I was a double major in Political Science and Theatre in college. (Yes, that explains the pop culture references in my columns). While as a Political Science major, writing the thesis, and associated studies armed me for law school, and set the seeds for the practice of law and litigation, the Theatre major has proved invaluable, as I’ve been able to demonstrate theatricality, to my joy, and to the dismay of a certain adversary on case, whom we shall call Johnny Gasparini, the paperboy from the 80’s film, “Better Off Dead”, famous only for coining the phrase, “I Want My Two Dollars”.
Johnny was admitted to the hospital after a slip and fall accident in his own home, requiring some surgical procedure. Johnny had no insurance, and racked up $2,000 bill. The hospital retained a law firm, whom I shall call, “Krapp, Onna, & Styk”. The Krapp law firm sued Johnny and served process upon him, using a process serving company, which was not owned by any of the partners of Krapp, not operating from the same address, and not related in any way. And by “not owned by the partners of Krapp”, I mean “owned by the spouses of the partners of Krapp”. And by “not operating from the same address,” I mean, “operating at the office suite next door.”. And by “not related in any way”, I mean, “poorly veiled attempt to seem like they were not related in anyway.” Anyway, Krapp sued Johnny, and Johnny never responded, so they enter a default judgment against Johnny. But they never do anything to enforce the judgment.
Several years later, at the surprise, shock, and horror of only those who had never head of Krapp, Krapp went out of business.
The Hospital then retained our office to execute on the properly entered default judgment. We executed on the judgment, located a place of employment, and commenced a wage garnishment.
Immediately thereafter, Johnny brings a motion to the court to say he never lived at the address that the prior firm served. So, we consent, on the condition that he file an answer, and we go forward with trial. The Court agreed.
Johnny then interposes a Counterclaim, demanding two thousand dollars, for the damage to his credit, from the “fraudulent judgment.”
After it was quickly apparent that there would be no settlement, on the eve of trial, the hospital agreed to walk away, and close the file, deeming it a relative wash, and realizing that the trouble in pursuing this particular Defendant would be most costly and time-consuming than the debt itself.
In Court, we made that offer to Johnny. But he refused. But he refused to such extent that he started screaming in the courthouse. The Judge was forced to have the court officer remove him, and sets the case down for a conference at second call.
At second call, Johnny is no where to be found. We wait for three hours. He never shows up. So, the Court does what we wanted, and dismisses our case AND the counterclaims, all without prejudice, meaning anyone can choose to re-file the action, or bring a motion to restore within 1 year. but for the time being, the case is over.
A week later, we get a courtesy copy of a letter from the Judge along with a copy of a letter that Johnny sent to the Judge. Apparently, Johnny accused the Judge of conspiring with our law firm to deprive him of his rights. And that he wanted his two thousand dollars. The Judge’s letter essentially informed him that he was incorrect on the law, was culpable since he is the one who disappeared after second call, was lucky that he was not held in contempt for his outburst on the first call, and was bat-poop crazy. (Ok, so the Judge didn’t really say that. He “essentially” said it.)
Over a year goes by, and the time to restore the action expires. By this time, the hospital has been closed, and the assets purchased by another not-for-profit hospital. And for the first time, we receive correspondence from an attorney. The attorney commenced an action against the hospital, Krapp, the process server, and my firm. However, in this instance, the new attorney sues for one hundred million. Dollars. American.
We move for dismissal, as the 70 page complaint lacks any allegations that our firm did anything wrong, and goes on in painstaking detail, about how awful the hospital, Krapp, and the process server all behaved.
Lickety split, the Court grants our motion to dismiss, without costs. The Court clearly finds that our firm had nothing to do with damaging any credit. The Court finds that we did not commence the suit, nor did we enter the judgment. “There is no cause of action nor color of a claim within the four corners of the complaint, against Smith Carroad.”
What happens next? Well, the hospital, Krapp, and the process server are all out of business. So Johnny’s lawyer does the only thing he can do. He appeals the dismissal, since my firm is the only viable entity for him to pursue.
At the Appellate argument, I appeared in Court, and as the Appellant, Johnny’s lawyer went first. He went on and on about “justice” and “consumer protection” and other buzzwords that are likely to gain a rise from a consumer advocate.
So when he was done, I stepped up. I held aloft in my hand, the complaint filed by Johnny.
“Your honors, this lengthy, 71 page document is the complaint in this action, which is packed with hundreds of allegations, and thousands of words. Yet, in the entire document, my firm name appears only three times. THREE. First, in the caption of the action. Second, in the identifying paragraph, indicating that we are a law firm in the State of New York, and third, in one paragraph stating that we substituted in as new counsel when the prior firm went under.”
Then, I dropped the complaint back onto the table, with a giant “THWAM.”
“There are no other allegations in the entire complaint that even mentions my firm’s name, much less sets forth a cause of action against my firm.
Suffice to say, the court dismissed the case completely.
Timothy Wan is a partner in the firm Smith Carroad Levy & Wan, in Commack, New York, and can be reached at twan@smithcarroad.com. Tim loves onomatopoeia. Or are they ideophones?
