Motion: Allow Discovery On Suit Or Toss It, Says Lawyer For H&K
Plaintiff in legal mal suitasks court to halt discovery until Calif. appeal decided
The attorney representing Holland & Knight in a legal malpractice suit has asked a Fulton County judge to throw out the case, arguing that the plaintiff's recent request for a delay essentially admits that the same claims have already been litigated in California.
Holland & Knight, represented by Jeffrey Bramlett and Johns Raines IV of Bondurant, Mixson & Elmore, argues that res judicata could preclude the plaintiff's Fulton suit. On the other hand, they said, if the issues have not already been litigated, there's no point in delaying the case here. Last month, the attorneys for the plaintiff, Ishtiaq Khan, filed a motion to halt discovery in the Fulton case until a California appeals court rules on the firm's challenge to a $34.5 million malpractice judgment awarded to a group of plaintiffs, including Khan.
The Aug. 23 filing by Khan's attorneys said the case on appeal "involves the same matters and parties at issue in [the Fulton County] case."
Because the resolution of that case, it said, "is virtually certain to control the outcome of the [Fulton case], judicial economy and the prevention of inconsistent holdings support a stay of this action until the completion of appellate proceedings."
Khan is represented by Mills Paskert Divers partner E.A. "Seth" Mills Jr. and David Ribakoff of Santa Monica, Calif. Ribakoff represented plaintiffs in the California case.
An affidavit from Ribakoff attached to the motion estimates that the appeal will be decided "by approximately the Fall of 2014."
Bramlett and associate Rains responded with a motion accusing Khan of "stonewalling discovery"—first by delaying the case while unsuccessfully trying to have Bramlett and his firm disqualified, and now by asking to freeze it until late next year.
"[Khan] argues that this 2011 case he initiated should once again be stalled indefinitely pending the outcome of an appeal in California in Sabadia et al. v. Holland & Knight LLP ... that may, Khan theorizes, have preclusive effect on one or more issues in this case," wrote the firm's lawyers.
"Khan's motion to stay should be denied," the defense lawyers wrote. "The outcome of the appeal in the California Litigation cannot have preclusive effects against Defendants. If it could, Khan's complaint is ripe for dismissal on res judicata grounds." (Res judicata is the doctrine barring the same parties from litigating a second lawsuit on the same claim.)
Neither side's lawyers were available to discuss the case.