CHRISTINE SUAREZ LOURES v. WOLF HALDENSTEIN ADLER FREEMAN & HERZ, L.L.P

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

CHRISTINE SUAREZ LOURES,

Plaintiff-Respondent,

v.

WOLF HALDENSTEIN ADLER

FREEMAN & HERZ, L.L.P.,

Defendant-Appellant.

___________________________________

March 8, 2016

Argued October 5, 2015 - Decided

Before Judges Nugent and Higbee.

On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-1700-14.

Thomas H. Burt (Bressler, Amery & Ross) of the New York bar, admitted pro hac vice, argued the cause for appellant (Wolf Haldenstein Adler Freeman & Herz, and Mr. Burt, attorneys; Mark M. Tallmadge and Mr. Burt, on the brief).

Michael S. Kasanoff argued the cause for respondent.

PER CURIAM

This is a legal malpractice action. On leave granted, defendant Wolf Haldenstein Adler Freeman & Herz LLP (the Law Firm) appeals from a Law Division order denying its motion to dismiss the complaint based on lack of personal jurisdiction, lack of subject matter jurisdiction, and the doctrine of forum non conveniens. The Law Firm served as lead counsel in a federal securities class action lawsuit. Plaintiff Christine Suarez Loures, a class member, participated in the settlement, relying on the notice of proposed settlement's estimated recovery of twenty-eight cents per share. When she received only three cents per share, she filed this action, which the Law Division refused to dismiss on the Law Firm's motion.

Having considered the parties' arguments in light of the record and prevailing legal principles, we conclude the federal court's retention of exclusive jurisdiction over the parties for all matters relating to the action requires plaintiff to file this action in that venue. Accordingly, we reverse the order denying the Law Firm's dismissal motion, and we dismiss the complaint without prejudice subject to reinstatement should the federal district court decline jurisdiction.

We derive the following facts from the motion record. Plaintiff is a resident of New Jersey. The Law Firm is a limited liability partnership registered in New York, New York with offices in New York; Chicago, Illinois; and San Diego, California. The Law Firm has no offices in New Jersey and owns no property in New Jersey.

In May 2005, the Law Firm filed a federal securities class action, Egleston v. Heartland Indus. Partners, L.P., No. 06-13555, 2 009 U.S. Dist. LEXIS 4052 (E.D. Mich. Jan. 21, 2009), in the United States District Court for the Southern District of New York on behalf of certain purchasers (the Egleston class) of publicly-traded securities in Collins & Aikman, Inc. (C&A). On July 10, 2006, the Law Firm was appointed lead counsel. The next day, the class action was transferred to the Eastern District of Michigan and consolidated with related cases there. Plaintiff was a member of the Egleston class, having purchased 900,000 shares of C&A common stock during the relevant time period.

In February 2010, the Egleston parties agreed to a settlement. The district court preliminarily approved the parties' "Stipulation and . . . Settlement . . . subject to further consideration at the Settlement Fairness Hearing," and preliminarily certified the class. The court also approved the "form, substance and requirements of the Notice of Pendency of Class Action and Proposed Settlement, Motion for Attorneys' Fees and Settlement Fairness Hearing and the Proof of Claim form," which were annexed to the order.

Additionally, the court approved "Lead Counsel's selection of . . . The Garden City Group to act as the Claims Administrator." The court directed the "Claims Administrator, under the supervision of . . . Lead Counsel, [to] cause the Egleston Notice and the Proof of Claim . . . to be mailed . . . to all Egleston Class Members who can be identified with reasonable effort." Plaintiff received a Notice and Proof of Claim, and she retained counsel.

The Notice stated: "A federal court authorized this notice. This is not a solicitation from a lawyer." Substantively, the notice provided, among other information, an explanation of the settlement, stating the total recovery was $12,262,500. The Notice also stated

Lead Counsel estimates that the average recovery under the Settlement after reduction for Court approved fees and expenses will be approximately $0.28 per share of C&A common stock. . . . The actual recovery of any particular Class Member will depend on the following: (1) the number of claims filed; (2) when a Class Member purchased or acquired C&A securities during the Class Period; (3) whether a Class Member sold or retained their C&A securities during the Class Period and if sold, when that transaction took place; (4) taxes and administrative costs, including the costs of this Notice; (5) whether certain Defendants exercise their rights to terminate their participation in the Settlement and (6) the amount awarded by the Court for attorneys' fees and expenses. Distributions to Class Members will be made based on the Plan of Allocation described below . . . or as otherwise approved by the [c]ourt.

Finally, the Notice provided

The [c]ourt has reserved jurisdiction to allow, disallow or adjust the claim of any Class Member on equitable grounds. No person shall have any claim against the Class Representatives or their counsel or any claims administrator or other agent designated by the Class Representatives or their counsel . . . based on distributions made substantially in accordance with the Stipulation and the Settlement contained therein, the Plan of Allocation, or further orders of the [c]ourt.

Plaintiff returned her completed Proof of Claim on June 3, 2010. Her attorney's cover letter confirmed that her decision not to opt out of the settlement was made in reliance on the Law Firm's estimated distribution of twenty-eight cents per share. Acknowledging twenty-eight cents per share was an approximation, plaintiff expressly reserved the right to opt out in the event of fraud or other equitable grounds "despite the passage of the [opt-out] deadline." Plaintiff never opted out of the settlement.

On June 10, 2010, the court entered an order approving both the plan for allocating the settlement fund and defendant's request for attorney's fees and expenses. Egleston v. Heartland Indus. Partners, L.P., No. 06-cv-13555 (E.D. Mich. June 10, 2010) (order approving plan of allocation). The order approved the plan of allocation, finding and concluding the plan to be "fair and reasonable to the Egleston Class Members." The order also incorporated the court's findings that counsel had "achieved the Settlement with skill, perseverance and diligent advocacy"; and "[h]ad . . . [c]ounsel not achieved the Settlement there would remain a significant risk that the Egleston Class may have recovered less or nothing."

That same day, the court entered a final judgment certifying the class, certifying defendant as class counsel, and directing the parties to consummate the "fair, reasonable, and adequate" settlement. Egleston v. Heartland Indus. Partners, L.P., et al., No. 06-cv-13555 (E.D. Mich. June 10, 2010) (order and final judgement). However, the District Court retained exclusive jurisdiction

over the Parties and the Egleston Class Members for all matters relating to the Egleston Action, including without limitation the consideration of any allocation of the proceeds of the Settlement, and [defendant's] application for an award of attorneys' fees and reimbursement of expenses, and for the administration, interpretation, effectuation or enforcement of the Stipulation and this Order and Final Judgment, including enforcement [sic] the Note, and including any application for fees and expenses incurred in connection with administering and distributing the settlement proceeds to the members of the Egleston Class.

The court subsequently issued a settlement distribution order, and plaintiff received the pro rata proceeds of her claim in May 2011. Egleston v. Heartland Indus. Partners, L.P., et al., No. 06-cv-13555 (E.D. Mich. Apr. 14, 2011), (order directing settlement distribution). Plaintiff did not, however, receive the estimated twenty-eight cents per share; instead, she received three cents per share. Dissatisfied with the amount of the distribution, she filed this legal malpractice action in the Law Division.

Plaintiff's malpractice action alleged the Law Firm had committed legal malpractice, made a negligent misrepresentation, and breached its fiduciary duty. The Law Firm filed a "Motion to Dismiss Plaintiff's Complaint for Lack of Jurisdiction," supported by a certification from the Law Firm's counsel with six exhibits consisting of documents from the federal class action, including orders and the final judgment. Plaintiff opposed the motion and her counsel submitted a certification with three exhibits, including two Law Firm website screenshots and a Law Firm press release.

Following oral argument, the court denied defendant's motion. The court determined it had specific personal jurisdiction as well as subject matter jurisdiction. The court declined to apply the equitable doctrine of forum non conveniens. The Law Firm filed a motion for leave to appeal, which we granted.

On appeal, the Law Firm contends the Law Division judge erred by denying its motion to dismiss for lack of subject matter jurisdiction. The Law Firm argues the Law Division is an ineligible forum because the United States District Court retained exclusive jurisdiction for all matters relating to the Egleston Class Action. The Law Firm also argues the Law Division judge erred by declining to recognize plaintiff's action as a collateral attack on the District Court's orders and final judgment, and by failing to recognize principles of comity and federalism.

The Law Firm next contends the Law Division judge erred by denying the motion to dismiss for lack of personal jurisdiction. The Law Firm argues plaintiff failed to demonstrate the Law Firm's actions created a substantial connection with New Jersey.

Lastly, the Law Firm contends the Law Division judge erred by denying the motion to dismiss plaintiff's complaint based on the doctrine of forum non conveniens. The Law Firm argues New Jersey is a demonstrably inappropriate forum because the District Court has exclusive jurisdiction and the interests of justice are best served by having the District Court interpret its own orders and judgment.

Plaintiff asserts the Law Division has subject matter jurisdiction because her suit for legal malpractice, negligent representation, and breach of fiduciary duty "constitute wholly new matters having nothing to do with implementation or enforcement of the Settlement." Plaintiff insists the causes of action in her complaint and the issues underpinning the class-action are separate and distinct, and the Law Division action "is a new matter beyond the actual Settlement itself."

Additionally, plaintiff contends the Law Division has personal jurisdiction because the Law Firm created an attorney-client relationship in New Jersey. According to plaintiff, by authoring the Settlement Notice and sending it to her in New Jersey, "the effects of that Notice on [her] were foreseeable" and the Law Firm thereby engaged in conduct "sufficient to sustain personal jurisdiction . . . in New Jersey." Plaintiff also asserts the Law Firm is subject to general jurisdiction because it "routinely represents clients in New Jersey."

Lastly, plaintiff contends the doctrine of forum non conveniens is inapplicable because transfer of her action to Michigan will result in a significant hardship to her.

The parties do not dispute the facts underlying their arguments; rather, they dispute only the legal consequences that flow from those facts. Our review of the trial court's order is therefore de novo. Manalapan Realty, L.P. v. Twp. Comm., 140 N.J. 366, 378 (1995) ("A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference.").

We begin our discussion with the parties' dispute concerning the Law Division's subject matter jurisdiction. Indisputably, "a court cannot hear a case as to which it lacks subject matter jurisdiction." Peper v. Princeton Univ. Bd. of Trs., 77 N.J. 55, 65 (1978). Subject matter jurisdiction "must be granted to the court by the Constitution or by valid legislation." Id. at 66. Even if a state court is granted broad general jurisdiction, it has no subject matter jurisdiction over claims "Congress intended . . . to fall within the exclusive jurisdiction of the federal courts." Nat'l State Bank of Elizabeth v. Gonzalez, 266 N.J. Super. 614, 621 (App. Div. 1993) (emphasis omitted), appeal dismissed 137 N.J. 304.

The New Jersey Constitution declares "[t]he Superior Court shall have original general jurisdiction throughout the State in all causes." N.J. Const., art. VI, III, 2. Thus, the Superior Court is no different than most state courts, which "are invested with general jurisdiction that provides expansive authority to resolve myriad controversies brought before them." Thompson v. City of Atlantic City, 190 N.J. 359, 378-79 (2007) (citing Turner v. Bank of N. America, 4 U.S. 8, 11, (4 Dall.), 1 L. Ed. 718, 719 (1799) (noting that subject matter jurisdiction is presumed for courts of general jurisdiction unless proved otherwise)).

No one can seriously dispute that such expansive authority includes the authority to resolve legal malpractice claims. Further, the Law Firm has cited no federal statute suggesting Congress intended legal malpractice claims arising out of class action suits fall within the exclusive jurisdiction of the federal courts. Cf., Gunn v. Minton, ___ U.S. ___, ___, 133 S. Ct. 1059, 1068, 185 L. Ed. 2d 72, 83-84 (2013) (notwithstanding "Federal courts have exclusive jurisdiction over of all cases arising under the patent laws," state law courts are not deprived of subject matter jurisdiction of claims alleging legal malpractice in the handling of a patent case).

That said, we nonetheless conclude this matter should have been dismissed. In Thompson, the State's Office of Governmental Integrity sought to have the settlement of a federal action "rescinded in the Law Division because of various violations of the State's conflict of interest laws." Supra, 190 N.J. at 363. The Court noted

Given that federal courts have limited jurisdiction and that state law is generally the guiding authority in determining the validity of most settlement agreements, "[w]hen the initial [federal] action is dismissed [pursuant to a settlement agreement], federal jurisdiction terminates." O'Connor v. Colvin, 70 F.3d 530, 532 (9th Cir. 1995). Enforcement of a federal settlement agreement requires an independent basis for jurisdiction. See Kokkonen [v. Guardian Life Ins. Co.], 511 U.S. [375,] 378-82, 114 S. Ct. [1673,] 1675-77, 128 L. Ed 2d [391,] 395-98 [(1994)]. That can occur, for example, when a federal court has specifically retained jurisdiction by incorporating the terms of a settlement agreement in a dismissal order. Id. at 381-82, 114 S. Ct. at 1677, 128 L. Ed. 2d at 397-98.

[Thompson, supra, 190 N.J. at 379.]

Here, in its June 2010 Order and Final Judgment, the United States District Court for the Eastern District of Michigan specifically retained "[e]xclusive jurisdiction . . . over the Parties and the Egleston Class Members for all matters relating to the Egleston Action[.]" One such matter was the Law Firm's performance, which had been the subject of specific findings reflected in the court's orders.

The district court had a valid reason for retaining jurisdiction. As one court has noted in a case not unlike the one now before us, "[t]he threat of a malpractice suit of this kind could significantly discourage attorneys from bringing future meritorious class actions. . . . [A]ttorneys should not be dissuaded from bringing meritorious actions by the threat of a state court malpractice law suit." Thomas v. Albright, 77 F. Supp. 2d 114, 122-23 (D.D.C. 1999). We discern in this case no legally significant distinction from one in which a federal district court retains in a settlement order its ancillary jurisdiction to enforce a settlement. Thompson, supra, 190 N.J. at 379.

Plaintiff cites "the Settlement Stipulation stating that the Eastern District of Michigan 'shall retain jurisdiction with respect to the implementation and enforcement of the terms of this Stipulation, and the Settling Parties submit to the Court's exclusive jurisdiction for purposes of implementing and enforcing the Settlement.'" She argues this language is inapplicable to her malpractice claim because she "is neither challenging, nor implementing/enforcing the Settlement." Plaintiff's argument overlooks two things: first, the Settlement Stipulation is not controlling; second, the District Court's "Order and Final Judgment" is not restricted to implementing the order enforcing the judgment, but rather retains exclusive jurisdiction "for all matters relating to the Egleston Action."

Even if an ambiguity among the District Court's orders exists and we do not suggest there is such an ambiguity under the doctrine of comity the Law Division should have declined to hear the action until plaintiff first sought relief in federal court. As our Supreme Court explained in Thompson

Comity is practiced when a court of one jurisdiction voluntarily restrains itself from interfering in a matter falling within the purview of a court of another jurisdiction. See Yancoskie v. Del. River Port Auth., 78 N.J. 321, 324 (1978) (observing general rule of comity "that the court which first acquires jurisdiction has precedence in the absence of special equities"); Aly v. E.S. Sutton Realty, 360 N.J. Super. 214, 222 (App. Div. 2003). Comity is grounded in notions of accommodation and good-neighborliness, and is a necessary expedient to preserve the delicate balance of power and harmonious relations among the various sovereigns of our federalist system. See City of Philadelphia v. Austin, 86 N.J. 55, 64 (1981).

[Thompson, supra, 190 N.J. at 382.]

In view of our conclusion as to this issue, we need not address plaintiff's remaining arguments.

For the foregoing reasons, we reverse the Law Division order. Plaintiff's complaint is dismissed without prejudice. Plaintiff may reinstate her complaint in the Law Division should the United States District Court for the Eastern District of Michigan decline to exercise jurisdiction.

Reversed.