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A legal malpractice action against Proskauer Rose for negligently drafting and improperly filing a copyright infringement case in federal court can go forward, a New York state Supreme Court judge has ruled. Sullivan County Justice Nicholas A. Clemente rejected New York-based Proskauer’s contention that malpractice and breach of contract claims brought by its former client, Andrea Plunket, should be dismissed because the firm withdrew from the case before a Southern District judge ordered her to pay more than $135,000 in fees for bringing an improper action. Southern District of New York Judge Kimba Wood had imposed “prevailing party” fees against Plunket for bringing an “objectively unreasonable” claim under the Copyright Act of 1976. Plunket, the manager-administrator of the literary properties of the late Sir Arthur Conan Doyle, sued the Estate of Dame Jean Conan Doyle in the Southern District of New York alleging copyright and trademark infringements of the literary properties. Wood dismissed the case in February 2001 and two weeks later allowed Proskauer to withdraw from the case. Plunket withdrew her federal claim the following week, but the estate pursued a claim for prevailing party attorney fees and costs, which the judge awarded, totaling $135,521. Judge Wood found Plunket had improperly brought the suit in the Southern District as there were no contacts between the estate of the author’s daughter and the Southern District, and Plunket had neither standing to bring the claims nor had she joined necessary parties. While striking Plunket’s breach of contract and punitive damages claims in Sullivan County court, Clemente said in a Jan. 24 ruling in Plunket v. Hart, 1852/02, that she had clearly stated a legal malpractice claim. Plunket also alleged that had she been given appropriate legal advice by Proskauer, she would not have commenced the action as drafted in the Southern District. (The substance of the infringement claim has been filed in a new action on behalf of the owners of the literary properties in U.S. District Court for the District of Columbia, Clemente’s decision noted.) Proskauer unsuccessfully argued that Plunket’s withdrawal of her claims in the Southern District without repleading them — as she had been given an opportunity to do — led to the imposition of the prevailing party fees. Justice Clemente said the argument that the complaint could have been successfully repleaded was speculative and could not support a motion to dismiss. The judge also noted that Proskauer tried to “shift the blame” for the award of the prevailing party fees to the attorney who succeeded the firm in the action, Samuel L. Newman of New City, N.Y. “[H]owever, it cannot be forgotten that Proskauer was the first attorney to unsuccessfully present plaintiff’s arguments on the issues of standing, joinder of parties and proper forum on the motion to dismiss the federal action,” he said. Justice Clemente also rejected Proskauer’s motion to disqualify Newman from representing Plunket in the malpractice action. Proskauer had argued that Newman was a necessary witness on the issue of Plunket’s withdrawal of the infringement complaint in federal court, but the judge said Newman’s potential testimony appeared to be unnecessary in light of the availability of other evidence. The judge also rejected the firm’s motion for a change of venue, observing that Plunket’s residence was in Sullivan County. Leon P. Gold of Proskauer led the firm’s defense.

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