United States District Court, District of Columbia
Document, 86, 92, 94
MEMORANDUM OPINION GRANTING IN PART AND DENYING IN
PART THE GARVEY DEFENDANTS' MOTION TO DISMISS; GRANTING
THE PARTIES' MOTIONS FOR LEAVE TO FILE SUR-REPLY AND
REBUTTAL TO SUR-REPLY
RUDOLPH CONTRERAS UNITED STATES DISTRICT JUDGE.
case stems from the submission of an incomplete form in 1999.
Plaintiff the Atlanta Channel, Inc. (“ACI”) sued
the attorney who submitted the incomplete form, Defendant
Henry Solomon, in 2015 for legal malpractice. Mr. Solomon has
argued that ACI's suit is time-barred, but the Court
determined, following summary judgment briefing as to his
liability, that questions of fact persist as to whether the
“continuous representation doctrine” keeps
ACI's claim against him timely. Two years after filing
this suit, ACI added to its complaint a legal malpractice
claim against Defendant Melodie Virtue, who in 2012 took over
ACI's attempt to remedy the effects of the incomplete
submission, as well as her law firm Garvey, Schubert &
Barer (“Garvey Firm”) under the doctrine of
respondeat superior. ACI's claim against Ms. Virtue, that
she failed to fulfill several “obligations” she
had to ACI, is conditional on a finding that ACI's claim
against Mr. Solomon is time-barred.
Virtue and the Garvey Firm have now moved to dismiss the
claims against them, arguing that the Court acknowledged as
undisputed in its memorandum opinion denying ACI's and
Mr. Solomon's prior motions for partial summary judgment
several pertinent facts that directly contradict the facts
alleged in ACI's Second Amended Complaint. They further
argue that ACI has failed to state a claim for legal
malpractice and has failed to plead proximate causation.
Finally, they ask the Court to dismiss claims that ACI
erroneously included in its Second Amended Complaint after
the Court denied ACI's motion for leave to file those
particular claims. For the reasons explained below, the Court
denies the Garvey Defendants' motion to dismiss as to
Count Three and the portions of Count Four that pertain to
Count Three, but grants their motion as to Count Two and the
portions of Count Four that pertain to Count Two.
FACTUAL AND PROCEDURAL BACKGROUND
ACI filed this suit to recover damages resulting from the
erroneous filing of an incomplete form with the Federal
Communications Commission (“FCC”) on December 29,
1999. See 2d Am. Compl. ¶¶ 26-27, ECF No.
69. ACI alleges that because the form, a Statement of
Eligibility for a Class A license for an LPTV station, was
submitted with several questions left blank, the form was
dismissed by the FCC's Mass. Media Bureau on June 9,
2000. Id. ¶¶ 28, 32. Without a Statement
of Eligibility, ACI was unable to obtain a Class A license
for its station, id. ¶ 33, which ACI argues
eventually led to the station being valued for at least $25,
000, 000 less than it would have been if it had obtained the
license, id. ¶ 70.
alleges that Defendant Henry Solomon was responsible for the
filing of the incomplete Statement of Eligibility.
Id. ¶ 29. Once he learned of the error, Mr.
Solomon immediately sought a reversal of the Mass. Media
Bureau's dismissal of the Statement. See Id.
¶¶ 36-39. While ACI's Statement of Eligibility
was pending before the Mass. Media Bureau, Mr. Solomon joined
Defendant law firm Garvey, Schubert & Barer, where he
remained until he “ceased working full time in
2010.” Id. ¶ 11. In order to obtain a
reversal of the dismissal, Mr. Solomon filed an Application
for Review with the FCC on December 29, 2000, but the
Application remained pending until the Mass. Media
Bureau's dismissal was affirmed by the FCC on November 9,
2012. Id. ¶ 37. At that point, Mr. Solomon had
ceased working full-time at the Garvey Firm for several
years. See Id. ¶ 11.
Melodie Virtue worked with Mr. Solomon at the Garvey Firm,
“advising ACI and its affiliates on FCC law
matters.” Id. ¶ 8. When Mr. Solomon
ceased working full-time as an attorney in 2010, Ms. Virtue
continued to represent ACI and its affiliates. Id.
¶ 53. Beginning in 2012, this included representing ACI
on the pending Application for Review and subsequent attempts
to reverse the FCC's decision and obtain a Class A
license for ACI. Id. ¶¶ 53-56.
takes issue with certain aspects of Ms. Virtue's
representation. ACI contends that “[p]rior to assuming
responsibility for or participating in [the matter], Ms.
Virtue had an obligation to tell ACI that:” (1)
“Mr. Solomon committed malpractice by preparing and
filing the defective ACI Statement”; (2) “Mr.
Solomon's withdrawal from the full-time practice of law
could affect the running of the statute of limitations on
ACI's malpractice claims against Mr. Solomon”; (3)
“ACI and Mr. Solomon were potential adversaries in a
legal malpractice action”; (4) “Ms. Virtue had a
conflict of interest between her representation of ACI and
her professional and personal relationship with Mr.
Solomon”; (5) “[t]he Garvey Firm had a conflict
of interest between its representation of ACI and its
relationship with Mr. Solomon”; and (6) “ACI
should immediately retain separate and independent counsel to
advise ACI about:” (a) “Mr. Solomon's
preparation and filing the defective ACI Statement”;
(b) “Mr. Solomon's withdrawal from the full time
practice of law”; (c) “[t]he FCC
Proceeding.” Id. ¶ 59. ACI refers to the
above-listed assertions as the “Virtue Obligations,
” and alleges that “Ms. Virtue failed to perform
the Virtue Obligations.” Id. ¶¶
60-61. Therefore, it argues, she “failed to obtain
ACI's fully informed consent to her assumption of
responsibility for and working on the FCC Proceeding and
Appeal.” Id. ¶ 62.
attempts to obtain a Class A license for its station ceased
in September 2015 when the D.C. Circuit denied its appeal of
the FCC's decisions. See Beach TV Props., Inc. v.
FCC, 617 Fed.Appx. 10 (D.C. Cir. 2015). On October 26,
2015, Beach TV and ACI sued Mr. Solomon, the Garvey Firm, and
Haley Bader & Potts, the firm where Mr. Solomon had
worked when he filed the incomplete Statement of Eligibility,
for legal malpractice. See generally Compl., ECF No.
1; see also Am. Compl., ECF No. 21. A year later,
the Court granted the Garvey and Haley Firms' motions to
dismiss ACI and Beach TV's first amended complaint,
granted in part and denied in part Mr. Solomon's motion
to dismiss the first amended complaint, and dismissed all
claims brought by Beach TV in the first amended complaint for
lack of standing. See Beach TV, Props., Inc. v.
Solomon (“Beach TV I”), No.
15-1823, 2016 WL 6068806 (D.D.C. Oct. 14, 2016). After the
issuance of this memorandum opinion, the only claim remaining
in the case was ACI's malpractice claim against Mr.
Solomon for filing the incomplete Statement of Eligibility.
subsequently moved to amend its complaint. See
Pls.' Mot. Leave Amend, ECF No. 59. ACI's proposed
amended complaint contained four distinct claims for
malpractice and sought to add two defendants: Melodie Virtue,
who up until that point had not been named as a defendant in
the case, and the Garvey Firm. See Pls.'
Proposed 2d Am. Compl. ¶¶ 51-62; 73-87, ECF No.
59-3. The first claim in the proposed complaint remained the
claim against Mr. Solomon for filing the incomplete Statement
of Eligibility. See Pls.' Proposed 2d Am. Compl.
¶¶ 73-75. The second proposed claim alleged that
Mr. Solomon did not adequately counsel ACI when it assigned
its license to Beach TV and that this negligence
“compromise[d] ACI's ability to recover damages
based on its ownership of” the license. Pls.' Mot.
Am. Compl. ¶ 15; Pls.' Proposed 2d Am. Compl.
third proposed count alleged legal malpractice by Ms. Virtue
for not fulfilling the “Virtue Obligations.”
Pls.' Proposed 2d Am. Compl. ¶¶ 59-61, 81. ACI
and Beach TV clarified that this claim was contingent upon a
finding that Counts One and Two are time-barred. See
Proposed 2d Am. Compl. ¶ 83 (“ACI was damaged as a
direct and proximate result of Ms. Virtue's malpractice
if and to the extent ACI's malpractice claims against Mr.
Solomon stated in Counts One or Two are barred by the statute
of limitations.”) Finally, the proposed fourth count
alleged that the Garvey Firm is liable for “the
malpractice and negligence of Mr. Solomon pursuant to Count
Two by operation of the doctrine of respondeat
superior” and for “the malpractice and negligence
of Ms. Virtue pursuant to Count Three by operation of the
doctrine of respondeat superior.” Id.
¶¶ 86-87. As such, part of Count Four is also
contingent upon a finding that Count One is time-barred.
Solomon and the Garvey firm opposed ACI's motion on the
ground that amending the complaint would be futile because
Counts Two and Three failed to state cognizable claims.
Garvey's Mem. P. & A. Opp'n Pl.'s Mot. Leave
Amend Compl. at 14, ECF No. 62; Def. Solomon's Opp'n
Pl.'s Mot. Leave Amend Compl. at 4, ECF No. 63. The Court
agreed with Defendants as to Count Two, finding that ACI and
Beach TV had not adequately pleaded causation, Beach TV
II, 254 F.Supp.3d at 128-30, but found that ACI had
adequately pleaded Count Three, id. at 130-34. In
particular, the Court found that ACI's inclusion of the
factual allegation that Ms. Virtue “lulled ACI into
inaction in filing its malpractice claims, ” 2d Am.
Compl. ¶ 57, was a “preemptive response to the
affirmative defense of statute of limitations, ” rather
than an attempt to assert a cause of action for
“lulling, ” which is not an actionable tort under
D.C. law. Beach TV II, 254 F.Supp.3d at 133-34.
the filing of ACI's Second Amended Complaint, which
inadvertently included Count Two, see Pl.'s
Opp'n at 15, ACI and Mr. Solomon filed cross-motions for
partial summary judgment as to Mr. Solomon's liability
for Count One of the Second Amended Complaint. See
Pl.'s Mot. Partial Summ. J., ECF No. 71; Def.'s Mot.
Partial Summ. J., ECF No. 74. In his motion, Mr. Solomon
claimed that Count One was time-barred, that ACI was
contributorily negligent when it forwarded the incomplete
Statement of Eligibility to him for his review, and that ACI
could not demonstrate, as a matter of law, that Mr.
Solomon's actions caused the full extent of the damages
ACI alleged it suffered. See Beach TV Props., Inc. v.
Solomon (“Beach TV III”), 306
F.Supp.3d 70, 82 (D.D.C. 2018). Reviewing the evidence that
the parties had provided with their motions, the Court found
that questions of fact remained as to whether ACI reasonably
believed that Mr. Solomon continued to represent it until at
least October 26, 2012, three years before the filing of this
case.See Beach TV III, 306 F.Supp.3d
at 89. While the Court was able to determine from the record
that the date of the injury resulting from Mr. Solomon's
alleged malpractice was June 9, 2000, see Id. at 84,
and that the evidence presented did not support the tolling
of the statute of limitations on the basis of lulling or
fraudulent concealment, see Id. at 89-91, the Court
did find that significant disputes of fact precluded the
Court from determining whether the ...