s letter, the Court concludes that no
current attorney-client relationship exists between Plaintiff’s counsel and Defendant Beal. Again,
13

AVIVV’s Terms of Engagement disposes of this question entirely. Nothing in the proposed surreply demonstrates that Plaintiff’s counsel ever agreed to act as Defendant’s legal counsel in her
individual capacity. As Plaintiff indicates, Defendant Beal sent an email to various AVIVV
executives on November 23, 2022, stating that any further services from Plaintiff’s counsel to
AVIVV related to trademark proceedings before the USPTO should be terminated and that AVIVV
would compensate counsel for any previous services rendered. See ECF No. 116-1, Exs. to Pl.’s
Letter at 4 (Email).
Defendant’s sur-reply does not demonstrate that she is a current client of Plaintiff’s counsel.
Therefore, the Court will not disqualify Plaintiff’s counsel. The Court also denies Plaintiff’s request
for alternative relief; that is, disqualifying Mr. Zoller specifically from representing his client. 6

6

On February 17, 2025, Defendant sought leave of Court to file another supplement in
support of her Motion and she attached the supplement to her request. See ECF No. 115. Before
the Court had an opportunity to consider the request, Defendant filed a second supplement without
leave of Court. See ECF No. 118. The Court will not tolerate this type of litigation behavior going
forward. Despite pro se status, a litigant must abide by the procedural rules of this Court. Before
Defendant files any other motion papers in this matter, she must seek leave of Court in advance.
Notwithstanding, the Court reviewed the supplements and finds that they do not change the
Court’s analysis. The supplements do not demonstrate that Defendant is a current client of
Plaintiff’s counsel. The supplements contain two declarations from Defendant’s counsel in the
AVIVV Arbitration, M. Cris Armenta, Esquire and exhibits consisting of email correspondence
between Ms. Armenta and Plaintiff’s counsel and a printout of a page from the USPTO’s website
listing information for the AVIVV trademark. See generally ECF No. 118, Exs. A-C. As a
preliminary matter, Ms. Armenta’s declarations appear to make factual and legal arguments on
Defendant’s behalf in this matter despite her not having entered an appearance in this matter on
Defendant’s behalf. Furthermore, nothing in the declaration or the attached exhibits changes the
fact that the Terms of Engagement noted that Plaintiff’s counsel’s representation of AVIVV did not
include AVIVV’s members. See Martin Certif., Ex. 1(A) at 30. Nor did the Engagement Letter
specify that Plaintiff’s counsel was representing Defendant Beal in her individual capacity. See id.
at 27 (“Our engagement is to provide legal representation to AVIVV, LLC in relation to a trademark
filing. Our acceptance of this engagement does not involve an undertaking to represent you or your
interests in any matter other than described above.”).
14

C.

Motion for Sanctions

Finally, Defendant seeks the imposition of sanctions on Plaintiff and its counsel. A Court
has the inherent power to impose sanctions to prevent abuses of the judicial process. Fellheimer,
Eichen & Braverman, P.C. v. Charter Techs., Inc., 57 F.3d 1215, 1224 (3d Cir. 1995). These
powers, however, must be exercised “with restraint and discretion.” Chambers v. NASCO, 501 U.S.
32, 44 (1991). The Court’s inherent power to sanction an attorney [is] governed not by rule or
statute but by the control necessarily vested in courts to manage their own affairs so as to achieve
the orderly and expeditious disposition of cases.” Eash v. Riggins Trucking Inc., 757 F.2d 557, 567
(3d Cir. 1985) (cleaned up).
Whether under the Federal Rules or its inherent powers, a Court’s decision to impose
sanctions should be “guided by the same considerations” which include the conduct at issue, whether
the offending party is the attorney or the client, and other mitigating factors as well. See Republic
of Philippines v. Westinghouse Elec. Corp., 43 F.3d 65, 74 (3d Cir. 1994).
Nothing in the record justifies imposing sanctions on Plaintiff’s counsel. Defendant alleges,
among other things, that Plaintiff’s counsel has filed frivolous and duplicative lawsuits, Def.’s Brief
at 5; “manipulated the criminal justice system,” id. at 14; and “lied under oath,” id. at 8. The Court
cannot rule on the merits of or pass any judgment on the alleged frivolousness of any other litigation
that Plaintiff or Plaintiff’s counsel has initiated against Defendant in other jurisdictions. Moreover,
the Court is not in a position to assess the legitimacy of any criminal charges that Plaintiff may have
pressed or filed against Defendant in another jurisdiction. Finally, the Court will not entertain
allegations that an attorney before it is lying under oath without any evidence to support such an
accusation.

Standing alone, Defendant’s allegations against Eckert and Mr. Zoller are not

corroborated by any evidence of record. Therefore, Defendant’s Motion to impose sanctions against
Plaintiff’s counsel is denied without prejudice.
15

CONCLUSION
For the foregoing reasons, Defendant’s Motion is DENIED WITHOUT PREJUDICE in
its entirety. An appropriate Order will issue.
s/Elizabeth A. Pascal
ELIZABETH A. PASCAL
United States Magistrate Judge
cc: Hon. Edward S. Kiel, U.S.D.J.

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