PHILADELPHIA – A Pennsylvania man and a New Jersey law firm seek dismissal in the case of a tangled series of legal wranglings stretching across two states, which originated with an underlying suit brought in New Jersey state court to collect a debt owed by a former student of Rutgers University, and then a countersuit brought in federal court against the collection law firm for alleged violations of the Fair Debt Collection Practices Act.
Gordin & Berger, P.C. of Philadelphia, Edward Berger of Camden County, N.J. and Daniel Berger of Philadelphia first filed suit in the U.S. District Court for the Eastern District of Pennsylvania on June 9 versus Olu Omodunbi of Pittsburgh, and Lawrence C. Hersh and the Law Offices of Lawrence Hersh, of Rutherford, N.J.
In a Jan. 8 motion to dismiss the case, the defendants offered their version of the relevant background and context, and making reference to two of its four underlying lawsuits – 1) the underlying collection action; 2) the Fair Debt Collection Practices Act countersuit; 3) the instant suit in the Eastern District Court against defendants Hersh and Omodunbi; and 4) a separate suit in the Philadelphia County Court of Common Pleas, against a firm which defended the plaintiffs in the Fair Debt Collection Practices Act case, their insurance carrier and various other individuals and entities that were either part of the insurance consortium or the defense team that was retained by their insurer.
“On Sept. 27, 2017, defendant, Lawrence Hersh, Esq. filed a complaint on behalf of co-defendant Olu Omodunbi against plaintiffs Gordin and Berger, P.C., Daniel Berger, Esq. and Edward Berger, Esq. in the U.S. District Court for the District of New Jersey (Newark) at docket number 2:17-cv-07553, alleging that a letter that Berger sent to co-defendant Omodunbi related to tuition and expenses owed to Rutgers University and the filing of a debt collection suit against co-defendant Omodunbi on Dec. 21, 2016, in New Jersey Superior Court violated the Fair Debt Collection Practices Act. On Jan. 22, 2019 the Honorable Esther Salas granted in part and denied in part Berger’s motion to dismiss the amended complaint, dismissing the claims against Berger,” the motion stated.
“On Feb. 6, 2020, a second amended complaint was filed by Hersh on behalf of co-defendant Omodunbi against Berger. On Dec. 3, 2021, Berger filed an answer to the second amended complaint with counterclaims against co-defendant Omodunbi advancing common law claims of abuse of process and fraud. On Dec. 13, 2021, Berger filed a third-party complaint against the Hersh defendants pursuant to Federal Rules of Civil Procedure 7(a)(5) and 14(a) advancing claims of abuse of process and fraud related to the Hersh defendants’ actions in representing co-defendant Omodunbi in the New Jersey action. Thereafter, on Dec. 22, 2022 and on Dec. 25, 2022, the parties in the New Jersey matter filed cross-motions for summary judgment regarding the claims in the second amended complaint and the third-party complaint. The parties are awaiting decisions on the motions for summary judgment pertaining to the Berger defendants’ allegations of abuse of process and fraud pertaining to the Hersh defendants filing of the New Jersey action.”
The motion also offered the defendants' opinion of the events as to subsequent action brought in Pennsylvania.
“On June 9, 2023, Berger filed a 548-paragraph complaint against the Hersh defendants and Omodunbi in the current matter mirroring the claims of fraud and abuse of process in the New Jersey action and advancing claims against defendants for alleged violations of 18 U.S.C Section 1691, more commonly referred to as the Racketeer Influenced and Corrupt Organizations Act. It is now the position of the Hersh defendants that the Pennsylvania action should be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(3),” the motion said.
“Alternatively, the defendants herein move this Honorable Court to stay the present action pending the outcome of the New Jersey case as the outcome of the New Jersey action will affect any and all potential decisions regarding the Pennsylvania action and the filing of the Pennsylvania constitutes parallel litigation which may lead to inconsistent decisions by two Courts within the Third Circuit presiding over the same or substantially related legal matters.”
According to the Hersh defendants, the Pennsylvania matter should be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(3) or stayed.
“The same defendants in the New Jersey case who are the plaintiffs in the case sub judice are now attempting to bring nearly identical claims that were first filed in the New Jersey matter. This is obvious forum shopping following the denial of the claims in the New Jersey matter. Plaintiffs herein continue their quests to sue their opposing counsel after attempting and being denied the opportunity by the District Court in New Jersey. In fact, the complaint in the present Pennsylvania action makes 159 references to the same FDCPA claims at issue in the New Jersey action. The complaint herein references the New Jersey action 27 times. Such reliance on the action pending in the District of New Jersey involving the same litigants makes it obvious that the matters stem from the same set of facts. Currently there are cross-motions for summary judgment pending in the New Jersey action related to the same claims in the Pennsylvania action. The outcome of the cross-motions for summary judgment in the New Jersey action will impact the present action, which is parallel litigation involving the same facts and circumstances surrounding Berger’s efforts to recover amounts purportedly owed by co-defendant, Omodunbi to Rutgers University,” dismissal motion continued.
“The New Jersey matter was filed about six years before the current case was filed. If sent into discovery, the present matter likely would lead to duplicative discovery and motion practice, including dispositive motions. In the New Jersey action, cross-motions for summary judgment on the same set of core legal issues present in this action are currently pending before Judge Semper. For these reasons, the present action should be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(3). Alternatively, staying the Pennsylvania matter pending the outcome of the New Jersey will not have a prejudicial impact on Berger as the decision on the cross-motions for summary judgment in the New Jersey action likely will provide finality regarding the duplicative allegations of fraud and abuse of process, which likely will affect the outcome of Berger’s RICO claim.”
The defendants added that Federal Rule of Civil Procedure 8(a)(2), which requires that a pleading must contain a “short and plain statement of the claim showing that the pleader is entitled to relief” should also compel the complaint’s dismissal – since it is comprised of 548 paragraphs over 128 pages.
“For the foregoing reasons, defendants Lawrence C. Hersh and Law Offices of Lawrence Hersh respectfully request that this Honorable Court grant their motion to dismiss plaintiffs’ complaint pursuant to Federal Rule of Civil Procedure 12(b)(3) or in the alternative, to stay the matter pending the outcome of Omodunbi v. Gordin and Berger, P.C. Et.Al, which is currently pending in the U.S. District Court for the District of New Jersey (Newark) at docket number 2:17-cv-07553.
The plaintiffs are represented by Daniel A. Berger of Gordin & Berger, in Philadelphia.
The defendants are represented by Olu Omodunbi in Pittsburgh and Ronald M. Metcho II of O’Hagan Meyer, in Philadelphia.
U.S. District Court for the Eastern District of Pennsylvania case 2:23-cv-02232
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com