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Teltschik v. Williams & Jensen

February 12, 2010

CORWIN TELTSCHIK, PLAINTIFF,
v.
WILLIAMS & JENSEN, PLLC, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Henry H. Kennedy, Jr. United States District Judge

MEMORANDUM OPINION AND ORDER

Corwin Teltschik, former Treasurer of Americans for a Republican Majority Political Action Committee ("ARMPAC"), brings this action against Williams & Jensen, PLLC, Williams & Jensen, P.C., (collectively "Williams & Jensen"), and current and former Williams & Jensen attorneys, Barbara Wixon Bonfiglio, Meredith Kelley and Robert Martinez. This suit arises from a complaint that was filed with the Federal Election Commission ("FEC") against ARMPAC and Teltschik, as ARMPAC's Treasurer, that resulted in a Conciliation Agreementallegedly without his knowledge or consent. Teltschik asserts causes of action for breach of fiduciary duty, negligence, libel, misappropriation of name and reputation, tortious interference with contracts, tortious interference with prospective economic advantage, and business disparagement.

Before the Court are "Defendants' Motion for Summary Judgment" [#39], defendants' "Motion to Strike Teltschik's Unpled Theories" [#53], Teltschik's "Motion to Amend Pleadings" [#52], and "Plaintiff's Motion to Strike the Declarations of Barbara Wixon Bonfiglio" [#50]. Upon consideration of the motions, the oppositions thereto, and the record of this case, the Court concludes that defendants' motion for summary judgment and defendants' motion to strike should be granted in part and denied in part, and that Teltschik's motion to amend his complaint and Teltschik's motion to strike should be denied.

I. BACKGROUND

The material facts of this case, unless it is otherwise indicated, are as follows. In 1995, Teltschik, a Texas-based lawyer, became Treasurer of ARMPAC, a political action committee formed to assist Republican candidates for election to the U.S. House of Representatives with activities such as the solicitation of political contributions. Teltschik did not have any familiarity with federal election laws and regulations. He asserts that he only accepted the position as Treasurer for ARMPAC after being informed that Williams & Jensen, a law firm based in the District of Columbia, would handle all of ARMPAC's financial affairs, prepare and file all necessary paperwork with the FEC, and ensure that ARMPAC complied with all federal election laws.

Before accepting the Treasurer position, Teltschik asked Barbara Wixon Bonfiglio, a lawyer at Williams & Jensen and the Assistant Treasurer of ARMPAC, what his obligations under the law would be once he became Treasurer. According to Teltschik, Bonfiglio informed him that he would not be required to sign any checks or file any reports, as she would prepare and file all the reports with the FEC. Teltschik claims that Bonfiglio assured him that she possessed the competence and experience necessary to fulfill these obligations.

On June 9, 2004, the FEC sent a notice to Teltschik at Williams & Jensen's address stating that it would conduct an audit of ARMPAC. Teltschik claims that he never authorized the FEC to send his mail to Williams & Jensen and that no one at Williams & Jensen ever informed him about the FEC notice.

On March 31, 2005, the FEC sent Teltschik an interim audit report, again to Williams & Jensen's address, informing him of discrepancies in reports filed on behalf of ARMPAC. The FEC required a response to the interim report before May 3, 2005. Again, Teltschik claims that no one at Williams & Jensen informed him that this report was received, that a response was required, or that Williams & Jensen subsequently filed for, and obtained, an extension of the response deadline.

Later that year, Citizens for Responsibility and Ethics in Washington ("CREW") filed a complaint with the FEC against ARMPAC based upon the results of the FEC's audit report. In response to CREW's complaint, the FEC opened Matter Under Review ("MUR") No. 5675.

On August 17, 2005, the FEC sent another letter to Teltschik at Williams & Jensen's address. The letter indicated that ARMPAC and Teltschik, as Treasurer of ARMPAC, were named as respondents in a complaint filed by CREW and that if Teltschik wished to be represented by counsel, he was required to complete a designation of counsel form and return it to the FEC.

On September 6, 2005, Bonfiglio called Teltschik to inform him about the complaint and to request that he fill out the required designation of counsel form. Teltschik asserts that during the course of the conversation, Bonfiglio assured him that the complaint was nothing but a harassment tactic. According to Teltschik, Bonfiglio, however, did not tell him that he was named as a respondent in the complaint. That same day, Bonfiglio sent Teltschik a blank copy of the designation of counsel form and asked him to sign the form and return it to her. Bonfiglio did not send Teltschik a copy of the complaint or the FEC letter addressed to him, however. Teltschik refused to sign the form and told Bonfiglio that "[he] was refusing because [he] wanted to be in the loop regarding any further proceedings pertaining to MUR 5675." Pl.'s Statement of Contested Issues ("Pl.'s Stmt.") Ex. 1 ¶ 16. After Teltschik refused to sign, Bonfiglio filled out the form, designating Don F. McGahn II, an attorney with McGahn and Associates, PLLC, as counsel for respondents. Bonfiglio signed the form, in her own name, in the blank space labeled respondent. In a letter dated September 6, 2005, Bonfiglio requested the FEC to grant ARMPAC an extension of time for filing a response to the complaint filed in MUR 5675.

Bonfiglio filed the designation of counsel form with the FEC on September 30, 2005. That same day, the FEC received a response to CREW's complaint, which McGahn submitted and signed as "Counsel for Americans for a Republican Majority." Pl.'s Stmt. Ex. 11 ("ARMPAC Response") at 14. The response, entitled "Response of Americans for a Republican Majority to the Complaint Filed by the Citizens for Responsibility and Ethics in Washington," does not mention Teltschik in any capacity. Id. No other response was filed in MUR 5675.

On June 22, 2006, a Conciliation Agreement in MUR 5675 ("Agreement" or "Conciliation Agreement") was filed with the FEC. The Agreement named Teltschik, in his official capacity, as a respondent. Teltschik alleges that the Conciliation Agreement accused him of criminal conduct and confessed judgment on his behalf without his authorization. Specifically, the Agreement states that "[t]he [FEC] found reason to believe that Americans for a Republican Majority . . . and Corwin Teltschik, in his official capacity as Treasurer, (collectively, 'Respondents') violated 2 U.S.C. § 434(b) and 11 C.F.R. §§ 102.5(a), 104.3(d), 104.10, 104.11, 106.5(f) and 106.6." Defs.' Mot. for Summ. J. Ex. E ("Conciliation Agreement") at 1. The Agreement further requires "Respondents" to (1) pay a $115,000 civil penalty; (2) cease and desist from further violations; and (3) amend its reports to comport with the Agreement and file a termination report with the FEC. Meredith Kelley, an attorney at Williams & Jensen who undertook Bonfiglio's duties regarding ARMPAC upon Bonfiglio's departure, signed the agreement in her own name "For Respondents." Conciliation Agreement at 9.*fn1

Teltschik's wife found a copy of the Conciliation Agreement between ARMPAC and the FEC on the Internet, and, on August 6, 2006, sent it to Teltschik. Teltschik alleges that he first learned that he had been named in the FEC's proceeding against ARMPAC when he was informed of the proceeding by his wife. Teltschik also alleges that he was unaware that McGahn had been hired to represent ARMPAC and Teltschik, that an answer to the complaint had been filed, or that a Conciliation Agreement was entered into on his behalf. According to Teltschik, every document concerning MUR 5675 was filed without his knowledge and without his consent; he alleges that he did not authorize anyone to respond on his behalf or represent him before the FEC.

On August 15, 2006, Teltschik alleges that he inquired of Williams & Jensen about the Conciliation Agreement that had been filed in MUR 5675 with the FEC. According to Teltschik, Robert Martinez, managing partner at Williams & Jensen, informed him that McGahn had been hired to represent ARMPAC.

Almost a year later, Teltschik filed a complaint against defendants in the Southern District of Texas.*fn2 The case was subsequently transferred to this Court.

II. MOTIONS TO STRIKE

Before the Court addresses defendants' motion for summary judgment, it is appropriate to address defendants' motion to strike various allegations that appear in Teltschik's opposition and Teltschik's motion to strike Bonfiglio's original and supplemental declarations.

A. Defendants' Motion to Strike

Defendants contend that various allegations in Teltschik's opposition to their motion for summary judgment do not appear in his complaint and move to strike them. Defendants argue that discovery in this case is closed and that they have not had an opportunity to conduct discovery on Teltschik's new allegations. Defendants also note that Teltschik never sought leave to amend his complaint to include these new allegations.*fn3 Specifically, defendants move to strike the following allegations:

1. That any defendant could be liable because they [did not] forward ARMPAC contributions to [Teltschik];

2. That any defendant could be liable because they [did not] give him original records related to ARMPAC during the course of this lawsuit;

3. That any defendant could be held liable to [Teltschik] based on some . . . accusation of forgery, unrelated to MUR 5675;

4. That any defendant could be liable for filing reports electronically in his name or as "Treasurer;"

5. That [Teltschik] . . . was a "third-party beneficiary" of an agreement between Williams & Jensen and ARMPAC; or

6. That any defendant could be liable under a theory of res ipsa loquitor. Defs.' Mot. to Strike Pl.'s Unpled Theories ("Defs.' Mot. to Strike") at 2-3.

Teltschik does not dispute defendants' contention that he does not raise these allegations in his complaint.*fn4 Teltschik argues, however, that defendants' motion to strike the allegations should be denied because the allegations do not raise any new claims and are merely additional facts asserted to support the claims already in his complaint. Alternatively, Teltschik seeks leave to amend his complaint to include the additional allegations.

1. Allegations 1, 2, 3, and 4

A plaintiff may not assert new allegations at the summary judgment stage if such allegations amount to a "fundamental change" in the nature of plaintiff's claims. See Hurlbert v. St. Mary's Health Care System, Inc., 439 F.3d 1286, 1297 (11th Cir. 2006) (stating that plaintiff could not expand his FMLA allegations in response to defendant's motion for summary judgment because the new allegations amount to a "fundamental change" in the nature of plaintiff's claim); see also Sharp v. Rosa Mexicano, D.C., L.L.C., 496 F. Supp. 2d 93, 97 n.3 (D.D.C. 2007) (stating that plaintiff may not, "through summary judgment briefs, raise [ ] new claims . . . because plaintiff did not raise them in his complaint, and did not file an amended complaint"); DSMC, Inc. v. Convera Corp., 479 F. Supp. 2d 68, 84 (D.D.C. 2007) (rejecting plaintiff's attempts to broaden its conspiracy claims in its opposition to defendant's motion for summary judgment). The allegations numbered 1, 2, 3, and 4 fundamentally change the nature of Teltschik's claims and therefore must be stricken.

Regarding allegations 1 and 2, Teltschik argues that defendants' failure to forward contributions for ARMPAC to him, as required by 2 U.S.C. § 432(b)(1),*fn5 and their failure and refusal to forward ARMPAC's original records to him, as required by 2 U.S.C. § 432(d),*fn6 show that defendants owed him a statutory duty. In his complaint, however, Teltschik does not refer to either 2 U.S.C. § 432(b)(1) or 2 U.S.C. § 432(d), and does not mention, or even hint at, any alleged failure on defendants' part to send him contributions for ARMPAC or ARMPAC's original records.*fn7 Furthermore, Teltschik's breach of fiduciary duty and negligence claims were not based on such allegations. Teltschik states that defendants owed a duty to him because "Bonfiglio (and William[s] & Jensen) specifically sought [his] authorization to represent [him] before the FEC on the complaint" and because "Williams & Jensen, Bonfiglio and Kelley, provided legal services and advice to [him]." Compl. ¶¶ 41, 42. Thus, by now asserting that defendants owed him a duty separate and apart from those discussed in his complaint, Teltschik attempts to fundamentally change the nature of his breach of fiduciary duty and negligence claims.*fn8

Regarding allegations 3 and 4, Teltschik claims that the forging of his signature on documents filed with the FEC and the filing of reports with the FEC that purported to be filed electronically by him proves that Bonfiglio, Kelley, and Williams & Jensen breached their fiduciary duty to him. Teltschik also appears to allege that allegations 3 and 4 support his misappropriation of name and reputation claim.

Teltschik's complaint, however, focuses on defendants' activities associated with MUR 5675 and the Conciliation Agreement that resulted from that MUR. Specifically, Teltschik's breach of fiduciary duty claim is centered around defendants' failure to notify him of the complaint that was filed against him and their alleged unauthorized representation of him in MUR 5675. Teltschik may not now expand defendants' alleged wrongdoings to include the forging of documents filed with the FEC that occurred long before the FEC opened MUR 5675.

Similarly, the sole basis of the misappropriation of name and reputation claim pled in Teltschik's complaint is defendants' alleged action of entering into a Conciliation Agreement on his behalf without his consent. Thus, the subsequent assertion of an additional ground for misappropriation of name-the use of Teltschik's name on other FEC filings without his authorization-amounts to a fundamental change in the nature of Teltschik's misappropriation of name and reputation claim.

Teltschik proceeded through discovery without seeking to amend his complaint. Therefore, Teltschik may not raise these new allegations now when discovery is closed and the case is in the midst of summary judgment proceedings.

The Court also denies Teltschik's alternative motion to amend his complaint. Not only does Teltschik fail to offer any grounds for leave to amend, see Federal Rule of Civil Procedure 7(b), he also fails to attach his proposed amended complaint as required by LCvR 15.1, see Calloway v. Brownlee, 366 F. Supp. 2d 43, 45 n.2 (D.D.C. 2005) (denying plaintiff's motion for leave to file an amended complaint for failure to comply with the local rules when plaintiff did not attach the proposed amended complaint). In any event, the Court finds that allowing Teltschik to amend his complaint at this late juncture "would result in delay or undue prejudice to the opposing party." Williamsburg Wax Museum, Inc. v. Historic Figures, Inc., 810 F.2d 243, 247 (D.C. Cir. 1987); see also Hoffmann v. United States, 266 F. Supp. 2d 27, 34 (D.D.C. 2003) (stating that "[a] plaintiff . . . cannot be permitted to 'circumvent the effects of summary judgment by amending the complaint every time a termination of the action threatens'" (quoting Glesenkamp v. Nationwide Mutual Ins. Co., 71 F.R.D. 1, 4 (N.D. Cal. 1974), aff'd per curiam, 540 F.2d 458 (9th Cir. 1976))). Teltschik may not now raise new allegations by amendment years after he filed his original complaint and after the parties have conducted extensive discovery. See Williamsburg Wax Museum, Inc. v. Historic Figures, Inc., 810 F.2d 243, 127-128 (D.C. Cir. 1987).

Accordingly, defendants' motion to strike will be granted as it relates to allegations 1, 2, 3, and 4 and Teltschik's motion to ...


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