Opinion
Civ. No. 02-2504 (WGB)
June 20, 2003
Charles J. Manley, Bowmansville, PA, Plaintiff Pro se
Joseph A. Venuti, Jr., Swartz, Campbell Detweiler, Mt. Laurel, N.J. for Defendants
MEMORANDUM OPINION
Plaintiff pro se Charles J. Manley alleges that the defendants were negligent in providing him legal services. This matter is now before the Court on the motion to dismiss the Complaint for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) by defendants Jerome Taylor (Count 3), Law Offices of Jerome Taylor (the "Taylor firm") (Count 6), Marc Antony Arrigo (Count 4), and Steven Neil White (Count 5). For the reasons set forth in this Memorandum Opinion, the defendants' motion is denied. I. Factual Procedural Background
The remaining defendants listed in the caption of this case have filed separate motions to dismiss the complaint on alternate grounds. Those motions will be decided by separate written opinion, per the Court's Order of May 21, 2003.
The plaintiff's legal malpractice claims arise from the defendants' representation of the plaintiff in a tort action litigated before this Court, Manley v. Jones, Civil No. 96-375, in which plaintiff sought: damages resulting from a car accident. The Court closed that action on April 24, 2000 after the jury returned a verdict against the plaintiff. No appeal was taken.
The plaintiff filed his complaint in the original action on January 25, 1996. (Venuti Aff., Ex. A, Civil Docket No. 96-375, Manley v. Jones, Entry 1.) Both before filing the tort complaint and during the course of the litigation, the plaintiff retained several different attorneys, including the defendants who have filed this motion. Most, if not all, attorneys who represented Manley in the original tort suit are now defendants in this action. At the start of the tort action, plaintiff retained defendants Gerald J. Dugan, Mark C. Cavanaugh, and Dugan, Brinkman, Maginnis Pace, but the Magistrate entered an order granting those attorneys leave to withdraw as attorneys for plaintiff on August 7, 1997. (Id., Entry 23.) Plaintiff appealed that decision to this Court, and the Court dismissed the appeal on October 1, 1997. (Id., Entry 29.)
Following this unsuccessful appeal, on or about December 20, 1997, plaintiff retained the defendant Law Offices of Jerome Taylor (the "Taylor firm") to replace the withdrawn attorneys as counsel. Steven Neil White, who was associated with the Taylor firm at the time, entered an appearance on behalf of plaintiff on January 23, 1998. When White separated from the firm on or about July 10, 1998, defendant Marc Antony Arrigo, also associated with the Taylor firm, assumed representation of the plaintiff. Shortly thereafter, the Magistrate Judge permitted defendant Michael A. Foresta, who had been serving as Manley's co-counsel, to withdraw from representing Manley. The judge ordered defendant Law Offices of Jerome Taylor, however, to continue as Manley's counsel. On September 15, 1998, however, the Magistrate Judge granted Arrigo's motion to withdraw as counsel.
In his Order, the Magistrate detailed his justification for permitting Arrigo and the Taylor firm to withdraw from representing plaintiff. According to Magistrate Judge Cavanaugh, the plaintiff refused to cooperate with counsel to prepare the case, proper representation of the plaintiff became impossible because of plaintiff's failure to deliver files necessary to complete scheduled depositions, the plaintiff had created an inherent conflict of interest between himself and Arrigo by threatening Arrigo, and plaintiff ignored Arrigo's professional judgment with regard to effective trial strategy. (Venuti Aff. Ex C., Order of Sept. 15, 1998.) Finding further that the plaintiff had manifested an intention to retain new counsel and that Arrigo's withdrawal as counsel would not prejudice the plaintiff, the motion to withdraw was granted. (Id. at 2.)
On May 24, 2002, plaintiff filed the complaint in the action now before the Court against the attorneys who had represented him in the original action. Plaintiff alleges that because the attorneys "negligently represented" him, plaintiff "received a negative jury verdict." (Complaint ¶¶ 41, 42, 48, 49, 55, 56, 60-62.) Defendants Taylor, Arrigo, White, and the Taylor firm accepted service on September 3, 2002 and now move the Court to dismiss the complaint for failure to state a claim upon which relief can be granted. The defendants' motion is denied.
II. Applicable Standard
The Federal Rules of Civil Procedure do not require a plaintiff to set forth the specific facts on which a claim is based. Conley v. Gibson, 355 U.S. 41, 47 (1957). All that Rule 8 requires "is a short and plain statement of the claim that gives the defendant fair notice of the plaintiff's claim and the grounds upon which it rests." Id. The Court must grant a motion to dismiss pursuant to Rule 12(b)(6) "if, accepting all well-pleaded allegations in the complaint as true, and viewing them in the light most favorable to plaintiff, plaintiff is not entitled to relief." Maio v. Aetna, Inc., 221 F.3d 472, 481-82 (3d Cir. 2000) (internal quotations omitted). The issue is not whether the plaintiff will prevail but whether the plaintiff is entitled to offer evidence to support his claims.Id. Rule 12(b)(6) does not countenance "dismissals based on a judge's disbelief of a complaint's factual allegations." Neitzke v. Williams, 490 U.S. 319, 326-27 (1989).
In making this determination, the Court may consider matters of public record in addition to the allegations of the complaint. See Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993). Because this action alleges negligence in the defendants' representation of the plaintiff in a civil action previously litigated before this Court, the Court has considered on this motion the public record contained on Civil Docket No. 96-375, Manley v. Jones. That docket, together with plaintiff's complaint, form the basis for the discussion of the facts set forth above and for the Court's decision on this motion. III. Discussion
The requisite elements of a cause of action for legal malpractice in New Jersey are (1) the existence of an attorney-client relationship that gives rise to a duty of care, (2) the breach of that duty by the attorney, and (3) proximate causation. Gilles v. Wiley, Malehorn Sirota, 345 N.J. Super. 119, 125 (App.Div. 2001);DeAngelis v. Rose, 320 N.J. Super. 263 (App.Div. 1999). Attorneys exercise the requisite duty of care when they exercise "that degree of reasonable knowledge and skill that lawyers of ordinary ability and skill possess and exercise." St. Pius X House of Retreats v. Dioceses of Camden, 88 N.J. 571, 588 (1982).
Plaintiff alleges that each defendant "negligently represented" him from December 20, 1997 until September 15, 1998, at which time the Taylor firm withdrew as plaintiff's counsel. As a result of this alleged negligent representation, plaintiff avers, plaintiff "received a negative jury verdict." Plaintiff avers no specific facts in support of these general allegations, and therein lies the crux of defendants' argument on this motion. In defendants' view, the complaint must be dismissed because the plaintiff fails to "identify any specific ground upon which the negligence claim rests." (Defendants' Moving Brief at 9.)
The defendants also proffer two additional arguments. First, the plaintiff fails to state a claim because "[t]he fact that [plaintiff] lost is, in and of itself, inadequate to pursue to a malpractice claim." (Id.) Second, the plaintiff cannot show that the defendants negligently represented him because the Magistrate Judge permitted Arrigo and the Taylor Firm to withdraw as plaintiff's counsel, finding withdrawal would not result in "material prejudice" to plaintiff. These arguments do not permit dismissal of the action at this time.
To begin with the last argument raised, the effect of the Magistrate Judge's decisions, each case cited by defendants addresses on summary judgment whether the withdrawal from representing a client by a defendant-attorney itself can constitute negligence. See Fraser v. Bovino, 317 N.J. Super. 23, 26 (App.Div. 1998) (granting summary judgment in favor of defendant-attorneys where they withdrew from representing plaintiff-client several weeks before the six-year statute of limitations on plaintiff's claims had expired); Gilles v. Malehorn Sirota, 345 N.J. Super. 119, 126 (App.Div. 2001) (denying defendant-attorney's summary judgment motion after finding question of fact whether withdrawal prejudiced plaintiff). The plaintiff, however, does not necessarily allege that the defendants withdrawal is the source of his injury, though defendants assume so.
Again, plaintiff alleges only that each defendant "negligently represented" him. Perhaps there was some other act by the defendants that constituted negligent representation at the relevant times. Perhaps not. But whatever the specific facts ultimately show, plaintiff is entitled to offer evidence to support his claim of negligent misrepresentation. See Maio, 221 F.3d at 481-82. Of course, if the only alleged negligence is the defendants' withdrawal itself, then defendants will have a strong basis for seeking summary judgment, like the Fraser defendants.
Because plaintiff is entitled to offer evidence to support his negligent representation claim, the defendants' objection that plaintiff had to plead specific facts is misplaced. Plaintiff's alleging negligent representation is sufficient. Indeed, Form 9 accompanying the Federal Rules of Civil Procedure, "Complaint for Negligence" illustrates how bare-bones the plaintiff's tort complaint can be. Plaintiff need only allege jurisdiction, that the defendants negligently represented him (the form uses negligent driving as an example), and that plaintiff was injured. Manley does that.
True, New Jersey courts have dismissed actions lacking greater specificity about the alleged negligent representation. At least one court cited by defendants, however, noted the need for greater specificity in an opinion analyzing an appeal from summary judgment, a stage this litigation has not yet reached. See Ziegelheim v. Apollo, 128 N.J. 250, 266 (1992) ("[P]laintiffs must allege particular facts in support of their claims of attorney incompetence and may not litigate complaints containing mere generalized assertions of malpractice.") And New Jersey's statutorily required Affidavit of Merit, which plaintiff must obtain after the defendants answer the complaint if his action is to continue, imposes a substantive check on plaintiff's action. See N.J.S.A 53A-27. The Affidavit of Merit statute helps identify meritless lawsuits early in malpractice litigation and thereby curtails the filing of frivolous actions. See, e.g., Davies v. Imbesi, 328 N.J. Super. 372, 375 (App.Div. 2000); Hyman Zamft and Manard L.L.C. v. Cornell, 309 N.J. Super. 586, 593-94 (App.Div. 1998). Indeed, plaintiff's alleged failure to secure the requisite Affidavit of Merit is the basis for motions to dismiss by the remaining defendants in this action.
Plaintiff opposes those motions, citing N.J.S.A. 2A:53A-28. The Court has not yet reached a decision on those motions or the strength of plaintiff's argument.
Moreover, under the Federal Rules, plaintiff's pleading negligent representation without more is sufficient to state a claim, at least for now. As one treatise author notes: "If defendant needs details as to the specific manner in which he is claimed to have been negligent, he can obtain them under the provisions for discovery." See 5ACharles Allan Wright Arthur R. Miller, Fed. Prac. Proc. § 1249 (2d Ed. 1990).
Finally, it is net clear why defendants believe that plaintiff's losing his civil action is an inadequate allegation of damage under New Jersey law, for they cite no case law supporting that proposition. (Defendant's Opposition Brief at 9.) Perhaps defendants rely on Ziegelheim, which they cite earlier in their brief, for the proposition that "it is well established in New Jersey that an attorney is not a guarantor or an insurer and that an attorney is not answerable for an error in judgment." (Id. at 7.) The Ziegelheim court did note that "attorneys who pursue reasonable strategies in handling their cases and who render reasonable advice to their clients cannot be held liable for the failure of their strategies or for any unprofitable outcomes that result because their clients took their advice." Ziegelheim, 128 N.J. at 267. The plaintiff's allegation may ultimately lack merit — plaintiff may not be able to show defendants breached the duty of care or, if there was a breach, that it was the proximate cause of plaintiff's loss of his tort case. But Ziecrelheim does not insulate attorneys who breach the duty of care from suit just because the harm alleged is the loss of the original action. That case suggested that a plaintiff's losing a suit itself does not show that the duty of care was breached. Accordingly, plaintiff meets the liberal pleading requirement of Rule 8 and states a claim upon which relief can be granted.
IV. Conclusion
For the foregoing reasons, the defendants' motion to dismiss the complaint for failure to state a claim is denied. Defendant should answer the complaint and meet with Magistrate Judge Madeline Cox Arleo to schedule discovery so that this matter may be resolved without further delay. An appropriate Order follows, Dated: June 20, 2003 ORDER
This matter having come before the Court on motion of defendants Jerome Taylor, Esq.; Law Offices of Jerome Taylor; Marc Antony Arrigo, Esq.; and Steven Neil White, Esq. to dismiss Counts 3, 4, 5, and 6 of the Complaint pursuant to Fed.R.Civ.P. 12(b)(6); and
The Court having considered the submissions of the parties without oral argument pursuant to Fed.R.Civ.P. 78; and
For good cause shown;
It is this 20th Day of June, 2003 ORDERED that defendants' motion to dismiss Counts 3, 4, 5, and 6 of the Complaint is denied.