Case 0:13-cv-61020-JIC Document 18 Entered on FLSD Docket 05/08/2013 Page 1 of 23

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Case No. 0:13-Civ-61020-Cohn/Seltzer IGNACIO DAMIAN FIGUEROA, Plaintiff, vs. LYNN SZYMONIAK, ESQUIRE, individually and as a shareholder/member/owner of The Szymoniak Firm, P.A.; THE SZYMONIAK FIRM, P.A., a Florida professional association; HAL J. KLEINMAN, ESQUIRE, individually; JANET, JENNER & SUGGS, LLC, Defendants. / DEFENDANTS HAL J. KLEINMAN, ESQ. AND JANET, JENNER & SUGGS, LLC S ANSWER AND AFFIRMATIVE DEFENSES COMES NOW, the Defendants, HAL J. KLEINMAN, ESQUIRE, individually, and JANET, JENNER & SUGGS, LLC, (hereby collectively referred to as the Janet Defendants) by and through their undersigned counsel and file this their Answer and Affirmative Defenses to the Plaintiffs claim, and in response thereto state as follows:

PARTIES AND JURISDICTION

1. The Janet Defendants deny that they are liable to the Plaintiff and therefore deny

Plaintiff is entitled to any damages. 2. The Janet Defendants are without knowledge as to the allegations in paragraph 2

of the Complaint and therefore neither admit nor deny same and leave Plaintiff to his proofs. 3. As the allegations in paragraph 3 of the Complaint are directed to a Co-

Defendant, the Janet Defendants neither admit nor deny same.

Case 0:13-cv-61020-JIC Document 18 Entered on FLSD Docket 05/08/2013 Page 2 of 23 Case No. 0:13-Civ-61020-Cohn/Seltzer 4. As the allegations in paragraph 4 of the Complaint are directed to a Co-

Defendant, the Janet Defendants neither admit nor deny same. 5. As the allegations in paragraph 5 of the Complaint are directed to a Co-

Defendant, the Janet Defendants neither admit nor deny same. 6. Defendant Kleinman admits he is an attorney licensed in the State of Illinois and

Pennsylvania to practice law. Defendant Kleinman denies he was retained by or entered into an attorney-client relationship with the Plaintiff. 7. Defendant Janet Jenner & Suggs, LLC admits only that it is a Maryland Limited

Liability Company. Defendant Janet Jenner & Suggs LLC denies that it represented or had an attorney-client relationship with the Plaintiff and further denies the remaining allegations of paragraph 7 of the Plaintiffs Complaint. 8. Defendants Janet admit only that Defendant Kleinman was an employee of

Defendant Janet Jenner & Suggs. The Janet Defendants deny that they represented or had an attorney-client relationship with the Plaintiff. 9. 10. The allegations in paragraph 9 of the Plaintiffs Complaint are denied. The allegations in paragraph 10 of the Plaintiffs Complaint are denied.

GENERAL ALLEGATIONS
11. The Janet Defendants are without knowledge as to the allegations in paragraph 11

of the Complaint and therefore neither admit nor deny same and leave Plaintiff to his proofs. 12. The Janet Defendants are without knowledge as to the allegations in paragraph 12

of the Complaint and therefore neither admit nor deny same and leave Plaintiff to his proofs. 13. The Janet Defendants are without knowledge as to the allegations in paragraph 13

of the Complaint and therefore neither admit nor deny same and leave Plaintiff to his proofs.

Case 0:13-cv-61020-JIC Document 18 Entered on FLSD Docket 05/08/2013 Page 3 of 23 Case No. 0:13-Civ-61020-Cohn/Seltzer 14. The Janet Defendants are without knowledge as to the allegations in paragraph 14

of the Complaint and therefore neither admit nor deny same and leave Plaintiff to his proofs. 15. The Janet Defendants are without knowledge as to the allegations in paragraph 15

of the Complaint and therefore neither admit nor deny same and leave Plaintiff to his proofs. 16. The Janet Defendants are without knowledge as to the allegations in paragraph 16

of the Complaint and therefore neither admit nor deny same and leave Plaintiff to his proofs. 17. The Janet Defendants are without knowledge as to the allegations in paragraph 17

of the Complaint and therefore neither admit nor deny same and leave Plaintiff to his proofs. 18. The Janet Defendants are without knowledge as to the allegations in paragraph 18

of the Complaint and therefore neither admit nor deny same and leave Plaintiff to his proofs. 19. The Janet Defendants are without knowledge as to the allegations in paragraph 19

of the Complaint and therefore neither admit nor deny same and leave Plaintiff to his proofs. 20. The Janet Defendants are without knowledge as to the allegations in paragraph 20

of the Complaint and therefore neither admit nor deny same and leave Plaintiff to his proofs. The Janet Defendants deny that they had an attorney-client relationship with the Plaintiff. 21. The Janet Defendants are without knowledge as to the allegations in paragraph 21

of the Complaint and therefore neither admit nor deny same and leave Plaintiff to his proofs. 22. The Janet Defendants are without knowledge as to the allegations in paragraph 22

of the Complaint and therefore neither admit nor deny same and leave Plaintiff to his proofs. The Janet Defendants deny that they had an attorney-client relationship with the Plaintiff. 23. The Janet Defendants are without knowledge as to the allegations in paragraph 23

of the Complaint and therefore neither admit nor deny same and leave Plaintiff to his proofs. The Janet Defendants deny that they had an attorney-client relationship with the Plaintiff.

Case 0:13-cv-61020-JIC Document 18 Entered on FLSD Docket 05/08/2013 Page 4 of 23 Case No. 0:13-Civ-61020-Cohn/Seltzer 24. The Janet Defendants are without knowledge as to the allegations in paragraph 24

of the Complaint and therefore neither admit nor deny same and leave Plaintiff to his proofs. The Janet Defendants deny that they had an attorney-client relationship with the Plaintiff. 25. The Janet Defendants are without knowledge as to the allegations in paragraph 25

of the Complaint and therefore neither admit nor deny same and leave Plaintiff to his proofs. The Janet Defendants deny that they had an attorney-client relationship with the Plaintiff. 26. Defendants deny that they had an obligation to undertake the activities set forth in

the allegations of the Plaintiffs Complaint as they did not represent or have an attorney-client relationship with the Plaintiff. (a) Defendants deny that they had an obligation to undertake the activities set forth in the allegations of the Plaintiffs Complaint as they did not represent or have an attorney-client relationship with the Plaintiff. (b) Defendants deny that they had an obligation to undertake the activities set forth in the allegations of the Plaintiffs Complaint as they did not represent or have an attorney-client relationship with the Plaintiff. (c) Defendants deny that they had an obligation to undertake the activities set forth in the allegations of the Plaintiffs Complaint as they did not represent or have an attorney-client relationship with the Plaintiff. (d) Defendants deny that they had an obligation to undertake the activities set forth in the allegations of the Plaintiffs Complaint as they did not represent or have an attorney-client relationship with the Plaintiff. (e) Defendants deny that they had an obligation to undertake the activities set forth in the allegations of the Plaintiffs Complaint as they did not represent or have an attorney-client relationship with the Plaintiff. 27. 28. The allegations in paragraph 27 of the Plaintiffs Complaint are denied as phrased. Defendants deny that they had an obligation to undertake the activities set forth in

the allegations of the Plaintiffs Complaint as they did not represent or have an attorney-client relationship with the Plaintiff.

Case 0:13-cv-61020-JIC Document 18 Entered on FLSD Docket 05/08/2013 Page 5 of 23 Case No. 0:13-Civ-61020-Cohn/Seltzer 29. Defendants deny that they had an obligation to undertake the activities set forth in

the allegations of the Plaintiffs Complaint as they did not represent or have an attorney-client relationship with the Plaintiff. 30. The Janet Defendants deny that the Plaintiff had a belief that the Janet Defendants

represented or had an attorney-client relationship with the Plaintiff. Remaining allegations are denied. 31. The Janet Defendants deny that the Plaintiff had a belief that the Janet Defendants

represented or had an attorney-client relationship with the Plaintiff. Remaining allegations are denied. 32. The Janet Defendants deny that the Plaintiff had a belief that the Janet Defendants

represented or had an attorney-client relationship with the Plaintiff or that he was assisting them with a Qui Tam action. Remaining allegations are denied. 33. The Janet Defendants deny that the Plaintiff had a belief that the Janet Defendants

represented or had an attorney-client relationship with the Plaintiff. Remaining allegations are denied. Remaining allegations are denied. 34. Defendant Kleinman admits that he received a copy of the Plaintiff's deed and that

he spoke with Plaintiff and Co-Defendant Szymoniak generally regarding a class action that was pending in Florida. At no time did Defendant Kleinman undertake to represent the Plaintiff and did not offer any specific advice with regard to the Plaintiff's circumstances 35. Defendant Kleinman admits that he received a copy of the Plaintiff's deed and that

he spoke with Plaintiff and Co-Defendant Szymoniak generally regarding the class action that was pending in Florida. At no time did Defendant Kleinman undertake to represent the Plaintiff

Case 0:13-cv-61020-JIC Document 18 Entered on FLSD Docket 05/08/2013 Page 6 of 23 Case No. 0:13-Civ-61020-Cohn/Seltzer and did not offer any specific advice with regard to the Plaintiff's circumstances. Defendant Kleinman did not discuss a Qui Tam Action with the Plaintiff during that call. 36. The Janet Defendants deny that the Plaintiff had a belief he was or would be

represented by the Janet Defendants in a Qui Tam action in which he would be the relator. The Janet Defendants further deny that they represented the Plaintiff. The remaining allegations of paragraph 36 are denied. 37. The Janet Defendants deny that the Plaintiff had a belief he was or would be

represented by the Janet Defendants in a Qui Tam action in which he would be the relator. The Janet Defendants further deny that they represented the Plaintiff. The remaining allegations of paragraph 37 are denied. 38. The Janet Defendants are without knowledge as to the allegations in paragraph 38

of the Complaint and therefore neither admit nor deny same and leave Plaintiff to his proofs. 39. The Janet Defendants deny that the Plaintiff had a belief he was or would be

represented by the Janet Defendants in a Qui Tam action in which he would be the relator. The Janet Defendants further deny that they represented the Plaintiff. The remaining allegations of paragraph 39 are denied. 40. The Janet Defendants are without knowledge as to the allegations in paragraph 40

of the Complaint and therefore neither admit nor deny same and leave Plaintiff to his proofs. 41. The Janet Defendants deny that the Plaintiff had a belief he was or would be

represented by the Janet Defendants in a Qui Tam action in which he would be the relator. The Janet Defendants further deny that they represented the Plaintiff. The remaining allegations of paragraph 41 are denied.

Case 0:13-cv-61020-JIC Document 18 Entered on FLSD Docket 05/08/2013 Page 7 of 23 Case No. 0:13-Civ-61020-Cohn/Seltzer 42. The Janet Defendants are without knowledge as to the allegations in paragraph

42 of the Complaint and therefore neither admit nor deny same and leave Plaintiff to his proofs. 43. Defendants deny that they had an obligation to undertake the activities set forth in

the allegations of the Plaintiffs Complaint as they did not represent or have an attorney-client relationship with the Plaintiff. (a) Defendants deny that they had an obligation to undertake the activities set forth in the allegations of the Plaintiffs Complaint as they did not represent or have an attorney-client relationship with the Plaintiff. (b) Defendants deny that they had an obligation to undertake the activities set forth in the allegations of the Plaintiffs Complaint as they did not represent or have an attorney-client relationship with the Plaintiff. (c) Defendants deny that they had an obligation to undertake the activities set forth in the allegations of the Plaintiffs Complaint as they did not represent or have an attorney-client relationship with the Plaintiff. (d) Defendants deny that they had an obligation to undertake the activities set forth in the allegations of the Plaintiffs Complaint as they did not represent or have an attorney-client relationship with the Plaintiff. (e) Defendants deny that they had an obligation to undertake the activities set forth in the allegations of the Plaintiffs Complaint as they did not represent or have an attorney-client relationship with the Plaintiff. 44. Defendants deny that they had an obligation to undertake the activities set forth in

the allegations of the Plaintiffs Complaint as they did not represent or have an attorney-client relationship with the Plaintiff. (a) Defendants deny that they had an obligation to undertake the activities set forth in the allegations of the Plaintiffs Complaint as they did not represent or have an attorney-client relationship with the Plaintiff. (b) Defendants deny that they had an obligation to undertake the activities set forth in the allegations of the Plaintiffs Complaint as they did not represent or have an attorney-client relationship with the Plaintiff. (c) Defendants deny that they had an obligation to undertake the activities set forth in the allegations of the Plaintiffs Complaint as they did not represent or have an attorney-client relationship with the Plaintiff. 7

Case 0:13-cv-61020-JIC Document 18 Entered on FLSD Docket 05/08/2013 Page 8 of 23 Case No. 0:13-Civ-61020-Cohn/Seltzer 45. The Janet Defendants are without knowledge as to the allegations in paragraph 45

of the Complaint and therefore neither admit nor deny same and leave Plaintiff to his proofs. 46. The Janet Defendants are without knowledge as to the allegations in paragraph 46

of the Complaint and therefore neither admit nor deny same and leave Plaintiff to his proofs. 47. The Janet Defendants deny that the Plaintiff had a belief he was or would be

represented by the Janet Defendants in a Qui Tam action in which he would be the relator. The Janet Defendants further deny that they represented the Plaintiff. The remaining allegations of paragraph 47 are denied. 48. Defendants deny that they had an obligation to undertake the activities set forth in

the allegations of the Plaintiffs Complaint as they did not represent or have an attorney-client relationship with the Plaintiff. 49. 50. 51. Admitted. Admitted. The Janet Defendants deny that the Plaintiff had a belief he was or would be

represented by the Janet Defendants in a Qui Tam action in which he would be the relator. The Janet Defendants further deny that they represented the Plaintiff. The Janet Defendants deny that they had an obligation to undertake the activities set forth in the allegations of the Plaintiffs Complaint as they did not represent or have an attorney-client relationship with the Plaintiff. 52. The Janet Defendants deny that the Plaintiff had a belief he was or would be

represented by the Janet Defendants in a Qui Tam action in which he would be the relator. The Janet Defendants further deny that they represented the Plaintiff. The Janet Defendants deny that they had an obligation to undertake the activities set forth in the allegations of the Plaintiffs Complaint as they did not represent or have an attorney-client relationship with the Plaintiff

Case 0:13-cv-61020-JIC Document 18 Entered on FLSD Docket 05/08/2013 Page 9 of 23 Case No. 0:13-Civ-61020-Cohn/Seltzer 53. The Janet Defendants deny that the Plaintiff had a belief he was or would be

represented by the Janet Defendants in a Qui Tam action in which he would be the relator. The Janet Defendants further deny that they represented the Plaintiff. The remaining allegations of paragraph 53 regarding settlement figures are denied as phrased. 54. The Janet Defendants deny that the Plaintiff had a belief he was or would be

represented by the Janet Defendants in a Qui Tam action in which he would be the relator. The Janet Defendants further deny that they represented the Plaintiff. The remaining allegations of paragraph 54 are denied as phrased. 55. The Janet Defendants deny that they were retained by Plaintiff to represent him as

a relator in a Qui Tam. Since the Janet Defendants did not represent Plaintiff in the Qui Tam action they therefore had no duty to withdraw from such representation. The remaining allegations of paragraph 55 are denied.

COUNT I LEGAL MALPRACTICE AS TO DEFENDANTS, LYNN SZYMONIAK, ESQUIRE & THE SZYMONIAK FIRM, P.A.
56. The Janet Defendants reassert and restate their responses to paragraphs 1 through

55 of the Plaintiffs Complaint as if fully set forth herein. 57. As the allegations in paragraph 57 of the Plaintiffs Complaint are directed to Co-

Defendant and not the Janet Defendants, the Janet Defendants neither admit nor deny same and leave Plaintiff to his proofs. To the extent that the allegations are construed as asserting a claim against the Janet Defendants, they are denied. 58. As the allegations in paragraph 58 of the Plaintiffs Complaint are directed to Co-

Defendant and not the Janet Defendants, the Janet Defendants neither admit nor deny same and

Case 0:13-cv-61020-JIC Document 18 Entered on FLSD Docket 05/08/2013 Page 10 of 23 Case No. 0:13-Civ-61020-Cohn/Seltzer leave Plaintiff to his proofs. To the extent that the allegations are construed as asserting a claim against the Janet Defendants, they are denied. 59. As the allegations in paragraph 59 of the Plaintiffs Complaint are directed to Co-

Defendant and not the Janet Defendants, the Janet Defendants neither admit nor deny same and leave Plaintiff to his proofs. To the extent that the allegations are construed as asserting a claim against the Janet Defendants, they are denied. (a) As the allegations in paragraph 59(a) of the Plaintiffs Complaint are directed to Co-Defendant and not the Janet Defendants, the Janet Defendants neither admit nor deny same and leave Plaintiff to his proofs. To the extent that the allegations are construed as asserting a claim against the Janet Defendants, they are denied. (b) As the allegations in paragraph 59(b) of the Plaintiffs Complaint are directed to Co-Defendant and not the Janet Defendants, the Janet Defendants neither admit nor deny same and leave Plaintiff to his proofs. To the extent that the allegations are construed as asserting a claim against the Janet Defendants, they are denied. (c) As the allegations in paragraph 59(c) of the Plaintiffs Complaint are directed to Co-Defendant and not the Janet Defendants, the Janet Defendants neither admit nor deny same and leave Plaintiff to his proofs. To the extent that the allegations are construed as asserting a claim against the Janet Defendants, they are denied. (d) As the allegations in paragraph 59(d) of the Plaintiffs Complaint are directed to Co-Defendant and not the Janet Defendants, the Janet Defendants neither admit nor deny same and leave Plaintiff to his proofs. To the extent that the allegations are construed as asserting a claim against the Janet Defendants, they are denied. (e) As the allegations in paragraph 59(e) of the Plaintiffs Complaint are directed to Co-Defendant and not the Janet Defendants, the Janet Defendants neither admit nor deny same and leave Plaintiff to his proofs. To the extent that the allegations are construed as asserting a claim against the Janet Defendants, they are denied. (f) As the allegations in paragraph 59(f) of the Plaintiffs Complaint are directed to Co-Defendant and not the Janet Defendants, the Janet Defendants neither admit nor deny same and leave Plaintiff to his proofs. To the extent that the allegations are construed as asserting a claim against the Janet Defendants, they are denied. (g) As the allegations in paragraph 59(g) of the Plaintiffs Complaint are directed to Co-Defendant and not the Janet Defendants, the Janet Defendants neither admit nor deny same and leave Plaintiff to his proofs. To the extent that the allegations are construed as asserting a claim against the Janet Defendants, they are denied.

10

Case 0:13-cv-61020-JIC Document 18 Entered on FLSD Docket 05/08/2013 Page 11 of 23 Case No. 0:13-Civ-61020-Cohn/Seltzer (h) As the allegations in paragraph 59(h) of the Plaintiffs Complaint are directed to Co-Defendant and not the Janet Defendants, the Janet Defendants neither admit nor deny same and leave Plaintiff to his proofs. To the extent that the allegations are construed as asserting a claim against the Janet Defendants, they are denied. 60. As the allegations in paragraph 60 of the Plaintiffs Complaint are directed to Co-

Defendant and not the Janet Defendants, the Janet Defendants neither admit nor deny same and leave Plaintiff to his proofs. To the extent that the allegations are construed as asserting a claim against the Janet Defendants, they are denied. (a) As the allegations in paragraph 60(a) of the Plaintiffs Complaint are directed to Co-Defendant and not the Janet Defendants, the Janet Defendants neither admit nor deny same and leave Plaintiff to his proofs. To the extent that the allegations are construed as asserting a claim against the Janet Defendants, they are denied. (b) As the allegations in paragraph 60(b) of the Plaintiffs Complaint are directed to Co-Defendant and not the Janet Defendants, the Janet Defendants neither admit nor deny same and leave Plaintiff to his proofs. To the extent that the allegations are construed as asserting a claim against the Janet Defendants, they are denied. (c) As the allegations in paragraph 60(c) of the Plaintiffs Complaint are directed to Co-Defendant and not the Janet Defendants, the Janet Defendants neither admit nor deny same and leave Plaintiff to his proofs. To the extent that the allegations are construed as asserting a claim against the Janet Defendants, they are denied. (d) As the allegations in paragraph 60(d) of the Plaintiffs Complaint are directed to Co-Defendant and not the Janet Defendants, the Janet Defendants neither admit nor deny same and leave Plaintiff to his proofs. To the extent that the allegations are construed as asserting a claim against the Janet Defendants, they are denied.

COUNT II BREACH OF FIDUCIARY DUTY AS TO DEFENDANTS, LYNN SZYMONIAK, ESQUIRE & THE SZYMONIAK FIRM, P.A.
61. The Janet Defendants re-assert and restate their responses to paragraphs 1 through

55 of the Plaintiffs Complaint as if fully set forth herein. 62. As the allegations in paragraph 62 of the Plaintiffs Complaint are directed to Co-

Defendant and not the Janet Defendants, the Janet Defendants neither admit nor deny same and

11

Case 0:13-cv-61020-JIC Document 18 Entered on FLSD Docket 05/08/2013 Page 12 of 23 Case No. 0:13-Civ-61020-Cohn/Seltzer leave Plaintiff to his proofs. To the extent that the allegations are construed as asserting a claim against the Janet Defendants, they are denied. 63. As the allegations in paragraph 63 of the Plaintiffs Complaint are directed to Co-

Defendant and not the Janet Defendants, the Janet Defendants neither admit nor deny same and leave Plaintiff to his proofs. To the extent that the allegations are construed as asserting a claim against the Janet Defendants, they are denied. (a) As the allegations in paragraph 63(a) of the Plaintiffs Complaint are directed to Co-Defendant and not the Janet Defendants, the Janet Defendants neither admit nor deny same and leave Plaintiff to his proofs. To the extent that the allegations are construed as asserting a claim against the Janet Defendants, they are denied. (b) As the allegations in paragraph 63(b) of the Plaintiffs Complaint are directed to Co-Defendant and not the Janet Defendants, the Janet Defendants neither admit nor deny same and leave Plaintiff to his proofs. To the extent that the allegations are construed as asserting a claim against the Janet Defendants, they are denied. (c) As the allegations in paragraph 63(c) of the Plaintiffs Complaint are directed to Co-Defendant and not the Janet Defendants, the Janet Defendants neither admit nor deny same and leave Plaintiff to his proofs. To the extent that the allegations are construed as asserting a claim against the Janet Defendants, they are denied. (d) As the allegations in paragraph 63(d) of the Plaintiffs Complaint are directed to Co-Defendant and not the Janet Defendants, the Janet Defendants neither admit nor deny same and leave Plaintiff to his proofs. To the extent that the allegations are construed as asserting a claim against the Janet Defendants, they are denied. (e) As the allegations in paragraph 63(e) of the Plaintiffs Complaint are directed to Co-Defendant and not the Janet Defendants, the Janet Defendants neither admit nor deny same and leave Plaintiff to his proofs. To the extent that the allegations are construed as asserting a claim against the Janet Defendants, they are denied. (f) As the allegations in paragraph 63(f) of the Plaintiffs Complaint are directed to Co-Defendant and not the Janet Defendants, the Janet Defendants neither admit nor deny same and leave Plaintiff to his proofs. To the extent that the allegations are construed as asserting a claim against the Janet Defendants, they are denied. (g) As the allegations in paragraph 63(g) of the Plaintiffs Complaint are directed to Co-Defendant and not the Janet Defendants, the Janet Defendants neither admit nor deny same and leave Plaintiff to his proofs. To the extent that the allegations are construed as asserting a claim against the Janet Defendants, they are denied.

12

Case 0:13-cv-61020-JIC Document 18 Entered on FLSD Docket 05/08/2013 Page 13 of 23 Case No. 0:13-Civ-61020-Cohn/Seltzer (h) As the allegations in paragraph 63(h) of the Plaintiffs Complaint are directed to Co-Defendant and not the Janet Defendants, the Janet Defendants neither admit nor deny same and leave Plaintiff to his proofs. To the extent that the allegations are construed as asserting a claim against the Janet Defendants, they are denied. (i) As the allegations in paragraph 63(i) of the Plaintiffs Complaint are directed to Co-Defendant and not the Janet Defendants, the Janet Defendants neither admit nor deny same and leave Plaintiff to his proofs. To the extent that the allegations are construed as asserting a claim against the Janet Defendants, they are denied. (j) As the allegations in paragraph 63(j) of the Plaintiffs Complaint are directed to Co-Defendant and not the Janet Defendants, the Janet Defendants neither admit nor deny same and leave Plaintiff to his proofs. To the extent that the allegations are construed as asserting a claim against the Janet Defendants, they are denied. (k) As the allegations in paragraph 63(k) of the Plaintiffs Complaint are directed to Co-Defendant and not the Janet Defendants, the Janet Defendants neither admit nor deny same and leave Plaintiff to his proofs. To the extent that the allegations are construed as asserting a claim against the Janet Defendants, they are denied. 64. As the allegations in paragraph 64 of the Plaintiffs Complaint are directed to Co-

Defendant and not the Janet Defendant, the Janet Defendants neither admit nor deny same and leave Plaintiff to his proofs. To the extent that the allegations are construed as asserting a claim against the Janet Defendants, they are denied.

COUNT III UNJUST ENRICHMENT AS TO DEFENDANT, LYNN SZYMONIAK, ESQUIRE

65. The Janet Defendants re-assert and restate their responses to paragraphs 1 through

55 of the Plaintiffs Complaint as if fully set forth herein. 66. As the allegations in paragraph 66 of the Plaintiffs Complaint are directed to Co-

Defendant and not the Janet Defendants, the Janet Defendants neither admit nor deny same and leave Plaintiff to his proofs. To the extent that the allegations are construed as asserting a claim against the Janet Defendants, they are denied. 67. As the allegations in paragraph 67 of the Plaintiffs Complaint are directed to Co-

Defendant and not the Janet Defendants, the Janet Defendants neither admit nor deny same and 13

Case 0:13-cv-61020-JIC Document 18 Entered on FLSD Docket 05/08/2013 Page 14 of 23 Case No. 0:13-Civ-61020-Cohn/Seltzer leave Plaintiff to his proofs. To the extent that the allegations are construed as asserting a claim against the Janet Defendants, they are denied. 68. As the allegations in paragraph 68 of the Plaintiffs Complaint are directed to Co-

Defendant and not the Janet Defendants, the Janet Defendants neither admit nor deny same and leave Plaintiff to his proofs. To the extent that the allegations are construed as asserting a claim against the Janet Defendants, they are denied. 69. As the allegations in paragraph 69 of the Plaintiffs Complaint are directed to Co-

Defendant and not the Janet Defendants, the Janet Defendants neither admit nor deny same and leave Plaintiff to his proofs. To the extent that the allegations are construed as asserting a claim against the Janet Defendants, they are denied. 70. As the allegations in paragraph 70 of the Plaintiffs Complaint are directed to Co-

Defendant and not the Janet Defendants, the Janet Defendants neither admit nor deny same and leave Plaintiff to his proofs. To the extent that the allegations are construed as asserting a claim against the Janet Defendants, they are denied.

COUNT IV FRAUD AS TO DEFENDANT, LYNN SZYMONIAK, ESQUIRE

71. The Janet Defendants re-assert and restate their responses to paragraphs 1 through

55 of the Plaintiffs Complaint as if fully set forth herein. 72. As the allegations in paragraph 72 of the Plaintiffs Complaint are directed to Co-

Defendant and not the Janet Defendants, the Janet Defendants neither admit nor deny same and leave Plaintiff to his proofs. To the extent that the allegations are construed as asserting a claim against the Janet Defendants, they are denied. 73. As the allegations in paragraph 73 of the Plaintiffs Complaint are directed to Co-

Defendant and not the Janet Defendants, the Janet Defendants neither admit nor deny same and 14

Case 0:13-cv-61020-JIC Document 18 Entered on FLSD Docket 05/08/2013 Page 15 of 23 Case No. 0:13-Civ-61020-Cohn/Seltzer leave Plaintiff to his proofs. To the extent that the allegations are construed as asserting a claim against the Janet Defendants, they are denied. 74. As the allegations in paragraph 74 of the Plaintiffs Complaint are directed to Co-

Defendant and not the Janet Defendants, the Janet Defendants neither admit nor deny same and leave Plaintiff to his proofs. To the extent that the allegations are construed as asserting a claim against the Janet Defendants, they are denied. 75. As the allegations in paragraph 75 of the Plaintiffs Complaint are directed to Co-

Defendant and not the Janet Defendants, the Janet Defendants neither admit nor deny same and leave Plaintiff to his proofs. To the extent that the allegations are construed as asserting a claim against the Janet Defendants, they are denied. 76. As the allegations in paragraph 76 of the Plaintiffs Complaint are directed to Co-

Defendant and not the Janet Defendants, the Janet Defendants neither admit nor deny same and leave Plaintiff to his proofs. To the extent that the allegations are construed as asserting a claim against the Janet Defendants, they are denied. (a) As the allegations in paragraph 76(a) of the Plaintiffs Complaint are directed to Co-Defendant and not the Janet Defendants, the Janet Defendants neither admit nor deny same and leave Plaintiff to his proofs. To the extent that the allegations are construed as asserting a claim against the Janet Defendants, they are denied. (b) As the allegations in paragraph 76(b) of the Plaintiffs Complaint are directed to Co-Defendant and not the Janet Defendants, the Janet Defendants neither admit nor deny same and leave Plaintiff to his proofs. To the extent that the allegations are construed as asserting a claim against the Janet Defendants, they are denied. (c) As the allegations in paragraph 76(c) of the Plaintiffs Complaint are directed to Co-Defendant and not the Janet Defendants, the Janet Defendants neither admit nor deny same and leave Plaintiff to his proofs. To the extent that the allegations are construed as asserting a claim against the Janet Defendants, they are denied. (d) As the allegations in paragraph 76(d) of the Plaintiffs Complaint are directed to Co-Defendant and not the Janet Defendants, the Janet Defendants neither admit nor deny same and leave Plaintiff to his proofs. To the extent that the allegations are construed as asserting a claim against the Janet Defendants, they are denied. 15

Case 0:13-cv-61020-JIC Document 18 Entered on FLSD Docket 05/08/2013 Page 16 of 23 Case No. 0:13-Civ-61020-Cohn/Seltzer

COUNT V LEGAL MALPRACTICE AS TO DEFENDANTS, HAL J. KLEINMAN, ESQUIRE & JANET, JENNER & SUGGS, LLC
77. The Janet Defendants re-assert and restate their responses to paragraphs 1 through

55 of the Plaintiffs Complaint as if fully set forth herein. 78. 79. 80. The allegations in paragraph 78 of the Plaintiffs Complaint are denied. The allegations in paragraph 79 of the Plaintiffs complaint are denied. The Janet Defendants deny that they were retained by Plaintiff to represent him as

a relator in a Qui Tam action and further deny that that they had or breached a duty to the Plaintiff. The Janet Defendants deny that Plaintiff had a belief he was represented by the Janet Defendants. The remaining allegations of paragraph 80 are denied. (a) The Janet Defendants deny that they were retained by Plaintiff to represent him as a relator in a Qui Tam action and further deny that that they had or breached a duty to the Plaintiff. The Janet Defendants deny that Plaintiff had a belief he was represented by the Janet Defendants. The remaining allegations of paragraph 80(a) are denied. (b) The Janet Defendants deny that they were retained by Plaintiff to represent him as a relator in a Qui Tam action and further deny that that they had or breached a duty to the Plaintiff. The Janet Defendants deny that Plaintiff had a belief he was represented by the Janet Defendants. The remaining allegations of paragraph 80(b) are denied. (c) The Janet Defendants deny that they were retained by Plaintiff to represent him as a relator in a Qui Tam action and further deny that that they had or breached a duty to the Plaintiff. The Janet Defendants deny that Plaintiff had a belief he was represented by the Janet Defendants. The remaining allegations of paragraph 80(c) are denied. (d) The Janet Defendants deny that they were retained by Plaintiff to represent him as a relator in a Qui Tam action and further deny that that they had or breached a duty to the Plaintiff. The Janet Defendants deny that Plaintiff had a belief he was represented by the Janet Defendants. The remaining allegations of paragraph 80(d) are denied. (e) The Janet Defendants deny that they were retained by Plaintiff to represent him as a relator in a Qui Tam action and further deny that that they had or breached a 16

Case 0:13-cv-61020-JIC Document 18 Entered on FLSD Docket 05/08/2013 Page 17 of 23 Case No. 0:13-Civ-61020-Cohn/Seltzer duty to the Plaintiff. The Janet Defendants deny that Plaintiff had a belief he was represented by the Janet Defendants. The remaining allegations of paragraph 80(e) are denied. (f) The Janet Defendants deny that they were retained by Plaintiff to represent him as a relator in a Qui Tam action and further deny that that they had or breached a duty to the Plaintiff. The Janet Defendants deny that Plaintiff had a belief he was represented by the Janet Defendants. The remaining allegations of paragraph 80(f) are denied. (g) The Janet Defendants deny that they were retained by Plaintiff to represent him as a relator in a Qui Tam action and further deny that that they had or breached a duty to the Plaintiff. The Janet Defendants deny that Plaintiff had a belief he was represented by the Janet Defendants. The remaining allegations of paragraph 80(g) are denied. (h) The Janet Defendants deny that they were retained by Plaintiff to represent him as a relator in a Qui Tam action and further deny that that they had or breached a duty to the Plaintiff. The Janet Defendants deny that Plaintiff had a belief he was represented by the Janet Defendants. The remaining allegations of paragraph 80(h) are denied. 81. The allegations in paragraph 81 are denied. (a) (b) (c) (d) The allegations in paragraph 81(a) are denied. The allegations in paragraph 81(b) are denied. The allegations in paragraph 81(c) are denied. The allegations in paragraph 81(d) are denied.

Un-numbered wherefore clause. The Janet Defendants deny that the Plaintiff is entitled to the requested relief and further denies any entitlement by the Plaintiff to costs, interest or any other damages claimed.

COUNT VI BREACH OF FIDUCIARY DUTY AS TO DEFENDANTS, HAL J. KLEINMAN. ESQUIRE & JANET, JENNER & SUGGS, LLC
82. The Janet Defendants re-assert and restate their responses to paragraphs 1 through

55 of the Plaintiffs Complaint as if fully set forth herein. 83. The allegations in paragraph 83 of the Plaintiffs Complaint are denied.

17

Case 0:13-cv-61020-JIC Document 18 Entered on FLSD Docket 05/08/2013 Page 18 of 23 Case No. 0:13-Civ-61020-Cohn/Seltzer 84. The Janet Defendants deny that they were retained by Plaintiff to represent him as

a relator in a Qui Tam action and further deny that that they had or breached a duty to the Plaintiff. The Janet Defendants deny that Plaintiff had a belief he was represented by the Janet Defendants The remaining allegations of paragraph 84 are denied. (a) The Janet Defendants deny that they were retained by Plaintiff to represent him as a relator in a Qui Tam action and further deny that that they had or breached a duty to the Plaintiff. The Janet Defendants deny that Plaintiff had a belief he was represented by the Janet Defendants. The remaining allegations of paragraph 84(a) are denied. (b) The Janet Defendants deny that they were retained by Plaintiff to represent him as a relator in a Qui Tam action and further deny that that they had or breached a duty to the Plaintiff. The Janet Defendants deny that Plaintiff had a belief he was represented by the Janet Defendants. The remaining allegations of paragraph 84(b) are denied. (c) The Janet Defendants deny that they were retained by Plaintiff to represent him as a relator in a Qui Tam action and further deny that that they had or breached a duty to the Plaintiff. The Janet Defendants deny that Plaintiff had a belief he was represented by the Janet Defendants. The remaining allegations of paragraph 84(c) are denied. (d) The Janet Defendants deny that they were retained by Plaintiff to represent him as a relator in a Qui Tam action and further deny that that they had or breached a duty to the Plaintiff. The Janet Defendants deny that Plaintiff had a belief he was represented by the Janet Defendants. The remaining allegations of paragraph 84(d) are denied. (e) The Janet Defendants deny that they were retained by Plaintiff to represent him as a relator in a Qui Tam action and further deny that that they had or breached a duty to the Plaintiff. The Janet Defendants deny that Plaintiff had a belief he was represented by the Janet Defendants. The remaining allegations of paragraph 84(e) are denied. (f) The Janet Defendants deny that they were retained by Plaintiff to represent him as a relator in a Qui Tam action and further deny that that they had or breached a duty to the Plaintiff. The Janet Defendants deny that Plaintiff had a belief he was represented by the Janet Defendants. The remaining allegations of paragraph 84(f) are denied. (g) The Janet Defendants deny that they were retained by Plaintiff to represent him as a relator in a Qui Tam action and further deny that that they had or breached a duty to the Plaintiff. The Janet Defendants deny that Plaintiff had a belief he was 18

Case 0:13-cv-61020-JIC Document 18 Entered on FLSD Docket 05/08/2013 Page 19 of 23 Case No. 0:13-Civ-61020-Cohn/Seltzer represented by the Janet Defendants. The remaining allegations of paragraph 84(g) are denied. (h) The Janet Defendants deny that they were retained by Plaintiff to represent him as a relator in a Qui Tam action and further deny that that they had or breached a duty to the Plaintiff. The Janet Defendants deny that Plaintiff had a belief he was represented by the Janet Defendants. The remaining allegations of paragraph 84(h) are denied. (i) The Janet Defendants deny that they were retained by Plaintiff to represent him as a relator in a Qui Tam action and further deny that that they had or breached a duty to the Plaintiff. The Janet Defendants deny that Plaintiff had a belief he was represented by the Janet Defendants. The remaining allegations of paragraph 84(i) are denied. (j) The Janet Defendants deny that they were retained by Plaintiff to represent him as a relator in a Qui Tam action and further deny that that they had or breached a duty to the Plaintiff. The Janet Defendants deny that Plaintiff had a belief he was represented by the Janet Defendants. The remaining allegations of paragraph 84(j) are denied. (k) The Janet Defendants deny that they were retained by Plaintiff to represent him as a relator in a Qui Tam action and further deny that that they had or breached a duty to the Plaintiff. The Janet Defendants deny that Plaintiff had a belief he was represented by the Janet Defendants. The remaining allegations of paragraph 84(k) are denied. 85. The allegations in paragraph 85 are denied. (a) (b) (c) (d) The allegations in paragraph 85(a) are denied. The allegations in paragraph 85(b) are denied. The allegations in paragraph 85(c) are denied. The allegations in paragraph 85(d) are denied.

Un-numbered wherefore clause. The Janet Defendants deny that the Plaintiff is entitled to the requested relief and further denies any entitlement by the Plaintiff to costs, interest or any other damages claimed. WHEREFORE, Defendants, HAL J. KLEINMAN, ESQUIRE, individually, and JANET, JENNER & SUGGS, LLC, respectfully request that the Court enter judgment in their

19

Case 0:13-cv-61020-JIC Document 18 Entered on FLSD Docket 05/08/2013 Page 20 of 23 Case No. 0:13-Civ-61020-Cohn/Seltzer favor, dismiss the Plaintiffs Complaint with prejudice and award said Defendants such other or further relief as the Court may deem just and appropriate. AFFIRMATIVE DEFENSES APPLICABLE TO ALL COUNTS OF THE PLAINTIFFS COMPLAINT FIRST AFFIRMATIVE DEFENSE If the Janet Defendants did not owe a duty to Plaintiff, then the Janet Defendants cannot be held liable for the breach of said duty. SECOND AFFIRMATIVE DEFENSE To the extent Plaintiff has failed to mitigate its damages, Plaintiffs recovery, if any, should be reduced by the amount that Plaintiff could have lessened his claimed damages. THIRD AFFIRMATIVE DEFENSE The transactions alleged in Plaintiffs Second Amended Complaint fall within the provisions of the Tort Reform and Insurance Act of 1986 which said Act specifically addresses, but is not limited to: Fla. Stat. 768.76, collateral sources of indemnity; Fla. Stat. 768.78, alternative methods of payment of damage awards; 768.81, comparative fault. The Janet Defendants plead all of the defenses available to them under said Act, specifically including, without limitation, 768.81(3), abolishing joint and several liability, and requiring that judgment be entered against each party liable on the basis of such partys percentage of fault. FOURTH AFFIRMATIVE DEFENSE Plaintiff has failed to state a cause of action for legal malpractice as the Plaintiff did not retain nor did the Janet Defendants undertake to represent the Plaintiff in a Qui Tam action.

20

Case 0:13-cv-61020-JIC Document 18 Entered on FLSD Docket 05/08/2013 Page 21 of 23 Case No. 0:13-Civ-61020-Cohn/Seltzer FIFTH AFFIRMATIVE DEFENSE The Janet Defendants state that the damages alleged in Plaintiffs Complaint were proximately caused by the activities of Plaintiff or his agent/representative and the Defendants bear no legal liability therefore. SIXTH AFFIRMATIVE DEFENSE Plaintiffs claims are barred by the applicable Statute of Limitations. SEVENTH AFFIRMATIVE DEFENSE If Plaintiff was damaged either as alleged in the Complaint or at all, such damages were directly and proximately caused by the negligence or wanton action of Plaintiff or others over whom Defendants had no control and Plaintiffs recovery, if any, should be reduced in proportion to the amount of fault attributable to each. EIGHTH AFFIRMATIVE DEFENSE Plaintiff has failed to demonstrate a nexus between the conduct alleged in the Complaint, Plaintiffs alleged injuries and the acts of alleged omissions of the Janet Defendants. Furthermore, the damages claimed by Plaintiff were not proximately caused by the Janet Defendants herein. NINTH AFFIRMATIVE DEFENSE That at the time and place under the circumstances referred to in the Complaint, the Plaintiff conducted itself in a negligent and careless manner and way and that his said negligence and carelessness contributed to the happenings described therein and to the injuries and damages complained of. Therefore, Plaintiff is either barred from recovery against the Janet Defendants or his recovery should be comparatively reduced against the Janet Defendants.

21

Case 0:13-cv-61020-JIC Document 18 Entered on FLSD Docket 05/08/2013 Page 22 of 23 Case No. 0:13-Civ-61020-Cohn/Seltzer TENTH AFFIRMATIVE DEFENSE The damages claimed by Plaintiff were not proximately caused by the Janet Defendants herein. Specifically, the Plaintiff did not qualify as a relator under the terms of the applicable Federal Statutes and therefore could not have been the party to bring the law suit that resulted in the settlement referenced herein. ELEVENTH AFFIRMATIVE DEFENSE The damages complained by the Plaintiff, including those for loss of a potential settlement is speculative since there is no competent evidence that Plaintiff would have been qualified as a relator in the underlying or any Qui Tam action. TWELFTH AFFIRMATIVE DEFENSE The Plaintiff did not have an attorney-client relationship with the Janet Defendants and accordingly cannot establish the elements necessary to establish the elements of that claim, namely duty, breach of duty or proximate cause. THIRTEENTH AFFIRMATIVE DEFENSE The Court lacks jurisdiction over the persons of the Janet Defendants in that (a) the Plaintiff has not alleged and cannot allege any conduct by the Janet Defendants that would constitute the commission of a tortious act in the state of Florida, and (b) the Janet Defendants do not possess sufficient minimum contacts with the state of Florida to satisfy due process requirements. In the alternative and as set forth in the Notice of Removal, this case should be transferred. WHEREFORE, Defendants, HAL J. KLEINMAN, ESQUIRE, individually, and JANET, JENNER & SUGGS, LLC, respectfully request that the Court enter judgment in their favor, dismiss the Plaintiffs Complaint with prejudice and award said Defendants such other or further relief as the Court may deem just and appropriate 22

Case 0:13-cv-61020-JIC Document 18 Entered on FLSD Docket 05/08/2013 Page 23 of 23 Case No. 0:13-Civ-61020-Cohn/Seltzer Respectfully submitted, s/James H. Wyman____________________ James H. Wyman Florida Bar No. 117692 jwyman@hinshawlaw.com HINSHAW & CULBERTSON, LLP 2525 Ponce de Leon Blvd., 4th Floor Coral Gables, FL 33134 Telephone: 305-358-7747 Facsimile: 305-577-1063 Attorneys for Defendants HAL J. KLEINMAN, ESQUIRE, individually; JANET, JENNER & SUGGS, LLC Certificate of Service I hereby certify that a true and correct copy of the foregoing was served, via transmission of Notices of Electronic Filing generated by CM/ECF, on May 8, 2013, on all counsel or parties of record on the Service List below. s/James H. Wyman

HINSHAW & CULBERTSON, LLP 100 S. Ashley Drive, Suite 500 Tampa, Florida 33602 Telephone: 813-276-1662 Facsimile: 813-276-1956

SERVICE LIST Eric M. Bradstreet, Esq. eric@sdtriallaw.com St. Denis & Davey, P.A. 1300 Riverplace Boulevard, Suite 401 Jacksonville, Florida 32207 Attorneys for Plaintiff G. Michael Keenan, Esq. gmk@michaelkeenanlaw.com G. Michael Keenan, P.A. 1700 Old Okeechobee Rd., Suite 103 West Palm Beach, FL 33409 Attorneys for Defendants, Lynn Szymoniak, Esquire and The Szymoniak Firm, P.A.
Mark A. Cullen, Esq. mailbox@cullenlawfirm.net The Cullen Law Firm, P.A. 2090 Palm Beach Lakes Blvd., Suite 500 West Palm Beach, FL 33409 Attorneys for Defendants, Lynn Szymoniak, Esquire and The Szymoniak Firm, P.A.

23
14839169v1 0945906