United States District Court, District of Columbia
MEMORANDUM OPINION, GRANTING IN PART AND DENYING IN
PART PLAINTIFF'S MOTION TO AMEND ITS COMPLAINT
RUDOLPH CONTRERAS United States District Judge.
the Atlanta Channel, Inc. ("ACI"), seeks leave to
amend its complaint for a second time. The proposed second
amended complaint includes two new defendants, three new
grounds for recovery, and new factual allegations. The only
active defendant prior to this motion was ACI's former
attorney, Henry Solomon. The only active claim was that he
failed to complete one page of routine paperwork at the FCC.
Now, Plaintiff alleges that Mr. Solomon, his colleague
Melodie Virtue, and their law firm, Garvey Schubert Barer
("Garvey"), were all negligent when they advised
ACI to assign its television license to former-plaintiff
Beach TV Properties, Inc. ("Beach TV"). Without
explicitly pleading facts supporting it, Plaintiff alleges
that the assignment somehow diminished ACFs malpractice claim
against Mr. Solomon. Plaintiff also alleges that Ms. Virtue
and Mr. Solomon "lulled" ACI into not filing this
opposes Plaintiffs motion on the grounds that amendment of
the complaint would be futile, because it would not withstand
a motion to dismiss. In support of its opposition, Garvey
argues that the added count against Mr. Solomon does not
adequately allege the elements of legal malpractice. It makes
this same argument with respect to the “duty”
element for the new count against Ms. Virtue. In addition,
Garvey argues that the new claim against Ms. Virtue is not
yet ripe, that adding her as a defendant would be disruptive,
and that the complaint does not support an argument that Ms.
Virtue “lulled” ACI into inaction.
Court agrees with Garvey that adding the new count against
Mr. Solomon would be futile. Plaintiff's proposed second
amended complaint in no way describes how the assignment of
ACI's television license could have caused its
malpractice suit to lose value. Its negligence claim thus
does not contain a plausible theory of causation. However,
the Court finds that ACI adequately alleged the other
elements of the new claims, including the duty element of the
claim against Ms. Virtue. The Court also finds that the claim
against Ms. Virtue, though contingent upon certain legal
rulings that have not yet occurred, is ripe. Moreover, adding
such a claim would not be so disruptive as to justify denying
Plaintiff a forum to raise its claims. Finally,
Defendant's arguments pertaining to “lulling”
are not applicable here-Plaintiff's lulling claim is a
preemptive response to the affirmative defense that the
statute of limitations bars recovery, not a freestanding
claim in the complaint. Because adding the new count against
Ms. Virtue would not be futile and Garvey is allegedly liable
under the doctrine of respondeat superior, the Court
grants Plaintiff's motion in part and denies it in part.
Court already provided a detailed factual background in its
memorandum opinion addressing Defendants' motions to
dismiss. See Beach TV Props., Inc. v. Solomon, No.
15-1823, 2016 WL 6068806, at *3 (D.D.C. Oct. 14, 2016).
Assuming familiarity with the prior opinion, the Court
outlines only the most relevant facts to the resolution of
Plaintiff's motion to amend.
legal malpractice case arises out of attorney Henry
Solomon's alleged failure to adequately complete an FCC
Statement of Eligibility, which would have entitled ACI to an
FCC Low-Power Television class A license. Id. at *1.
Key omissions on routine FCC paperwork completed by Mr.
Solomon allegedly caused ACI to forfeit its statutory right
to a class A license, resulting in a claimed loss of hundreds
of millions of dollars. Id. Mr. Solomon represented
ACI from the time of filing the license application in 2000
until at least 2012. See id.; see also
Pl.'s Proposed Second Am. Compl. ¶ 39, ECF No. 59-3.
In 2009, Mr. Solomon allegedly advised ACI to assign its TV
license to Beach TV, but “failed to advise ACI on the
effect the assignment would have on ACI's malpractice
claim against him.” Pl.'s Proposed Second Am.
Compl. ¶ 45.
the administrative appeals of the FCC's rejection, Mr.
Solomon moved from the law firm Haley Bader to Garvey.
Beach TV Props., 2016 WL 6068806, at *3. The Court
dismissed Plaintiff's claims against Haley Bader for lack
of personal jurisdiction and against Garvey for failure to
state cognizable claims. Id. at *1. It also
dismissed claims made by Beach TV for lack of standing,
because ACI's attempted assignment of the malpractice
claims was invalid under Virginia law. Id. at *1,
proposed amended complaint makes four distinct claims and
seeks to add two defendants. See Pl.'s Proposed
Second Am. Compl. ¶¶ 51-62; 73-87. The first count
is largely the same as it was in Plaintiff's original
complaint, and alleges that Mr. Solomon committed malpractice
by failing to complete the FCC Statement of Eligibility.
Compare Pl.'s Proposed Second Am. Compl.
¶¶ 73-75 with Am. Compl. ¶¶
122-23, ECF No. 21.
seeks to add a second count-“Count Two”-alleging
that Mr. Solomon's failure to adequately counsel ACI with
respect to the license that ACI assigned to Beach TV was
negligent and “compromise[d] ACI's ability to
recover damages based on its ownership of WTHC-LD.”
Pl.'s Mot. Am. Compl. ¶ 15; Pl.'s Proposed
Second Am. Compl. ¶¶ 76-79. Plaintiff alleges that
Mr. Solomon negligently advised ACI that the assignment of
the television license WTHC-LD would shield that license from
potential ACI creditors, and prepared and filed documents for
the assignment. Pl.'s Proposed Second Am. Compl.
¶¶ 42-43. Mr. Solomon was negligent, ACI argues,
because “Mr. Solomon failed to advise ACI that the
License Assignment could adversely affect ACI's legal
malpractice claim against him.” Pl.'s Proposed
Second Am. Compl. ¶ 45. ACI's proposed amended
complaint does not detail why or how the assignment of the
license could adversely affect the malpractice claim, but its
motion suggests that ownership of the WTHC-LD license is a
prerequisite to recovering for malpractice, and that
assigning the license without the malpractice claim
undermined the holder of the malpractice claim's ability
to recover damages. Pl.'s Mot. Am. Compl. ¶ 15;
see generally Pl.'s Proposed Second Am. Compl.
After the Court ruled that the assignment of the malpractice
claim against Mr. Solomon was invalid because D.C. law did
not apply, Beach TV assigned the WTHC-LD license back to ACI,
so ACI now holds both the malpractice claim and the license.
Pl.'s Proposed Second Am. Compl. ¶¶ 47-50.
Thus, to the extent that Beach TV's ownership of the
license for seven years does not affect ACI's ability to
recover damages on the malpractice claim in Count One or the
amount of such damages, Plaintiff concedes Count Two is moot.
Pl.'s Reply Def.'s Opp'n to Pl.'s Mot. Amend
Compl. at 5, ECF No. 64.
moving to add Count Two is somewhat inconsistent with
ACI's prior argument at the motion-to-dismiss stage. In
its opposition to Haley Bader's motion to dismiss, ACI
previously argued that the assignment from ACI to Beach TV
was “governed by District of Columbia law, which
permits” the assignment of both TV licenses and
malpractice claims. Pl.'s Opp'n Haley Bader Mot.
Dismiss at 16, ECF No. 36. Thus, Plaintiff argued, the
malpractice claim did not lose any value when it was assigned
from ACI to Beach TV along with the WTHC-LD license.
Pl.'s Opp'n Haley Bader Mot. Dismiss at 18. But now,
after the Court held that D.C. law does not apply, meaning
that the assignment of the malpractice claim was invalid,
see Beach TV Properties, Inc., 2016 WL 6068806, at
*16, ACI accuses Mr. Solomon of malpractice for failing to
recognize that assignment of the malpractice claim was
third count-and first new proposed defendant-arises out of
the alleged negligence of attorney Melodie Virtue. According
to the complaint, Ms. Virtue worked with Mr. Solomon and
then, after Mr. Solomon stopped working as a full-time
attorney, took over as lead counsel to ACI. Pl.'s
Proposed Second Am. Compl. ¶¶ 51-56. Plaintiff
alleges that Ms. Virtue was negligent in failing to inform
ACI that Mr. Solomon had committed malpractice, that his
withdrawal from the case could affect the statute of
limitations of malpractice claims, that she had a conflict of
interest in light of her professional relationship with Mr.
Solomon, and that ACI should retain separate counsel.
Pl.'s Proposed Second Am. Compl. ¶¶ 59, 80-84.
The proposed amended complaint also alleges that both Mr.
Solomon and Ms. Virtue “lull[ed] ACI into inaction in
filing its malpractice claims against” them by
continuing to work on their case. Pl.'s Proposed Second
Am. Compl. ¶¶ 57-58.
final count of the proposed amended complaint seeks to add
Garvey as a defendant for the malpractice of Mr. Solomon and
Ms. Virtue through the doctrine of respondeat
superior. Pl.'s Proposed Second Am. Compl. ¶
85-87. Thus, the facts alleged for ACI's second and third
counts are also relevant to its fourth count.
Solomon and his former law firm, Garvey, oppose
Plaintiff's motion on the grounds that amendment of the
complaint would be futile. See Garvey's Mem. P.
& A. Opp'n Pl.'s Mot. Leave Amend Compl.
(“Garvey's Opp'n”) at 14, ECF No. 62;
Def. Solomon's Opp'n Pl.'s Mot. Leave Amend
Compl. (“Def.'s Opp'n”) at 4, ECF No. 63.
They specifically argue that Counts Two and Three-and,
effectually, Count Four-do not state cognizable claims, and
therefore allowing Plaintiff to amend its complaint to
include them would be futile. See Garvey's
Opp'n at 16-27. They also assert that Plaintiff's
claims against Ms. Virtue are not ripe, and that adding them
would be unduly disruptive to the case. Garvey's
Opp'n at 25-27.
is partially correct. Although Plaintiff is not precluded
from making its argument in light of its position at the
motion-to-dismiss stage and adequately pleads the elements of
duty and breach, Plaintiff does not adequately plead
causation, because it never explains how the assignment of a
television license could adversely affect the value of its
malpractice claim against Mr. Solomon. With that said, adding
the claim against Ms. Virtue would not be futile. Plaintiff
adequately states the legal duty that she owed ACI and does
not seek recovery on the independent ground of
“lulling, ” as Garvey seems to suggest. And,
despite ACI's failure to respond to Garvey's
arguments with respect to disruption and ripeness, the Court
recognizes that amendment would not be unduly disruptive, and
that the claim against Ms. Virtue is ripe.
general, “[t]he court should freely give leave [to
amend] when justice so requires.” Fed.R.Civ.P.
15(a)(2). Although the standard is generous, leave should be
denied in cases involving “undue delay, bad faith or
dilatory motive on the part of the movant, repeated failure
to cure deficiencies by amendments previously allowed, undue
prejudice to the opposing party by virtue of allowance of the
amendment, [and] futility of amendment.” Foman v.
Davis, 371 U.S. 178, 182 (1962). “Courts may deny
a motion to amend a complaint as futile . . . if the proposed
claim would not survive a motion to dismiss.” James
Madison Ltd. v. Ludwig, 82 F.3d 1085, 1099 (D.C. Cir.
1996) (citing Foman, 371 U.S. at 181-82).
Accordingly, in determining the futility of amendment, the
Court applies the same standard it applies in resolving a
motion to dismiss pursuant to Federal Rule of Civil Procedure
noted in the Court's previous opinion, to survive a
motion to dismiss for failure to state a claim under Federal
Rule of Civil Procedure 12(b)(6), a complaint must contain
sufficient factual allegations that, if accepted as true,
would state a plausible claim to relief. Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). “Threadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.”
Id. Instead, plaintiffs must “nudge their
claims across the line from conceivable to plausible.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570