Opinion
Case No. 11-CV-1089
08-14-2012
THE TUCKER FIRM, LLC, Plaintiff, v. KIMBERLY ALISE, Defendant. KIMBERLY ALISE, Counter-Plaintiff, v. DEBRA TUCKER and THE TUCKER FIRM, LLC, Counter-Defendants.
Judge John W. Darrah
MEMORANDUM OPINION AND ORDER
Counter-Defendants Debra Tucker and The Tucker Law Firm, LLC (collectively, "Tucker") filed a Motion to Dismiss Defendant/Counter-Plaintiff Kimberly Alise's ("Alise") Amended Counterclaim pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief may be granted. For the reasons presented below, Tucker's Motion to Dismiss Alise's legal malpractice counterclaim is denied.
BACKGROUND
The following facts are taken from Alise's Amended Complaint and are accepted as true for purposes of resolving this Motion to Dismiss. See Reger Dev., LLC v. Nat 7 City Bank, 592 F.3d 759, 763 (7th Cir. 2010).
Alise filed an Amended Complaint against Tucker, alleging legal malpractice. (Am. Counterclaim ¶¶ 66-70.) Tucker is in Illinois, while Alise is a citizen of Texas, and the amount in controversy exceeds $75,000; thus, jurisdiction is proper pursuant to 28 U.S.C. § 1332. (Id.¶¶2-7.) Venue is also properly established in the Northern District of Illinois, as a substantial part of the events giving rise to the claims alleged occurred in this district.
Debra J. Tucker, a practicing attorney, is the sole owner of the Tucker Law Firm, LLC, located in Chicago, Illinois. (Id.¶¶ 3-4.) Alise contacted Tucker in May 2009 to discuss employing Tucker's legal services in a business dispute. (Id.¶¶ 13-16.) The business dispute stemmed from Alise's co-ownership of a business named Emergency Care Dictation Services ("ECDS") with Dr. Seth Guterman ("Guterman"). (Id.¶¶ 8-12.) Alise's ownership in ECDS was derived from her 51 percent ownership interest in the holding company of ECDS, Malo the Dog, LLC ("Malo"). (Id.¶¶ 10-11.) In addition to the business relationship between Alise and Guterman, the two also had a personal relationship, dating back to 1997. (Id.¶ 9.) The legal disputes between Alise and Guterman included claims brought under the Illinois Marriage and Dissolution of Marriage Act. (Id.¶ 14.)
At the May 2009 meeting between Alise and Tucker, Alise asserts she communicated her goals to Tucker, including returning to her position as CEO of ECDS, regaining control of and access to the operation of ECDS, and preventing Guterman from making harmful business decisions with respect to ECDS. (Id.¶ 16). Alise communicated to Tucker the necessity that these goals be accomplished in a timely and inexpensive manner. (Id.)Alise paid Tucker a $15,000.00 retainer to accomplish her objectives in the business dispute with Guterman. (Id.¶19).
Tucker allegedly provided services to Alise relating to her business dispute claims, including filing a motion for a temporary restraining order to restore Alise to her position as CEO of ECDS and employment discrimination claims against ECDS with the United States Equal Employment Opportunity Commission, the State of Illinois Department of Human Rights, and the City of Chicago Commission on Human Relations. (Id. ¶¶ 25, 53.) Additionally, Tucker represented Alise in a marriage dissolution action against Guterman in the Circuit Court of Cook County, Illinois; Alise was originally represented in the action by the firm of Beerman Swerdlove LLP ("Beerman"). (Id. ¶¶ 31-35.)
Based on the voluminous filings in this case since its inception, it is clear Tucker and Alise disagree as to the extent and quality of Tucker's representation and the reasonableness of the legal fees. Alise alleges Tucker engaged in flawed legal strategy, claiming Tucker failed to file an action in Chancery Court, despite Alise's urgings, failed to assert key legal arguments, and lacked the knowledge necessary to provide competent representation. (Id.¶¶ 36-41, 48.) Alise further claims Tucker, in an effort to increase her compensation from Alise, incorrectly advised her to fire Beerman and hire Tucker to carry out the marriage dissolution action. (Id.¶¶31-34.) Alise claims Tucker's substandard representation resulted in excessive fees totaling nearly $900,000.00 in addition to the $100,000.00 in fees Alise already paid. (Id.¶ 63.) Alise settled with Guterman, regarding their business disputes, and entered into a settlement agreement. (Id.¶ 65.) Alise represents this settlement was less favorable than an agreement that could have been made had Tucker engaged in more competent representation. (Id.)Alise terminated Tucker's representation on July 25, 2010. (Id.¶ 64.) Alise claims Tucker's conduct amounted to legal malpractice. (Id.¶ 70.)
LEGAL STANDARD
A motion under Rule 12(b)(6) challenges the sufficiency of the complaint. Christensen v. Cnty. of Boone, 483 F.3d 454, 458 (7th Cir. 2007). Under the federal notice pleading standards, "a plaintiff's complaint need only provide a short and plain statement of the claim showing that the pleader is entitled to relief, sufficient to provide the defendant with fair notice of the claim and its basis." Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008) (Tamayo) (internal quotations omitted). When considering a motion to dismiss under Rule 12(b)(6), the complaint is construed in the light most favorable to the plaintiff; all well-pleaded factual allegations are accepted as true, and all reasonable inferences are construed in the plaintiff's favor. Id. However, a complaint must allege "enough facts to state a claim to relief that is plausible on its face" to survive a motion to dismiss. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 547 (2007) (Twombly).For a claim to have facial plausibility, a plaintiff must plead "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (Iqbal).Thus, "threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. Further, the amount of factual allegations required to state a plausible claim for relief depends on the complexity of the legal theory alleged. Limestone Dev. Corp. v. Vill. of Lemont, 520 F.3d 797, 803 (7th Cir. 2008).
ANALYSIS
In her Amended Counterclaim, Alise alleges that through the course of Tucker's representation of her, Tucker employed strategies and tactics that amounted to legal malpractice. (Am. Counterclaim ¶¶ 66-70.) Tucker filed a Motion to Dismiss the Amended Counterclaim pursuant to Rule 12(b)(6). Tucker maintains three arguments in support of the Motion to Dismiss the Amended Counterclaim: (1) Alise's claim is prohibited by law because her settlement agreement with Guterman improperly assigned her malpractice claim against Tucker to him, and her claim is champertous; (2) Alise never lost any viable legal claim because of Tucker's representation; and (3) Alise cannot accuse Tucker of charging excessive legal fees because the majority of the fees remain unpaid. (Tucker's Mem. at 3, 7, 13.)
Effect of the Guterman Settlement
First, Alise's interpretation of the settlement agreement between Guterman and Alise differs from that of Tucker's. Tucker argues the settlement agreement gave Guterman control of any affirmative or defensive malpractice claims. (Reply at 2.) Tucker asserts Guterman's control of any malpractice claims against Tucker amounts to unlawfully assigning the claim and allowing Guterman to avoid his responsibility of paying Alise's attorney fees. Tucker's point is well-taken; Illinois law clearly prohibits the assignment of legal malpractice claims. See National Union Ins. Co. v. Dowd & Dowd, P.C., 2 F. Supp. 2d 1013, 1023 (N.D. Ill. 1998). However, nothing in the agreement between Guterman and Alise establishes a clear assignment of her legal malpractice claim against Tucker to Guterman; nor does Alise's Amended Counterclaim allege such a fact. Viewing the language of the settlement agreement between Alise and Guterman in a manner most favorable to Alise, Tucker's argument that the claim is improperly assigned does not satisfy the Rule 12(b)(6) standard.
Similarly, Tucker's argument that the malpractice claim is champertous is unavailing. Champerty is a common-law concept, defined as ". . . an agreement to divide litigation proceeds between the owner of the litigated claim and a party unrelated to the lawsuit who supports or helps enforce the claim." Black's Law Dictionary 246 (8th ed. 2004). Nothing in the settlement agreement between Guterman and Alise establishes that Guterman is to receive proceeds from Alise's malpractice claim. A claim typically survives a Rule 12(b)(6) motion where it provides the defendant with sufficient notice to assemble a defense. Tamayo, 526 F.3d at 1081. It is clear that Alise's claim regarding malpractice allowed Tucker the opportunity to explore and prepare defenses as the proceedings continue, including the proper interpretation of the language of the settlement agreement. At this juncture, however, nothing in the Amended Counterclaim has established the unlawful assignment or champerty of Alise's legal malpractice claim.
Loss of Viable Legal Claims
Tucker's second argument in support of the Motion to Dismiss rests on the assertion that Alise never lost any legal claim as a consequence of Tucker's representation. Specifically, Tucker asserts the Counterclaim "is void of any allegation whatsoever that Alise lost her claims in the underlying litigation, or that her ability to prevail on them under the law was even diminished." (Tucker's Mem. at 9.) In making this assertion, Tucker appears to completely disregard several allegations made by Alise in the Amended Counterclaim, specifically, that Tucker failed to properly assert legal arguments, which would have permitted Alise to succeed on motions; that Tucker employed strategies for the single purpose of increasing fees; and that Tucker charged Alise for unnecessary legal work. All of these allegations would support Alise's legal malpractice claim against Tucker. (Am. Counterclaim ¶¶ 29-64.) Tucker's argument ignores the manner in which Alise alleges Tucker pursued legal strategies and Tucker's purportedly improper legal advice. Alise further maintains she retained a viable claim to assert her rights towards ECDS because of her continued employment and status as CEO at ECDS. (Resp. at 12.) The facts alleged by Alise are sufficient to permit reasonable inferences that Tucker may be liable for the legal malpractice claim. Iqbal, 129 S.Ct. at 1949. Finding Alise to have had viable legal claims, Tucker's Motion to Dismiss is denied on this basis.
Excessive Fees
Finally, Tucker argues Alise's Amended Counterclaim should be dismissed because while Alise alleges she was charged excessive fees, she never claimed that she paid these purportedly excessive fees. (Tucker's Mem. at 13.) Tucker pursues this argument, despite its previous rejection in the Court's Opinion issued on January 25, 2012. There, the Court reasoned:
Tucker argues the allegations of excessive fees should fail because Alise has not paid the fees. However, the issue is whether Alise is legally obligated to pay the fees, not whether she has paid them. Alise admits she paid at least some fees charged by Tucker. As pled, the fees sought from Alise are excessive. Under the Iqbal standard, Alise's claim of excessive fees is sufficient to survive Tucker's motion to dismiss.Tucker Firm, LLC v. Alise, No. 11-CV-1089, 2012 WL 252790, at * 5 (N.D. Ill. Jan. 25, 2012). Tucker provides no new support for this argument, and it remains unconvincing. Moreover, Alise highlights, in the Amended Counterclaim, other damages resulting from Tucker's representation, including sanctions and a settlement that was less favorable than anticipated. Under the Iqbal standard, Alise's claim of excessive fees remains sufficient to survive Tucker's Motion to Dismiss.
CONCLUSION
For the reasons set forth above, Tucker's Motion to Dismiss Alise's Amended Counterclaim is denied.
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JOHN W. DARRAH
United States District Court Judge
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
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By a United States Magistrate Judge
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