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Damian Lee v. David Walker Bos

July 11, 2012


The opinion of the court was delivered by: John D. Bates United States District Judge


This matter is before the Court on defendant's motion to dismiss. For the reasons discussed below, the motion will be granted.


In June 2003, defendant David Walker Bos, a Federal Public Defender, was appointed to represent plaintiff, an indigent criminal defendant, in a matter before the United States District Court for the District of Columbia. See Compl. at 1, 3-4.*fn1 Allegedly, "[p]laintiff was lead [sic] to believe that said appointment was Pro Bono . . . but [d]efendant was actually 'hired' by the [p]laintiff's opposing party," id. at 4, that is, by the United States, in whose name the criminal prosecution was brought. According to plaintiff, defendant "elected not to disclose to [p]laintiff that he was not Pro Bono and that he was 'hired' by" the government, and his '"silence' in this matter constitutes both 'constructive fraud' and 'fraudulent concealment.'" Id. By accepting what plaintiff characterizes as "third party payment" from the government without plaintiff's consent, defendant not only violated Rules 1.8(f) and 6.1 of the American Bar Association's Model Rules of Professional Conduct for attorneys, see id. at 1, 8-10, but also "robbed [plaintiff] of his right to full and complete disclosure," id. at 21 (emphasis removed).*fn2 In addition, defendant allegedly breached "a fiduciary duty to completely disclose all material information relevant [to] the matter involving [his] representation of [p]laintiff," particularly the compensation he received from the government. Id. Although plaintiff has not articulated any particular injury he suffered, he "justifiably seeks $422,000.12 . . . in damages . . . for [defendant's alleged] 'willful' actions of fraud and deceit, in violation of D.C. law, constituting 'constructive fraud' and 'fraudulent concealment.'" Id. at 21-22.


A. Dismissal Standard Under Rule 12(b)(6)

Defendant moves to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure on the ground that the complaint fails to state a claim upon which relief can be granted. See generally Mem. of P. & A. in Supp. of Def.'s Mot. to Dismiss ("Def.'s Mem.") at 4-11.*fn3 A motion under Rule 12(b)(6) tests the sufficiency of the complaint. See Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). "[T]he complaint is construed liberally in the plaintiff['s] favor, and [the Court] grant[s the] plaintiff[] the benefit of all inferences that can be derived from the facts alleged." Kowal v. MCI Comm'cns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). The Court is "not bound to accept as true a legal conclusion couched as a factual allegation." Papasan v. Allain, 478 U.S. 265, 286 (1986).

The complaint survives a motion under Rule 12(b)(6) only if it "contain[s] sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, __, 129 S. Ct. 1937, 1949 (2009). A claim is facially plausible "when the plaintiff pleads factual content that allows the court to draw [a] reasonable inference that the defendant is liable for the misconduct alleged." Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)). A pro se complaint "must be held to less stringent standards than formal pleadings drafted by lawyers," Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal quotation marks and citation omitted), but it, too, "must plead 'factual matter' that permits the court to infer 'more than the mere possibility of misconduct.'" Atherton v. District of Columbia Office of the Mayor, 567 F.3d 672, 681-82 (D.C. Cir. 2009) (quoting Iqbal, 129 S.Ct. at 1950).

B. Plaintiff Fails to State Claims of Fraud and Fraudulent Concealment "Fraud is never presumed and must be particularly pleaded." Bennett v. Kiggins, 377 A.2d 57, 59 (D.C. 1977), cert. denied, 434 U.S. 1034 (1978). "The essential elements of common law fraud are: (1) a false representation (2) in reference to material fact, (3) made with knowledge of its falsity, (4) with the intent to deceive, and (5) action is taken in reliance upon the representation." Id. "Nondisclosure or silence . . . may constitute fraud [as well]." Id.; see McWilliams Ballard, Inc. v. Broadway Mgmt. Co., Inc., 636 F. Supp. 2d 1, 5 (D.D.C. 2009) ("A claim for fraud may be founded on a false representation or a willful omission.") (citing Bell v. Rotwein, 535 F. Supp. 2d 137, 144 (D.D.C. 2008)). A plaintiff also must have suffered some injury as a consequence of his reliance on the misrepresentation. Chedick v. Nash, 151 F.3d 1077, 1081 (D.C. Cir. 1998) (citing Dresser v. Sunderland Apartments Tenants Ass'n, Inc., 465 A.2d 835, 839 (D.C. 1983)).

The elements of a claim of fraudulent concealment are:

(1) a duty on behalf of the defendant to disclose to the plaintiff a material fact; (2) the failure to disclose that fact; (3) an intention to defraud or deceive the plaintiff; (4) action taken by the plaintiff in justifiable reliance on the concealment; and (5) damages as a result of the defendant's concealment.

Howard Univ. v. Watkins, __ F. Supp. 2d __, __, 2012 WL 1454487, at *6 (D.D.C. Apr. 27, 2012) (citing Alexander v. Wash. Gas Light Co., 481 F. Supp. 2d 16, 36--37 (D.D.C. 2006)).

In addition to these elements, the Federal Rules of Civil Procedure require that "[in] all averments of fraud . . . the circumstances constituting fraud shall be stated with particularity." Fed. R. Civ. P. 9(b). A plaintiff raising a fraud or fraudulent concealment claim, then, must allege with particularity matters such as the time, location and content of the alleged misrepresentations, the misrepresented facts, and what was gained or lost as a result of the fraud. See United States ex rel. Williams v. Martin-Baker Aircraft Co., 389 F.3d 1251, 1256 (D.C. Cir. 2004) (citing Kowal, 16 F.3d at 1278); Firestone v. Firestone, 76 F.3d 1205, 1211 (D.C. Cir. 1996) (stating that "[p]arties pleading fraudulent concealment must plead with particularity the facts giving rise to the fraudulent concealment claim and must establish that they used due diligence in trying to uncover the facts") (internal quotation omitted)).

Under plaintiff's alternative theories of fraud, defendant's purposeful silence as to the existence and source of payment for legal services rendered allegedly comprised a false representation. Absent from the complaint, however, are factual allegations to show that the alleged misrepresentation pertained to a material fact. It is apparent that the Court appointed a Federal Public Defender to represent plaintiff in a criminal matter -- at no cost to plaintiff. See 18 U.S.C. ยง 3006A(g)(2)(A) (stating that "[a] Federal Public Defender Organization shall consist of . . . full-time salaried attorneys" whose ...

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