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Attorney Brian Cunha's Procedural Oversight Not Fatal To Lawsuit
- Read about Atty. Brian Cunha's procedural oversight below this gray box -
Atty. Brian Cunha's Rebuttal To The Article On This Page
Caught.net received the following email on 3-21-08 from someone asserting they are Brian Cunha: "While at my home this evening I was made aware of your web page regarding my case against Legett and Platt. Your information is inaccurate. All of the cases against Legatt and Platt are active and are being litigated. I am demanding that you remove this item immediately or that you revise the information to accurately reflect the current status of the case." Caught.net asked if he had won his appeal or not and received the following response:
"No, the claim against Legett and Platt was simply re-filed, served and answered. This type of occurrence is not unusual and generally easily managed and resolved with an agreement by the defendant to agree to accept the service of process late. The reason is obvious; the failure to do so simply wastes everyone's time, because if the case is dismissed on technical procedural grounds, such as occurred in this case, the case is simply re-filed.
In fact, the same situation occurred with another attorney in the station fire case, who failed to serve 15 of the defendants in a timely manner. The court simply extended the time to serve the Defendant, as there was absolutely no prejudice to any of the parties. Legett and Platt, though they knew that I would simply re-file the claim, unnecessarily chose to press the issue.
The front-page newspaper account written by Tracy Bretton was intentionally sensational and entirely misleading, particularly that the statute of limitations had expired and that my clients would be left without a remedy against Legett and Platt should they be held liable. The reporter knew that I would simply re-file the case, but chose instead to write the story. Moreover, when I alerted Tracy Bretton a couple of weeks later that the case was re-filed, she ignored my e-mail and chose not to publish the fact that the claims for my clients against Legett and Platt were alive and well. You may call me for any further clarification." Atty. Cunha submitted this PDF and this document to support his rebuttal.
On May 12, 2008, Caught received the following from Atty. Cunha:
Please be advised that in conjunction with the other Plaintiffs we have settled all claims against Legett and Platt and the other Foam manufacturers for 30 million dollars. (see attached) In light of the above I would ask that you remove the website posting suggesting that my clients claims against Legett and Platt may have been compromised. You have been on notice for some time now that the claims against Legett and Platt were re-filed and have yet to remove your posting. At this stage your posting is libelous as it is untrue. If your posting is not removed within 5 days I shall institute suit against you individually requesting damages and attorneys fees. Thank You.
And on 5-15, Caught received the following:
Unfortunately, unlike your story the projo title is not inflammatory and was published before the case was re-filed. Your filing occurred after the fact and was inaccurate from the start. Furthermore the title to your story is inflammatory and misleading. The inference when first looking at the title is that the cases against my clients may still be compromised, which is simply untrue. If you would change the title to your posting that accurately portrays what occurred I will forbear with a suit against your company e,g “Case re-filed by Cunha settles for $30 Million”
END OF REBUTTAL
Did Atty. Brian Cunha blow a case for 19 station fire victim clients?
The Providence Journal on 9-29-07 reported in part: A federal judge has ruled that Station fire victims represented by lawyer Brian R. Cunha cannot pursue their claims against a publicly traded company that may have manufactured the highly flammable foam that lined the walls of The Station nightclub because Cunha never properly notified the company that he was suing it.
This means that if a jury were to find foam manufacturer Leggett & Platt liable for monetary damages at a trial -- or if the company were to agree to an out-of-court settlement -- the 19 fire victims represented by Cunha would not share in any of the money paid by Leggett & Platt.
Cunha, in a hearing Sept. 19, told Senior U.S. District Court Judge Ronald R. Lagueux that his failure to serve Leggett & Platt had been an oversight. He blamed one of his paralegals for the error. He argued that it would be unfair to punish his clients by throwing out their claims against the foam manufacturer. And he contended that the lawyer representing Leggett & Platt should have called him on the phone to give him a heads-up that he hadn't been served.
But Lagueux was not convinced. Cunha had had years since filing his lawsuits to serve notice on Leggett & Platt and the lawyer for Leggett & Platt "continually gave notice in various pleadings that they had not been served and that they were not answering" the Cunha lawsuits, the judge said.
"It's unfortunate that this has happened, but trying to shift the blame to the defendants doesn't carry the day in this case. I'm satisfied that the plaintiffs have not shown good cause for this long delay in either making service or presenting the waiver of service to the defendants," Lagueux said.
The burden, said the judge, was on Cunha "to demonstrate to me there's good cause for allowing them to make tardy service at this time. Good cause," said Lagueux, "requires a demonstration of good faith on the part of the party seeking" an extension of time "and some reasonable basis for noncompliance" with court rules.
"And it's been held that an attorney's inadvertence, neglect or mistake is not good cause. And here, whether it's a paralegal, or someone else in a plaintiff's office, has not satisfactorily explained what happened," said Lagueux.
"Obviously there was an oversight" but Cunha, Lagueux said, had given no detailed explanation about what had happened, except "a last-minute discussion with a paralegal and the representation made to the court that the paralegal somehow didn't catch it."
Cunha, in a telephone interview yesterday, said he would appeal Lagueux's decision to the 1st U.S. Circuit Court of Appeals by day's end and predicted, "I'm gonna win on appeal." "I was very surprised by the judge's decision," he said. "With all due respect, it was factually incorrect and I feel strongly, upon appeal, we'll be fine."
Cunha said that Leggett & Platt's lawyer filed an answer to all of the fire victims' claims and included him in the list of people served with answers. He said the foam company's lawyer here, Thomas W. Lyons III, never raised the issue of "insufficiency of process" until just recently.
But Lyons, at the Sept. 19 hearing, disputed Cunha's representations. He told the court that "we are almost three years past the time" when Cunha's clients adopted as their own a master complaint filed by other lawyers in the case and "we're almost 2 years since I wrote to [Cunha] stating that the Leggett defendants would waive service of process if counsel sent us the appropriate forms," which were never sent.
Lyons continued: "It's been about a year and a half since the statute of limitations ran and [Cunha's clients] adopted" the final, amended lawsuit filed by the other plaintiffs' lawyers. Court rules, he noted, require that defendants in a federal lawsuit be served within 120 days after the filing of the complaint. He said Cunha was aware as far back as June 2006 that he had not "effected service on all defendants." He urged Lagueux to disregard Cunha's argument that "it is somehow our fault for not having continually alerted them of their failure to serve us"
At the hearing, Lagueux asked Cunha to tell him what "good cause" he had for missing the deadline for serving notice of his lawsuits on Leggett & Platt. "You're the one that has the burden of showing good cause," the judge told him. Cunha replied: "Judge, I'm not saying that there is good cause. I'm saying, technically, there probably isn't. It's a matter of discretion on Your Honor's part." LAGUEUX'S RULING does not affect the Leggett & Platt claims of fire victims who are represented by other lawyers -- just Cunha's clients.
