United States District Court, District of Columbia
BERMAN JACKSON UNITED STATES DISTRICT JUDGE
appearing pro se, has sued his former attorney,
Joseph Virgilio, for legal malpractice and fraud. The claims
are based on Virgilio's representation of plaintiff in
the District of Columbia Court of Appeals
(“DCCA”) on direct appeal of his state conviction
for armed robbery. The defendants, Joseph Virgilio, Esq. and
Office of Attorney at Law, PLLC, have moved to dismiss on
several grounds, including res judicata.
See Defs.' Mot. to Dismiss the Am. Compl. [Dkt.
# 25]. Since the Superior Court of the District of Columbia
previously adjudicated the merits of the same claims against
the same defendants, the court agrees that this action is
precluded. So the court will grant defendants' motion
without addressing their other valid reasons for dismissal
under Rule 12(b)(6) of the Federal Rules of Civil Procedure.
See Mot. at 1-2.
Plaintiff's Criminal Proceedings
2014, plaintiff was charged with armed robbery. In July 2014,
the grand jury returned a superseding indictment adding a
second count of assault with a dangerous weapon
(“ADW”). See Defs.' Mem. at 2 [Dkt.
# 25-1] and Ex. 1. In September 2014, a jury trial was held
in D.C. Superior Court before Judge William M. Jackson.
Plaintiff was represented by appointed counsel, April Downs.
Id. Based on the facts adduced at trial, the trial
judge determined that the assault with a dangerous weapon was
simply a lesser included offense of armed robbery. Therefore,
he dismissed the separate ADW charge on September 16, 2014,
and declined defense counsel's request to instruct the
jury on that charge. See Am. Compl. and Attachs.
[Dkt. # 23]; Defs.' Mem. at 2. Plaintiff was convicted of
armed robbery and sentenced on November 14, 2014, to a prison
term of ten years. Defs.' Mem. at 2.
April 2, 2015, the DCCA appointed Virgilio to represent
plaintiff on direct appeal. After unsuccessfully moving in
the DCCA to withdraw as appellate counsel and to permit
plaintiff to proceed pro se, Virgilio filed an
appellate brief on November 23, 2015. Id. at 2-3.
While the appeal was pending, Virgilio was served with
plaintiff's lawsuit filed in D.C. Superior Court.
Virgilio then filed a motion on January 21, 2016, to withdraw
as appellate counsel, which was granted on February 17, 2016.
The DCCA appointed new counsel to represent plaintiff on
direct appeal. See Defs.' Mem. at 3.
Plaintiff's Prior Lawsuits
filed two separate actions against the defendants in Superior
Court. The first complaint, filed on December 31, 2015,
alleging fraud, was summarily dismissed on March 8, 2016.
Defs.' Mem. at 3; see Order [Dkt. # 25-2 at 30].
The second complaint, filed on January 4, 2016, and amended
on January 15, 2016, to add Virgilio's law office,
alleged negligent misrepresentation and fraud. Defs.'
Mem. at 3-4.
Superior Court resolved the merits of the latter action in a
decision issued in April 2016. There, plaintiff alleged that
Virgilio had “omitted a legal argument from the
appellate brief he submitted on Plaintiff's behalf”
with respect to the alleged “acquittal” of the
ADW charge. El-Amin v. Virgilio, No. 2016 CA 00009
B, at 1 (D.C. Super. Ct. Apr. 5, 2016) [Dkt. # 25-2 at
32-38]. He contended that Virgilio had “erred by not
addressing the judge's decision not to instruct the jury
on the lesser included offense, ” thereby
“omitt[ing] a material fact that he had a duty to
disclose.” Id. at 2. Plaintiff sought
“injunctive relief of incarceration” and $1.6
million in monetary damages. Id.
Superior Court determined as to plaintiff's “claims
for fraudulent and negligent misrepresentation or
omission” that he had “failed to adequately plead
reliance or damages . . . as is required in a case pleading
fraudulent misrepresentation.” Id. at 6. As to
plaintiff's assertion “that his ‘fact of
acquittal' was omitted from the appellate brief prepared
by Defendant Virgilio, ” the court determined that
because plaintiff was convicted of armed robbery, his
“claim that the Defendants acted negligently by failing
to include an acquittal which did not occur is without
merit.” Id. Finally, as to plaintiff's
claim that defendants had “falsely omitted or
represented a material fact, namely, Defendant Virgilio's
failure to include the trial court's decision not to
instruct the jury on the lesser included charge of [ADW]
among the grounds for [his] appeal, ” the court found
that “Virgilio's decisions regarding which legal
arguments to put forth in furtherance of Plaintiff's
appeal is [sic] a matter of discretion, which if made with
‘informed professional judgment' and
‘reasonable care and skill, ' cannot form the basis
of a malpractice claim . . . nor constitute professional
negligence or fraud.” Id. at 6-7; see
also Pl.'s App'x A [Dkt. # 37 at 6] (Virgilio
letter to plaintiff opining on the correctness of the trial
judge's treatment of the ADW charge).
Superior Court concluded that plaintiff had failed to allege
any facts to demonstrate that Virgilio's decisions
“with respect to legal arguments fell below the
applicable standard of care as required in a legal
malpractice action.” Id. at 7. “That
decision is currently on appeal.” Defs.' Mem. at 4.
ruling on a Rule 12(b)(6) motion to dismiss, the court
“may consider only the facts alleged in the complaint,
any documents either attached to or incorporated in the
complaint[, ] and matters of which . . . judicial
notice” may be taken. EEOC v. St. Francis Xavier
Parochial School, 117 F.3d 621, 624 (D.C. Cir. 1997).
Court proceedings are matters of which judicial notice may be
taken. See Jenson v. Huerta, 828 F.Supp.2d 174, 179
(D.D.C. 2011), quoting Lewis v. Drug Enforcement
Admin., 777 F.Supp.2d 151, 159 (D.D.C. 2011) (“The
court may take judicial notice of public records from other
court proceedings.”); Akers v. Watts, 589
F.Supp.2d 12, 15 (D.D.C. 2008) (taking “judicial notice
of the records of this Court and of other federal
courts”) (citations omitted). And “res judicata
may be asserted in a motion to dismiss when ‘all
relevant facts are shown by the ...