TADROS et al v. CITY OF UNION CITY et al
Filing
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OPINION. Signed by Judge Dennis M. Cavanaugh on 12/14/12. (jd, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
ADIP J. TADROS and NORMA
TADROS,
Hon. Dennis M. Cavanaugh
OPINION
Plaintiffs,
Civil Action No, IO-CV-2535 (DMC)(MF)
V.
CITY OF UNION CITY MAYOR BRIAN:
P. STACK; JOHN MEDINA; MARTIN
MARTINETTI; FRANCO
ZANDARDELLI; LUCIO FERNANDEZ;:
CHRISTOPHER F. IZ1ZARRY; TILO E.
RIVAS; MARYBURY BOMBINO;
ANDRES GARCIA; MIGUEL ORTIZ;
VICTOR MERCADO; VICTOR
GRULLON; MARGARITA
GUTIERREZ; DENIS VELEZ; C.
VALBIVIA; THE STATE OF NEW
JERSEY; EMPIRETECH CONSULTING:
ASSOCIATION INC.; SHERIF H. ELFAR P.E.; CONNIE YOUNIS; JOSE
IZQUIERDO; JAI ARCHITECTS LLC;
ABBAS A. SHAH; RONALD
ABRAHAM, ESQ.; GREGG F. PASTER,:
ESQ,; WILFREDO J. ORTIZ, II, ESQ.;
J,l),P. CONSTRUCTION SERVICES,
INC.; JUAN DE LA PAZ; JAY B.
ZUCKER, ESQ.; ROSE TUBITO, ESQ.;
DAVID M. WATKINS, ESQ.; 54 INC.;
QRTIZ AND PASTER LAW OFFICES;
JAY B. ZUCKER & KWESTEL, LLP;
and, JOHN DOES,
Defendants.
DENNIS M. CAVANAUGH, U.S.D.J.:
This matter comes before the Court upon the Motion for Summary Judgment by Defendant
1
Rose Tubito, Esq. (May 24, 2012, ECF No. 100). Pursuant to Federal Rule of Civil Procedure 78.
no oral argument was heard. After considering the submissions of all parties, and for the reasons set
forth below, it is the decision of this Court that Defendant Rose Tubito, Esq’s Motion for Summary
Judgment is granted.
L
BACKGROUND
In October of 2008, Plaintiffs Adip and Norma Tadros (“Plaintiffs”) retained Rose Tubito,
Esq. (“Defendant”) to represent them in connection with claims against the City of Union City and
several of its governing officials, the City of Union Zoning Board and each of its members
individually, and two architectural companies that were alleged to have conspired with the
government defendants, alleging claims of negligence, fraud, tortious interference with prospective
economic gain, intentional infliction of emotional distress and defamation, Specifically, Plaintiffs’
claims were that the government agencies and others harmed them by wrongfully denying them
permit renewals necessary for the construction of a six story building and extorting money from
them. This action was filed in the Superior Court of New Jersey, Hudson County.
Tadros. et al.
v. Medina, et al., Superior Court of New Jersey, Law Division, Hudson County, I)ocket No, L-52 1908 (the “Medina Case”). Shortly thereafter, Plaintiffs retained Defendant to represent them in
connection with related claims against several former attorneys for legal malpractice. Defendant filed
this action in Hudson County as Tadros. et al. v. Paster. et al., Superior Court of New Jersey, Law
Division, Hudson County, Docket No. L-3217-09 (the ‘Paster Case”).
On July 17, 2009, Defendant advised Plaintiffs of the unlikely success of their claims.
Defendant claims that the parties mutually agreed that Defendant would no longer represent
This
1 section is taken from the parties pleadings.
2
Plaintiffs in the Medina and Paster Cases. That day, the parties signed Substitution of Counsel forms
for both cases. Plaintiffs claim in their amended complaint that their signatures were forged, while
Defendant claims that all parties agreed that she would withdraw as counsel, and that Defendant
explained the content of the forms as well as the forms’ effect to Plaintiffs prior to their execution
of the Substitution of Counsel forms.
Defendant continued to make appearances on behalf of Plaintiffs after completing the
Substitution of Counsel forms. The Medina case was at the summary judgment stage, and Defendant
appeared on Plaintiffs behalf at oral argument on July 31, 2009. Defendant fIled the Substitution of
Counsel forms for the Paster case and the Medina case on September 14, 2000 and September 17,
2009, respectively. Following Defendant’s withdrawal, Plaintiffs obtained other counsel for the
Paster case and reached settlement on June 3, 2011.
On May 17, 2010, Plaintiffs filed the present action against Defendants and others, (ECF No.
1). On July 26,2010, Defendant moved to dismiss the complaint in its entirety as it pertained to her,
(ECF No.7). On Feburary 4, 2011, Plaintiffs moved to amend the complaint and filed the Amended
Complaint with the Court, (ECF No. 50). On March 31, 2011, this Court granted Defendant’s Rule
12(b)(6) motion in part and dismissed all causes of action against Defendant contained in the
Amended Complaint with the exception ofPlaintiffs’ claim against Defendant for breach of fiduciary
duty, and also granted Plaintiffs leave to amend their complaint. (ECF No. 66). This Motion for
Summary Judgment is now before the Court.
IL
STANDARD OF REVIEW
Summary judgment is granted only if all probative materials of record, viewed with all
inferences in favor of the nonmoving party, demonstrate that there is no genuine issue of material
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fact and that the movant is entitled to judgment as a matter of law.
FED. R. Civ. P. 56(c):
Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986), The moving party bears the burden of showing
that there is no genuine issue of fact. jj “The burden has two distinct components: an initial burden
of production, which shifts to the non moving party if satisfied by the moving party: and an ultimate
burden of persuasion, which always remains on the moving party.”
The nonmoving party “may
not rest upon the mere allegations or denials of his pleading” to satisfy this burden, but must produce
sufficient evidence to support a jury verdict in his favor, See FED. K Civ. P. 56(e); e
Matsushita Elec Indus Co v Zenith Radio Corp, 475 U S 574 586 (1986)
o
In determining
whether there are any issues of material fact, the Court must resolve all doubts as to the existence
of a material fact against the moving party and draw all reasonable inferences including issues of
-
ci edibility in favor of the nonmovrng party’ Newsome v Admin Of ficc of thc Courts of the Statc
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ofNJ., 103 F. Supp.2d 807, 815 (D.N.J. 2000), affid, 51 Fed. App’x 76 (3d Cir. 2002) (citing Watts
v. Univ. of Del., 622 F.2d 47, 50 (D.N.J. 1980)).
ilL
DISCUSSION
In order to succeed on a breach of fiduciary duty claim, a plaintiff must establish: 1) that a
fiduciary relationship existed; and 2) that the attorney committed intentional misconduct in his or
her roles as counsel. Packard-Bamberger & Co., Inc. v. Collier, 771 A. 2d 1194. 1203 (N.J. 2001).
As the basis for their breach of fiduciary duty claim against Defendant. Plaintiffs allege that: I
Defendant forged the Substitution of Counsel forms and forced Plaintiff to proceed pro se: and 2)
Defendant continued to enter appearances on Plaintiffs’ behalf after she withdrew from their cases.
(Am. Compi. ¶ 130-13 1.) Plaintiffs have not and cannot demonstrate that Defendant committed any
intentional misconduct in her role as counsel to them.
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A. Plaintiffs Claims that Defendant forged Substitution of Counsel forms
On September 1, 2011, counsel for Defendant served Plaintiffs with ten requests for
admission, pursuant to FED. R. Civ. P. 36, seeking the authentication of several of Plaintiffs’
signatures, including those on Substitution of Counsel forms for the Paster and Medina cases. (Def’s
Br. 11, see Glickman Dccl.
¶5
and Exhibit C). According to Rule 36(a)(3), “a matter is admitted
unless, within 30 days after being served, the party to whom the request is directed serves on the
requested party a written answer or objection addressed to the matter and signed by the party or its
attorney.” Plaintiffs did not respond to the requests for admission. Plaintiffs failure to respond has
the effect of an admission that their signatures are authentic. Plaintiffs argue that Defendant knew
of the Plaintiffs “level of comprehension,” which was “very poor, to the extent that they cannot
understand and comprehend the term of ‘Substitute of counsel.” (Ph’s Reply 9). However, the
evidence before this Court precludes a determination that there is a genuine issue of material fact
with respect to the forgery claim,
“Admissions under Rule 36 are sufficient to support orders ofsummarvjudgment”, and thus
as a matter of law, Plaintiffs cannot use the allegations of forgery to support their claim that
Defendant breached her fiduciary duty. Kelvin Cryosystems, Inc. v. Lightnin. 252 Fed. Appx. 469,
472 (3d Cir.2007).
B. Plaintiffs’ Claims that the Appearances made by Defendant on behalf of Plaintiffs after
she withdrew as counsel somehow served to Plaintiffs’ detriment
Plaintiffs’ Amended Complaint alleges that Defendant “Rose Tubito continued to enter
appearances and relief [sic] other defendants after she withdrew from the cases that lead [sic] to
dismissal of cause of action against some defendants listed in this complaint.” (Am. Compi.
5
¶
130).
Defendant states that her continued appearances on behalf of Plaintiffs did not breach any duty
owed to Plaintiffs: rather, [Defendant] went above and beyond her legal duty by
attempting
to
safeguard Plaintiffs’ interests even after they consented to let her out of the cases and while they
sought new counsel.”(Def.’s Br. 17) Defendant argues that Plaintiffs have not advanced because
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they cannot advance any reasonable argument that [Defendant]’s continued appearances on their
-
behalf constituted a breach of her fiduciary duty to them.”
Qj) This Court agrees. To succeed on a
breach of fiduciary duty claim, a plaintiff must also show they suffered damages as consequence as
a result of that breach. Rainbow Apparel. Inc. v. KCC Trading. Inc.. No. 09-5319. 2010 WL
2179146, at *7 (D.N.J, May 26, 2010). Plaintiffs have shown no damages proximately caused by
Defendant’s continued representation, nor that Defendant committed any intentional misconduct
that would rise to the level necessary to constitute a breach of her fiduciary duty.
I
CONCLUSION
For the reasons stated above, it is the finding of this Court that Defendant’s Motion for
Summar Judgment is
granted.
An appropriate Order accompanies this Opinion.
DennisM,
Original:
cc:
Clerk’s Office
Hon. Mark Falk, U.S.M.J.
All Counsel of Record
File
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