June 30, 2000, DEFENDANTS' (Faulkner's') MEMORANDUM IN SUPPORT OF COMPREHENSIVE MOTION TO DISMISS OR FOR SUMMARY JUDGMENT. Total of twenty five (25) pages.
JOHN GREGORY LAMBROS
Plaintiff
vs.
CHARLES W. FAULKNER, SUED AS ESTATE/WILL/BUSINESS INSURANCE OF DECEASED ATTORNEY CHARLES W. FAULKNER
SHEILA REGAN FAULKNER
FAULKNER & FAULKNER, Attorneys at Law
and
JOHN & JANE DOE
Defendants
CIVIL CASE NO.
98-1621 (DSD-JMM)
DEFENDANTS' MEMORANDUM IN SUPPORT OF COMPREHENSIVE MOTION TO DISMISS OR FOR SUMMARY JUDGMENT
Defendants seek dismissal pursuant to Rule 12(b)(6) and alternatively summary judgment pursuant to Rule 56, Federal Rules of Civil Procedure.
Defendants request the following relief relative to the fifteen claims contained in plaintiffs Amended Complaint:
(A) Dismissal of all claims pursuant to Rule 12(b)(6), Fed.R.Civ.P., for failure to state claims upon which relief may be granted based on immunity afforded public defenders under applicable Minnesota law.
(B) Dismissal pursuant to Rule 12(b)(6), Fed.R.Civ.P., based on collateral estoppel and a valid criminal conviction which preclude a civil action for damages.
(C) Dismissal, pursuant to Rule 12(b)(6), Fed.R.Civ.P., for failure to state malpractice or other cognizable claims upon which relief may be
end of page 1
Defendants seek dismissal pursuant to Rule 12(b)(6) and
alternatively summary judgment pursuant to Rule 56, Federal Rules of
Civil Procedure.
Defendants request the following relief relative to the fifteen
claims contained in plaintiffs Amended Complaint:
(A) Dismissal of all claims pursuant to Rule 12(b)(6), Fed.R.Civ.P.,
for failure to state claims upon which relief may be granted based on
immunity afforded public defenders under applicable Minnesota
law.
(B) Dismissal pursuant to Rule 12(b)(6), Fed.R.Civ.P., based on
collateral estoppel and a valid criminal conviction which preclude a
civil action for damages.
(C) Dismissal, pursuant to Rule 12(b)(6), Fed.R.Civ.P., for failure
to state malpractice or other cognizable claims upon which relief may
be granted.
Page 1
(D) Alternatively, summary judgment on all claims pursuant to Rule
56,
Fed.R.Civ.P., based upon a lack of material fact in dispute and
defendants' entitlement to summary judgment as a matter of law.
FACTUAL
BACKGROUND
Plaintiff is a federal
prisoner serving a sentence of 360 months imprisonment and 8 years of
supervised release. Plaintiff was convicted following a jury trial in
1993 before the Honorable Diana E. Murphy. District Court File No.
4-89 Cr. 82(5). Plaintiff's convictions for conspiracy to possess
with intent to distribute and distribution of more than five
kilograms of cocaine were affirmed in United States v. Lambros,
65 F.3d 698 (8th Cir. 1996) cert denied 516 U.S. 1082
(1996). The Eighth Circuit remanded plaintiffs case on a sentencing
issue finding that the lower court incorrectly concluded that a life
sentence was mandatory. In fact the mandatory life provision did not
become applicable law until after the end date of the conspiracy of
which plaintiff was convicted. See id. at 700. After remand,
plaintiff received a sentence of 360 months which was affirmed upon
appeal. See United States v. Lambros, 124 F.3d 209 (8th Cir.
1997).
Prior to the jury being impanelled, the trial court judge inquired of
John Gregory Lambros, plaintiff in this action, whether he felt he
had had enough time to discuss with his counsel plea negotiations
proposed by the government. T.1-10 - 12'. Mr. Lambros responded to
Judge Murphy that he was aware that he was facing what he construed
to be the
Copies of pages from the trial transcript which are referenced in
this memorandum are included with the Affidavit of Deborah Ellis
filed with this memorandum.
Page
2
death penalty and then
stated, "I don't choose to negotiate, ma'am." T.1-12.
Charles W. Faulkner was plaintiffs appointed counsel at trial. Mr.
Faulkner
was appointed pursuant to Title 18 U.S.C. § 3006A. Mr. Faulkner
died on October 6, 1997
before plaintiff commenced the instant civil law suit. The other
defendants named in the
Amended Complaint are Mr. Faulkner's former law office associates,
including his wife
Sheila Regan Faulkner.
In this lawsuit,
plaintiff alleges the following claims. ("CWF" throughout the
summary refers to Charles W. Faulkner et al.)
Claim I paragraphs 21 - 23 Malpractice: CWF sent government's
plea
proposal to plaintiff.
Claim 11 paragraphs 26 - 28 Malpractice: Plaintiffs family paid legal
research
fees to National Professional Services Association.
Claim III paragraph 32 and 33) Malpractice: CWF did not hire an
investigator to
investigate plaintiffs torture in Brazil.
Claim IV paragraphs 36 and 38 Malpractice: Plaintiff had difficulty
contacting
CWF and "facilitating legal attorney investigative
contacts as to hiring a local psychologist and
doctor." Plaintiff was required to pay for a
private evaluation which defendants said may be
paid by the court.
Claim V paragraph 43 Malpractice: CWF failed to file motion to
suppress testimony obtained in violation of 18
U.S.C. § 201(c)(2) and §§ 201(b)(2) and (b)(33).
Claim VI paragraph 45 RICO: Plaintiff incorporates Claim V and
paragraph 16 (definition of RICO).
Claim VII paragraphs 48-49 Malpractice: CWF allowed plaintiffs due
process
rights to be violated when plaintiff was sentenced
to consecutive sentences in violation of Brazil
Treaty.
Page 3
Claim VIII paragraphs 52
and 54 Malpractice: CWF allowed plaintiffs due process
rights to be violated when, according to plaintiff,
his sentence was increased to compensate for
unextradited crimes in violation of Brazilian law.
Claim IX paragraphs 58 and 59 Malpractice: CWF allowed plaintiffs due
process
rights to be violated when plaintiff was convicted
on insufficient evidence.
Claim X paragraphs 62 - 64 Malpractice: CWF allowed plaintiffs
Lambros'
due process rights to be violated when plaintiff
was convicted and sentenced on a legally
insufficient indictment.
Claim XI paragraphs 69 and 70 Malpractice: CWF did not respond to
a
commercial lien filed by plaintiff.
Claim XII paragraphs 73 and 74 Malpractice: CWF allowed plaintiffs
due process
rights to be violated when plaintiff was sentenced
in violation of Brazil's constitution.
Claim XIII paragraphs 78 and 79 Malpractice: CWF allowed plaintiffs
due process
rights to be violated when Lambros placed on trial
on certain counts which were not allowed by
Brazilian constitution.
Claim XIV paragraphs 83 and 84 Malpractice: CWF allowed plaintiffs
due process
rights to be violated when he was placed on trial
for offenses not allowed by the Brazil Constitution
and in violation of the U.S.-Brazil Treaty.
Claim XV paragraphs 88 and 89 Malpractice: CWF allowed plaintiffs due
process
rights to be violated when plaintiff was allowed to
stand trial on all counts over which the court had
no jurisdiction based upon violation of the U.S.
Brazil Treaty.
ARGUMENT
For purposes of
defendants' request for dismissal pursuant to Rule 12(b)(6),
Federal Rules of Civil Procedure, averments in plaintiffs Amended
Complaint are presumed
Page 4
true.' St. Croix
Waterway Ass'n. v. Meyer, 178 F.3d 515, 519 (8th Cir. 1999). This
court need not consider any material outside the pleadings in order
to conclude that plaintiff has failed to state legal malpractice
claims for which relief may be granted. See Gibb v. Scott, 958
F.2d 814, 816 (8th Cir. 1992).
A motion requesting alternative relief is appropriate. If the court
considers the affidavits or other "matters outside the pleadings",
then the motion is treated as one under Rule 56; if the court can
decide the motion without reliance upon the matters outside the
pleadings, then it may appropriately be resolved under Rule 12(b)(6).
See Buck v. F.D.I.C., 75 F.3d 1285, 1288 and n.3 (8th Cir.
1996).
1. All Plaintiffs Claims Should be Dismissed Pursuant to Rule
12(b)(6) for failure to state a claim.
Although under Rule
12(b)(6) the court does not normally consider matters outside the
pleadings, it may take judicial notice of certain matters outside the
pleadings without converting the motion into one for summary
judgment. Intermedics. Inc. v. Ventritex. Inc., 775 F.Supp.
1258 (N.D.Cal. 1991) affd 991 F.2d 808 (9th Cir. 1993).
Facts which may be the subject of judicial notice in the context of a
Rule 12(b)(6) motion include the record of the case or matters of
general public record. Id. at 1261.; see, eg., lacaponi v.
New Amsterdam Casualty Co., 379 F.2d 311 (3rd. Cir. 1967) cert
denied 389 U.S. 1054 (1968) (not error to decide question of res
judicata on the motion to dismiss by examining a workers compensation
decision which was referenced but not incorporated in the complaint).
In this
2
Defendants do not concede
that any of plaintiffs allegations are true except for purposes. of
this motion.
Page 5
instance, plaintiff
referenced the district court proceedings in United States v.
Lambros, Minn.
District Court File No.
4-89-CR-82(5) and
the opinions of the Eighth Circuit Court of
Appeals (paragraphs
5, 12, 17, 21, 31, 72
of Amended Complaint) of which this court is
entitled to take judicial notice.
In each of plaintiffs fifteen claims in his Amended Complaint,
plaintiff alleges
that his appointed counsel Charles W. Faulkner and the other
defendants' committed
malpractice and/or were incompetent'. Plaintiff seeks monetary
compensation for his criminal
defense attorney's alleged malpractice and incompetence. See
paragraphs 96 - 101, Amended
Complaint.
Plaintiffs malpractice claims must be dismissed on three grounds.
First, Mr
Faulkner as a court-appointed lawyer, is entitled to absolute
immunity under applicable
Minnesota law. Second, plaintiff cannot recover damages based on
collateral estoppel and a
3
The named defendants, other
than Charles W. Faulkner and his estate, are
named defendants only because of their relationship to Charles W.
Faulkner. See Amended Complaint at paragraphs 10, 1 3 ) and 17.
For
example, in paragraph 17 of his Amended Complaint, plaintiff
states:
"Defendants et al. represented Plaintiff Lambros, as per contract
with
U.S. Public Defenders Office, Minneapolis, Minnesota. Defendants
acted
as legal agents and/or representatives of Plaintiff Lambros."
See the following paragraphs in plaintiffs Amended Complaint:
paragraphs 21 and 23 (Claim 1); paragraph 28 (Claim 11); paragraphs
32
to 34 (Claim III); paragraph 38 (Claim IV); paragraph 43 (Claim
V);
paragraph 45 (Claim VI); paragraph 49 (Claim VII); paragraph 54
(Claim VIII); paragraphs 58 and 59 (Claim IX); paragraphs 63 and
64
(Claim X); paragraphs 69 and 70 (Claim )9); paragraphs 73 and 74
(Claim XI); paragraphs 78 and 79 (Claim )aII); paragraphs 83) and
84
(Claim XIV); paragraphs 89 and 90 (Claim XV).
Page 6
valid criminal conviction
unless his conviction is reversed.' Third, various of plaintiffs
claims, even given a liberal reading of plaintiffs amended complaint,
do not state a factual basis of conduct attributable to the
defendants and plaintiff can prove no set of facts which would
entitle him to relief.
(A) Immunity
Minnesota has granted to its public defenders immunity from legal
malpractice claims. See Comment, 78 Minn.L.Rev. 977 (1994). The
United States Supreme Court announced in Ferri v. Ackerman,
444 U.S. 193 (1979) that the individual states are free to decide
whether public defenders have immunity from legal malpractice
claims:
For when state law creates a cause of action, the State is free to
define the defenses to that claim, including the defense of immunity,
unless, of course, the state rule is in conflict with federal law.
Id. at 198.
The Supreme Court in Minnesota decided in favor of absolute immunity
for public defenders which is the law this court must apply.
Reliance Nat'l Indemnity Co. vs. Jennings, 189 F.3d 689, 694
(8th Cir. 1999)(Eighth Circuit applied Arkansas state law to
legal
6
malpractice
claim).
5
Defendants acknowledge that
plaintiff claims not only an invalid
conviction but also an invalid sentence. Any errors by plaintiffs
counsel
(the prosecutor and trial court) at sentencing were corrected by
the
appellate court and at resentencing therefore plaintiff cannot show
a
basis
for damages. See * United States v. Lambros, 124 F.3d 209 (8th
Cir.
1997) (Table) (affirming sentence of 360 months imposed after
remand).
6
Defendants note that the
magistrate's August 4, 1999 Report and
Recommendation cites the elements that must be proven under
Minnesota
case law to sustain a legal malpractice claim. See Report and
Recommendation at page 14, citing Rouse v. Dunkley & Bennett.
P.A.,
520 N.W.2d 406, 408 (Minn. 1994)
7
In Dziubak vs
Mott, 503 N.W.2d 771 (Minn. 1993), the Minnesota Supreme
Court held that public defenders are immune from suit for legal
malpractice. While the
Dziubak suit involved state, not federal, public defenders, the
court's ruling must apply to
plaintiffs malpractice claims which require this court to apply state
law. Indeed, there is no
federal statutory right to claim legal malpractice.
In Dziubak, the Minnesota Supreme Court observed that the United
States Supreme Court "left the question of immunity to the states to
decide when it declined to hold that federal law provides immunity
for counsel in state malpractice suits." Id. at 774 Ferri
v. Ackerman, 444 U.S. 193 (1979). The Minnesota Supreme Court
noted that the Supreme Court in _Ackerman acknowledged that valid
public policy reasons may justify a grant of immunity. Ld. In
Ackerman, the Supreme Court, ever so prophetically,
stated:
Perhaps the most persuasive reason for creating such an immunity
would be to make sure that competent counsel remain willing to accept
the work of representing indigent defendants. If their monetary
compensation is significantly less than that of retained counsel, and
if the burden of defending groundless malpractice claims and charges
of unprofessional conduct is disproportionately significant, it is
conceivable that an immunity would be justified by the need to
preserve the supply of lawyers available for this important work.
Ackerman at 204-05.' The Minnesota Supreme Court found
additional public policy reasons
Page 8
for affording public
defenders immunity under Minnesota law. The Minnesota Supreme Court
noted a difference between privately retained counsel and appointed
counsel with respect to presentation of frivolous claims (such as
many of Mr. Lambros' claims). For private defenders, the Dziubak
Court noted, "The funds available to the client usually serve to
prevent the presentation of frivolous claims, tactics or defenses."
Dzuibak at 776.
For defendants
whose attorneys fees are being assumed by the government,
"[t]he client has no economic incentive for eschewing
frivolous claims." Id. See~ Minns v. Paul,
542
F.2d 899, 902
(4th Cir.
1976)'.
Indeed, as the record of
plaintiffs trial court proceeding and his numerous suits' initiated
since that time, plaintiffs indigent status provided him a vehicle to
prevail upon his appointed counsel to pursue extraordinary, if not
frivolous claims, Mr. Lambros has demonstrated in remarkable fashion
that an indigent client has no economic incentive for eschewing
frivolous claims. Plaintiffs indigent status should not permit him to
further vex his now-deceased appointed counsel, his counsel's widow
or former staff. The Minnesota
attorneys is seriously hampering the ability of judges to recruit attorneys to provide effective representation."
In Minns, the Fourth Circuit Court found that a public defender has immunity in 42 U.S.C. § 1983 actions.
9
For example: Mr. Lambros has sued the prosecutor Douglas R.
Peterson
(Lambros v. Peterson, District Court File No. 96 CV 705, _Lambros
v.
Peterson, 133 F.3d 922 (8th Cir. 1997) (Table); the Drug
Enforcement
Agency (Lambros v. Anderson , United States District Court for
the
District of Columbia 1:95 CV 00995 - Judge Norma Halloway
Johnson);
and American Airlines (Lambros v. Northwest Airlines, District of
Minnesota File No. 94 CV 53 1); prison officials (Lambros v.
Andreaci,
129 F.3d 122 (8th Cir. 1997) and Lambros v. Hawk, 993 F.Supp
13
)72
(D. Kan 1998)).
Page 9
court has held that
appointed counsel in a criminal case have immunity and this court
should dismiss, as a matter of law Mr. Lambros' legal malpractice
claims.
(B) Plaintiffs valid conviction and collateral estoppel preclude a
civil suit for damages
A defendant in a criminal
case may not recover damages in a subsequent civil suit unless the
plaintiff can prove that his conviction has been reversed. In Heck
v. Humphrey, 512 U.S. 477 (1994), the Supreme Court rejected a
state prisoner's claim of an unconstitutional conviction, which claim
was filed in federal court under 42 U.S.C. § 1983). In Heck,
the Court noted that the basis for Heck's claim for damages was
an invalid conviction. 512 U.S. at 486.
The Supreme Court's decision in Heck, supr , precludes
plaintiffs claims because, "a judgment in favor of the defendant
would necessarily imply the invalidity of his conviction or
sentence." Id. at 485. Plaintiffs claims for damages due to
negligence or breach of contract of his trial counsel is a challenge
to the validity of plaintiff s conviction. Pursuant to Heck,
those claims cannot be entertained unless and until plaintiffs
criminal conviction is set aside. In Levine the Seventh
Circuit noted that "by operation of the doctrine of collateral
estoppel, a valid criminal conviction acts as a bar to overturning
that conviction in a civil damages suit." Levine 123 F.3d at
583. Therefore, as a matter of law plaintiffs claim must be dismissed
with prejudice pursuant to Rule 12(b)(b), Fed.R.Civ.P.
Plaintiff is also barred from raising issues which were raised and
decided in a prior proceeding in which plaintiff had a full and fair
opportunity and incentive to litigate the claims. Plaintiffs prior
valid conviction precludes a claim that he was convicted on the basis
of legally insufficient indictment and on insufficient evidence.
Plaintiffs claims of treaty
Page 10
violations are also
precluded by collateral estoppel where the same issues were decided
in the criminal suit. See Munz v. Parr 972 F.2d 971, 973 (8th
Cir. 1992); White v. Murphy 780 F.2d 614, 616 (8th Cir.
1986);Levine v. Kling 123 F.3d 580 (7th Cir. 1997); see
also 18 Wright- Miller-Cooper, Federal Prac. & Proc.
Jurisdiction and related Matters § 4474 (West. 1981 and
Supp. 2000).
Numerous claims of treaty violations were made on behalf of plaintiff
in his criminal case. See certified copy of Criminal Docket Sheet
attached to Affidavit of Donna Rae Johnson and docket entries
numbered 20, 39 40 and 45. In a Report and Recommendation filed
December 21, 1992, Magistrate Judge Lebedoff recommended that
plaintiffs motions be dismissed based on treaty violations. In
particular, the magistrate noted that plaintiff sought pretrial to
have charges dismissed based on the court's lack of jurisdiction
because his extradition was wrongfully obtained "because life
imprisonment is barred by the Brazilian constitution, and second,
because he was tortured during his confinement in Brazil." The
magistrate recommended that the motions be denied. Report and
Recommendation at page 8, Docket Entry # 40, certified copy attached
to Affidavit of Donna Rae Johnson. The magistrate's recommendation
was adopted by the district court, the Honorable Diana E. Murphy in
an Order filed January 5, 1992. See Docket Entry 945 and certified
copy of Order attached to Affidavit of Donna Rae Johnson.
Plaintiffs claim that he was allowed to be convicted on legally
insufficient evidence is also barred by his prior criminal
conviction. Plaintiff testified at his trial claiming that although
he was a purveyor of marijuana he was not guilty of the cocaine
charges against him. See T.VI - 804-805. Plaintiffs testimony was
rejected not only by the jury but also by
Page 11
the trial court judge. At
sentencing Judge Murphy increased plaintiff's sentence for perjury".
Judge Murphy commented: "I believe that Mr. Lambros' testimony at
trial was not credible insofar as he denied any involvement with
cocaine. I believe the evidence was to the contrary." Sentencing
Transcript at p. 31. On appeal, the Eighth Circuit Court of Appeals,
affirming a sentencing enhancement for perjury, commented:
a review of the record shows unequivocal that Lambros's trial
testimony was insincere, cynical and calculated,
willful,
perjury of the most odious kind. 65 F.3d at 702. Plaintiffs
conviction was affirmed on appeal. Failing a motion to dismiss,
summary judgment is appropriate because there are no material facts
in dispute and defendants are entitled to judgment as a matter of
law.
Plaintiffs claims for civil damages are all barred by collateral
estoppel and a valid judgment of conviction. These claims should be
dismissed with prejudice.
In Levine v. Kling, 123 F.3d 580 (7th Cir. 1997), the Seventh
Circuit Court found that a complaint alleging malpractice filed by a
criminal defendant should not have been dismissed with prejudice
because the complainant "ha[d] not yet exhausted his
postconviction remedies." Id. at 582. The same can not be said
here because Mr. Lambros has pursued his postconviction remedies
repeatedly under 28 U.S.C. § 2255. A certified copy of the
docket entries from Mr. Lambros' criminal case (District Court File
No. 4-89 Cr. 82(5)) is attached to the Affidavit of Donna Rae Johnson
submitted with this motion. Docket entries numbered 200, 201, 208,
209, 212, 213, 222, 223, 224, 229, 230 attest to plaintiffs
10
See Section 3 C
I. I, Federal Sentencing Guidelines.
Page 12
unsuccessful efforts to
obtain postconviction relief under the federal statute for habeas
corpus relief. In this case, dismissal with prejudice of plaintiffs
claims for civil damages is appropriate.
If the court does not recommend dismissal with prejudice, defendants
urge the court to recommend that any further filings by the plaintiff
be allowed only upon certification from a lawyer in good standing
with the bar " that in the lawyer's opinion plaintiff's claims have
some arguable merit. Such a restriction upon plaintiff is appropriate
pursuant to 28 U.S.C. § 1651(a). Lee Taifa v. Bayh, 867
F.Supp. 799 (N.D. Ind. 1994) aff d 85 F.3)d 642 (7th Cir. 1996);
Annotation, Authority of United States District
Court,..Under-USCS1651(a), to Enjoin. Sua Sponte, A Party From
Filing Further Papers in Support
of
Frivolous Claims 53 A.L.R.Fed. 651 (1981).
(C) Plaintiffs factual allegations in Claims 1, IL III, IV. VIL
VIII, and XXV Do Not Allege Conduct of the Defendant Which Caused
Plaintiff Damages
In considering a motion to dismiss for failure to state a claim
upon which relief may be granted, the court must take as true the
"well-pleaded allegations" contained in the complaint. St.
Croix Waterway Ass'n v. Mever, 178 F.3d 515, 518 (8th Cir. 1999)
(emphasis added). In treating the factual allegations of a complaint
as true, the court "do[es] not, however, blindly accept the
legal conclusions drawn by the pleader from the facts."
Defendants note that in the past plaintiff has relied in part upon
the advice
of Jeffrey Orren.
See for example Docket Entry 9 113 and certified
copy of
Mr. Orren's affidavit,
Criminal Docket, File No. 4-89 Cr. 82(5) attached to Affidavit of
Donna Rae Johnson. Mr. Orren was disbarred in 1999. See In Re
Disciplinary Action Against Orren, 590 N.W.2d 127 (Minn.
1999).
Page 13
Thompson v. Olsten
Kimberly Qualitycare, 980 F.Supp. 1035, 1037 (D.Minn. 1997). The
reviewing court may dismiss a claim under Rule 12(b)(6) if it is
clear that no relief could be granted under any set of facts that
could be proven consistent with the allegations. Hishon v. Kinia
& Spalding, 467 U.S. 69, 73 (1984). In response to a motion
to dismiss, the plaintiff must show, at a minimum, that the prima
facie elements of the applicable claims are alleged in the complaint.
Briggs v. Sterner, 529 F.Supp. 1155 (D.lowa 1981).
Despite the liberal reading generally afforded to pro se
litigants,
12 plaintiff does
not state a cause of action for malpractice and plaintiffs
allegations do not support any other identifiable cause of action
other than malpractice.
In Claims 1, 11, 111, IV, VII, VIII, and X-XV, there are no set of
facts which could be proven which would entitle plaintiff to relief
and plaintiff has not alleged the prima facie elements for
malpractice. Claims I-IV, VII, VIII, and X-XV , although purportedly
claims for malpractice, do not aver acts of conduct by the defendants
which caused plaintiff damages.
In Claim I, plaintiff alleges malpractice because his counsel
forwarded the government's plea offer which misstated the law.
Plaintiff avers no damages or injury to himself as a result of what
plaintiff claims was an act of malpractice.
In Claims 11 and IV, the damages alleged (based on some obscure
failings of
12
See Hughes v. Rowe, 449 U.S. 5, 9-10 (1980), Haines v. Kerner,
404
U.S. 519, 520-21 (1972);
Levine v. Kling, 922 F.Supp. 127 (N.D. Ill.
1996) affd 123 F.3d 580 (7th Cir. 1997); Lee also Watts v.
I.R.S.
F.Supp 271 (D.N.J. 1996) (pro se litigant's claims
dismissed based on
immunity and lack of jurisdiction for failure to state claims upon
which
relief may be granted).
Page 14
Mr. Faulkner) are costs
incurred by his family members for services Mr. Faulkner
obtained but did not pay for. See paragraphs 26 and 38, Amended
Complaint. Monetary disputes are not malpractice claims. A claim of
malpractice requires proof of an act of negligence or breach of
contract which were the proximate cause of plaintiffs damages.
See Rouse v. Dunkley & Bennett- PA., 520 N.W.2d 406, 408
(Minn. 1984). Moreover, plaintiff did not have a contractual
relationship with the defendants. Mr. Faulkner was appointed, not
hired, to represent plaintiff in his criminal case.
In Claim III, plaintiff alleges that Mr. Faulkner et al failed to
hire an investigator to investigate his claims of torture. Plaintiff
does not allege any damages to him based on the lack of
investigation. As discussed, infra, the trial court precluded
testimony regarding plaintiffs alleged torture in Brazil. This
exclusion of evidence was based on relevance and not on the
court's conclusion that the torture did not occur. See T.IV -
574.
In Claim VII, plaintiff claims that defendants allowed his due
process rights to be violated when defendants allowed plaintiff to
receive consecutive sentences. Plaintiff received concurrent
sentences on his four counts of conviction. See Amended Judgment
in A Criminal Case, certified copy attached to Affidavit of Donna Rae
Johnson. Docket Entry 193, Minnesota District Court File No. 4-89 Cr.
82(5).
In Claim VIII claims that defendants allowed plaintiffs due process
rights to be violated when defendants allowed plaintiff to be
sentenced for unextradited crimes. See paragraph 52, Amended
Complaint. The district court's sentence was based upon application
of the federal sentencing guidelines. Plaintiff was found to be a
career offender, his sentence was increased for obstruction and
perjury but not for any "unextradited crimes." See certified
Page 15
copy of Amended Judgment
In A Criminal Case attached to Affidavit of Donna Rae Johnson.
In Claim XI, plaintiff seeks declaratory judgment and asserts that
his claim is one for malpractice. See paragraph 67, 73 and 74 of
Amended Complaint. If construed as a malpractice claim, plaintiff has
not alleged conduct by the defendants that caused plaintiff damages
thus the claim fails to state a cause of action. Plaintiff references
15 U.S.C. in this claim, the commerce, trade and antitrust statutes!
No liberal construction of this claim can be so as to interpret it as
a valid cause of action.
In Claim XII, plaintiff alleges defendants allowed his due process
right to be violated when plaintiff was sentenced to a mandatory life
sentence which sentence was not allowed under Brazil's constitution.
Plaintiff continues in this claim to explain that after the Eighth
Circuit Court of Appeals vacated his life sentence on Count 1, that
he was "resentenced to a term of thirty (30) years within the framing
of the Brazilian Constitution." See paragraph 72, Amended Complaint.
Plaintiffs own allegations negate any damages as a result of the
alleged wrongdoing of the defendants, plaintiff can prove no set of
facts which would entitle him to relief and this claim should be
dismissed. Any error, incompetence or malpractice by the defendants
resulted in no damage to plaintiff whose sentence was corrected.
Similarly in Claims IX, X, XII-XV, plaintiff alleges violation of the
U.S. Brazil Treaty. Plaintiff makes no suggestion that defendants
violated the treaty or that defendants were the proximate cause of
the alleged treaty violations. Therefore, plaintiff can prove no set
of facts which would entitle him to relief from treaty violations, as
against these defendants.
Page 16
A complaint "should not
be dismissed for failure to state a claim unless it appears beyond
doubt that plaintiff can prove no set of facts in support of his
claim which would entitle him to relief." J.D. Conley v, Gibson
355 U.S. 41, 45-46 (1957). In this instance, it is beyond doubt
that plaintiff has failed to state any facts, which if proven, would
entitle him to relief therefore these claims should be dismissed
pursuant to Rule 12(b)(6), Fed.R.Civ.P.
2. Defendants are entitled to summary Judgment all plaintiff's
claims -of malpractice and RICO.
If this court considers
matters outside the complaint, summary judgment is appropriate as a
alternative to dismissal under Rule 12(b)(6). See Buck v.
F.D.I.C., 75 F.3d 1285, 1288 and n.3 (8th Cir. 1996).
According to Rouse v. Dunkley & Bennett. P.A. 520 N.W.2d
406 (Minn. 1994), in order to prove legal malpractice, four elements
must be proven by the plaintiff
1. existence of an attorney-client relationship;
2. acts amounting to negligence or breach of contract;
3. such acts were the proximate cause of the plaintiffs damages;
and
4. but for defendant's conduct the plaintiff would have been
successful in the action.
First, defendants concede that an attorney-client relationship
existed between plaintiff and Charles W. Faulkner. Second, those acts
which plaintiff alleges amounted to negligence or breach of contract
by Mr. Faulkner in Claims I through XV of his complaint are not
supported by the record of Mr. Faulkner's representation of Mr.
Lambros as discussed more fully below and which documentation
submitted in support of this motion shows.
Page 17
Lastly, defendants urge
the court to dismiss the various claims by the plaintiff on the
grounds that the facts alleged by the plaintiff are not the proximate
cause his claims for damages." see Rohricht v. O'Hare,
586 N.W.2d 587 (Minn. Ct.App. 1998).
Claim 1:
With respect to Claim 1,
plaintiff asserts that Charles W. Faulkner committed malpractice by
forwarding a letter from the prosecutor that erroneously stated the
penalties which plaintiff was facing. See paragraphs 21 and 22 of
Amended Complaint. Mr. Faulkner had a duty to communicate plea offers
to his client. See e.g.. United States v. Rodriguez, 929 F.2d
747, 752 (Ist Cir. 1991); Johnson v. Duckworth, 793 F.2d 898,
902 (7th Cir. 1986). The fact that the prosecutor's position was
determined to be wrong did not make Mr. Faulkner's act of
transmitting the information negligent. More importantly, plaintiff
doesn't claim that this misinformation caused him to go to trial when
he otherwise would not have. In fact, plaintiff advised the trial
court at the beginning of trial that he "choose not to negotiate."
See T.1 12-13.
Additionally one of plaintiffs friends and informal counsel, Jeffrey
L. Orren, stated in an affidavit filed in the district court January
27, 1994 that Mr. Lambros advised him that he would not have accepted
any plea agreement with the government including a "no jail time
agreement." See paragraph 7 of Jeffrey Orren's Affidavit, Dk. 9117,
certified copy attached to Affidavit of Donna Rae Johnson.
13
As with claims of ineffective assistance of counsel, disposition
of
petitioner's claims of counsel's negligence and breach of contract
may be
more easily disposed of on lack of prejudice and lack of proximate
cause.
See Strickland v. Washington, 466 U.S. 668, 697 (1986).
Page 18
Hence, conceding that Mr.
Faulkner relayed the prosecutor's erroneous statements of the law,
plaintiff cannot show any proximate relationship between this
communication and his conviction. The misperceptions; of the
prosecutor, defense counsel and trial court judge regarding the
applicability of a life sentence were corrected by the Eighth Circuit
Court of Appeals. See United States v. Lambros 65 F-31d 698,
700 (8th Cir. 1995) cert. denied 516 U.S. 1082 (1996)
("[B]ecause the mandatory life sentence was not in place at
the time of the crime charged, the district court erred in applying
it.")
Because no material facts are in dispute and defendants are entitle
to judgment as a matter of law, judgment pursuant to Rule 56,
Fed.R.Civ.P. is appropriate on Claim 1.
Claim II
In Claim II, plaintiff
alleges that his family was required to pay for legal services
provided by National Legal Professional Associates. Paragraph 26
Amended Complaint. Plaintiff implicitly alleges that defendants
refused to pay for services for which they contracted and that this
conduct was due to LEGAL MALPRACTICE. Paragraphs 28, Amended
Complaint.
Claim 11 does not state a claim for legal malpractice and does not
allege facts to support any elements of a legal malpractice claim
including damages to plaintiff. Claim 11 appears to obscurely claim
some monetary loss incurred by plaintiffs family members. Plaintiff
does not claim to be adversely impacted by the allegations in the
claim, or in legal terms has failed to allege that defendants actions
were the proximate cause of any damages to him. Defendants should be
granted summary judgment on Claim 2, if not dismissal.
Claim III.
Page 19
Plaintiff claims that
defendants deprived him of a valid defense by not undertaking an
investigation into his torture in Brazil. Paragraph 3 1, Amended
Complaint. The trial court excluded as irrelevant, however, any
evidence regarding plaintiffs torture in his trial. See T.IV 574
14
A prior factual
determination that plaintiffs claim torture was not true may
foreclose crediting the veracity of plaintiffs claim. See United
States v. Lambros, 65
F.3 )d at
701 ("the record contains persuasive evidence that torture with
American complicity never
occurred"). But, even accepting as true plaintiffs claims of torture,
plaintiff has recited no
set of facts which would entitle him to relief on his claims that his
defense counsel and others
were incompetent and committed malpractice. The trial court excluded
evidence of plaintiffs
torture which the defense, through counsel attempted to introduce.
Summary judgment should
be granted because there are no material facts in dispute and the
defendants are entitled to
judgment as a matter of law.
Claim IV
Plaintiffs fourth claim of legal malpractice is that his counsel
failed to hire psychologists and doctors following his conviction to
determine his competency. Mr.
14
Plaintiff was permitted to make an extensive record before the
assigned
magistrate regarding his torture. See United States v. Lambros
, 65 F.3d
at 700 ("In various hearings below, Lambros testified extensively
as to
his mistreatment in Brazil."). The Eighth Circuit Court of Appeals
found
that the record regarding plaintiffs claim torture "contains
persuasive
evidence that torture with American complicity never occurred."
Id. at
701. This conclusion by the Eighth Circuit appears to be based in
significant part on a psychologist's opinion that plaintiffs
symptoms
were fictitious and orchestrated in an attempt to circumvent the
legal
process. Id.
Page 20
Faulkner, appointed
counsel was not allowed by the court to have a psychologist or
doctors examine plaintiff following conviction.
Plaintiff fails to mention the fact that defendant Charles W.
Faulkner did move the court for a competency hearing following
conviction. See Dk. # 112 and #I I'), District Court File No. 4-98-
82(5). In essence then, Mr. Faulkner was requesting, under the
Criminal Justice Act, fees for experts to determine Mr. Lambros'
competency. In an order filed January 19, 1994 (Dk. # 114 District
Court File No, 4-89-82(5)) the Honorable Diana E. Murphy denied the
request for a competency hearing, noting "Defendant's conduct during
trial showed competence." There is no material fact in dispute. Mr.
Faulkner requested a competency examination which request was denied
by the court.
Defendants' actions are not the proximate cause of any injury which
plaintiff claims and defendants are entitled to summary judgment as a
matter of law.
Claim V
In Claim V, plaintiff
alleges malpractice as follows:
(1) failure to file motion suppressing testimony obtained in
violation of
Title 18 U.S.C. § 201(c)(2).
(2) alleging that certain witnesses testimony may have been
suppressed if a
motion had been filed under 18 U.S.C. § 201(c)(2).
Interestingly, at
least one of the witnesses whom plaintiff claims might have been
suppressed was a witness which plaintiff called in his defense over
his
counsel's objections. See T.IV - 578-79 and 581 (excerpts of
transcript
attached to Affidavit of Deborah Ellis.
Page 21
(3) whether the evidence contains sufficient evidence to remand for a
new
trial. Plaintiff implicitly suggests that his conviction could not
be
sustained without those witnesses called in violation of 18 U.S.C.
§
201(c)(2) but this statute has not provided a recognizable basis
for
suppression in this district.
This claim is apparently based upon a decision from the Tenth Circuit
(United States v. Sinizleto , 144 F.3d 1343 (10th Cir. 1998))
which was reversed January 8, 1999, following rehearing en banc.
See United States v. Singleton, 165 F.3d 1297 (10th Cir.)
cert. denied 119 S.Ct. 2371 (1999). The Eighth Circuit has
followed the Tenth Circuit's en banc holding. See United
States v. Albanese 195 F.3d 389. 394 (8th Cir. 1999). Conceding
that defendant Charles Faulkner did not file a motion to suppress
under 18 U.S.C. § 201(c)(2), such a motion is not cognizable in
this district or circuit as a basis for suppression (nor was it in
1993).
CLAIM VI
Conceding that defendant Charles Faulkner did not make the motion
of which plaintiff complains, there are no material facts in dispute
and defendants are entitled to judgment as a matter of law on this
claim. Neither 18 U.S.C. § 201(c)(2) nor Singleton
provides plaintiff no basis for a claim and Ms. Faulkner's
affidavit shows a lack of any factual basis for plaintiff to claim a
pattern of racketeering. See Wisdom v. First Midwest Bank, 167
F.3)d 402, 406 (8th Cir. 1999). In the Affidavit of Sheila Regan
Faulkner, Ms. Faulkner denies any concerted or racketeering activity.
Charles Faulkner was appointed personally to represent plaintiff,
pursuant to 18 U.S.C. § 33006A. His appointment was a
Page 22
personal appointment and
he was the only lawyer who performed worked on Mr. Faulkner's behalf
See Affidavits of Dan Scott and Sheila Faulkner. Dk. Number 62 and 63
in this file.
Claim V11
As discussed in Argument I(C),
I(C), there are no
set of facts upon which plaintiff could recover damages.
Claim VIII
Plaintiff alleges in his eighth claim that the defendants
committed malpractice by allowing his sentence to increased to
COMPENSATE FOR UNEXTRADITED CRIMES. See paragraph 52, Amended
Complaint. According to the Amended Judgment In A Criminal Case
(certified copy attached to Affidavit of Donna Rae Johnson),
plaintiff received the low end of the guidelines applicable for the
offense of conviction and there was no increase in plaintiff's
sentence according to the judgment to "compensate for unextradited
crimes." See also, United States v. Lambros, 65 F.3d 698 (8th
Cir. 1995) affirming guideline application (with the exception of the
mandatory life sentence application). Ld. at 700 and 702.
Claims IX, X, X11, XII, XIV, XV
Plaintiff's allegations in these claims are discussed in
Arguments I (B) and I(C),
infra. These claims
claim a legally insufficient indictment, insufficient evidence and
treaty violations. As an alternative to dismissal, summary judgment
is appropriate as a matter of law on all these claims.
Claim X1
Plaintiff asserts that when defendants failed to respond to
Plaintiffs Security Claim of Commercial Lien and Affidavit, pursuant
to 15 U.S.C.[sic], they admitted to the
Page 23
stated facts and creating
a valid contract "in commerce." See paragraph 67, Amended Complaint.
Plaintiff seeks DECLARATORY JUDGMENT as to the validity of
plaintiffs commercial claim and a declaration that he has a saleable,
tradeable, exchangeable security in the commercial lien. Plaintiff
claims to have obtained the commercial lien by default based upon an
allegation of legal malpractice. Paragraph 67, Amended Complaint.
Legal malpractice is a tort action, and as such may not serve as a
basis for a commercial lien under Minnesota law. Minn. Stat.
§336.9-104 (k)
Plaintiffs purported commercial lien was sent to the Ramsey County
Abstract Division and found to have no validity. See Affidavit of
Marc Diersen and attachments filed as Docket 9 62 in this case. In
Minnesota, a "secured transaction" applies to " (a) any transaction
which is intended to create a security interest in personal property
or fixtures ...... Minn. Stat. §336.9-102 (1) (a). Plaintiffs
commercial lien claim must fail because there was no security
interest in property which arose from plaintiff's representation by
Mr. Faulkner. Most importantly, plaintiffs commercial lien based upon
Minnesota law must yield to the determination by the State
authorities that a commercial lien was not established or registered
by plaintiff.
Absent dismissal for failure to state a claim, plaintiffs Claim IX
should result in summary judgment for defendants.
Lastly, in support of their motion for summary judgment, defendants
submit the opinion of Joseph S. Friedberg that the record, file and
transcript in plaintiffs criminal case do not support plaintiffs
claims that his trial counsel's performance fell below an objective
standard of reasonableness for a criminal defense lawyer. See
Affidavit of Joseph S.
Page 24
Friedberg. Plaintiffs
failure to support his claims of malpractice with an affidavit to
support those claims is fatal to a malpractice claim. See Minn. Stat.
§ 544.42. Even if plaintiff intended to proceed without expert
testimony, plaintiff cannot defeat defendants' summary judgment
motion by merely resting upon allegations of denial. Plaintiff must
come forward with affidavits or other admissible evidence to rebut
the motion. Celotex Com. v. Catrett, 477 U.S. -117, 324
(1986).
CONCLUSION
Defendants seek dismissal with prejudice of all of plaintiffs
claims pursuant to Rule 12(b)(6) and alternatively summary judgment
pursuant to Rule 56, Federal Rules of Civil Procedure, if the court
considers matters outside the pleadings. A threshold question for the
court is whether there is a need for a trial. There is not. Instead
there is but one reasonable conclusion as to the verdict in this
case, and judgment for defendants as a matter of law is appropriate.
See Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 250
(1986).
Dated: June 30, 2000
RESPECTFULLY SUBMITTED,
Signed: Deborah Ellis
Attorney Lic No. 14616X
Donna Rae Johnson
Attorney Lic. No. 50945
Six West Fifth Street
Suite 700
Saint Paul, MN 55102
For more information write (snail mail) JOHN GREGORY LAMBROS directly at:JOHN GREGORY LAMBROS
Prisoner No. 00436-124
U. S. Penitentiary Leavenworth
PO Box 1000
Leavenworth, KS 66048-1000
USATHANK YOU FOR YOUR SUPPORT AND ASSISTANCE IN MY BOYCOTT OF BRAZILIAN PRODUCTS.