Third Amended Complaint Over Alleged Injury at Nets Game Results in Fee Award for Attorney

In an unpublished opinion, the Appellate Division upheld an award of sanctions and judgment in favor of Paul Soderman, an attorney named in a lawsuit brought by a woman who alleged she was injured when a high school student fell on her at a New Jersey Nets home game in 2005.

The history of the case stretches back to 2007 when Tara Novembre first filed an action which alleged that she was injured at the Nets game, according to the appeals court’s Dec. 28 unpublished opinion. The matter proceeded to a trial and the jury found no cause of action based on Novembre’s failure to prove proximate cause. The Appellate Division affirmed that decision.

A second action was filed in January 2012 and alleged that the defendants, including the Nets (which have since moved to Brooklyn) and attorney James Lockwood, concealed information relevant to identifying the high school students who were in attendance on the day Novembre was injured. According to the opinion, Novembre claimed that if the Nets had provided that information, the student’s identity could have been ascertained and, therefore, she could have established proximate cause.

The defendants then moved for summary judgment and the plaintiff moved to amend her complaint, according to the opinion. Novembre sought to add defendants and to assert new causes of action, including fraudulent concealment, fraud, and legal malpractice, according to the opinion. The defendants to be added included Soderman and his firm, Charles Mierswa and Zucker, Facher & Zucker. The motion judge granted the defendants’ motion for summary judgment and denied Novembre’s motion.

Then in a third amended complaint, Novembre named the Nets, Lockwood, Soderman, Zucker Facher and Mierswa and “recited verbatim” the allegations in the proposed amended complaint in the second action. The defendants moved to dismiss, according to the opinion.

The motion judge ruled that the doctrine of res judicata barred the claims, dismissed the action with prejudice, and allowed Soderman to file a motion for sanctions. According to the opinion, Soderman was awarded a $13,930 judgment on March 30, 2021.

The judge stated that the “plaintiffs and their counsel knew or should have known that the complaint was barred by res judicata” and that “the complaint was filed in bad faith and for an improper purpose.”

On appeal of the judgment on the third complaint, Novembre argued that the judge erred in dismissing the action and that her claims are “sustainable as a matter of law.” She further argued that the judge erred in awarding counsel fees to Soderman, according to the opinion.

Judges Heidi Willis Currier, Jessica R. Mayer, and Catherine I. Enright issued a per curiam opinion in the case.

“Here, it is undisputed that the third action involves the same parties as contemplated in the proposed amended complaint in the second action,” the opinion said. “Further, the causes of action advanced in the third action repeat the exact same causes of action as the proposed amended complaint in the second action.”

The question before the court, according to the opinion, is whether the claims alleged in the third action were “finally determined on the merits” by the judge who dismissed the second action.

“Contrary to plaintiffs’ argument, the judge’s reasons for denying leave to amend the complaint in the second action were not purely procedural,” the opinion said. ”The judge comprehensively analyzed the proposed claims and explained why they were unable to survive a motion to dismiss.”

According to the opinion, one of the claims made by Novembre argued that Soderman knew there were no ushers assigned to the section of the arena where she was sitting based on an unredacted May 26, 2005, memorandum belatedly provided to the plaintiffs in January 2015. But the per curiam opinion noted that the proposed fraudulent concealment claim was directed at the Nets and Mierswa, not Soderman. The plaintiff failed to alleged essential facts to support a claim of fraudulent concealment against the Nets or Mierswa, according to the opinion.

As to Novembre’s claim of legal malpractice, the judge found that it “failed because the Soderman defendants had no attorney-client relationship with plaintiffs.”

“Having reviewed the record and the judge’s reasons for denial of leave to amend the complaint in the second action, we are satisfied the judge’s determination constituted a final determination on the merits,” the opinion said.

According to the opinion, the appeals court affirmed both the dismissal of the second action and the denial of the plaintiff’s motion to amend the complain in a July 18, 2019, decision. Since the appeals court addressed the denial of leave to amend, according to the opinion, Novembre’s attempt to relitigate that issue in this appeal is precluded under the law-of-the-case doctrine.

“Even if we agreed that res judicata did not bar plaintiffs’ third action, which we do not, plaintiffs’ claims failed on the merits as a matter of law,” the opinion said. “Therefore, even if plaintiffs’ claims in the third action were not precluded by the doctrine of res judicata, we are satisfied the claims in the third action were not sustainable as a matter of law and, thus, the judge properly dismissed the third action with prejudice.”

As to Novembre’s argument that the judge erred in granting sanctions and fees to Soderman, the court disagreed.

“We are satisfied that the trial judge did not abuse his discretion in granting attorney’s fees to the Soderman defendants,” the opinion said. “Plaintiffs’ counsel knew, or should have known, based on the disposition of the second action by the trial court as well as this court, that the claims in the third action were without reasonable basis in law, and could not be supported by a good faith argument for a modification of existing law.”

Counsel for Novembre, Kenneth S. Thyne of Simon Law Group did not immediately respond to a call seeking comment. Likewise, counsel for the Nets and Mierswa, Robert C. Neff of Wilson Elser, and counsel for Lockwood and Soderman, Kevin R. Reich of Gibbons, did not respond to calls seeking comment.