2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

4-8-2011

Chander Kant v. Seton Hall Univ

Precedential or Non-Precedential: Non-Precedential

Docket No. 10-2258

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2011

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2011 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"Chander Kant v. Seton Hall Univ" (2011). 2011 Decisions. Paper 1474.

http://digitalcommons.law.villanova.edu/thirdcircuit_2011/1474
NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 10-2258

___________

CHANDER KANT,

Appellant

v.

SETON HALL UNIVERSITY;

KOUSOULAS & ASSOCIATES

____________________________________

On Appeal from the United States District Court

for the District of New Jersey

(D.C. Civil Action No. 2-00-cv-05204)

District Judge: Honorable Dennis M. Cavanaugh

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

April 8, 2011

Before: FUENTES, GREENAWAY, JR. and ROTH, Circuit Judges

(Opinion filed: April 8, 2011)

___________

OPINION

___________

PER CURIAM

Chander Kant appeals pro se from several orders entered by the United States 

District Court for the District of New Jersey. For the reasons that follow, we will affirm 

the district court’s orders. 
2

I.

In October 23, 2000, this litigation commenced in the United States District Court 

for the District of New Jersey when Kant filed a pro se complaint, alleging that his 

employer, Seton Hall University, discriminated and retaliated against him in violation of 

Title VII of the Civil Rights Act of 1964. Thereafter, on February 23, 2001, Kousoulas 

and Associates, P.C., entered into a retainer agreement with Kant whereby it agreed to 

represent him and Kant agreed to pay a fee of $15,000 plus either 20 percent of any 

recovery, or attorneys’ fees as awarded by the court. 

Although many of Kant’s claims against Seton Hall were dismissed, his retaliation 

claim proceeded to trial. He obtained an $80,000 judgment, which was entered on April 

11, 2006. Kousoulas, with Kant’s assent, filed an application for costs and attorneys’ 

fees pursuant to 42 U.S.C. § 2000e-5(k). However, Kant discharged Kousoulas prior to 

the fee petition hearing. Kousoulas thereafter filed a motion to intervene to protect its 

interest in the attorneys’ fees. At the July 2006 fee petition hearing, Kant’s new counsel 

argued for a reduction in the amount to be awarded, but stated that Kant did not otherwise 

object to the fee application.1

 1 Kant discharged his second attorney in October 2006. 

 On July 18, 2006, the district court awarded counsel fees 

of $124,834.95 and costs of $2,595.41. The July 18th order also denied Kousoulas’s 

motion to intervene, stating that “an attorney, independent of his or her client, has no 

personal right to an award of statutory attorneys’ fees.” The district court did note, 
3

however, that “plaintiff’s former attorneys may have a separate claim pursuant to the 

retainer agreement entered into with plaintiff for their fees.”

Seton Hall and Kant appealed from the April 11, 2006 judgment, which this Court 

affirmed on May 29, 2008. (C.A. Nos. 06-4448 & 06-4464.) Seton Hall then paid to 

Kant the $80,000 judgment and deposited the fee award with the district court. Seton 

Hall is no longer part of the litigation. 

Soon thereafter, because Kant refused to authorize payment of the fee award to 

Kousoulas, Kousoulas sent to Kant a fee arbitration notice pursuant to New Jersey Court 

Rule 1:20A-6. When Kant did not commence fee arbitration proceedings, Kousoulas 

filed a petition in the district court for determination and enforcement of an attorney fee 

lien pursuant to New Jersey law. On January 27, 2009, Kant filed an answer to the fee 

lien petition as well as a counterclaim against Kousoulas, asserting claims of legal 

malpractice and tortious interference with prospective economic advantage. 

On March 30, 2009, the district court dismissed Kant’s tortious interference claim

as time-barred. And on September 9, 2009, the district court granted Kousoulas’s motion 

for summary judgment as to its attorney fee lien and its motion to dismiss Kant’s legal 

malpractice claim. The September 9th order also denied as moot Kant’s motion for 

default judgment. Kousoulas then filed a motion for release of the funds, and Kant 

moved for reconsideration of the September 2009 order. On March 30, 2010, the district 

court granted Kousoulas’s motion and denied Kant’s motion for reconsideration. 
4

Kant now appeals from the district court’s March 30, 2009, September 9, 2009, 

and March 30, 2010 orders.

2

II. 

A. SUMMARY JUDGMENT AS TO THE FEE LIEN PETITION

On September 9, 2009, the district court granted Kousoulas’s motion for summary 

judgment as to its fee lien petition after determining that the retainer agreement, which 

stated that fees awarded are to be paid to Kousoulas, was an enforceable contract.3

As the district court recognized, in New Jersey the relationship between an 

attorney and client is contractual. See Cohen v. Radio-Electronics Officers Union, 679 

 We 

exercise plenary review over a district court’s conclusions of law and review its findings 

of fact for clear error. See Fed. Home Loan Mortgage Corp. v. Scottsdale Ins. Co., 316 

F.3d 431, 443 (3d Cir. 2003). In doing so, we employ the same standard used by the 

district court in deciding a motion for summary judgment. Farrell v. Planters Lifesavers 

Co., 206 F.3d 271, 278 (3d Cir. 2000). Summary judgment is proper where there is no 

genuine issue of material fact and the moving party is entitled to judgment as a matter of 

law. Fed. R. Civ. P. 56(c). 

 2 We have appellate jurisdiction pursuant to 28 U.S.C. § 1291.

3 We note that the district court properly exercised supplemental jurisdiction over 

the fee dispute. See Kalyawongsa v. Moffett, 105 F.3d 283, 287-88 (6th Cir. 1997) 

(holding that “although attorneys’ fee arrangements are contracts under state law, the 

federal court’s interest in fully and fairly resolving the controversies before it requires 

courts to exercise supplemental jurisdiction over fee disputes that are related to the main 

action”); Novinger v. E.I. DuPont de Nemours & Co., Inc., 809 F.2d 212, 217-18 (3d Cir. 

1987).
5

A.2d 1188, 1196 (N.J. 1996) (“Agreements between attorneys and clients concerning the 

client-lawyer relationship generally are enforceable, provided the agreements satisfy both 

the general requirements for contracts and the special requirements of professional 

ethics.”). And in determining that Kousoulas’s fee lien petition should be enforced, the 

district court explained that: 

The facts of record establish that Petitioner has rendered legal services to 

Kant pursuant to the Retainer Agreement. As a result of these services, 

Kant obtained a damages award of $80,000.00. Additionally, Kant and 

Petitioner filed a fee application and the Court granted said application. 

The facts presented establish that Kant agreed to turn over any fees 

awarded by the Court to Petitioner. The fees are to be paid by Seton Hall 

University, and, therefore, there is no loss incurred by Kant. Kant has 

provided neither legal authority nor facts to support his position that he 

does not have to turn over the fees awarded to Petitioner.

Kant asserts that the district court made several erroneous findings of fact in 

making its decision, including that he “agreed to turn over any fees awarded by the Court 

to [Kousoulas].” In support, he references several statements that he made regarding his 

continuing assertion that he, not Kousoulas, should be awarded attorney’s fees. 

However, the district court’s finding is correct, as Kant agreed “to pay [Kousoulas] 

twenty percent (20%) of the sum recovered, . . . or any legal fees awarded to [Kousoulas] 

by the Court, whichever is greater,” when he signed the retainer agreement. 

Further, although Kant correctly asserts that “courts scrutinize contracts between 

attorneys and clients to ensure that they are fair,” Cohen, 679 A.2d at 1196, he does not 

argue that the retainer agreement itself is unfair or unethical. Rather, Kant’s primary

argument appears to be that Kousoulas should not be awarded fees because Kant is likely 

to succeed on his counterclaims. However, Kant’s success or failure on his 
6

counterclaims has no bearing on the fee award paid by Seton Hall to Kousoulas pursuant 

to the retainer agreement.

Moreover, despite Kant’s argument to the contrary, he is not eligible for the 

attorney fee award under 42 U.S.C. § 2000e-5(k), as it is well-established that, “[s]ince 

the object of fee awards is not to provide a windfall to individual plaintiffs, fee awards 

must accrue to counsel.” Rodriguez v. Taylor, 569 F.2d 1231, 1245 (3d Cir. 1977) 

(receded from on other grounds in Kunda v. Muhlenberg Coll., 621 F.2d 532 (3d Cir. 

1980)). 

Kant’s remaining arguments are meritless. Therefore, we will affirm the district 

court’s orders granting Kousoulas’s motion for summary judgment as to its fee lien 

petition and denying Kant’s motion for reconsideration of that decision.

B. DISMISSAL OF KANT’S COUNTERCLAIMS

In its March 30, 2009 and September 9, 2009, the district court dismissed Kant’s 

counterclaims to Kousoulas’s fee lien petition. We review de novo the dismissal of a 

complaint for failure to state a claim. Dique v. New Jersey State Police, 603 F.3d 181, 

188 (3d Cir. 2010). 

(1) Tortious Interference with Prospective Economic Advantage

In January 2009, Kant asserted a claim against Kousoulas for tortious interference 

with prospective economic advantage. He asserted that in January 2001, he received a 

one-year appointment as a visiting scholar at Columbia University, and that in the spring 

of 2002, the senior faculty in the Economics Department voted to hire him. In May 2002, 

Kant told Kousoulas that he was likely to receive a full-time faculty appointment. 
7

However, within a week after Kant’s conversation with Kousoulas, Columbia University 

advised him that he had not been selected for the position. Due to the timing of these two 

events, Kant believes that Kousoulas prevented him from obtaining the job at Columbia 

University. On March 30, 2009, the district court dismissed Kant’s counterclaim as timebarred because it was filed beyond either New York’s or New Jersey’s statute of 

limitations for such claims.

The district court’s decision is correct. Because the district court determined that 

Kant’s claim was time-barred under either New York’s or New Jersey’s statute of 

limitations, it did not engage in a choice-of-law analysis. The New Jersey statute of 

limitations for a claim for tortious interference with prospective economic advantage is 

six years. N.J. STAT. ANN. § 2A:14-1. New York has a three-year statute of limitations 

for such claims. Besicorp Ltd. v. Kahn, 736 N.Y.S.2d 708, 711 (N.Y. App. Div. 2002). 

Under New Jersey law, “a statute of limitations begins to run when all elements of a 

cause of action are present, or, more plainly, from the moment of the wrong.” Michaels 

v. State of N.J., 955 F. Supp. 315, 326 (D.N.J. 1996) (internal citation and quotation 

omitted). Similarly, in New York, “a tort claim accrues as soon as the claim becomes 

enforceable, i.e., when all elements of the tort can be truthfully alleged in a complaint.” 

IDT Corp. v. Morgan Stanley Dean Witter & Co., 12 N.Y.3d 132, 140 (N.Y. 2009). 

Here, Kant’s claim accrued in May 2002, when he was told that he did not receive the 

position at Columbia University. Kant, did not, however, bring his tortious interference 

claim until January 27, 2009. The claim was therefore untimely under either New York 

or New Jersey law. Further, the district court properly determined that Kant did not 
8

provide grounds to toll the statute of limitations on equitable grounds or delay it under 

the discovery rule. 

(2) Legal Malpractice

Kant also claimed that Kousoulas had committed legal malpractice by, among 

other things, creating an expectation that he would recover $300,000 in damages from 

Seton Hall and failing to amend the original complaint to include a request for punitive 

damages. The district court dismissed the claim because Kant failed to produce an 

Affidavit of Merit, as is required by New Jersey law. See N.J. STAT. ANN. § 2A:53A-27. 

Under New Jersey law, a plaintiff alleging malpractice by a licensed professional 

must, “provide each defendant with an affidavit of an appropriate licensed person that 

there exists a reasonable probability that the care, skill or knowledge exercised or 

exhibited in the treatment, practice or work that is the subject of the complaint, fell 

outside acceptable professional or occupational standards or treatment practices.” Id.

New Jersey does, however, provide that “[i]n lieu of an affidavit, the plaintiff may 

provide a sworn statement that, after written request, the defendant failed to provide the 

plaintiff with records that have a substantial bearing on the preparation of the affidavit.” 

Chamberlain v. Giampapa, 210 F.3d 154, 157-58 (3d Cir. 2000) (citing to N.J. STAT.

ANN. § 2A:53A-28). Further, an affidavit is not required when the case turns on common 

knowledge. “The factual predicate for a common knowledge case is one where the 

carelessness of the defendant is readily apparent to anyone of average intelligence and 

ordinary experience.” Natale v. Camden County Corr. Facility, 318 F.3d 575, 579 (3d 

Cir. 2003) (internal citation and quotation marks omitted). If, however, “the claim’s 
9

underlying factual allegations require proof of a deviation from the professional standard 

of care applicable to that specific profession,” an affidavit of merit is required. Couri v. 

Gardner, 801 A.2d 1134, 1141 (N.J. 2002). Kant unsuccessfully argues both that he

substantially complied with the affidavit of merit requirement and that an affidavit is not 

required because his claim turns on common knowledge.4

First, to be relieved of the obligation to file an affidavit of merit, Kant was 

required to file a sworn statement that Kousoulas had failed to provide the documents that 

could form the basis of an affidavit of merit. N.J. STAT. ANN. § 2A:53-28. He claims 

that he provided such a statement. However, the document that he relies upon is an 

unsworn statement that he attached to a motion for default judgment, in which he asserted 

that Kousoulas had not complied with the district court’s scheduling order regarding 

discovery and other pretrial matters. Apart from being unsworn, the statement does not 

assert that Kousoulas’s alleged noncompliance with the scheduling order had any effect 

on Kant’s ability to obtain an affidavit of merit, much less reference the affidavit of merit 

statute. Therefore, this document does not constitute a sworn statement under New 

Jersey law.

 

 Kant also argues that because his claim sounded in contract and because its merit 

was “apparent from a reading of [his] complaint,” no affidavit of merit was required. 

This argument lacks merit. His claim, which alleged that Kousoulas failed to adequately 

represent his interests in a 42 U.S.C. § 1983 action, required proof of a deviation from the 

 4 We have determined that Kousoulas’s remaining arguments regarding the 

affidavit of merit statute, which include an assertion that the statute is unconstitutional, 

are meritless.
10

professional standard of care and thus required an affidavit of merit. See Couri, 801 A.2d 

at 1151. The case did not fall within the “common knowledge” doctrine because the 

alleged professional failings of Kousoulas (including her legal judgment) were not so 

apparent that no expert was required to demonstrate a deviation from the accepted 

standard of care. See Hubbard v. Reed, 774 A.2d 495, 500-01 (N.J. 2001). 

C. DENIAL OF MOTION FOR DEFAULT JUDGMENT

Finally, Kant’s assertion that this Court should vacate the District Court’s 

dismissal of his motion for default judgment as moot is meritless. Because the district 

court entered judgment in favor of Kousoulas, it properly denied as moot Kant’s motion 

for default judgment. See Int’l Bhd. of Boilermakers, Iron Ship Builders, Blacksmiths, 

Forgers & Helpers v. Kelly, 815 F.2d 912, 914 (3d Cir. 1987) (stating that “questions of 

mootness are considered under a plenary standard of review”). 

III.

In sum, for the foregoing reasons, we will affirm the district court’s orders. Kant

has also filed several motions before this Court, including a motion to reconsider our 

decision to dismiss his motion for a stay of execution of the district court’s judgment. 

We now deny all of Kant’s pending motions as moot. We grant Kousoulas’s motion to 

file a supplemental brief.