Kerik Answers Tacopina's Motion to Dismiss

It was already on, so now it's really, really on. Bernie Kerik's legal team has filed its opposition to Joe Tacopina's motion to dismiss Kerik's amended pleading and for sanctions against both Bernie and his lawyers. That this litigation was chock full of personal animosity between the litigants was clear. These papers confirm that it is getting personal for the lawyers as well.

For example, in the second paragraph of the introduction to his memorandum of law, Kerik's attorney Tim Parlatore, writes,

Defendant’s Motion to Dismiss is purely an emotional outburst¹, severely lacking in substance, as he chooses to quote irrelevant materials outside the scope of the complaint, in a feeble effort to employ personal attacks on Plaintiff to compensate for the utter lack of legal support for his motion.

And in footnote 1, Parlatore goes a step further,

Defendant’s attorney, Judd Burstein, who is well known for his bullying tactics, appears to have become very personally emotionally invested in this case. Although the prior motion to disqualify has been withdrawn, his personal involvement in Tacopina’s activities have caused him to be named in the complaint as a co-conspirator in one of the racketeering acts, as well as a representative acting on Tacopina’s behalf for the other causes of action. The motion to disqualify will be re-filed after the disposition of this motion, as Plaintiff will need to depose Burstein in discovery.

There are then mentions of other people coming forward with various stories that suggest Tacopina lied to, cheated, and otherwise betrayed his clients, such as one claim that Tacopina charged a client for monies that he said he was paying to Kerik's security firm for services for that client, when it fact it never happened. Parlatore also writes, "Tacopina advertises on his website that he won a $9 million dollar jury verdict in a civil case. However, we are informed that this is a complete fabrication."

I should say this aspect of Kerik's response is a bit underhanded. If you have additional facts to plead then you ought to amend your complaint. But Parlatore concedes in his brief that these claims are unverified. If that's the case, then he really shouldn't bring them up at all. What seems to to have happened is that various people emerged with their own tales of woe. These may be completely, partially, or not even remotely accurate or reliable claims. Parlatore knows he can't adopt the claims, but he can't resist throwing them out there just the same. While it may be good grist for a newspaper story, it's not the best practice.

There's plenty more, and I haven't gotten to the merits of Tacopina's motion, which is grounded in no small part on statute of limitations arguments (meaning that Kerik waited too long to bring certain claims), as well as challenges to the legal sufficiency of the pleading, which is another way of saying that even if Kerik is factually correct, it doesn't make out a violation of any statutory or common law.

These are all discussions for another day, and Judge Koeltl's ruling will help bring some clarity to the legal debates.

A copy of Kerik's memorandum of law is here:



I, however, am more interested in the factual disputes, many of which are easily resolved. For instance, did Tacopina have at least five long proffer sessions with the government, as alleged, or was it only one or two short sessions to identify some documents? And if it is the former, why was he there and what did he say? Did he give up info on his good friend and client, or roll over on other colleagues (Ron Fischetti?) and clients? These sorts of questions can be summarily answered by the government.

Many of the racketeering allegations, particularly the more salacious claims, may be harder to prove, but promise hours of entertainment during discovery.