Attys Say They Aren't Liable For Process Server Actions

By Emma Cueto
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Law360 (August 25, 2020, 10:37 PM EDT) -- A group of class action attorneys has moved to dismiss a New Jersey federal suit by a credit reporting company's founder, who claims his family was harassed by a process server who ignored social distancing when delivering documents in allegedly frivolous underlying lawsuits. 

Attorneys Leonard A. Bennett, Kristi C. Kelly and Jacob M. Polakoff, along with their firms Consumer Litigation Associates PC, Kelly Guzzo PLC and Berger Montague PC, respectively, said Monday in a motion to dismiss that the process server's behavior was not legally actionable and there was no evidence the underlying litigation was frivolous since it had not been dismissed.

The motion also argued that the claims were also barred by New Jersey's litigation privilege doctrine, which is designed to prevent lawyers from facing legal action for doing their jobs.

"Simply put, plaintiffs' complaint seeks to retaliate against these defendants because they have dared to zealously represent their clients' interests," the motion said. "Accordingly, New Jersey's litigation privilege applies to bar these claims."

The dispute arises out of two underlying lawsuits originally filed in Virginia federal court against MicroBilt Corporation, its founder Phillip Burgess and others, along with two connected Virginia suits that do not name MicroBilt or Burgess, according to court documents. The class action attorneys in the current case represent the plaintiffs in the underlying Virginia actions.

Two of the Virginia suits accuse payday lenders of violating racketeering and usury laws by exploiting tribal immunity to skirt state laws on interest rate limits. The other two allege Fair Credit Reporting Act violations.

In one of the Virginia cases, the claims against Burgess were dismissed due to lack of jurisdiction and refiled in New Jersey, according to the motion. The New Jersey judge, however, has questioned the Virginia decision on jurisdiction, ordering discovery on the issue, and Burgess remains a defendant in both suits, the motion said.

In the current suit, which was filed in June, Burgess alleges a process server attempted to serve him at his family home in New Jersey while he was out by banging on the windows, frightening his wife and three children. After being told Burgess was not home, the process server allegedly threw papers at his wife and one of their children and left, according to the complaint.

The same process server repeated this behavior the next day, this time allegedly throwing papers at the family's housekeeper, the complaint says. The suit alleges that on neither occasion did the server wear a mask, maintain six feet of distance, or enclose the papers in protective plastic.

The suit also accuses the class action attorneys of filing bogus claims against Burgess and MicroBilt, misrepresenting that Burgess is the current owner of the company, and using high-pressure tactics to attempt to force a settlement. It includes claims for abuse of process, invasion of privacy interests, and intentional infliction of emotional distress.

Counsel for both parties did not respond Tuesday to requests for comment.

MicroBilt, Burgess and his family are represented by Gerald Krovatin of Krovatin Nau LLC.

The class action attorneys are represented by Michael P. Chipko of Wilson Elser Moskowitz Edelman & Dicker LLP.

The case is Burgess et al. v. Bennett et al., case number 3:20-cv-07103, in the U.S. District Court for the District of New Jersey.

--Additional reporting by Jeannie O'Sullivan. Editing by Janice Carter Brown.

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Case Information

Case Title

BURGESS, JR. et al v. BENNETT et al

Case Number



New Jersey

Nature of Suit

P.I.: Other


Georgette Castner

Date Filed

June 11, 2020

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