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Aljabri v. Elliott


November 5, 2010


The opinion of the court was delivered by: Milton I. Shadur Senior United States District Judge


This Court's September 13, 2010 memorandum opinion and order ("Opinion," 2010 WL 3714590)*fn1 dismissed the legal malpractice action that Salem Fuad Aljabri ("Aljabri") had brought pro se against two Chicago lawyers (and against the law firm to which they belong)--lawyers who had been appointed by our Court of Appeals to represent Aljabri on his appeal from a criminal conviction.*fn2 Aljabri then filed a timely Fed. R. Civ. P. 59(e) motion to alter or amend the judgment of dismissal, and this Court has held off on addressing that motion because (as Opinion at *2 had reflected) this Court's colleague Honorable Charles Norgle had scheduled for today, November 5, Aljabri's resentencing on the counts that had been upheld by our Court of Appeals.

But Judge Norgle's staff has just responded to this Court's inquiry by advising that the resentencing will be rescheduled to a future date, and under that circumstance this Court will not hold off further on ruling on Aljabri's motion. On that score nothing in Aljabri's current submission calls for revisiting what this Court said in Opinion at *2:

For purposes of this special look at Aljabri's Complaint, this Court will operate on the premise (without of course deciding) that his allegation of inadequate representation represented by the filing of an Anders brief is correct. This Court will not, however, credit his allegations that defendants had agreed "to abandon the Plaintiff's cause" (Complaint ¶14), that they "sought to sabotage the Plaintiff's appeal" through the Anders brief (id. ¶15), that they engaged in an "illegal and unconscionable scheme to sabotage Mr. Aljabri's appeal" (id. ¶16, and see also id. ¶24). Those ipse dixit characterizations of counsel, advanced without even a hint as to why lawyers appointed by our Court of Appeals to provide pro bono representation would undertake such a deliberate course of action, flunk the "plausibility" requirement taught by the Twombly-Iqbal combination.*fn3 What Aljabri refuses to face up to is that the numerous counts on which the Court of Appeals upheld his conviction were impregnable to challenge. And as to this Court's required examination of the other component of diversity jurisdiction, the amount in controversy, Aljabri is simply wrong in asserting that credence must be given to his "pejorative assertions" (Opinion at *2).

Aljabri is equally wrong in attempting to enlist to his aid the decision in Geoffrey E. MacPherson v. Brinecell, Inc., 98 F.3d 1241, 1245 (10th Cir. 1996) as assertedly calling for an aggregation of his claims for damages. All the counts that he advances--counts that represent a single "claim" as the operative concept under federal law (see NAACP v. Am. Family Mut. Ins. Co., 978 F.2d 287, 291-93 (7th Cir. 1992))--give rise to a single potential damages award, no matter how many different ways he may seek to slice up that claim into those different counts.

That then poses the issue of what value can plausibly be ascribed to what Aljabri describes at page 4 of his current motion:

Thus, in this case, the value in monetary terms of the right to file a meritorious appeal and the value of the reversed counts and vacatur of the money laundering counts to the plaintiff is the key consideration. Plaintiff's affidavit attests to the fact that he could not exchange the right to appeal nor the vacatur of the money laundering counts for any amount of money, much less $75,000.00.

This Court has already addressed that question in the Opinion in light of the fact that Aljabri's resentencing fate on the surviving charges will be identical to what he would have faced in the absence of the claimed malpractice by his appointed counsel.*fn4

On that score the short answer to Aljabri's contention, as he has now framed it, is that he did get the right to appeal and that he did get a vacatur of the money laundering counts when represented by the now-accused lawyers who had been appointed for purposes of his appeal.*fn5 Surely the possibility that someone such as Aljabri might theoretically have been damaged in the ways that he sets out, a possibility that did not eventuate, cannot be equated to actual damage.

In sum, nothing that Aljabri has advanced in his current motion calls for reconsideration of the conclusion reached in the Opinion: that "no rational jury could return a sustainable verdict that would come within haling distance of the Section 1332 amount-in-controversy requirement."*fn6 Aljabri's motion is denied.

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