answer of kleinman in figueroa v. szymoniak
DESCRIPTION
Named in Figueroa's complaint, this is a law firm that Lynn brought in for some reason.TRANSCRIPT
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA
Case No. 0:13-Civ-61020-Cohn/Seltzer
IGNACIO DAMIAN FIGUEROA,
Plaintiff, vs. LYNN SZYMONIAK, ESQUIRE, individually and as a shareholder/member/owner of The Szymoniak Firm, P.A.; THE SZYMONIAK FIRM, P.A., a Florida professional association; HAL J. KLEINMAN, ESQUIRE, individually; JANET, JENNER & SUGGS, LLC,
Defendants. /
DEFENDANTS HAL J. KLEINMAN, ESQ. AND JANET, JENNER & SUGGS, LLC’ S ANSWER AND AFFIRMATIVE DEFENSES
COMES NOW, the Defendants, HAL J. KLEINMAN, ESQUIRE, individually, and
JANET, JENNER & SUGGS, LLC, (hereby collectively referred to as the “Janet Defendants”)
by and through their undersigned counsel and file this their Answer and Affirmative Defenses to
the Plaintiff’s claim, and in response thereto state as follows:
PARTIES AND JURISDICTION
1. The Janet Defendants deny that they are liable to the Plaintiff and therefore deny
Plaintiff is entitled to any damages.
2. The Janet Defendants are without knowledge as to the allegations in paragraph 2
of the Complaint and therefore neither admit nor deny same and leave Plaintiff to his proofs.
3. As the allegations in paragraph 3 of the Complaint are directed to a Co-
Defendant, the Janet Defendants neither admit nor deny same.
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4. As the allegations in paragraph 4 of the Complaint are directed to a Co-
Defendant, the Janet Defendants neither admit nor deny same.
5. As the allegations in paragraph 5 of the Complaint are directed to a Co-
Defendant, the Janet Defendants neither admit nor deny same.
6. Defendant Kleinman admits he is an attorney licensed in the State of Illinois and
Pennsylvania to practice law. Defendant Kleinman denies he was retained by or entered into an
attorney-client relationship with the Plaintiff.
7. Defendant Janet Jenner & Suggs, LLC admits only that it is a Maryland Limited
Liability Company. Defendant Janet Jenner & Suggs LLC denies that it represented or had an
attorney-client relationship with the Plaintiff and further denies the remaining allegations of
paragraph 7 of the Plaintiff’s Complaint.
8. Defendants Janet admit only that Defendant Kleinman was an employee of
Defendant Janet Jenner & Suggs. The Janet Defendants deny that they represented or had an
attorney-client relationship with the Plaintiff.
9. The allegations in paragraph 9 of the Plaintiff’s Complaint are denied.
10. The allegations in paragraph 10 of the Plaintiff’s Complaint are denied.
GENERAL ALLEGATIONS
11. The Janet Defendants are without knowledge as to the allegations in paragraph 11
of the Complaint and therefore neither admit nor deny same and leave Plaintiff to his proofs.
12. The Janet Defendants are without knowledge as to the allegations in paragraph 12
of the Complaint and therefore neither admit nor deny same and leave Plaintiff to his proofs.
13. The Janet Defendants are without knowledge as to the allegations in paragraph 13
of the Complaint and therefore neither admit nor deny same and leave Plaintiff to his proofs.
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14. The Janet Defendants are without knowledge as to the allegations in paragraph 14
of the Complaint and therefore neither admit nor deny same and leave Plaintiff to his proofs.
15. The Janet Defendants are without knowledge as to the allegations in paragraph 15
of the Complaint and therefore neither admit nor deny same and leave Plaintiff to his proofs.
16. The Janet Defendants are without knowledge as to the allegations in paragraph 16
of the Complaint and therefore neither admit nor deny same and leave Plaintiff to his proofs.
17. The Janet Defendants are without knowledge as to the allegations in paragraph 17
of the Complaint and therefore neither admit nor deny same and leave Plaintiff to his proofs.
18. The Janet Defendants are without knowledge as to the allegations in paragraph 18
of the Complaint and therefore neither admit nor deny same and leave Plaintiff to his proofs.
19. The Janet Defendants are without knowledge as to the allegations in paragraph 19
of the Complaint and therefore neither admit nor deny same and leave Plaintiff to his proofs.
20. The Janet Defendants are without knowledge as to the allegations in paragraph 20
of the Complaint and therefore neither admit nor deny same and leave Plaintiff to his proofs.
The Janet Defendants deny that they had an attorney-client relationship with the Plaintiff.
21. The Janet Defendants are without knowledge as to the allegations in paragraph 21
of the Complaint and therefore neither admit nor deny same and leave Plaintiff to his proofs.
22. The Janet Defendants are without knowledge as to the allegations in paragraph 22
of the Complaint and therefore neither admit nor deny same and leave Plaintiff to his proofs.
The Janet Defendants deny that they had an attorney-client relationship with the Plaintiff.
23. The Janet Defendants are without knowledge as to the allegations in paragraph 23
of the Complaint and therefore neither admit nor deny same and leave Plaintiff to his proofs.
The Janet Defendants deny that they had an attorney-client relationship with the Plaintiff.
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24. The Janet Defendants are without knowledge as to the allegations in paragraph 24
of the Complaint and therefore neither admit nor deny same and leave Plaintiff to his proofs.
The Janet Defendants deny that they had an attorney-client relationship with the Plaintiff.
25. The Janet Defendants are without knowledge as to the allegations in paragraph 25
of the Complaint and therefore neither admit nor deny same and leave Plaintiff to his proofs.
The Janet Defendants deny that they had an attorney-client relationship with the Plaintiff.
26. Defendants deny that they had an obligation to undertake the activities set forth in
the allegations of the Plaintiff’s Complaint as they did not represent or have an attorney-client
relationship with the Plaintiff.
(a) Defendants deny that they had an obligation to undertake the activities set forth in the allegations of the Plaintiff’s Complaint as they did not represent or have an attorney-client relationship with the Plaintiff.
(b) Defendants deny that they had an obligation to undertake the activities set forth in the allegations of the Plaintiff’s Complaint as they did not represent or have an attorney-client relationship with the Plaintiff.
(c) Defendants deny that they had an obligation to undertake the activities set forth in the allegations of the Plaintiff’s Complaint as they did not represent or have an attorney-client relationship with the Plaintiff.
(d) Defendants deny that they had an obligation to undertake the activities set forth in the allegations of the Plaintiff’s Complaint as they did not represent or have an attorney-client relationship with the Plaintiff.
(e) Defendants deny that they had an obligation to undertake the activities set forth in the allegations of the Plaintiff’s Complaint as they did not represent or have an attorney-client relationship with the Plaintiff.
27. The allegations in paragraph 27 of the Plaintiff’s Complaint are denied as phrased.
28. Defendants deny that they had an obligation to undertake the activities set forth in
the allegations of the Plaintiff’s Complaint as they did not represent or have an attorney-client
relationship with the Plaintiff.
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29. Defendants deny that they had an obligation to undertake the activities set forth in
the allegations of the Plaintiff’s Complaint as they did not represent or have an attorney-client
relationship with the Plaintiff.
30. The Janet Defendants deny that the Plaintiff had a belief that the Janet Defendants
represented or had an attorney-client relationship with the Plaintiff. Remaining allegations are
denied.
31. The Janet Defendants deny that the Plaintiff had a belief that the Janet Defendants
represented or had an attorney-client relationship with the Plaintiff. Remaining allegations are
denied.
32. The Janet Defendants deny that the Plaintiff had a belief that the Janet Defendants
represented or had an attorney-client relationship with the Plaintiff or that he was assisting them
with a Qui Tam action. Remaining allegations are denied.
33. The Janet Defendants deny that the Plaintiff had a belief that the Janet Defendants
represented or had an attorney-client relationship with the Plaintiff. Remaining allegations are
denied. Remaining allegations are denied.
34. Defendant Kleinman admits that he received a copy of the Plaintiff's deed and that
he spoke with Plaintiff and Co-Defendant Szymoniak generally regarding a class action that was
pending in Florida. At no time did Defendant Kleinman undertake to represent the Plaintiff and
did not offer any specific advice with regard to the Plaintiff's circumstances
35. Defendant Kleinman admits that he received a copy of the Plaintiff's deed and that
he spoke with Plaintiff and Co-Defendant Szymoniak generally regarding the class action that
was pending in Florida. At no time did Defendant Kleinman undertake to represent the Plaintiff
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and did not offer any specific advice with regard to the Plaintiff's circumstances. Defendant
Kleinman did not discuss a Qui Tam Action with the Plaintiff during that call.
36. The Janet Defendants deny that the Plaintiff had a belief he was or would be
represented by the Janet Defendants in a Qui Tam action in which he would be the relator. The
Janet Defendants further deny that they represented the Plaintiff. The remaining allegations of
paragraph 36 are denied.
37. The Janet Defendants deny that the Plaintiff had a belief he was or would be
represented by the Janet Defendants in a Qui Tam action in which he would be the relator. The
Janet Defendants further deny that they represented the Plaintiff. The remaining allegations of
paragraph 37 are denied.
38. The Janet Defendants are without knowledge as to the allegations in paragraph 38
of the Complaint and therefore neither admit nor deny same and leave Plaintiff to his proofs.
39. The Janet Defendants deny that the Plaintiff had a belief he was or would be
represented by the Janet Defendants in a Qui Tam action in which he would be the relator. The
Janet Defendants further deny that they represented the Plaintiff. The remaining allegations of
paragraph 39 are denied.
40. The Janet Defendants are without knowledge as to the allegations in paragraph 40
of the Complaint and therefore neither admit nor deny same and leave Plaintiff to his proofs.
41. The Janet Defendants deny that the Plaintiff had a belief he was or would be
represented by the Janet Defendants in a Qui Tam action in which he would be the relator. The
Janet Defendants further deny that they represented the Plaintiff. The remaining allegations of
paragraph 41 are denied.
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42. The Janet Defendants are without knowledge as to the allegations in paragraph
42 of the Complaint and therefore neither admit nor deny same and leave Plaintiff to his proofs.
43. Defendants deny that they had an obligation to undertake the activities set forth in
the allegations of the Plaintiff’s Complaint as they did not represent or have an attorney-client
relationship with the Plaintiff.
(a) Defendants deny that they had an obligation to undertake the activities set forth in the allegations of the Plaintiff’s Complaint as they did not represent or have an attorney-client relationship with the Plaintiff.
(b) Defendants deny that they had an obligation to undertake the activities set forth in the allegations of the Plaintiff’s Complaint as they did not represent or have an attorney-client relationship with the Plaintiff.
(c) Defendants deny that they had an obligation to undertake the activities set forth in the allegations of the Plaintiff’s Complaint as they did not represent or have an attorney-client relationship with the Plaintiff.
(d) Defendants deny that they had an obligation to undertake the activities set forth in the allegations of the Plaintiff’s Complaint as they did not represent or have an attorney-client relationship with the Plaintiff.
(e) Defendants deny that they had an obligation to undertake the activities set forth in the allegations of the Plaintiff’s Complaint as they did not represent or have an attorney-client relationship with the Plaintiff.
44. Defendants deny that they had an obligation to undertake the activities set forth in
the allegations of the Plaintiff’s Complaint as they did not represent or have an attorney-client
relationship with the Plaintiff.
(a) Defendants deny that they had an obligation to undertake the activities set forth in the allegations of the Plaintiff’s Complaint as they did not represent or have an attorney-client relationship with the Plaintiff.
(b) Defendants deny that they had an obligation to undertake the activities set forth in the allegations of the Plaintiff’s Complaint as they did not represent or have an attorney-client relationship with the Plaintiff.
(c) Defendants deny that they had an obligation to undertake the activities set forth in the allegations of the Plaintiff’s Complaint as they did not represent or have an attorney-client relationship with the Plaintiff.
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45. The Janet Defendants are without knowledge as to the allegations in paragraph 45
of the Complaint and therefore neither admit nor deny same and leave Plaintiff to his proofs.
46. The Janet Defendants are without knowledge as to the allegations in paragraph 46
of the Complaint and therefore neither admit nor deny same and leave Plaintiff to his proofs.
47. The Janet Defendants deny that the Plaintiff had a belief he was or would be
represented by the Janet Defendants in a Qui Tam action in which he would be the relator. The
Janet Defendants further deny that they represented the Plaintiff. The remaining allegations of
paragraph 47 are denied.
48. Defendants deny that they had an obligation to undertake the activities set forth in
the allegations of the Plaintiff’s Complaint as they did not represent or have an attorney-client
relationship with the Plaintiff.
49. Admitted.
50. Admitted.
51. The Janet Defendants deny that the Plaintiff had a belief he was or would be
represented by the Janet Defendants in a Qui Tam action in which he would be the relator. The
Janet Defendants further deny that they represented the Plaintiff. The Janet Defendants deny that
they had an obligation to undertake the activities set forth in the allegations of the Plaintiff’s
Complaint as they did not represent or have an attorney-client relationship with the Plaintiff.
52. The Janet Defendants deny that the Plaintiff had a belief he was or would be
represented by the Janet Defendants in a Qui Tam action in which he would be the relator. The
Janet Defendants further deny that they represented the Plaintiff. The Janet Defendants deny that
they had an obligation to undertake the activities set forth in the allegations of the Plaintiff’s
Complaint as they did not represent or have an attorney-client relationship with the Plaintiff
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53. The Janet Defendants deny that the Plaintiff had a belief he was or would be
represented by the Janet Defendants in a Qui Tam action in which he would be the relator. The
Janet Defendants further deny that they represented the Plaintiff. The remaining allegations of
paragraph 53 regarding settlement figures are denied as phrased.
54. The Janet Defendants deny that the Plaintiff had a belief he was or would be
represented by the Janet Defendants in a Qui Tam action in which he would be the relator. The
Janet Defendants further deny that they represented the Plaintiff. The remaining allegations of
paragraph 54 are denied as phrased.
55. The Janet Defendants deny that they were retained by Plaintiff to represent him as
a relator in a Qui Tam. Since the Janet Defendants did not represent Plaintiff in the Qui Tam
action they therefore had no duty to withdraw from such representation. The remaining
allegations of paragraph 55 are denied.
COUNT I LEGAL MALPRACTICE AS TO DEFENDANTS,
LYNN SZYMONIAK, ESQUIRE & THE SZYMONIAK FIRM, P.A.
56. The Janet Defendants reassert and restate their responses to paragraphs 1 through
55 of the Plaintiff’s Complaint as if fully set forth herein.
57. As the allegations in paragraph 57 of the Plaintiff’s Complaint are directed to Co-
Defendant and not the Janet Defendants, the Janet Defendants neither admit nor deny same and
leave Plaintiff to his proofs. To the extent that the allegations are construed as asserting a claim
against the Janet Defendants, they are denied.
58. As the allegations in paragraph 58 of the Plaintiff’s Complaint are directed to Co-
Defendant and not the Janet Defendants, the Janet Defendants neither admit nor deny same and
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leave Plaintiff to his proofs. To the extent that the allegations are construed as asserting a claim
against the Janet Defendants, they are denied.
59. As the allegations in paragraph 59 of the Plaintiff’s Complaint are directed to Co-
Defendant and not the Janet Defendants, the Janet Defendants neither admit nor deny same and
leave Plaintiff to his proofs. To the extent that the allegations are construed as asserting a claim
against the Janet Defendants, they are denied.
(a) As the allegations in paragraph 59(a) of the Plaintiff’s Complaint are directed to Co-Defendant and not the Janet Defendants, the Janet Defendants neither admit nor deny same and leave Plaintiff to his proofs. To the extent that the allegations are construed as asserting a claim against the Janet Defendants, they are denied.
(b) As the allegations in paragraph 59(b) of the Plaintiff’s Complaint are directed to Co-Defendant and not the Janet Defendants, the Janet Defendants neither admit nor deny same and leave Plaintiff to his proofs. To the extent that the allegations are construed as asserting a claim against the Janet Defendants, they are denied.
(c) As the allegations in paragraph 59(c) of the Plaintiff’s Complaint are directed to Co-Defendant and not the Janet Defendants, the Janet Defendants neither admit nor deny same and leave Plaintiff to his proofs. To the extent that the allegations are construed as asserting a claim against the Janet Defendants, they are denied.
(d) As the allegations in paragraph 59(d) of the Plaintiff’s Complaint are directed to Co-Defendant and not the Janet Defendants, the Janet Defendants neither admit nor deny same and leave Plaintiff to his proofs. To the extent that the allegations are construed as asserting a claim against the Janet Defendants, they are denied.
(e) As the allegations in paragraph 59(e) of the Plaintiff’s Complaint are directed to Co-Defendant and not the Janet Defendants, the Janet Defendants neither admit nor deny same and leave Plaintiff to his proofs. To the extent that the allegations are construed as asserting a claim against the Janet Defendants, they are denied.
(f) As the allegations in paragraph 59(f) of the Plaintiff’s Complaint are directed to Co-Defendant and not the Janet Defendants, the Janet Defendants neither admit nor deny same and leave Plaintiff to his proofs. To the extent that the allegations are construed as asserting a claim against the Janet Defendants, they are denied.
(g) As the allegations in paragraph 59(g) of the Plaintiff’s Complaint are directed to Co-Defendant and not the Janet Defendants, the Janet Defendants neither admit nor deny same and leave Plaintiff to his proofs. To the extent that the allegations are construed as asserting a claim against the Janet Defendants, they are denied.
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(h) As the allegations in paragraph 59(h) of the Plaintiff’s Complaint are directed to Co-Defendant and not the Janet Defendants, the Janet Defendants neither admit nor deny same and leave Plaintiff to his proofs. To the extent that the allegations are construed as asserting a claim against the Janet Defendants, they are denied.
60. As the allegations in paragraph 60 of the Plaintiff’s Complaint are directed to Co-
Defendant and not the Janet Defendants, the Janet Defendants neither admit nor deny same and
leave Plaintiff to his proofs. To the extent that the allegations are construed as asserting a claim
against the Janet Defendants, they are denied.
(a) As the allegations in paragraph 60(a) of the Plaintiff’s Complaint are directed to Co-Defendant and not the Janet Defendants, the Janet Defendants neither admit nor deny same and leave Plaintiff to his proofs. To the extent that the allegations are construed as asserting a claim against the Janet Defendants, they are denied.
(b) As the allegations in paragraph 60(b) of the Plaintiff’s Complaint are directed to Co-Defendant and not the Janet Defendants, the Janet Defendants neither admit nor deny same and leave Plaintiff to his proofs. To the extent that the allegations are construed as asserting a claim against the Janet Defendants, they are denied.
(c) As the allegations in paragraph 60(c) of the Plaintiff’s Complaint are directed to Co-Defendant and not the Janet Defendants, the Janet Defendants neither admit nor deny same and leave Plaintiff to his proofs. To the extent that the allegations are construed as asserting a claim against the Janet Defendants, they are denied.
(d) As the allegations in paragraph 60(d) of the Plaintiff’s Complaint are directed to Co-Defendant and not the Janet Defendants, the Janet Defendants neither admit nor deny same and leave Plaintiff to his proofs. To the extent that the allegations are construed as asserting a claim against the Janet Defendants, they are denied.
COUNT II BREACH OF FIDUCIARY DUTY AS TO DEFENDANTS,
LYNN SZYMONIAK, ESQUIRE & THE SZYMONIAK FIRM, P.A.
61. The Janet Defendants re-assert and restate their responses to paragraphs 1 through
55 of the Plaintiff’s Complaint as if fully set forth herein.
62. As the allegations in paragraph 62 of the Plaintiff’s Complaint are directed to Co-
Defendant and not the Janet Defendants, the Janet Defendants neither admit nor deny same and
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leave Plaintiff to his proofs. To the extent that the allegations are construed as asserting a claim
against the Janet Defendants, they are denied.
63. As the allegations in paragraph 63 of the Plaintiff’s Complaint are directed to Co-
Defendant and not the Janet Defendants, the Janet Defendants neither admit nor deny same and
leave Plaintiff to his proofs. To the extent that the allegations are construed as asserting a claim
against the Janet Defendants, they are denied.
(a) As the allegations in paragraph 63(a) of the Plaintiff’s Complaint are directed to Co-Defendant and not the Janet Defendants, the Janet Defendants neither admit nor deny same and leave Plaintiff to his proofs. To the extent that the allegations are construed as asserting a claim against the Janet Defendants, they are denied.
(b) As the allegations in paragraph 63(b) of the Plaintiff’s Complaint are directed to Co-Defendant and not the Janet Defendants, the Janet Defendants neither admit nor deny same and leave Plaintiff to his proofs. To the extent that the allegations are construed as asserting a claim against the Janet Defendants, they are denied.
(c) As the allegations in paragraph 63(c) of the Plaintiff’s Complaint are directed to Co-Defendant and not the Janet Defendants, the Janet Defendants neither admit nor deny same and leave Plaintiff to his proofs. To the extent that the allegations are construed as asserting a claim against the Janet Defendants, they are denied.
(d) As the allegations in paragraph 63(d) of the Plaintiff’s Complaint are directed to Co-Defendant and not the Janet Defendants, the Janet Defendants neither admit nor deny same and leave Plaintiff to his proofs. To the extent that the allegations are construed as asserting a claim against the Janet Defendants, they are denied.
(e) As the allegations in paragraph 63(e) of the Plaintiff’s Complaint are directed to Co-Defendant and not the Janet Defendants, the Janet Defendants neither admit nor deny same and leave Plaintiff to his proofs. To the extent that the allegations are construed as asserting a claim against the Janet Defendants, they are denied.
(f) As the allegations in paragraph 63(f) of the Plaintiff’s Complaint are directed to Co-Defendant and not the Janet Defendants, the Janet Defendants neither admit nor deny same and leave Plaintiff to his proofs. To the extent that the allegations are construed as asserting a claim against the Janet Defendants, they are denied.
(g) As the allegations in paragraph 63(g) of the Plaintiff’s Complaint are directed to Co-Defendant and not the Janet Defendants, the Janet Defendants neither admit nor deny same and leave Plaintiff to his proofs. To the extent that the allegations are construed as asserting a claim against the Janet Defendants, they are denied.
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(h) As the allegations in paragraph 63(h) of the Plaintiff’s Complaint are directed to Co-Defendant and not the Janet Defendants, the Janet Defendants neither admit nor deny same and leave Plaintiff to his proofs. To the extent that the allegations are construed as asserting a claim against the Janet Defendants, they are denied.
(i) As the allegations in paragraph 63(i) of the Plaintiff’s Complaint are directed to Co-Defendant and not the Janet Defendants, the Janet Defendants neither admit nor deny same and leave Plaintiff to his proofs. To the extent that the allegations are construed as asserting a claim against the Janet Defendants, they are denied.
(j) As the allegations in paragraph 63(j) of the Plaintiff’s Complaint are directed to Co-Defendant and not the Janet Defendants, the Janet Defendants neither admit nor deny same and leave Plaintiff to his proofs. To the extent that the allegations are construed as asserting a claim against the Janet Defendants, they are denied.
(k) As the allegations in paragraph 63(k) of the Plaintiff’s Complaint are directed to Co-Defendant and not the Janet Defendants, the Janet Defendants neither admit nor deny same and leave Plaintiff to his proofs. To the extent that the allegations are construed as asserting a claim against the Janet Defendants, they are denied.
64. As the allegations in paragraph 64 of the Plaintiff’s Complaint are directed to Co-
Defendant and not the Janet Defendant, the Janet Defendants neither admit nor deny same and
leave Plaintiff to his proofs. To the extent that the allegations are construed as asserting a claim
against the Janet Defendants, they are denied.
COUNT III UNJUST ENRICHMENT AS TO DEFENDANT, LYNN
SZYMONIAK, ESQUIRE
65. The Janet Defendants re-assert and restate their responses to paragraphs 1 through
55 of the Plaintiff’s Complaint as if fully set forth herein.
66. As the allegations in paragraph 66 of the Plaintiff’s Complaint are directed to Co-
Defendant and not the Janet Defendants, the Janet Defendants neither admit nor deny same and
leave Plaintiff to his proofs. To the extent that the allegations are construed as asserting a claim
against the Janet Defendants, they are denied.
67. As the allegations in paragraph 67 of the Plaintiff’s Complaint are directed to Co-
Defendant and not the Janet Defendants, the Janet Defendants neither admit nor deny same and
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leave Plaintiff to his proofs. To the extent that the allegations are construed as asserting a claim
against the Janet Defendants, they are denied.
68. As the allegations in paragraph 68 of the Plaintiff’s Complaint are directed to Co-
Defendant and not the Janet Defendants, the Janet Defendants neither admit nor deny same and
leave Plaintiff to his proofs. To the extent that the allegations are construed as asserting a claim
against the Janet Defendants, they are denied.
69. As the allegations in paragraph 69 of the Plaintiff’s Complaint are directed to Co-
Defendant and not the Janet Defendants, the Janet Defendants neither admit nor deny same and
leave Plaintiff to his proofs. To the extent that the allegations are construed as asserting a claim
against the Janet Defendants, they are denied.
70. As the allegations in paragraph 70 of the Plaintiff’s Complaint are directed to Co-
Defendant and not the Janet Defendants, the Janet Defendants neither admit nor deny same and
leave Plaintiff to his proofs. To the extent that the allegations are construed as asserting a claim
against the Janet Defendants, they are denied.
COUNT IV FRAUD AS TO DEFENDANT, LYNN SZYMONIAK, ESQUIRE
71. The Janet Defendants re-assert and restate their responses to paragraphs 1 through
55 of the Plaintiff’s Complaint as if fully set forth herein.
72. As the allegations in paragraph 72 of the Plaintiff’s Complaint are directed to Co-
Defendant and not the Janet Defendants, the Janet Defendants neither admit nor deny same and
leave Plaintiff to his proofs. To the extent that the allegations are construed as asserting a claim
against the Janet Defendants, they are denied.
73. As the allegations in paragraph 73 of the Plaintiff’s Complaint are directed to Co-
Defendant and not the Janet Defendants, the Janet Defendants neither admit nor deny same and
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leave Plaintiff to his proofs. To the extent that the allegations are construed as asserting a claim
against the Janet Defendants, they are denied.
74. As the allegations in paragraph 74 of the Plaintiff’s Complaint are directed to Co-
Defendant and not the Janet Defendants, the Janet Defendants neither admit nor deny same and
leave Plaintiff to his proofs. To the extent that the allegations are construed as asserting a claim
against the Janet Defendants, they are denied.
75. As the allegations in paragraph 75 of the Plaintiff’s Complaint are directed to Co-
Defendant and not the Janet Defendants, the Janet Defendants neither admit nor deny same and
leave Plaintiff to his proofs. To the extent that the allegations are construed as asserting a claim
against the Janet Defendants, they are denied.
76. As the allegations in paragraph 76 of the Plaintiff’s Complaint are directed to Co-
Defendant and not the Janet Defendants, the Janet Defendants neither admit nor deny same and
leave Plaintiff to his proofs. To the extent that the allegations are construed as asserting a claim
against the Janet Defendants, they are denied.
(a) As the allegations in paragraph 76(a) of the Plaintiff’s Complaint are directed to Co-Defendant and not the Janet Defendants, the Janet Defendants neither admit nor deny same and leave Plaintiff to his proofs. To the extent that the allegations are construed as asserting a claim against the Janet Defendants, they are denied.
(b) As the allegations in paragraph 76(b) of the Plaintiff’s Complaint are directed to Co-Defendant and not the Janet Defendants, the Janet Defendants neither admit nor deny same and leave Plaintiff to his proofs. To the extent that the allegations are construed as asserting a claim against the Janet Defendants, they are denied.
(c) As the allegations in paragraph 76(c) of the Plaintiff’s Complaint are directed to Co-Defendant and not the Janet Defendants, the Janet Defendants neither admit nor deny same and leave Plaintiff to his proofs. To the extent that the allegations are construed as asserting a claim against the Janet Defendants, they are denied.
(d) As the allegations in paragraph 76(d) of the Plaintiff’s Complaint are directed to Co-Defendant and not the Janet Defendants, the Janet Defendants neither admit nor deny same and leave Plaintiff to his proofs. To the extent that the allegations are construed as asserting a claim against the Janet Defendants, they are denied.
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COUNT V LEGAL MALPRACTICE AS TO DEFENDANTS,
HAL J. KLEINMAN, ESQUIRE & JANET, JENNER & SUGGS, LLC
77. The Janet Defendants re-assert and restate their responses to paragraphs 1 through
55 of the Plaintiff’s Complaint as if fully set forth herein.
78. The allegations in paragraph 78 of the Plaintiff’s Complaint are denied.
79. The allegations in paragraph 79 of the Plaintiff’s complaint are denied.
80. The Janet Defendants deny that they were retained by Plaintiff to represent him as
a relator in a Qui Tam action and further deny that that they had or breached a duty to the
Plaintiff. The Janet Defendants deny that Plaintiff had a belief he was represented by the Janet
Defendants. The remaining allegations of paragraph 80 are denied.
(a) The Janet Defendants deny that they were retained by Plaintiff to represent him as a relator in a Qui Tam action and further deny that that they had or breached a duty to the Plaintiff. The Janet Defendants deny that Plaintiff had a belief he was represented by the Janet Defendants. The remaining allegations of paragraph 80(a) are denied.
(b) The Janet Defendants deny that they were retained by Plaintiff to represent him as a relator in a Qui Tam action and further deny that that they had or breached a duty to the Plaintiff. The Janet Defendants deny that Plaintiff had a belief he was represented by the Janet Defendants. The remaining allegations of paragraph 80(b) are denied.
(c) The Janet Defendants deny that they were retained by Plaintiff to represent him as a relator in a Qui Tam action and further deny that that they had or breached a duty to the Plaintiff. The Janet Defendants deny that Plaintiff had a belief he was represented by the Janet Defendants. The remaining allegations of paragraph 80(c) are denied.
(d) The Janet Defendants deny that they were retained by Plaintiff to represent him as a relator in a Qui Tam action and further deny that that they had or breached a duty to the Plaintiff. The Janet Defendants deny that Plaintiff had a belief he was represented by the Janet Defendants. The remaining allegations of paragraph 80(d) are denied.
(e) The Janet Defendants deny that they were retained by Plaintiff to represent him as a relator in a Qui Tam action and further deny that that they had or breached a
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duty to the Plaintiff. The Janet Defendants deny that Plaintiff had a belief he was represented by the Janet Defendants. The remaining allegations of paragraph 80(e) are denied.
(f) The Janet Defendants deny that they were retained by Plaintiff to represent him as a relator in a Qui Tam action and further deny that that they had or breached a duty to the Plaintiff. The Janet Defendants deny that Plaintiff had a belief he was represented by the Janet Defendants. The remaining allegations of paragraph 80(f) are denied.
(g) The Janet Defendants deny that they were retained by Plaintiff to represent him as a relator in a Qui Tam action and further deny that that they had or breached a duty to the Plaintiff. The Janet Defendants deny that Plaintiff had a belief he was represented by the Janet Defendants. The remaining allegations of paragraph 80(g) are denied.
(h) The Janet Defendants deny that they were retained by Plaintiff to represent him as a relator in a Qui Tam action and further deny that that they had or breached a duty to the Plaintiff. The Janet Defendants deny that Plaintiff had a belief he was represented by the Janet Defendants. The remaining allegations of paragraph 80(h) are denied.
81. The allegations in paragraph 81 are denied.
(a) The allegations in paragraph 81(a) are denied.
(b) The allegations in paragraph 81(b) are denied.
(c) The allegations in paragraph 81(c) are denied.
(d) The allegations in paragraph 81(d) are denied.
Un-numbered wherefore clause. The Janet Defendants deny that the Plaintiff is entitled to the requested relief and further denies any entitlement by the Plaintiff to costs, interest or any other damages claimed.
COUNT VI BREACH OF FIDUCIARY DUTY AS TO DEFENDANTS,
HAL J. KLEINMAN. ESQUIRE & JANET, JENNER & SUGGS, LLC
82. The Janet Defendants re-assert and restate their responses to paragraphs 1 through
55 of the Plaintiff’s Complaint as if fully set forth herein.
83. The allegations in paragraph 83 of the Plaintiff’s Complaint are denied.
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84. The Janet Defendants deny that they were retained by Plaintiff to represent him as
a relator in a Qui Tam action and further deny that that they had or breached a duty to the
Plaintiff. The Janet Defendants deny that Plaintiff had a belief he was represented by the Janet
Defendants The remaining allegations of paragraph 84 are denied.
(a) The Janet Defendants deny that they were retained by Plaintiff to represent him as a relator in a Qui Tam action and further deny that that they had or breached a duty to the Plaintiff. The Janet Defendants deny that Plaintiff had a belief he was represented by the Janet Defendants. The remaining allegations of paragraph 84(a) are denied.
(b) The Janet Defendants deny that they were retained by Plaintiff to represent him as a relator in a Qui Tam action and further deny that that they had or breached a duty to the Plaintiff. The Janet Defendants deny that Plaintiff had a belief he was represented by the Janet Defendants. The remaining allegations of paragraph 84(b) are denied.
(c) The Janet Defendants deny that they were retained by Plaintiff to represent him as a relator in a Qui Tam action and further deny that that they had or breached a duty to the Plaintiff. The Janet Defendants deny that Plaintiff had a belief he was represented by the Janet Defendants. The remaining allegations of paragraph 84(c) are denied.
(d) The Janet Defendants deny that they were retained by Plaintiff to represent him as a relator in a Qui Tam action and further deny that that they had or breached a duty to the Plaintiff. The Janet Defendants deny that Plaintiff had a belief he was represented by the Janet Defendants. The remaining allegations of paragraph 84(d) are denied.
(e) The Janet Defendants deny that they were retained by Plaintiff to represent him as a relator in a Qui Tam action and further deny that that they had or breached a duty to the Plaintiff. The Janet Defendants deny that Plaintiff had a belief he was represented by the Janet Defendants. The remaining allegations of paragraph 84(e) are denied.
(f) The Janet Defendants deny that they were retained by Plaintiff to represent him as a relator in a Qui Tam action and further deny that that they had or breached a duty to the Plaintiff. The Janet Defendants deny that Plaintiff had a belief he was represented by the Janet Defendants. The remaining allegations of paragraph 84(f) are denied.
(g) The Janet Defendants deny that they were retained by Plaintiff to represent him as a relator in a Qui Tam action and further deny that that they had or breached a duty to the Plaintiff. The Janet Defendants deny that Plaintiff had a belief he was
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represented by the Janet Defendants. The remaining allegations of paragraph 84(g) are denied.
(h) The Janet Defendants deny that they were retained by Plaintiff to represent him as a relator in a Qui Tam action and further deny that that they had or breached a duty to the Plaintiff. The Janet Defendants deny that Plaintiff had a belief he was represented by the Janet Defendants. The remaining allegations of paragraph 84(h) are denied.
(i) The Janet Defendants deny that they were retained by Plaintiff to represent him as a relator in a Qui Tam action and further deny that that they had or breached a duty to the Plaintiff. The Janet Defendants deny that Plaintiff had a belief he was represented by the Janet Defendants. The remaining allegations of paragraph 84(i) are denied.
(j) The Janet Defendants deny that they were retained by Plaintiff to represent him as a relator in a Qui Tam action and further deny that that they had or breached a duty to the Plaintiff. The Janet Defendants deny that Plaintiff had a belief he was represented by the Janet Defendants. The remaining allegations of paragraph 84(j) are denied.
(k) The Janet Defendants deny that they were retained by Plaintiff to represent him as a relator in a Qui Tam action and further deny that that they had or breached a duty to the Plaintiff. The Janet Defendants deny that Plaintiff had a belief he was represented by the Janet Defendants. The remaining allegations of paragraph 84(k) are denied.
85. The allegations in paragraph 85 are denied.
(a) The allegations in paragraph 85(a) are denied.
(b) The allegations in paragraph 85(b) are denied.
(c) The allegations in paragraph 85(c) are denied.
(d) The allegations in paragraph 85(d) are denied.
Un-numbered wherefore clause. The Janet Defendants deny that the Plaintiff is entitled to
the requested relief and further denies any entitlement by the Plaintiff to costs, interest or any
other damages claimed.
WHEREFORE, Defendants, HAL J. KLEINMAN, ESQUIRE, individually, and
JANET, JENNER & SUGGS, LLC, respectfully request that the Court enter judgment in their
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favor, dismiss the Plaintiff’s Complaint with prejudice and award said Defendants such other or
further relief as the Court may deem just and appropriate.
AFFIRMATIVE DEFENSES APPLICABLE TO ALL COUNTS OF THE PLAINTIFF’S COMPLAINT
FIRST AFFIRMATIVE DEFENSE
If the Janet Defendants did not owe a duty to Plaintiff, then the Janet Defendants cannot
be held liable for the breach of said duty.
SECOND AFFIRMATIVE DEFENSE
To the extent Plaintiff has failed to mitigate its damages, Plaintiff’s recovery, if any,
should be reduced by the amount that Plaintiff could have lessened his claimed damages.
THIRD AFFIRMATIVE DEFENSE
The transactions alleged in Plaintiff’s Second Amended Complaint fall within the
provisions of the “Tort Reform and Insurance Act of 1986” which said Act specifically
addresses, but is not limited to: Fla. Stat. §768.76, collateral sources of indemnity; Fla. Stat.
§768.78, alternative methods of payment of damage awards; §768.81, comparative fault. The
Janet Defendants plead all of the defenses available to them under said Act, specifically
including, without limitation, §768.81(3), abolishing joint and several liability, and requiring that
judgment be entered against each party liable on the basis of such party’s percentage of fault.
FOURTH AFFIRMATIVE DEFENSE
Plaintiff has failed to state a cause of action for legal malpractice as the Plaintiff did not
retain nor did the Janet Defendants undertake to represent the Plaintiff in a Qui Tam action.
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FIFTH AFFIRMATIVE DEFENSE
The Janet Defendants state that the damages alleged in Plaintiff’s Complaint were
proximately caused by the activities of Plaintiff or his agent/representative and the Defendants
bear no legal liability therefore.
SIXTH AFFIRMATIVE DEFENSE
Plaintiff’s claims are barred by the applicable Statute of Limitations.
SEVENTH AFFIRMATIVE DEFENSE
If Plaintiff was damaged either as alleged in the Complaint or at all, such damages were
directly and proximately caused by the negligence or wanton action of Plaintiff or others over
whom Defendants had no control and Plaintiff’s recovery, if any, should be reduced in
proportion to the amount of fault attributable to each.
EIGHTH AFFIRMATIVE DEFENSE
Plaintiff has failed to demonstrate a nexus between the conduct alleged in the Complaint,
Plaintiff’s alleged injuries and the acts of alleged omissions of the Janet Defendants.
Furthermore, the damages claimed by Plaintiff were not proximately caused by the Janet
Defendants herein.
NINTH AFFIRMATIVE DEFENSE
That at the time and place under the circumstances referred to in the Complaint, the
Plaintiff conducted itself in a negligent and careless manner and way and that his said negligence
and carelessness contributed to the happenings described therein and to the injuries and damages
complained of. Therefore, Plaintiff is either barred from recovery against the Janet Defendants
or his recovery should be comparatively reduced against the Janet Defendants.
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TENTH AFFIRMATIVE DEFENSE
The damages claimed by Plaintiff were not proximately caused by the Janet Defendants
herein. Specifically, the Plaintiff did not qualify as a relator under the terms of the applicable
Federal Statutes and therefore could not have been the party to bring the law suit that resulted in
the settlement referenced herein.
ELEVENTH AFFIRMATIVE DEFENSE
The damages complained by the Plaintiff, including those for loss of a potential
settlement is speculative since there is no competent evidence that Plaintiff would have been
qualified as a relator in the underlying or any Qui Tam action.
TWELFTH AFFIRMATIVE DEFENSE
The Plaintiff did not have an attorney-client relationship with the Janet Defendants and
accordingly cannot establish the elements necessary to establish the elements of that claim,
namely duty, breach of duty or proximate cause.
THIRTEENTH AFFIRMATIVE DEFENSE
The Court lacks jurisdiction over the persons of the Janet Defendants in that (a) the
Plaintiff has not alleged and cannot allege any conduct by the Janet Defendants that would
constitute the commission of a tortious act in the state of Florida, and (b) the Janet Defendants do
not possess sufficient minimum contacts with the state of Florida to satisfy due process
requirements. In the alternative and as set forth in the Notice of Removal, this case should be
transferred.
WHEREFORE, Defendants, HAL J. KLEINMAN, ESQUIRE, individually, and
JANET, JENNER & SUGGS, LLC, respectfully request that the Court enter judgment in their
favor, dismiss the Plaintiff’s Complaint with prejudice and award said Defendants such other or
further relief as the Court may deem just and appropriate
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HINSHAW & CULBERTSON, LLP 100 S. Ashley Drive, Suite 500 Tampa, Florida 33602 Telephone: 813-276-1662 Facsimile: 813-276-1956
Respectfully submitted,
s/James H. Wyman____________________ James H. Wyman Florida Bar No. 117692 [email protected] HINSHAW & CULBERTSON, LLP 2525 Ponce de Leon Blvd., 4th Floor Coral Gables, FL 33134 Telephone: 305-358-7747 Facsimile: 305-577-1063 Attorneys for Defendants HAL J. KLEINMAN, ESQUIRE, individually; JANET, JENNER & SUGGS, LLC
Certificate of Service
I hereby certify that a true and correct copy of the foregoing was served, via transmission
of Notices of Electronic Filing generated by CM/ECF, on May 8, 2013, on all counsel or parties
of record on the Service List below.
s/James H. Wyman
SERVICE LIST
Eric M. Bradstreet, Esq. [email protected] St. Denis & Davey, P.A. 1300 Riverplace Boulevard, Suite 401 Jacksonville, Florida 32207 Attorneys for Plaintiff G. Michael Keenan, Esq. [email protected] G. Michael Keenan, P.A. 1700 Old Okeechobee Rd., Suite 103 West Palm Beach, FL 33409 Attorneys for Defendants, Lynn Szymoniak, Esquire and The Szymoniak Firm, P.A.
Mark A. Cullen, Esq. [email protected] The Cullen Law Firm, P.A. 2090 Palm Beach Lakes Blvd., Suite 500 West Palm Beach, FL 33409 Attorneys for Defendants, Lynn Szymoniak, Esquire and The Szymoniak Firm, P.A.
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