A lawyer’s crooked conduct, even in an unrelated case, amounts to extraordinary circumstances warranting equitable tolling of the statute of limitations in his client’s personal injury suit, a federal judge held Wednesday.
The deadline should be fluid because attorney Ray Marchan’s misdeeds, bribing a judge in other cases, did not undermine the reasonableness of the plaintiff’s reliance on him, U.S. District Judge Renee Bumb said.
She held that the suit, Flores v. Predco Services Corp., 10-cv-1320, which was first erroneously filed in Texas, should not be thrown out.
Luis Flores, 53, of Brownsville, Texas, lost most of his right arm in an accident on Jan. 26, 2006, while working on a commercial shrimp vessel in the Gulf of Mexico. His lawyer, Marchan, filed suit in state court in Brownsville in January 2007 against Predco Services Corp. of Pennsauken, which made a winch he claimed was defective and caused the injury.
Predco moved for dismissal based on lack of personal jurisdiction, but Judge Abel Limas denied the motion in August 2008. In February 2010, the Texas Court of Appeals overturned Limas’ ruling.
Flores then sued Predco, pro se, in the District of New Jersey on March 12, 2010. Marchan entered his appearance pro hac vice in October 2010 and in October 2011, Louis DeVoto of Rossetti & DeVoto in Cherry Hill took over the case.
Predco moved for dismissal, saying the three-year deadline for maritime torts applied, under 46 U.S.C. § 763A.
In March 2011, Bumb ruled that the statute of limitations had not tolled because Flores diligently filed his case in Texas and relied on Limas’ ruling that the Texas court had personal jurisdiction.
Predco moved for reconsideration, but Bumb denied the motion in July 2011.
This past January, Predco filed a second motion for reconsideration, citing new evidence — Limas’ guilty plea to charges he took bribes and Marchan’s indictment on charges he bribed Limas in three cases unrelated to Flores’.
Authorities alleged that Marchan paid Limas $5,000 to deny a motion for sanctions against him by opposing counsel. Marchan also allegedly paid Limas $6,200 to appoint him guardian ad litem in two other cases.
Marchan was found guilty last June of racketeering, racketeering conspiracy, and aiding and abetting extortion and mail fraud. Sentencing is scheduled for Dec. 6.
Limas, who admitted taking bribes from Marchan and three other lawyers and is cooperating with authorities, pleaded guilty to racketeering in March 2011. Sentencing is scheduled for April 2013.
Predco, in its second attempt at dismissal, said Bumb’s finding that Flores reasonably relied on Limas’ jurisdiction ruling may have been reasonable in light of information available then but was unreasonable in light of his plea.
“It is not just, fair or equitable for a party to obtain a tolling of the statute of limitations on the basis of a ruling by a judicial officer who is in the pay of the party’s attorney,” Predco said in its brief.
“It is unconscionable that Mr. Marchan hid from this court the true nature of his relationship with the Texas trial judge, even after (and perhaps especially because) it became clear that this court was relying on the ruling of the Texas judge as a fair and impartial decision that would support equitable relief,” it continued.
Bumb said she was being asked “whether the sins of an attorney should be visited on his client,” and her answer was no.
She said she agreed to an extent that Flores’ reliance on Limas’ decision was unreasonable and therefore he failed to pursue his claims with reasonable diligence, as required for equitable tolling.
But Marchan’s criminal behavior does not undercut the reasonableness of Flores’ conduct, she found.
In light of the lack of evidence Flores was aware of his attorney’s misdeeds, “Marchan cannot be said to have been acting as plaintiff’s agent with respect to Marchan’s criminal conduct” and Flores “cannot be held constructively responsible for Marchan’s misconduct,” Bumb wrote.
“[W]hile it would have been unreasonable and inexcusable for Marchan to rely on Limas’ decision, it would not undermine the reasonableness of plaintiff’s own reliance on it,” she added.
Furthermore, Bumb said Marchan’s misconduct constitutes an extraordinary circumstance, given the U.S. Supreme Court’s ruling in Holland v. Florida, 130 U.S. 2549 (2010), that even negligent attorney misconduct may warrant equitable tolling.
DeVoto did not return a call. Neither did Predco’s attorneys, Kevin Bronson of Kent & McBride in Cherry Hill and William Moye of Thompson, Coe, Cousins & Irons in Houston. •