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Javaid v. Weiss

United States District Court, Third Circuit

September 23, 2013

ASIF JAVAID, Plaintiff


MARTIN C. CARLSON, Magistrate Judge.


Now pending before the Court is the defendant's motion to dismiss the plaintiff's amended complaint for failure to prosecute or, in the alternative, for summary judgment. (Doc. 50) The motion was filed after a considerable period of inactivity on the plaintiff's part, during which this litigation made no forward progress, despite the Court impressing upon the plaintiff the need to adhere to pre-trial schedules and to comply with discovery obligations. During this period it has become evident that the plaintiff exhibited virtually no diligence in attempting to move this case forward after having been granted a lengthy period of time to retain new counsel and to respond to discovery requests that have languished for months. Further, we find that, in its current posture, Javaid's malpractice claim fails on its merits. Because we find no good cause to further prolong this litigation and delay a resolution of the claims against the defendant, and because we are mindful that this litigation has now been pending for more than two years with little significant activity to move it forward, and most significantly without any evidence having been developed in support of the plaintiff's claims, the defendant's motion will be granted.


In this case, which he characterizes as "a professional liability action, " (Doc. 20, Am. Compl., ¶ 3), plaintiff Asif Javaid has sued Elliott B. Weiss, his former lawyer, alleging that Mr. Weiss is liable for legal malpractice under both tort and contract theories of liability relating to Mr. Weiss's representation of the plaintiff in a 2008 action in the Lycoming County Court of Common Pleas.

Plaintiff's claims arise out of a loan transaction that resulted in Mr. Javaid, as a guarantor on the loan to ARM Hospitality, Inc., having a confessed judgment entered against him for $865, 910.53 - an amount that was later reduced to $366, 008.79 - after ARM defaulted on its loan obligations. Mr. Weiss was engaged as Mr. Javaid's counsel both during the original loan transaction in 2002, and again later in March 2008, when Weiss endeavored to have the confessed judgment against Javaid set aside. Plaintiff contends in this litigation that Mr. Weiss's representation fell below prevailing professional standards, and also constituted a breach of a specific contractual agreement between the parties, with respect to Mr. Weiss's efforts to relieve Mr. Javaid of personal liability under the loan guarantees on the grounds that the loan documents were somehow legally deficient or otherwise unenforceable against Mr. Javaid under applicable New York law.[2]

In 2002, plaintiff retained defendant's legal services in connection with a loan transaction between ARM Hospitality, Inc. ("ARM"), as borrower, and BLC Capital Corp. ("BMC") as lender. In this transaction, BLC loaned ARM $700, 000, which was secured by a stock pledge from ARM's shareholders, and by a personal guaranty by Javaid, who at that time was ARM's president. The express terms of the guaranty that Javaid executed as part of this transaction authorized the lender to confess judgment against Javaid for any unpaid part of the note.

Plaintiff engaged Mr. Weiss to provide him with legal counsel at the time the loan transaction was being entered into, and again later in 2006 and 2008 when proceedings were commenced in the Lycoming County Court of Common Pleas following an event of default under the loan and the entry of a confessed judgment against Mr. Javaid.

After ARM defaulted on its loan obligations, SPCP Group, Inc., the assignee of BLC's rights under the loan, commenced foreclosure proceedings against the real property that secured the note. On February 1, 2008, the subject property was sold at a sheriff's sale to Little League Baseball, Inc. for $588, 500.00. On February 6, 2008, the Court of Common Pleas of Lycoming County entered judgment in favor of SPCP Group, Inc. in the amount of $859, 910.53. (Doc. 12, Ex. B.)

Less than one month later, on March 3, 2008, plaintiff filed a petition to strike or open the confessed judgment. (Doc. 25, Ex. C) Plaintiff engaged Mr. Weiss to file this petition on his behalf. In the petition, plaintiff argued that the attorney's fees claimed by SPCP Group were unreasonably excessive; that plaintiff was entitled to a credit equal to the sale price of the subject property; and that the Deficiency Judgment Act barred the SPCP Group from recovering from plaintiff. (Id.) On April 22, 2008, the Court of Common Pleas denied the petition, but reduced the judgment to include a credit in the amount of $515, 675.92 resulting from the sale of the real property that had secured the loan. (Doc. 25, Ex. D) Plaintiff appealed to the Pennsylvania Superior Court, which affirmed the Court of Common Pleas's order in an opinion issued on November 10, 2009.

While plaintiff's appeal before the Pennsylvania Superior Court was pending, SPCP Group took steps to enforce the judgment against plaintiff in New York state. Thus, on December 12, 2008, SPCP Group filed a complaint in the Supreme Court of the State of New York, Dutchess County, seeking enforcement. (Doc. 25, Ex. E) Plaintiff, through New York counsel, filed a verified answer in response to the complaint on January 29, 2009. (Doc. 25, Ex. F) SPCP Group proceeded to move for summary judgment on its enforcement action. (Doc. 12, Ex. G) Plaintiff did not respond to this motion, and on July 22, 2009, judgment was entered against plaintiff in the amount of $366, 008.79, plus costs and interest dating from December 12, 2008. (Doc. 25, Ex. H)

In this action, plaintiff claims that he engaged Elliott Weiss to "file petitions relevant to relieving Asif Javaid of personal liability based upon perceived insufficiencies of the loan documents and the foreclosure process" in the Lycoming County Court of Common Pleas. (Doc. 20, Am. Compl. ¶ 10) Plaintiff claims that Weiss was aware that the confession of judgment clause in the loan documents was governed by New York law, (id. ¶¶ 12-17), and was made aware that New York law rendered the confession of judgment entered in Pennsylvania legally deficient. (Id. ¶ 21.)

Plaintiff claims that he instructed defendant to raise the applicability of New York law and its application to the confession of judgment in the Court of Common Pleas, and that Weiss explicitly agreed to do so. (Id. ¶ 22.) Plaintiff claims that defendant informed him that he had prepared a petition to obtain relief from the judgment based upon "the requirements of the contract and New York Law." (Id. ¶ 19.) Defendant allegedly had Mr. Javaid execute blank verifications without first reviewing the content of the petitions that defendant prepared and later filed. (Id. ¶ 20.) Plaintiff alleges that Mr. Weiss filed declined to file certain documents that he had agreed to file, and that Mr. Weiss further failed to keep him apprised of the progress of the Lycoming County litigation after it commenced. (Id. ¶ 24.)

Plaintiff alleges that he did not learn about the Court of Common Pleas' denial of his petition for relief from judgment until sometime after November 10, 2009, when his New York counsel obtained a copy of the Pennsylvania Superior Court's memorandum affirming the decision. (Id. ¶ 28.) Plaintiff thus claims that it was only at this time that he learned Mr. Weiss had not asserted the application of New York law in the Lycoming County proceedings - something that plaintiff claims defendant expressly agreed to do, and which if done would have prevented the judgment from being entered against plaintiff on the guaranty. (Id. ¶¶ 32-33.)

Plaintiff claims that "a judgment in the amount of $865, 910.53 plus cost [sic] was entered against Asif Javaid as a result of the acts or omissions of defendant Elliott Weiss." (Id. ¶ 34.) Plaintiff acknowledges that following litigation and reduction, a judgment in the amount of $366, 008.79 was entered against plaintiff in the State of New York. (Id. ¶ 35.) Plaintiff claims that this entire judgment would have been precluded if Mr. Weiss had only asserted the application of New York law as a complete defense in the Lycoming County proceedings that were undertaken to defend against the judgment. (Id. ¶ 39.) Plaintiff alleges that by the time the lender filed suit against him in Dutchess County, New York to enforce the judgment, plaintiff was no longer capable of attacking the validity of the judgment, and is thus subject the judgment entered against him. (Id. ¶ 41.)

Out of these allegations, plaintiff brought claims against Mr. Weiss for legal malpractice under both tort and contract theories of liability for his alleged failure to assert various provisions of New York law that plaintiff claims would have acted as an absolute bar to the judgment that was ultimately entered against him, despite Mr. Weiss having expressly agreed to do so.


Plaintiff initiated the instant lawsuit on June 6, 2011. (Doc. 1) The Court subsequently entered an order granting defendant's motion to dismiss the complaint without prejudice to plaintiff filing an amended complaint to cure the deficiencies that had been identified. (Doc. 19) On January 18, 2012, plaintiff filed an amended complaint. (Doc. 20) Defendant moved to strike allegations and dismiss the amended complaint on February 1, 2012. (Doc. 21) In a memorandum opinion issued on August 30, 2012, the Court denied the motion. (Doc. 33)

On September 19, 2012, the defendant answered the amended complaint. (Doc. 34) On September 28, 2012, the Court issued a revised case management order, which enlarged the discovery period to January 7, 2013, and set a number of additional pre-trial deadlines prior to jury selection and trial scheduled to commence on May 13, 2013. (Doc. 35)

At this point, the litigation appears to have devolved, and it has remained in a period of dormancy ever since, despite the Court's and defendant's efforts to keep it moving. Thus, on November 9, 2012, the plaintiff's counsel moved for leave to withdraw, citing personal illness. (Doc. 36) In the motion, the plaintiff's counsel represented that he had endeavored to speak with the plaintiff and the plaintiff's New York counsel prior to seeking leave to withdraw, but was unable to get either to respond to his requests. (Id.) Upon consideration of the motion, we entered an order granting the plaintiff's counsel leave to withdraw, and we directed the plaintiff to inform the Court on or before Tuesday, January 8, 2013, as to whether he had retained new counsel, or whether he intended to proceed pro se on his own behalf. (Doc. 37) We also stayed the litigation until Tuesday, January 8, 2013, or further order of the Court. (Id.)

From that time until April 12, 2013, the plaintiff failed to communicate with the Court in any way, and never responded to the Court's order directing him to notify us about whether he has engaged new counsel, or whether he will be prosecuting this action on his own.

In an effort to keep this litigation moving forward in some fashion, the defendant's counsel served the plaintiff with interrogatories and document requests, but these went unanswered. (Doc. 38, ¶¶ 13-14.) Counsel followed up on these requests in written correspondence dated February 27, 2013, but received no response from the plaintiff. (Id. ¶¶ 14-15.) Finally, the defendant's counsel wrote a second letter to the plaintiff on March 8, 2013, to inquire into the status of the plaintiff's discovery responses, and represented that if the plaintiff did not respond, she would file a motion to compel. (Id. ¶ 16.)

In response to this letter, the defendant's counsel represents that on March 18, 2013, the plaintiff called her to discuss his efforts to find a new lawyer. (Id. ¶ 17.) Defendant's counsel agreed to give the plaintiff until April 1, 2013, to furnish responses to the outstanding discovery requests, regardless of whether the plaintiff had retained new counsel. (Id.) As of April 1, 2013, no counsel had entered an appearance on the plaintiff's behalf, and the plaintiff had not responded to the defendant's interrogatories or document requests. Thereafter, the plaintiff's failure to prosecute this action, to identify new counsel or litigate on his own behalf, and his failure to respond to outstanding discovery that has been propounded upon him, caused the defendant to move for an order compelling the plaintiff to respond, or suffer the imposition of sanctions upon further motion. (Doc. 38)

Upon consideration of the motion, the extended dormancy of this litigation, and the failure of the plaintiff to comply with the Court's orders and with discovery requests, we entered an order directing the plaintiff to show cause on or before Friday, April 12, 2013, why the motion to compel should not be granted for his failure to respond to the unanswered discovery requests that have been served upon him. We also scheduled an in-person conference with defendant's counsel and the plaintiff in order to address the case-management of this action going forward. That conference was scheduled to be held on May 1, 2013.[3]

In response to this order, on April 12, 2013, the plaintiff filed a motion for extension of time to find counsel willing to represent him in this litigation, and for an extension of time to respond to the long outstanding interrogatories based on the plaintiff's representation that "most of these interrogatories are beyond the scope of [his] legal knowledge." (Doc. 42) The defendant opposed the motion the same day. (Doc. 43)

Upon consideration, we granted the plaintiff's motion, in part, and directed him to furnish answers to the interrogatories by Tuesday, April 30, 2013, regardless of whether or not he had retained counsel. In this way, we also granted the defendant's pending motion to compel the plaintiff to respond. We reviewed the interrogatories that the defendant propounded upon the plaintiff - which had by that time gone unanswered for months - and found that they did not require specialized legal training to answer, as they sought straightforward factual information. The plaintiff was, therefore, directed to answer the interrogatories in accordance with the order; although we also ruled that if the plaintiff was able to find counsel to represent him, and if counsel requested leave to supplement the plaintiff's initial answers to the interrogatories, counsel would be permitted to seek such relief at that time.

We also ruled that to the extent the plaintiff was seeking to postpone the May 1, 2013, in-person conference scheduled in the case, the motion was denied. In denying such request, we observed that the litigation had been languishing for months, and ...

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