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KEARNEY v. SMITH

January 2, 1986

GERALD A. KEARNEY, individually and as attorney for the Estate of Scott Joplin, and MARY L. WORMLEY, individually and as sole legatee of the Scott Joplin Estate (Deceased), Plaintiffs, against TODD L. SMITH, P.A. and individually, NAOMI BEHAR SMITH, P.A. and individually, KAREN COOLMAN AMLONG, P.A. and individually, WILLIAM R. AMLONG, GLENDALE FEDERAL, a banking corporation, formerly known as FIRST FEDERAL OF BROWARD, organized and existing under the laws of the State of Florida, and RICHARD A. BARNETT, P.A. and individually, Defendants


The opinion of the court was delivered by: COOPER

IRVING BEN COOPER, D.J.

Plaintiffs instituted this action for damages with the filing of a complaint on February 6, 1985 alleging libel and slander against an exceedingly large number of defendants. By order dated July 11, 1985 we dismissed the complaint against defendants Seymour H. Chanin, Geoffrey E. Chanin, Lothair H. Szerlip and Unibay Co., Inc. for lack of subject matter jurisdiction. Several of the remaining defendants now move for similar dismissal on a variety of grounds. In addition to considering these requests, we proceed to examine sua sponte the appropriateness of the claims against those defendants who have as yet failed to make any motions.

 Background

 Two separate sets of occurrences form the backdrop to this action. The first series concerned a judgment for $15,000 in favor of Unibay Co., Inc. ("Unibay") and against plaintiff Kearney obtained on September 22, 1980 and entered on January 6, 1981 in Special Term Part I of the Supreme Court of the State of New York, Kings County.

 In 1977 Unibay owned a commercial building in Brooklyn, New York, which it rented out to Rappa Trucking Company whose chief operating officer was Frank Rappa, brother-in-law of plaintiff Kearney. That year the tenant fell in arrears for rent, and various legal actions ensued, resulting in an agreement reached and recorded in open session of the same Supreme Court on November 30, 1977 that plaintiff and Rappa would sell a jointly owned piece of land (located in New Jersey) and pay $15,000 of the proceeds to Unibay. Subsequently, Lothair Szerlip, Esq., who at that time was counsel for Unibay, was informed by the New Jersey tax authorities that complete ownership of that piece of land had become vested in plaintiff alone and that he had sold it for $40,000. Despite this, nothing was paid to Unibay in contravention of the agreement that had been reached. Consequently, Unibay, with Geoffrey E. Chanin, Esq. as its counsel, brought a motion for summary judgment to recover its $15,000; the motion was granted by Judge Thomas R. Jones on September 22, 1980. Although the order (entered of record on January 6, 1981) was promptly served on plaintiff, no money was paid to Unibay.

 At approximately the same time these events were unfolding, Mr. Kearney became embroiled in the second set of occurrences giving rise to this litigation before us. As an attorney, Mr. Kearney represented plaintiff Mary L. Wormley in the final settlement of a claim. Plaintiff Wormley, the oldest surviving relative of singer Scott Joplin, had been awarded $105,000 in New York Supreme Court in the settlement of a dispute arising out of the use of one of Joplin's songs. An account was set up at defendant Glendale Federal Bank in Florida ("Glendale Federal") in the name of "Gerald A. Kearny in trust for Mary L. Wormley."

 Some time later (date unspecified) Mr. Kearney left New York and took up residence in Florida. Unibay, still trying to satisfy the judgment it obtained in Brooklyn, retained Florida counsel, defendant Karen Coolman Amlong, P.A. An investigation of Mr. Kearney's finances revealed a large amount of money on deposit at Glendale Federal. Mr. Kearney, however, claimed that this was not his money, that it belonged to Mrs. Wormley. Unibay sued Mr. Kearney in state court in Broward County, Florida, listing Glendale Federal as the garnishee. Mr. Kearney initially retained defendant Richard A. Barnett, Esq. to represent him during these garnishment proceedings; later Mr. Barnett withdrew from the case. Mrs. Wormley was represented by defendant Naomi Behar Smith, Esq.

 The court in Florida found that the disputed funds were indeed now owned by Mr. Kearney, not Mrs. Wormley, and accordingly awarded a judgment of $21,973.04 in favor of defendant Unibay on January 24, 1984. Glendale Federal complied with the court ordered garnishment.

 After so much strange and unusual behavior on the part of Mr. Kearney -- exemplified by his persistent evasion of his monetary obligation to Unibay and by the finding of the Florida court that the monies in the account "in trust for" Mrs. Wormley now belonged to Mr. Kearney -- several of the defendants became suspicious of his motives. In open court during the garnishment proceedings, defendant Karen Coolman Amlong, Esq. expressed her doubts about plaintiff Kearney's claims. Moreover, defendants Chanin and Naomi Behar Smith independently wrote letters to the Kings County (New York) Bar Association Disciplinary Committee urging an investigation of Mr. Kearney. The instant complaint, grounded on libel and slander, followed with Mr. Kearney claiming that each of the defendants injured his good name.

 We feel compelled to note the mysterious uncertainty that has cloaked a whole series of underlying events in this action which found its way into our Court. On August 22, 1985 we received a letter from Carole A. Burns, Esq., attorney for Todd L. Smith, P.A., complaining of the deposition schedule of witnesses that had been set by Mr. Kearney:

 Mr. Kearney is giving notice of ten depositions, primarily of non-party witnesses, which he has scheduled between September 9, 1985 and October 1, 1985. Five ... are scheduled in New York; three in Fort Lauderdale, Florida; one in Washington, D.C.; and one in Aquora, California. The three Fort Lauderdale depositions are not scheduled for the same or consecutive days....[W]e will be in ... California, on September 30th, and the very next day will be required ... in Fort Lauderdale.

 After reviewing her letter in the context of the whole case, we responded to Ms. Burns by letter dated August 23, 1985 noting: "Subject to further study the Judge is of the opinion that vital issues involving privileged and non-privileged matter should be first resolved before the unusually large number of depositions at this early stage of the case and already noticed goes forward.... [P] Accordingly, Judge Cooper directs that each and every deposition be held in abeyance until counsel are directed to proceed therewith." Copies of the letter were sent to all parties.

 On November 13, 1985 we received a telephone call from the Clerk's Office of our Court inquiring whether we had any knowledge of the whereabouts of the official docket sheet in this case. We learn that Mr. Kearney had submitted to the Judgment Clerk a proposed default judgment against defendant Glendale Federal; that the clerk spent approximately one hour reviewing the proposed judgment with Mr. Kearney. At that time, the clerk had the docket sheet. Subsequently, however, it was reported missing. After a thorough search, neither the clerk's office nor Mr. Kearney have been able to find it; Mr. Kearney sent us his most recent copy listing the latest entry as July 21, 1985. Since there is no sure way of knowing whether additional documents were thereafter filed, the Judgment Clerk has refused to give his stamp of approval to the proposed default judgment submitted by Mr. Kearney.

 We now proceed to examine the outstanding motions and plaintiffs' complaint in general.

 I. Motion to Dismiss by the Amlongs

 Defendants Karen Coolman Amlong, Karen Coolman Amlong, P.A., and William R. Amlong move to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b) on the grounds of lack of subject matter jurisdiction, personal jurisdiction, improper service and failure to state a claim upon which relief can be granted. We begin by examining into personal jurisdiction.

 Karen Coolman Amlong, an attorney licensed to practice law in the State of Florida, is the sole shareholder and director of Karen Coolman Amlong, P.A., which is a constituent of Holmes & Amlong, Esqs., the Fort Lauderdale, Florida law firm retained by Unibay to enforce the New York judgment in favor of Unibay. Defendant William R. Amlong is a law clerk with the firm.

 In order for a court to be able to exercise personal jurisdiction over a defendant not present within the territory of the forum, that defendant must have certain "minimum contacts" with the state in which the court sits "such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice." International Shoe Co. v. State of Washington, 326 U.S. 310, 316, 90 L. Ed. 95, 66 S. Ct. 154 (1945). What constitutes contact sufficient to warrant the exercise ofjurisdiction is not the mere foreseeability that the situation giving rise to the lawsuit occurred in a manner where a defendant has some tenuous link to a foreign state. Rather, "it is that the defendant's conduct and connection with the ...


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