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PROCTOR v. MORRISSEY

September 29, 1997

MAURICE CORTEZ PROCTOR, Plaintiff,
v.
MICHAEL J. MORRISSEY, Defendant.



The opinion of the court was delivered by: SPORKIN

 INTRODUCTION

 Before the Court are the defendant's "Motion in Opposition to Plaintiff's Amended Complaint" and "Objection to Jurisdiction[,] Assertion of the Statute of Limitations Bar[,] and Motion to Dismiss," filed in the above-captioned case on August 14, 1997. The plaintiff has opposed the actions requested by the defendant. Upon consideration thereof, and based on the entire record herein and the law applicable thereto, the Court will deny the defendant's various requests.

 BACKGROUND

 On June 18, 1993, plaintiff, acting pro se, filed suit in the United States District Court for the Eastern District of Virginia. The Complaint alleged legal malpractice and fraud, based on allegations that the defendant failed to provide legal representation to the plaintiff, for which the plaintiff had paid. The district court dismissed the suit without prejudice for lack of personal jurisdiction. On appeal, the Fourth Circuit vacated and remanded, instructing the district court to determine whether, under 28 U.S.C. § 1406(a), transfer should be made to a district in which personal jurisdiction could be exercised and venue would be proper.

 On remand, the district court dismissed the action without prejudice on the ground that the plaintiff failed to appear at a scheduling conference to move for a transfer. Holding that the district court failed to properly notify the plaintiff that dispositive action might be taken at the scheduling conference, the Fourth Circuit again vacated and remanded--this time with specific instructions to transfer the action to the District Court for the District of Columbia pursuant to 28 U.S.C. § 1406(a). The Fourth Circuit noted that the defendant was a resident of the District of Columbia when the action was filed and when the defendant was served there with process. Proctor v. Morrissey, 97 F.3d 1448, 1996 WL 555302, at *5-6 (4th Cir. 1996).

 On November 27, 1996, Judge Richey, who at that time presided over this case, appointed counsel to represent plaintiff pro bono publico. On January 16, 1997, plaintiff filed a Motion for Leave to File a First Amended Complaint, which the Court granted on January 17, 1997. The Amended Complaint alleged breach of contract, fraud, breach of fiduciary duty, unjust enrichment, and conversion.

 On January 29, 1997, the Court held a scheduling conference. At that time, the defendant made an oral motion to dismiss the case for lack of jurisdiction, which was denied. In an Order dated January 31, 1997, the Court set a trial schedule in the case.

 On March 27, 1997, the Court entered default against the defendant because the defendant failed to plead or otherwise defend this action. The Court set a hearing on default judgment for April 15, 1997. After the hearing, at which the defendant failed to appear, default judgment was entered against the defendant.

 On June 16, 1997, the defendant filed a motion under Rule 60, requesting relief from the default judgment, citing a family medical emergency. The Court, after hearing from the parties, granted the Rule 60 motion and vacated the default judgment. On July 8, 1997, the Court issued an order setting a schedule for trial.

 On August 14, 1997, the defendant filed the instant motions, entitled "Defendant's Motion in Opposition to Plaintiff's Amended Complaint" and "Defendant's Objection to Jurisdiction[,] Assertion of the Statute of Limitations Bar[,] and Motion to Dismiss." The Plaintiff has opposed these motions.

 DISCUSSION

 I. DEFENDANT'S MOTION IN OPPOSITION TO PLAINTIFF'S AMENDED COMPLAINT WILL BE DENIED.

 At the outset, the Court will address the defendant's allegation that the Court has given the plaintiff in this case "preferential treatment" by appointing pro bono publico counsel to represent him. Specifically, the defendant states that "the plaintiff has . . . received preferential treatment by being provided with free legal counsel, despite the fact that this is a private civil action and not a criminal defense situation under the ...


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