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Marbury Law Group, PLLC v. Carl

July 27, 2010

MARBURY LAW GROUP, PLLC, PLAINTIFF/COUNTER-DEFENDANT,
v.
BERNARD J. CARL, DEFENDANT/COUNTER-PLAINTIFF.



The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge

MEMORANDUM OPINION

Plaintiff/Counter-Defendant Marbury Law Group, PLLC, ("Marbury") filed the above-captioned action seeking to register a monetary judgment entered by the Fairfax County Circuit Court in favor of Marbury and against Defendant/Counter-Plaintiff Bernard J. Carl in the amount of $135,324.07, for legal fees and costs owed. Carl in turn filed a Counterclaim against Marbury, asserting claims for breach of contract, legal malpractice, and breach of fiduciary duty allegedly arising from Marbury's legal representation of Carl. Shortly thereafter, Marbury concluded, based upon subsequent research, that this Court was not the proper forum in which to register the Fairfax County Circuit Court judgment and therefore filed a motion to dismiss its own Complaint for lack of subject matter jurisdiction. Concurrent with that motion, Marbury also filed a motion to dismiss Carl's Counterclaim as barred by res judicata and for failure to state a claim. Carl failed to timely file a response to either motion. By Memorandum Opinion and Order dated December 3, 2009, the Court therefore granted as conceded Marbury's motions to dismiss and dismissed this action without prejudice.

This matter now comes before the Court on Carl's Motion to Reconsider and Vacate this Court's December 3, 2009 Order ("Motion for Reconsideration"). As set forth therein, Carl asks the Court to reconsider its final order dismissing this action without prejudice and granting Marbury's motions to dismiss as conceded. Marbury has not directly opposed the Motion for Reconsideration, instead reiterating its substantive position that dismissal of this action is appropriate for the reasons asserted in its original motions to dismiss. The Court has thoroughly considered the parties' briefing, the relevant case law, and the record of this case as a whole. For the reasons set forth below, the Court shall GRANT Carl's [11] Motion for Reconsideration and shall therefore VACATE its December 3, 2009 Memorandum Opinion and Order granting Marbury's motions to dismiss as conceded. Turning then to consider the substantive arguments raised by Marbury in its motions to dismiss, the Court agrees that it lacks jurisdiction to register the Fairfax County Circuit Court's judgment. The Court therefore cannot and does not reach the merits of Marbury's substantive claim for enforcement of the Fairfax County Circuit Court's monetary judgment herein. Rather, as this is the sole relief sought in Marbury's Complaint, the Court shall GRANT Marbury's [12] Motion to Dismiss its own Complaint for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). All that remains, then, is Carl's state-law claims as asserted in his Counterclaim. However, the Court's jurisdiction to entertain such claims is unclear on the present record. Although the pleadings indicate that Carl and Marbury have diversity of citizenship, Carl has failed to plead any amount in controversy. Notwithstanding that neither party has directly raised this issue, the Court has an affirmative duty to ensure that it is acting within its jurisdictional authority. It therefore shall HOLD IN ABEYANCE Marbury's [13] Motion to Dismiss Carl's Counterclaim pending further briefing on and resolution of this threshold jurisdictional question.

I. BACKGROUND

Marbury filed the Complaint in the above-captioned matter on July 28, 2009, seeking to enforce a monetary judgment entered by the Fairfax County Circuit Court in favor of Marbury and against Carl in the amount of $135,324.07, for unpaid legal fees and costs. See Complaint, Docket No. [1]. On October 15, 2009, Carl, representing himself pro se, filed an Answer and Counterclaim to Marbury's Complaint. See Ans. & Counterclaim, Docket Nos. [6] & [7]. As set forth therein, Carl asserts claims for breach of contract, legal malpractice, and breach of fiduciary duty against Marbury based upon Marbury's legal representation of Carl in two separate civil matters, which are the same legal actions that underlie Marbury's judgment for unpaid legal fees and costs. See generally id.

On November 2, 2009, Marbury filed a Motion to Dismiss its own Complaint for a lack of subject matter jurisdiction. See Pl.'s MTD Compl., Docket No. [12]. Marbury advised the Court that "[s]ubsequent research has caused counsel to conclude that while this Court must give full faith and credit to the judgment of the Circuit Court of Fairfax County, Virginia . . ., subject matter jurisdiction is lacking for this Court to register and enforce the judgment entered against Carl, which must be registered and enforced in the Superior Court for the District of Columbia." See id. at 1-2.*fn1 In addition, concurrent with the filing of the Motion to Dismiss its own Complaint, Marbury also filed a Motion to Dismiss Defendant's Counterclaim based upon the principles of claim preclusion and res judicata and for failure to state a claim. See Pl.'s MTD Countercl., Docket No. [13].

On November 9, 2009, cognizant of Carl's pro se status, the Court issued an Order advising Carl that his responses to Marbury's motions to dismiss were due by no later than November 30, 2009, and that failure to timely respond would result in the Court treating the motions as conceded and dismissing the action in its entirety. See Nov. 9, 2009 Order, Docket No. [14]. On December 3, 2009, having received no response from Carl by the November 30, 2009 deadline, the Court granted Marbury's motions as conceded and dismissed the action without prejudice. See Dec. 3, 2009 Memorandum Opinion and Order, Docket Nos. [15] & [16].

On December 11, 2009, Carl filed the now-pending Motion for Reconsideration, see Mot. for Reconsideration, Docket No. [17], which he supplemented with additional filings on December 16, 2009, see Pl.'s Supp. Mem. in Support of Mot. for Reconsideration, Docket No. [20], and again on December 17, 2009, see Pl.'s Response to Court Order, Docket No. [21]. As set forth therein, Carl avers that he timely prepared a consolidated opposition to Marbury's motions, which he captioned "Memorandum in Response to Court's Order of November 9, 2009," and provided the filing to his administrative assistant on November 30, 2009, with instructions to file the original with the Clerk of this Court and to serve copies on Marbury by mail. See Pl.'s Response to Court Order, Ex. 1 (Declaration of Bernard J. Carl) ("Carl Decl."), ¶¶ 5-7. Carl's administrative assistant, Elizabeth Strom, confirms that she personally delivered a copy of Carl's filing to a professional courier service on November 30, 2009, for filing with this Court. See Pl.'s Mot. for Reconsideration, Ex. D (Declaration of Elizabeth Strom) ("Strom Decl."), ¶¶ 2-3. Strom further asserts that she received confirmation that same day from the courier service that the document had been accepted for filing. Id. ¶ 4.*fn2 It has since become clear, however, that the courier service mistakenly delivered the pleading to the Superior Court for the District of Columbia rather than to this Court, a fact which Carl did not become aware of until after the Court had granted Marbury's motions as conceded. See Carl Decl. ¶¶ 16-22. Carl promptly filed the now-pending Motion for Reconsideration, with his proposed opposition briefing attached, and advised the Court of the filing error.

By Order dated December 15, 2009, the Court directed Marbury to file a response to Carl's Motion for Reconsideration by no later than January 4, 2010, and provided that Carl's reply, if any, was due by no later than January 14, 2010. See Dec. 15, 2009 Order, Docket No. [19]. Pursuant to that Order, Marbury timely filed its Response to Defendant's Motion for Reconsideration. See Docket No. [23]. As set forth therein, Marbury does not oppose Carl's request for reconsideration as it urges that dismissal of this action is appropriate even if the motions to dismiss are considered on their merits rather than as conceded. See id. at 1-2. Marbury has therefore filed replies in support of its motions to dismiss that respond to the substantive arguments raised in Marbury's opposition attached to his Motion for Reconsideration. See id., Att. 1 (Pl.'s Reply Mem. in Support of MTD Def.'s Countercl.); see also Reply Mem. in Support of MTD Compl., Docket No. [22]. Carl has since filed a Reply in Support of his Motion for Reconsideration. See Docket No. [24]. Briefing on the Motion for Reconsideration as well as on Marbury's Motion to Dismiss its own Complaint and Motion to Dismiss Defendant's Counterclaim is now complete.

Notwithstanding this fact, on January 13, 2010, Carl filed a Memorandum in Response to Plaintiff's Reply Memorandum in Support of Motion for Voluntary Dismissal of Complaint. See Docket No. [25], (hereinafter, "Def.'s Surreply to Pl.'s MTD Compl."). Although captioned a "Memorandum in Response," the filing is properly characterized as a surreply. It is well established that before a party may file surreply, he must move the Court for leave to file. Longwood Village Restaurant, Ltd. v. Ashcroft, 157 F. Supp. 2d 61, 68, n. 3 (D.D.C. 2001). In addition, a surreply is limited to addressing only new arguments raised for the first time by the opposing party in their reply briefing and not included in the original motion. Id. In this case, Carl did not seek prior leave of the Court to file the surreply, and it is readily apparent upon review that the submission is not limited to new arguments raised by Marbury in Reply but rather addresses arguments already discussed by the parties. As such, Carl's [25] Memorandum in Response to Plaintiff's Reply Memorandum in Support of Motion for Voluntary Dismissal of Complaint shall be STRICKEN from the record in this case.

II. LEGAL STANDARDS AND DISCUSSION

A. Motion for Reconsideration of Court's December 3, 2009 Order

Carl moves this Court to reconsider and vacate its December 3, 2009 decision dismissing this action without prejudice. Courts treat such motions for reconsideration as a Federal Rule of Civil Procedure 59(e) motion if filed within 28 days of entry of the challenged order and as a Rule 60(b) motion if filed thereafter. See United States v. Pollard, 290 F. Supp. 2d 153, 156 (D.D.C. 2003) (internal quotations omitted). In this case, Carl's Motion was filed on December 11, 2009, only eight days after the challenged Order was issued on December 3, 2009. Accordingly, the Motion is properly construed as a motion to alter or amend a judgment pursuant to Rule 59(e). It is well established that "'[a] Rule 59(e) motion is discretionary and need not be granted unless the district court finds that there is an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice.'" Ciralsky v. CIA, 355 F.3d 661, 671 (D.C. Cir. 2004) (quoting Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996)). The undisputed evidence in this case indicates that: Carl timely prepared and attempted to file an opposition to Marbury's motions to dismiss on November 30, 2009, as required; the opposition was mistakenly delivered to the Superior Court of the District Columbia through no apparent fault of Carl's; Carl sought to remedy this error as soon as it came to his attention; and Marbury does not oppose Carl's request for reconsideration. Accordingly, the Court finds, in its discretion, that reconsideration of its prior December 3, 2009 Memorandum Opinion and Order is necessary in ...


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