Proctor v. Morrissey

979 F. Supp. 29, 1997 U.S. Dist. LEXIS 17521, 1997 WL 626388
CourtDistrict Court, District of Columbia
DecidedSeptember 29, 1997
DocketCivil Action No. 96-2627(SS)
StatusPublished
Cited by2 cases

This text of 979 F. Supp. 29 (Proctor v. Morrissey) is published on Counsel Stack Legal Research, covering District Court, District of Columbia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Proctor v. Morrissey, 979 F. Supp. 29, 1997 U.S. Dist. LEXIS 17521, 1997 WL 626388 (D.D.C. 1997).

Opinion

[30]*30MEMORANDUM OPINION

SPORKIN, District Judge.

INTRODUCTION

Before the Court are the defendant’s “Motion in Opposition to Plaintiffs 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 ease.

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 Plaintiffs 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 pro[31]*31vided with free legal counsel, despite the fact that this is a private civil action and not a criminal defense situation under the Criminal Justice Act where counsel for indigents is authorized.” Def s Mot. in Opp. to Pi’s Am. Compl. at nl.

The Court is specifically authorized by statute to request an attorney to represent any person unable to afford counsel in a case, civil or criminal, under 28 U.S.C. § 1915(e)(1). See also Local Rule 702 (Attorneys ... shall be required to assist or represent the needy in civil matters before this Court whenever requested by the Court and, if necessary, without compensation —). Based on the record, the Court found that the appointment of counsel was warranted in this case. Defendant is advised that the Court does not take allegations of bias light.ly. For that reason, defendant is strongly counseled not to make unfounded accusations of “preferential treatment” by the Court.

Turning to the defendant’s motion, defendant asserts that the First Amended Complaint contains causes of action and factual allegations that do not appear in the original Complaint. Thus, defendant requests that portions of the First Amended Complaint be stricken. There is no basis for this request.

Leave to amend a pleading “shall be freely given when justice so requires.” Fed. R.Civ.P. 15(a); Foman v. Davis, 871 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962); Firestone v. Firestone, 76 F.3d 1205, 1208-09 (D.C.Cir.1996). Plaintiff’s original Complaint was filed pro se. The Court determined that it was in the interest of justice to permit the original Complaint to be amended with the aid of counsel. The additional causes of action in the First Amended Complaint arise “out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original [complaint].” See Fed.R.Civ.P. 15(c). The defendant has not shown any prejudice by virtue of the filing of the First Amended Complaint. See Firestone, 76 F.3d at 1208 (it is an abuse of discretion to deny leave to amend unless there is sufficient reason, such as undue delay, bad faith, dilatory motives, or futility). Accordingly, defendant’s motion will be denied.

II. DEFENDANT’S MOTION OBJECTING TO JURISDICTION, ASSERTING THE STATUTE OF LIMITATIONS, AND TO DISMISS WILL BE DENIED.

A. THE COURT PREVIOUSLY DENIED DEFENDANT’S MOTION TO DISMISS.

On January 29, 1997, during a scheduling conference before the Court, defendant moved orally to dismiss this action for lack of jurisdiction. The Court denied defendant’s motion at that time.1 See Proctor v. Morrissey, No. 96-2627 (D.D.C. Jan.31, 1997) (order). The instant motion sets forth no basis upon which the Court should reconsider its previous denial.

B.

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Cite This Page — Counsel Stack

Bluebook (online)
979 F. Supp. 29, 1997 U.S. Dist. LEXIS 17521, 1997 WL 626388, Counsel Stack Legal Research, https://law.counselstack.com/opinion/proctor-v-morrissey-dcd-1997.