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Jones v. Lattimer

United States District Court, D. Columbia.

March 6, 2014

MABLE JONES, Plaintiff,
v.
GREGORY L. LATTIMER, et. al., Defendants

Page 6

For MABLE JONES, Plaintiff: Wes Patrick Henderson, LEAD ATTORNEY, HENDERSON LAW, LLC, Crofton, MD.

For GREGORY L. LATTIMER, Defendant: Gregory L. Lattimer, LEAD ATTORNEY, LAW OFFICES OF GREGORY L. LATTIMER, PLLC, Washington, DC.

For TED J. WILLLIAMS, Defendant: Jan E. Simonsen, Joseph E. Hainline, LEAD ATTORNEYS, CARR MALONEY P.C., Washington, DC.

Page 7

MEMORANDUM OPINION

BERYL A. HOWELL, United States District Judge.

Pending before the Court is the defendant Gregory Lattimer's motion to dismiss the plaintiff's claims against him or, alternatively, to grant summary judgment in his favor, under Federal Rules of Civil Procedure 12(b)(6) and 56. Def.'s Mot. Dismiss Alt. Summ. J. (" Def.'s Mem." ), ECF No. 17. The plaintiff alleges in this legal malpractice suit that both defendants, who are attorneys, breached their duty of care to the plaintiff while representing her in a wrongful death action by negligently providing her settlement advice, thereby leading her to reject multiple settlement offers. See generally Complaint (" Compl." ), ECF No. 1-2.[1] The defendant argues that the plaintiff has failed to state a cause of action under applicable D.C. law and that, in any event, the plaintiff's claims are barred by the statute of limitations. For the reasons stated below, the defendant's motion is denied.

I. BACKGROUND

The complaint alleges that the plaintiff's son was shot and killed on September 1, 2000, by officers of the Prince George's County Police Department, who, after conducting surveillance of the son's car in Maryland, followed him into Virginia, where he was shot five times. Compl. ¶ ¶ 9-13. The plaintiff subsequently retained the defendants to represent her to pursue wrongful death and civil rights claims " arising out of and/or relating to the death of her son." Id. ¶ 4. During that representation, the defendants filed a lawsuit in this Court on behalf of the plaintiff " Individually and as the Personal Representative of her son's estate," in December 2000. Id. ¶ 15. This suit was subsequently transferred to the District of Maryland, id. ¶ 20, and, on April 2, 2008, resolved with summary judgment granted to the defendants, id. ¶ 27. This decision was affirmed by the U.S. Court of Appeals for the Fourth Circuit on December 8, 2009, and the plaintiff's petition for rehearing was denied on January 5, 2010. Id. ¶ ¶ 28-30.

After the Fourth Circuit's final decision, defendant Lattimer sent an email, dated April 7, 2010, the text of which is set out in the complaint, advising the plaintiff that although " the appendix [was sent] to the printer," he is " finally convinced that the way the Fourth Circuit handled the case makes it extremely unlikely that the Supreme Court would grant a Writ." Id. ¶ 31. He further advised that " no matter how much I tried to convince you that we had a real chance with the Supreme Court, I can not convince myself of that fact" and " that I too am convinced that any further expenditure of resources in this matter would be ill-advised." Id. (emphasis in original).

While the federal case was pending in this Court and the District of Maryland, the defendants also represented the plaintiff in a wrongful death action before the Circuit Court for Prince George's County, Maryland. Id. ¶ ¶ 21-22. Although the plaintiff prevailed in a 2006 jury trial in

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that local action, the verdict in the plaintiff's favor was struck since, under the law of Virginia, which applied since that was the place of the son's wrongful death, the plaintiff, as personal representative of her son's estate, did not have a substantive legal right to recover damages when her son's child was the only permissible beneficiary and had previously settled the claim. Id. ¶ ¶ 22, 24-27.

During the course of the parallel federal and local lawsuits, the plaintiff alleges that she turned down settlement offers " made to her of '$3 million while the case was still in federal court in D.C.' and the '$1 million after the Maryland Circuit Court trial,' " because the defendants " never advised [her] of the risk" and " failed to advise [her] that she lacked standing to pursue a claim and should accept the monies being offered." Id. ¶ 32 (citing text of defendant Lattimer's email, dated April 7, 2010). According to the plaintiff, if she had not been given " erroneous advice," she " would have accepted the settlement offers" and has now " forever lost her ability to collect any monies associated with the death of her son." Id.

The plaintiff filed the instant complaint on December 4, 2012, asserting two claims of legal malpractice, one against each defendant. Defendant Williams has answered the complaint, see Williams Answer, ECF No. 4,[2] and discovery is proceeding pursuant to a Scheduling Order entered on February 28, 2014. See Feb. 28, 2014 Scheduling Order.

II. LEGAL STANDARD

To survive a motion to dismiss under Rule 12(b)(6), a plaintiff need only plead " enough facts to state a claim to relief that is plausible on its face" and to " nudge[ ] [his or her] claims across the line from conceivable to plausible." Bell A. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007); see also Fed.R.Civ.P. 12(b)(6). " [A] complaint [does not] suffice if it tenders 'naked assertion[s]' devoid of 'further factual enhancement.' " Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (alteration in original) (quoting Twombly, 550 U.S. at 557). " [T]he plaintiff [must] plead[ ] factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.; accord Rudder v. Williams, 666 F.3d 790, 794, 399 U.S.App.D.C. 45 (D.C. Cir. 2012). The Court " must assume all the allegations in the complaint are true (even if doubtful in fact) . . . [and] must give the plaintiff the benefit of all reasonable inferences derived from the facts alleged." Aktieselskabet AF 21. November 2001 v. Fame Jeans Inc., 525 F.3d 8, 17, 381 U.S.App.D.C. 76 (D.C. Cir. 2008) (citations and internal quotation marks omitted).

The Federal Rules of Civil Procedure provide that if " matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment," and if a motion is so converted, " [a]ll parties must be given a reasonable opportunity to present all the material that is pertinent to the motion." Fed.R.Civ.P. 12(d). " The decision to convert a motion to dismiss into a motion for summary judgment . . . is committed to the sound discretion of the trial court." Flynn v. Tiede-Zoeller, Inc., 412 F.Supp.2d 46, 50 (D.D.C. 2006). " In exercising this discretion, the 'reviewing court must assure itself that summary judgment treatment would be fair to both parties.' " Bowe-Connor v. Shinseki, 845 F.Supp.2d 77, 85-86

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(D.D.C. 2012) (quoting Tele-Communications of Key West, Inc. v. United States, 757 F.2d 1330, 1334, 244 ...


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