United States District Court, District of Columbia
Document No.: 102
MEMORANDUM OPINION GRANTING IN PART AND DENYING IN
PART DEFENDANT HENRY A. SOLOMON'S MOTION TO DISMISS
RUDOLPH CONTRERAS, United States District Judge.
1999, Defendant Henry Solomon submitted an incomplete form to
the Federal Communications Commission (“FCC”) on
behalf of his then-client, Plaintiff the Atlanta Channel,
Inc. (“ACI”). The incomplete form resulted in ACI
being denied a valuable license for one of its TV channels, a
decision that was upheld on review and on reconsideration by
the FCC over a decade later. ACI filed suit against Solomon
for legal malpractice in 2015. In 2017, ACI added to its
complaint malpractice claims against Defendants Melodie
Virtue and her law firm Garvey, Schubert & Barer. P.C.
(together, the “Garvey Defendants”), who took
over the FCC licensing dispute from Solomon when he retired
in 2010 and who ACI alleges failed to disclose that
Solomon's retirement could start the limitations clock on
any malpractice claims against him. In their answer to
ACI's complaint, the Garvey Defendants brought a
crossclaim against Solomon for equitable indemnification or
contribution. Solomon now moves to dismiss that crossclaim,
arguing that it is barred under D.C. law. The Court grants
the motion to dismiss the crossclaim for contribution but
denies the motion as to indemnification.
Court has already discussed the factual background for this
case in detail in prior opinions. See, e.g.,
Beach TV Props., Inc. v. Solomon, 324 F.Supp.3d 115,
118-21 (D.D.C. 2018); Beach TV Props., Inc. v.
Solomon, 306 F.Supp.3d 70, 76-81 (D.D.C. 2018). The
Court assumes familiarity with its prior opinions and
confines its discussion to the facts most relevant to the
a broadcast television company that operates the low power
television station WTHC-LD in Atlanta. Second Am. Compl.
¶ 15, ECF No. 69. Following the passage of the Community
Broadcasters Protection Act of 1999, Pub. L. No. 106-113, 113
Stat. 1501, 1501A- 594, ACI determined that it would need to
obtain a Class A license in order to keep WTHC-LD on the air.
Second Am. Compl. ¶¶ 17-23. ACI sought the services
of Solomon, an attorney specializing in FCC law and
procedure, id. ¶ 5, to submit a statement of
eligibility for a Class A license for WTHC-LD with the FCC,
id. ¶ 25. Solomon filed the statement of
eligibility on December 29, 1999. Id. ¶¶
27. However, the statement was defective and the FCC denied
ACI the license. Id. ¶¶ 28, 33. Through
Solomon, ACI applied for review of the denial on December 29,
2000. Id. ¶¶ 36-37. The FCC affirmed its
denial of the license in 2012, and denied reconsideration of
that decision in 2014. Id. ¶ 37.
2000, Solomon joined the law firm of Garvey Schubert Barer,
P.C. Garvey Defs.' Answer 2, ECF No. 99. Melodie Virtue,
a lawyer at the firm, worked with Solomon on ACI matters
while he was employed at Garvey Schubert Barer. Id.
at 2-3. After Solomon left the firm in 2010, Virtue took over
the ACI licensing matter, reviewing the pending FCC
application for review starting in early 2012 and
representing ACI in its petition for reconsideration after
the FCC's affirmance of the denial. Id. at 6-7.
ACI contends that Virtue failed to make a number of required
disclosures to ACI upon assuming responsibility for the FCC
proceedings relating to the license, including warning ACI
about Solomon's malpractice and the resulting conflict of
interests between Solomon and the Garvey Defendants, and
advising ACI to retain independent counsel. Second Am. Compl.
¶¶ 59-61. According to ACI, Virtue's work on
the FCC proceedings “lulled [it] into inaction in
filing its malpractice claim against . . . Solomon.”
Id. ¶ 57.
initially filed suit on October 26, 2015. See
Compl., ECF No. 1. After extensive litigation and the
dismissal of most of the claims in ACI's first amended
complaint, see Beach TV, Props., Inc. v. Solomon,
No. 15-1823, 2016 WL 6068806 (D.D.C. Oct. 14, 2016), ACI
filed its Second Amended Complaint on June 1, 2017.
See Second Am. Compl. Count one of the Second
Amended Complaint is a legal malpractice claim against
Solomon for $25, 000, 000, which ACI alleges is the loss in
value to WTHC-LD resulting from the denial of the Class A
license. Id. ¶¶ 70, 73-75. In the
alternative, counts three and four are legal malpractice
claims for the same amount against Virtue and, under
respondeat superior, Garvey Schubert Barer.
Id. ¶¶ 80-87. In these two claims, which
are conditioned on ACI's malpractice claim against
Solomon being barred by the statute of limitations,
id. ¶ 83, ACI alleges that Virtue's failure
to make the required disclosures “adversely affected
ACI's malpractice claims against . . . Solomon, ”
id. ¶ 82.
the Court denied their motion to dismiss counts three and
four, the Garvey Defendants filed an Answer and Crossclaim
against Solomon on September 21, 2018, Garvey Defs.'
Answer 1. In the Crossclaim, the Garvey Defendants allege
that they are entitled to “equitable indemnification,
restitution, reimbursement and/or contribution in whole or in
part” from Solomon because he would be unjustly
enriched if the Garvey Defendants were the only ones to pay
for damages substantially resulting from his malpractice.
Id. at 15. Solomon filed a motion to dismiss the
Crossclaim on October 12, 2018. Solomon Mot. Dismiss
Crossclaim, ECF No. 102. The Garvey Defendants filed their
opposition on October 25, 2018, Garvey Defs.' Mem.
Opp'n, ECF No. 103, and Solomon filed his reply on
November 1, 2018, Solomon Reply, ECF No. 104. The motion is
now ripe for review.
prevail on a motion to dismiss under Fed.R.Civ.P. 12(b)(6), a
plaintiff need only provide a “short and plain
statement of the claim, ” Fed.R.Civ.P. 8(a)(2), that
“give[s] the defendant fair notice of what the . . .
claim is and the grounds upon which it rests, ”
Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per
curiam) (omission in original) (quoting Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007)). A motion to
dismiss under Rule 12(b)(6) does not test a plaintiff's
ultimate likelihood of success on the merits; rather, it
tests whether a plaintiff has properly stated a claim.
See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). A
court considering such a motion presumes that the
complaint's factual allegations are true and construes
them liberally in the plaintiff's favor. See,
e.g., United States v. Philip Morris, Inc., 116
F.Supp.2d 131, 135 (D.D.C. 2000).
“[t]o survive a motion to dismiss, a complaint must
contain 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,
678 (2009) (quoting Twombly, 550 U.S. at 570). This
means that a plaintiff's factual allegations “must
be enough to raise a right to relief above the speculative
level, on the assumption that all the allegations in the
complaint are true (even if doubtful in fact).”
Twombly, 550 U.S. at 555-56 (citations omitted).
“Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, ” are
therefore insufficient to withstand a motion to dismiss.
Iqbal, 556 U.S. at 678. A court need not
accept a plaintiff's legal conclusions as true, see
id., nor must a court presume the veracity of legal
conclusions that are couched as factual allegations. See
Twombly, 550 U.S. at 555.