Motion-Secondary: Archie Vs Gutterman Inc

On November 15, 2016 a Motion-Secondary was filed involving a dispute between Robert Archie, and 1-5 John Does, 6-10 John Does, Gutterman Inc, for Law Against Discrimination (Lad) Cases in the District Court of Mercer County.

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Amy E. Rudley, Esquire (ID#: 091802004)
COOPER LEVENSON, P.A.
1125 Atlantic Avenue - 3rd Floor
Atlantic City, NJ 08401
(609) 344-3161
File No. 56160.00011
Attorney for Defendant, Gutterman! Inc.

ROBERT ARCHIE,
SUPERIOR COURT OF NEW JERSEY
LAW DIVISION
Plaintiff
MERCER COUNTY
vs.

DOCKET NO. MER-L-2268-16
GUTTERMAN! INC. and JOHN DOES 1-5 AND
6-10,
Civil Action
Defendants.
DEFENDANT’S BRIEF IN
OPPOSITION TO PLAINTIFF’S
MOTION TO REINSTATE

INTRODUCTION

This matter comes before the Court on Plaintiff's motion to reinstate his November 15,

2016 Complaint. (See Complaint at Exhibit “A.”)

Following Plaintiff's January 29, 2018 deposition, his counsel filed a motion to be

relieved citing that “Mr. Archie has terminated this firm’s services as a result of a fundamental

disagreement between this firm and Mr. Archie as to this litigation.” (See Deposition Cover

Sheet at Exhibit “B” and Counsel’s Motion for Relief at Exhibit “C.”) This Order was granted

on April 26, 2018 and provided Plaintiff with 30 days, during which he was to obtain new

counsel or be deemed as proceeding in the matter pro se. Within this same Order, the Discovery

End Date was extended to July 26, 2018. (See April 26, 2018 Order at Exhibit “D.”)

The Plaintiff then voluntarily dismissed the matter on or about July 11, 2018, without

consent of Defendant. (See Plaintiff's Request for Dismissal at Exhibit “E.”)
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Now, Plaintiff moves for reinstatement claiming that the delay of more than one year was

necessary for him to “study as much as he can I [sic] hopes of successfully representing himself

Pro Se.”

LEGAL ARGUMENT

Plaintiff has waited more than one year to move for reinstatement of this matter, which

was voluntarily dismissed by his own action, via request of July 7, 2018 (docketed on July 11,

2018). Plaintiff's motion to reinstate was then filed on August 5, 2019. Defendant respectfully

submits that this motion should be denied as a matter of law as the Plaintiff has failed to establish

good cause for his extreme delay.

Plaintiff's asserted reasons for the delay are contrary to the reasons expressed to counsel

throughout the course of the year. Of course, attempts to settle a matter are not a justification for

delay in any matter, however, Plaintiff's assertions of a good faith attempt to settle this matter

are simply untrue. Prior to the dismissal in this matter, on June 11, 2018, the Plaintiff related a

$1,750,000 (One Million, Seven Hundred and Fifty Thousand Dollars) demand in the matter.

Defense counsel responded promptly indicating that Defendant would not be responding to this

wholly unreasonable demand. Thereafter, Plaintiff decreased his demand, post-dismissal, to

$1,000,000 (One Million Dollars). Defendant did not respond to this demand. Accordingly, no

portion of this year plus long delay can be attributable to any reasonable attempt by the Plaintiff

to amicably resolve this matter.

Further, this claim relates to allegations that Plaintiff's co-workers, fellow laborers and

gutter cleaners for Gutterman!, teased him about having anal sex with other men and allegedly

encouraged him to have a sexual relationship with their boss. The Plaintiff purports to be a

heterosexual man and further claims that he was offended by the comments. The Plaintiff has
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not taken a single deposition in this matter and many of the alleged employees no longer work

for Gutterman! Their current whereabouts are unknown, due to the passage of time.

In accordance with the Rules of Court, the Plaintiffs unilateral Rule 4:37-1 request for

dismissal was granted, despite the fact that an Answer had been long ago filed by the defense.

This Complaint was dismissed on July 11, 2018. This motion to reinstate is scheduled for

August 30, 2019. This 13 month delay has allowed the Plaintiff to avoid prosecution of this

matter until late 2019, in a 2015 dismissal. The Statute of Limitations tolled prior to the decision

by this Plaintiff to dismiss. With the Plaintiff having been terminated from his employment on

December 23, 2015, the two year Statute of Limitations tolled in December 2017. This Plaintiff

chose to nonetheless dismiss the matter, claiming at that point that he intended to pursue the

action in Federal Court.

In accordance with the Rules of Court, a plaintiff after seeking voluntary dismissal can

thereafter seek reinstatement of the complaint for good cause shown. ASHI-GTO Assocs. v.

Irvington Pediatrics, P.A., 414 N.J. Super. 351, 359, (App. Div. 2010); Diaz v. Bobadilla, 2019

N.J. Super. Unpub. LEXIS 799, *8-10, 2019 WL 1513807. (See attached decision at Exhibit

“G”),

Furthermore, Rule 4:50-1 is also applicable to voluntary dismissals under Rule 4:37-1(a),

even though the determination was not the result of an order or a final judgment. Miller v. Estate

of Kahn, 140 N.J. Super. 177, 181, 355 A.2d 702 (App. Div. 1976); Pressler & Verniero, Current

N.J. Court Rules, cmt. 2 on R. 4:50-1 (2019) ("The rule applies to voluntary dismissals entered

upon stipulation as well as to a dismissal] without prejudice entered pursuant to R/ule] 1:13-7.").

Rule 4:50-1 provides that:

[T]he court may relieve a party or the party's legal representative from a final
judgment or order for the following reasons: (a) mistake, inadvertence, surprise,
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or excusable neglect; (b) newly discovered evidence which would probably alter
the judgment or order and which by due diligence could not have been discovered
in time to move for a new trial under [Rule] 4:49; (c) fraud (whether heretofore
denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an
adverse party; (d) the judgment or order is void; (e) the judgment or order has
been satisfied, released or discharged, or a prior judgment or order upon which it
is based has been reversed or otherwise vacated, or it is no longer equitable that
the judgment or order should have prospective application; or (f) any other reason
justifying relief from the operation of the judgment or order.

Plaintiff in this matter fails to demonstrate any of the reasons justifying reinstatement

following voluntary dismissal. The timing of this litigation was simply inconvenient for him.

Further, a motion under Rule 4:50-1 must be "made within a reasonable time;" however,

motions made under Rule 4:50-1(a), (b), or (c) must be made within one year of the judgment or

order. R. 4:50-2. When deciding if a motion for relief under Rule 4:50-1 has been "made within

a reasonable time," the court must consider "the surrounding circumstances including the length

of time that has passed and a due consideration for competing rights and interests which have

come to exist." Friedman v. Monaco & Brown Corp., 258 N.J. Super. 539, 543, (App. Div.

1992) (citing City of Newark v. Block 1854, 244 N.J. Super. 402, (App. Div. 1990)).

In the within matter, the Plaintiff filed his motion more than one year after his unilateral

voluntary dismissal. He claims to have used this time to attempt to find other counsel, to attempt

to resolve the matter, and to attempt to learn about the NJLAD. The Court’s Order of April 26,

2018 provided Plaintiff with 30 days, during which he was to obtain new counsel or be deemed

as proceeding in the matter pro se. Plaintiff never requested more time. His explanation at this

time, is not sufficient “good cause” in accordance with the Rules of Court, nor is it a sufficient

basis to permit an exurbanite delay of a litigated matter.

In 2009, the Appellate Division upheld the decision of a trial court to deny reinstatement

to a Plaintiff who was displeased with the decisions of the Court, requested and was denied a
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stay pending appeal, and who then was unsuccessful in that appeal. The Plaintiff's motion to

reinstate was then denied and was, itself, appealed. The Court in that matter simply found no

basis for reinstatement. Abulkhair v. Smith, 2009 N.J. Super. Unpub. LEXIS 430. (See attached

decision at Exhibit “H”).). Likewise, in the instant matter, the Plaintiff voluntarily dismissed his

action to learn more about the law. There is no basis in the present matter for reinstatement of

the Plaintiff's claim against Gutterman!.

Our Courts cannot be a playground for pro se litigants to do as they wish and on the

timelines they desire. The Defendant in this matter has expended monies and time in its defense.

The Plaintiff abandoned the action for more than one year and has provided no reasonable

explanation justifying its reinstatement. Defendant respectfully requests a denial of Plaintiff's

motion to reinstate.

COOPER LEVENSON, PA.
\
bs ~ \
By: \
Amy E. Rudley,\Esquire
At ouney for Defendant, Gutterman! Inc
August 20, 2019
\
\

CLAC 5076466.1
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Exhibit “A”
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COSTEL & MAINS,
FILED
LOLLC
By: Kev
M. i
Costn NOV 15 2016

copy % ¢
ello, Esquire
Attomey ID. No. 024411991
PERIOR Cot U
18000 Horizon Way, Suite 800 ER CE R VICIR OFT Ny
NAGE
Mount Laurel, NJ 08054 IVIL MIVIg AT
(856) 727-9700
Attomeys for Plaintiff

ROBERT ARCHIE,
SUPERIOR COURT OF NEW JERSEY
Plaintiff, MERCER COUNTY - LAW DIVISI
ON

VS. CIVIL ACTION

GUTTERMAN! INC. and JOHN
DOES 1-5 AND 6-10, DOCKETNO:HER-L-2A b&-/ bo
Defendants. COMPLAINT AND JURY DEMAND

Plaintiff, Robert Archie, residingin
Yardville, New Jersey, by way of Comp
laint against
the defendants, says:

Preliminary Statement
Plaintiff brings this suit under the New
Jersey Law Against Discrimination (‘L
AD’)
alleging racial and national origin discrimi
nation in the course of employment as
well es
discriminatory discharge. The claim
is also brought for sexual harassment
under the LAD.
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Identification
of Parties
1 Plaintiff Robert Archie is, at all relevant times herein, a resident of the State of

New Jersey and was an employee of the defendants.

2. Defendant Gutterman! Inc. is, at all relevant times herein, an entity
conducting
business at 820 State Road, Princeton, New Jersey, and was the employer
of plaintiff.
3 Defendants John Does 1-5 and 6-10, currently unidentified, are individ
uals and/or
entities who, on the basis of their direct acts or on the basis of respond
eat superior,
answerabtole
the plaintif
for fthe acts set forth herein.

General Allegations
4. Plaint
was employe
iff d by the defendants from on or about June 15, 2015 until his
unlawful termination on or about December 23, 2015.

5. Plaint
was employe
iffd as a laborer earning $17.00 per hour.
6. Plaintiff is a black male.

im Upon information and belief, during the course of his employment
, plaintiff was
one of the only black laborers employed by defendant.

8 While plaintiff typically worked 30 to 35 hours per week, his Hispani
c co-
workers were typically working 50 to 60 hours per week.

9. When plaintiff complained to defendant's owner, Bruce Davies
, about the
disparate hours, Mr. Davies responded that it was tough to match plaintif
f up with other guys
becaus
the “Spanish
e guys” wanted to “work with their own.”

10. Mr. Davies, as the owner, was a member of upper management as
that term is
defined
under the LAD.
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11. On at least three separate occasions, Mr. Davies stated to plaintiff that it was not a
“good look” for a “black guy” to go to a customer's door with a
certain appearance, such as
articles of clothing, a hooded sweatshirt, safety glasses, or a shaved head.

12. Upon information and belief, the Hispanic co-workers were permitted
to wear
whatever they desired and were given no similar instructions,

13. At no time during the course of plaintiff's employment did the defendant issue,
publish or otherwise advise as to any anti-discrimination policies.

14, In addition to the above described racial/national origin discriminati
on, plaintiff
was also subjected to sexual harassment.

15, The harassment was sexual on its face and thus because of
plaintiff's gender.

16. The harassme
was severe
nt and/or pervasive.
17. The harassment was such that a reasonable man in the same
or similar
circumstances would have found the work environment hostile
, intimidating and/or abusive.
18. The workplace did so alter for plaintiff.

19, Approximately three times per week, a co-worker named
Juan (last name
unknown) would tell plaintiff that plaintiff needed to “screw” Mr. Davies.

20. Despite plaintiff's request thathe stop, Juan continued unabated,

21 Plaintiff attempted to discuss the harassment with Mr. Davies, but was
cut off.
22. On or about December 23, 2015, Mr. Davies terminated plaintiff's employm
ent.
23 Mr. Davies stated that the layoff was due to a slow down in business,

24 However, all of the other non-black employees were permitted to continue
working and received hours.
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25. A determinative and/or motivating factor in plaintiff's discharge was plaintiff's

race and/or national origin.

26. As a result of the actions of defendant, plaintiff has been forced to suffer

economic and emotional harm.

27. Because the actions of defendants are especially egregious and because they were

engaged in by members of upper management and/or members of upper management were

willfully indifferent to the same, punitive damages are warranted.

COUNT I

Racial Discrimination Under the LAD

28. Plaintiff hereby repeats and realleges paragraphs | through 27, as though fully set

forth herein,

29. For the reasons set forth above, the conduct of defendants constitutes racial

discrimination under the LAD such that they are liable to plaintiff.

WHEREFORE, plaintiff demands judgment against the defendants jointly, severally and

in the alternative, together with compensatory damages, non-economic compensatory damages,

punitive damages, interest, cost of suit, attomeys’ fees, enhanced attorneys’ fees, and any other

relief the Court deems equitable and just.

COUNTI
Natio’ mal Origin Discrimination Under the LAD

30. Plaintiff hereby repeats and realleges paragraphs 1 through 29, as though fully set

forth herein.

31. For the reasons set forth above, the conduct of defendants constitutes national

origin discrimination under the LAD such that they are liableto plaintiff.
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WHEREFORE, plaintiff demands judgment against the defendants jointly, severally and

in the alternative, together with compensatory damages, non-economic compensatory damages,

punitive damages, interest, cost of suit, attorneys’ fees, enhanced attorneys’ fees, and any other

telief the Court deems equitable and just.

COUNTDI

Sexual Harassment Under the LAD

32. Plaintiff hereby repeats and realleges paragraphs 1 through 31, as though fully set

forth herein,

33. For the reasons set forth above, the conduct of defendants constitutes sexual

harassment under the LAD such that they are liable to plaintiff.

WHEREFORE, plaintiff demands judgment against the defendants jointly, severally and

in the alternative, together with compensatory damages, non-economic compensatory damages,

Punitive damages, interest, cost of suit, attomeys’ fees, enhanced attorneys’ fees, and any other

relief the Court deems equitable and just.

COUNT IV
nlawful Discha: ¢ Basis of inder ie LAD

34. Plaintiff hereby repeats and realloges paragraphs 1 through 33, as though fully set

forth herein.

35. For the reasons set forth above, the defendants unlawfully terminated plaintiff

because of his race such that they are liable to plaintiff under the LAD.

WHEREFORE, plaintiff demands judgment against the defendants jointly, severally and

in the alternative, together with compensatory damages, non-economic compensatory damages,

Punitive damages, interest, cost of suit, attomeys’ fees, enhanced attorneys’ fees, equitable back
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pay, equitable front pay, equitable reinstatement and any other relief the Court deems equitable

and just.

COUNT V
Unlawful Discharge on the Basis of National Origin Under the LAD

36. Plaintiff hereby repeats and realleges paragraphs 1 through 35, as though fully set

forth herein.

37. For the reasons set forth above, the conduct of defendants represents an unlawful

termination on the basis of national origin such that they are liable under the LAD,

WHEREFORE, plaintiff demands judgment against the defendants jointly,
severally and
in the altemative, together with compensatory damages, non-economic compen
satory damages,
Punitive damages, interest, cost of suit, attorneys* fees, enhanced attomey
s’ fees, and any other
relief the Court deems equitable and just.

COUNT VI
Requ
for Equitab
es le t
Relief
38. Plaintiff hereby repeats and realleges paragraphs 1 through 37 as though fully
set
forth herein.

39. Plaintiff requests the following equitable remedies and relief in this matter,

40. Plaintiff requests a declaration by this Court that the Practices contested herein

violate New Jersey law as set forth herein.

41. Plaintiff requests that this Court order the defendants to cease and desist all

conduct inconsistent with the claims made herein going forward, both as to the specific plaintiff

and as to all other individuals similarly situated.
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42. To the extent that plaintiff
was separated from employmen
and to tthe extent that
the separation is contested herein, plaintiff requests equitable reinsta
tement, with equitable back
pay and front
pay.

43. Plaintiff requests, that in the event that equitable reinstatement and/or
equitable
back pay and equitable front pay is ordered to the plaintiff, that
all lost wages, benefits, fringe
benefits and other remuneration is also equitably restored to the
plaintiff,

44, Plaintiff requests that the Court equitably order the defendants to pay
costs and
attorneys’ fees along with statutory and required enhancements to
said attorneys’ fees.

45. Plaintiff requests that the Court order the defendants to alter
their files so as to
expunge any reference to which the Court finds violates the statute
s implicated herein.

46. Plaintiff requests that the Court do such other equity as
is reasonable, appropriate
and just.

WHEREFORE, plaintiff demands judgment against the
defendants jointly, severally and
in the alternative, together with compensatory damages, Puniti
ve damages, interest, cost of suit,
attorneys’ fees, enhanced attorneys’ fees, equitable back pay,
equitable front pay, equitable
reinstatement, and any other relief the Court deems equitable and just.

COSTEL is, LLC

By:
Dated: ie Kevin M. Costello
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DEMAND TO PRESERVE EVIDENCE

1 All defendants are hereby directed and demanded to preserve all physical and

electronic information pertaining in any way to plaintiff's employment,
to plaintiff's cause of
action and/or prayers for relief,to any defenses to same, and pertaining to any
party, including,
but not limited to, electronic data storage, closed circuit TV footages, digital images,
computer
images, cache memory, searchable data, emails, spread sheets, employ
ment files, memos, text
messages and any and all online social or work related websites, entries on
social networking
Sites (including, but not limited to, Facebook, twitter, MySpace,
etc.), and any other information
and/or data and/or things and/or documents which may be relevan
t to any claim or defense in this
litigation.

2. Failure to do so will result in separate claims for spoliation of
evidence and/or for
appropriate adverse inferences.

COSTELLO, S, LLC

a
JURY DEMAND

Plaintiff hereby demands atrial by jury,

COSTE iS, LLC

Kevi
M. Cost
nello
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Ri E 4:5-1 CERTIFI TIO}

Tam licensed to practice law in New Jersey and am responsible for the captioned

matter,

Tam aware of no other matter currently filed or pending in any court in any

jurisd
which may
ictaffect ion
the parties or bed herein.
COSTEL) ‘AINS,

By’
Kevin M. Costello

DESIGNATION OF TRIAL COUNSEL

Kevin M. Costello, Esquire, of the law firm of Costello & Mains, LLC, is hereby-

designated trial counsel.

co: MAINS, LLC

Kevin M. Costello
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Exhibit “B”
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SUPERIOR COURT OF NEW JERSEY
LAW DIVISION - MERCER COUNTY
DOCKET NO. MER-L-2268-16

koe

ROBERT ARCHIE,

Plaintiff

vs.

GUTTERMAN! INC. and JOHN DOES
1-5 AND 6-10,
Defendants
10
fa nr i care oe Se
11 MONDAY, JANUARY 29, 2018
BRS ere
12
13 videotaped sworn deposition of ROBERT

14 ARCHIE, taken at the law offices of COSTELLO & MAINS,

15 LLC, 18000 Horizon Way, Suite 800, Mt. Laurel, New

16 Jersey, on the above date, commencing at 11:21 a.m.,

17 before Sally J. Curatola, Certified Court Reporter,

18 License No. 30XI00219800, and Notary Public in and

19 for the State of New Jersey, there being present:
kok oe
20
21
22 WORD FOR WORD REPORTING, LLC
CERTIFIED COURT REPORTERS
23 6 NORTH BROAD STREET, SUITE 202
WOODBURY, NEW JERSEY 08096
24 PHONE: (856) 384-2770
FAX: (856) 384-2779
25) email: 1reagan@word4word.net

WORD FOR WORD REPORTING, LLC (856) 384-2770
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Exhibit “C”
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COSTELLO & MAINS, LLC
By: Deborah L. Mains
Attorney I.D. No, 007571996
18000 Horizon Way, Suite 800
Mount Laurel, NJ 08054
(856) 727-9700
Attorneys for Plaintiff

ROBERT ARCHIE, SUPERIOR COURT OF NEW JERSEY
MERCER COUNTY - LAW DIVISION
Plaintiff(s),
VS. CIVIL ACTION

DOCKET NO: MER-L-2268-16
GUTTERMAN! INC. and JOHN DOES 1-5
AND 6-10,
NOTICE OF MOTION TO BE
Defendant(s). RELIEVED AS COUNSEL

PLEASE TAKE NOTICE that on the 13th day of April, 2018, at 9:00 in the forenoon,

or as soon thereafter as counsel may be heard, the undersigned counsel for Plaintiff, Robert

Archie will move before the Superior Court of New Jersey, Mercer County, 175 S. Broad Street,

Trenton, New Jersey 08650, for an Order relieving Costello & Mains, LLC as counsel for

Plaintiff in this action;
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PLEASE TAKE FURTHER NOTICE that oral argument is requested only in the event

that the Motion is timely opposed;

PLEASE TAKE FURTHER NOTICE that the current discovery end date is May 26,

2018;

PLEASE TAKE FURTHER NOTICE that movant will rely upon the attached

Certification of Counsel and Letter Brief in support of this Motion; and

PLEASE TAKE FURTHER NOTICE that a proposed form of Order is attached

hereto.

COSTELLO & MAINS, LLC

By:_/s/Deborah
L. Mains _
Deborah L. Mains

Dated: March 15, 2018
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COSTELLO & MAINS, LLC
By: Deborah L. Mains
Attorney I.D. No. 007571996
18000 Horizon Way, Suite 800
Mount Laurel, NJ 08054
(856) 727-9700
Attorneys for Plaintiff

ROBERT ARCHIE, SUPERIOR COURT OF NEW JERSEY
MERCER COUNTY - LAW DIVISION
Plaintiff(s),
vs. CIVIL ACTION

GUTTERMAN! INC. and JOHN DOES 1-5 DOCKET NO: MER-L-2268-16
AND 6-10,
ORDER
Defendant(s).

THIS MATTER having been opened to the Court by Deborah L. Mains, of Costello &

Mains, LLC, attorneys for Plaintiff in this action, seeking an Order relieving Costello & Mains,

LLC as Plaintiff's counsel, and the Court having reviewed the moving papers, any opposition

thereto, and having heard the arguments, if any, of counsel and Plaintiff, and for good cause

shown;
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IT IS on this day of 2018, hereby ORDERED as follows:

1 The Motion by Costello & Mains, LLC to be relieved as counsel is hereby

GRANTED.

2. If new counsel for Plaintiff has not entered an appearance in this matter within 30

days of the date of this Order, Mr. Archie shall be deemed his own attorney, Pro Se;

3 The discovery end date in this matter is hereby extended through and including

July > 2018;

4. A copy of this Order shall be served on Plaintiff by regular and certified mail

within seven (7) days of its entry on the electronic docket.

JSC

() Opposed

(_) Unopposed
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COSTELLO & MAINS, LLC
By: Deborah L. Mains
Attorney I.D. No.
18000 Horizon Way, Suite 800
Mount Laurel, NJ 08054
(856) 727-9700
Attorneys for Plaintiff

ROBERT ARCHIE,
Plaintiff(s),
CIVIL ACTION

VS. DOCKET NO:

CERTIFICATION OF SERVICE

Defendant(s).

I, [prompt, name of person whom is signing Certification], hereby certify:

1 Iam a [prompt, Title of person signing the certification] employed by the law firm

Costello & Mains, LLC

2. On [PROMPT, DATE MOTION WILL BE SENT], at [prompt, at whose direction,

ive. Mr. Silverman’s] direction, I served the foregoing documents via [prompt, How is service

being made on Defense counsel] upon all persons as they appear below:

[PROMPT, DEFENSE COUNSEL NAME AND ADDRESS]
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Thereby certify the foregoing is true and correct. I am aware that if any of the foregoing

statements are willfully false, I am subject to punishment.

[PROMPT, NAME OF PERSON SENDING]
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COSTELLO & MAINS, LLC
By: Deborah L. Mains
Attorney I.D. No. 007571996
18000 Horizon Way, Suite 800
Mount Laurel, NJ 08054
(856) 727-9700
Attorneys for Plaintiff

ROBERT ARCHIE, SUPERIOR COURT OF NEW JERSEY
MERCER COUNTY - LAW DIVISION
Plaintiff(s),
vs. CIVIL ACTION

GUTTERMAN! INC. and JOHN DOES 1-5 DOCKET NO: MER-L-2268-16
AND 6-10,
CERTIFICATION OF COUNSEL
Defendant(s).

I, Deborah L. Mains, being of due age, hereby certify and affirm as follows:

1 I am an attorney licensed to practice law in the State of New Jersey and am a

member of Costello & Mains, LLC, attorneys for the Plaintiff in this action. As such, I am fully

familiar with the facts stated herein.

2. Mr. Archie retained this firm to represent him on a fully contingent basis.

3 Mr. Archie has not offset any of the costs or expenses of this firm in any way,

shape of form.

4. Mr. Archie has terminated this firm’s services, as a result of a fundamental

disagreement between this firm and Mr. Archie as to this litigation.

5 I cannot provide further details of the communication of that termination or the

cause thereof without violating the attorney-client privilege.
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6 If the Court wishes additional information, we are happy to provide it in an ex-

parte Certification for in camera review by the Court.

7. Having been terminated, we are obligated to file a Motion to be Relieved as

Counsel by RPC 1.16(a).

8 Prior to this turn of events, counsel for Defendant and this office had agreed to an

extension of the current discovery end date for a period of 60 days, pursuant to the “as of right”

provision of Rule 4:24-1.

9. Accordingly, we ask that the Court implement that 60-day extension of the

discovery end date as part of the relief ordered herein.

Thereby certify that the foregoing statements by me are true and correct to the best of my

knowledge, information and belief. I am aware that if any of the forgoing statements are

knowingly false, I am subject to punishment.

COSTELLO & MAINS, LLC

By:_/s/ Deborah L. Mains
Deborah L. Mains

Dated: March 15, 2018
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Costello & Mains, LLC
Counselors at Law
5 sth
Kevin M. Costellod Y i Michael J. Reilly +
(“Ka
Deborah L. Mainso 36 John R. Johnson 0
Daniel T. Silvermano Marisa J. Hermanovich o
Drake P. Bearden, Jr. 0 iS
ries AS

CERTIFIED BY THE SUPREME COURT OF
NEW JERSEY AS A CIVIL TRIAL ATTORNEY

o Member of the New Jersey, New York Bars. www.CostelloMains.com
+ Member of the New Jersey Bar (856) 727-9700
© Member of the New Jersey, Pennsylvania Bars
A Pending Membership of the New Jersey Bar (856) 727-9797 (fax)
March 15, 2018

LETTER BRIEF IN SUPPORT OF MOTION TO BE RELIEVED

VIA ELECTRONIC FILING
Hon. Janetta D. Marbrey, J.S.C.
Superior Courty of NJ - Mercer County
175 South Broad Street
P.O. Box 8068
Trenton, NJ 08650

Re: Robert Archie v. Gutterman! Inc., et al.
Docket No. MER-L-2268-16

Dear Judge Marbrey:

Please accept this Letter Brief in lieu of a more formal submission in support of the

Motion by Costello & Mains, LLC to be relieved as counsel for Plaintiff Robert Archie in this

matter,

As set forth in the attached Certification of Counsel, Mr. Archie and this firm have come

to a fundamental and irrevocable disagreement as to this litigation, resulting in Mr. Archie’s

termination of this law firm’s services and advice to us that he intends to retain other counsel to

finish the litigation for him. I cannot provide the Court with further details without violating the
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attorney-client privilege, although I am happy to provide an ex-parte certification for in camera

review should the Court wish it.

RPC 1,16(a) mandates that an attorney withdraw from litigation when the attorney’s

services have been terminated. In addition, RPC 1.16(b) permits an attorney to withdraw where

good cause exists and for certain other reasons, including an irretrievable breakdown in the

relationship between attorney and client and a fundamental disagreement between attorney and

client as to how the litigation should be prosecuted.

Here, we have been terminated by our client, requiring the mandatory withdrawal as

counsel. Even were the Court to find that we had not been terminated, as a result of the

irretrievable breakdown in the relationship between the firm and the fundamental disagreement

between the firm and the client regarding how the litigation should be handled, good cause exists

to permit this firm to withdraw as counsel for Plaintiff.

In light of the fact that the first discovery end date in this matter is May 26, 2018 and the

parties have already agreed to the 60-day “as of right” extension, pushing the discovery end date

to the third week in July, 2018, sufficient time remains for the parties to conclude discovery, and

permitting a reasonable time for Mr. Archie to obtain his new counsel. There will be not

materially adverse effect on the interest of Mr. Archie inasmuch as ample time remains for the

new counsel to finish this litigation.

For all of the foregoing and for the reasons set forth in the attached Certification of

Counsel, we respectfully submit that good cause exists for the Court to enter an Order

terminating this firm as counsel for Plaintiff and naming Plaintiff his own attorney Pro Se until

such time as his new counsel enters an appearance in this matter, as well as extending the

discovery end date for a period of 60 days from May 26, 2018.
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We thank the Court for its consideration.

Respectfully Submitted,

COSTELLO & MAINS, LLC

By: __/s/ Deborah L. Mains
Deborah L. Mains

DLM/nln
CC: Amy Rudley, Esq.
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COSTELLO & MAINS, LLC
By: Deborah L. Mains
Attorney I.D. No. 007571996
18000 Horizon Way, Suite 800
Mount Laurel, NJ 08054
(856) 727-9700
Attorneys for Plaintiff

ROBERT ARCHIE, SUPERIOR COURT OF NEW JERSEY
MERCER COUNTY - LAW DIVISION
Plaintiff(s),
vs. CIVIL ACTION

GUTTERMAN! INC. and JOHN DOES 1-5 DOCKET NO: MER-L-2268-16
AND 6-10,
Defendant(s). CERTIFICATION OF SERVICE

I, Nicolle Nicholson, hereby certify and affirm as follows:

1 Iam a Legal Assistant, employed by the law firm Costello & Mains, LLC

2. On, March 15, 2018, at Ms. Mains direction, I served the foregoing documents via

electronic filing upon all persons as they appear below:

Ms. Amy Rudley, Esquire
Cooper Levenson April Niedelman & Wagenheim
1125 Atlantic Avenue, Suite 320
Atlantic City, NJ 08401

3 On, March 15, 2018, at Ms. Mains direction, I served the foregoing documents via

U.S Mail, Certified Mail and email upon all persons as they appear below:

Mr. Robert Archie
P.O. Box 10184
Trenton, NJ 08650
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MER-L-002268-16 03/15/2018 4:54:27 PM Pg 2 of 2 Trans ID: LCV2018475283

Thereby certify the foregoing is true and correct. I am aware that if any of the foregoing

statements are willfully false, I am subject to punishment.

/s/ Nicolle Nicholson
Nicolle Nicholson
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Exhibit “D”
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MER L 002268-16 04/26/2018 Pg1of2 Trans ID: LCV2018748884
MER-L-002268-16 03/15/2018 4:54:27 PM Pg 1 of 4 Trans ID: LCV2018475283

COSTELLO & MAINS, LLC
By: Deborah L. Mains
Attorney ID. No. 007571996
18000 Horizon Way, Suite 800
Mount Laurel, NJ 08054
(856) 727-9700
Attorneys for Plaintiff

ROBERT ARCHIE; SUPERIOR COURT OF NEW JERSEY
MERCER COUNTY - LAW DIVISION
Plaintiff(s),
vs. CIVIL ACTION

GUTTERMAN! INC. and JOHN DOES 1-5 : DOCKET NO: MER-L-2268-16
AND 6-10,

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August 20, 2019

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November 15, 2016

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Motion-Secondary: Archie Vs Gutterman Inc

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