Opinion
No. CV 04-1570-PHX-MS.
May 2, 2006
ORDER
Pending before the Court is "The Thinnes Defendants' Motion to Dismiss Plaintiff's January 4, 2006 Amended Complaint" (Doc. # 84). Plaintiff filed a Second Amended Complaint pursuant to this Court's December 12, 2005 Order dismissing Plaintiff's only remaining claim against the Thinnes Defendants. Defendant Robert Owens filed a joinder in the Thinnes Defendants' Motion to Dismiss (Doc. # 85). Plaintiff filed responses to the Thinnes Defendants' Motion to Dismiss and to Defendant Owens' joinder (Docs. # 93, 94). The Thinnes Defendants and Defendant Owens filed replies (Docs. # 96, 97).
Plaintiff's Second Amended Complaint
In this Court's December 12, 2005 Order, this Court granted Defendant Benjamin Thinnes' Motion for Reconsideration of Two Rulings in the Court's September 28, 2005 Order. As a result, Plaintiff's fraud claim against Defendant Benjamin Thinnes was dismissed. The Court provided Plaintiff with 30 days "to file an Amended Complaint with the Court that specifically addresses the nine factors enumerated [in the Order] which are required to establish a fraud claim, and alleging facts in support thereof."See Doc. # 82 at 4. Plaintiff filed his Second Amended Complaint on January 4, 2006 (Doc. # 83). Plaintiff names Thomas A. Thinnes (deceased), the Estate of Thomas A. Thinnes, Thomas A. Thinnes, P.A., and Benjamin A. Thinnes as the personal representative of the Estate of Thomas A. Thinnes ("The Thinnes Defendants"). Plaintiff also names Defendant Robert Owens and other unknown defendants.
Substantively, Plaintiff's Second Amended Complaint attempts to restate his fraud claim against the Thinnes Defendants with particularity pursuant to FED. R. CIV. P. 9(b) and Nielson v. Flashberg, 419 P.2d 514 (Ariz. 1966). Plaintiff further presents an entirely new claim of breach of contract.
As an initial matter, the Thinnes Defendant correctly note that this Court's December 12, 2005 Order did not provide Plaintiff with unfettered liberty to present new claims. Rather, the explicit purpose of this Court's Order was to provide Plaintiff with one final opportunity to plead with specificity his fraud claim against the Thinnes Defendants. As a result, Plaintiff's breach of contract claim will be dismissed with prejudice.
Plaintiff's Fraud Claim
The Thinnes Defendants and Defendant Owens, through his joinder, move to dismiss Plaintiff's fraud claim for failure to state a claim pursuant to FED. R. CIV. P. 12(b)(1) and 12(b)(6).
Specifically, Defendants contend that Plaintiff has "failed to identify a single representation allegedly made by Mr. Thinnes to Plaintiff that could support a common law claim for fraud." (Doc. # 84 at 3). The Court agrees.
Plaintiff's Second Amended Complaint has not cured the fatal defects articulated in this Court's December 12, 2005 Order. Again, Plaintiff has failed to identify a representation made by Mr. Thinnes to Plaintiff that supports a claim for common law fraud. Plaintiff posits two separate theories to establish the representation requirement. First, Plaintiff argues that "[t]he existence of an attorney-client relationship is a `representation' in an of itself." Plaintiff misunderstands the meaning of representation as it relates to establishing a claim for fraud. The fact that Defendant Thomas Thinnes "represented" Plaintiff during his criminal trials does not establish a representation. To establish the "representation" factor, Plaintiff must show a statement or promise made by Defendant Thomas Thinnes, the mere fact that Plaintiff was "represented" is insufficient.
Plaintiff's second theory to establish a representation is again his contention that Defendant Thomas Thinnes' promise to allow Plaintiff to "represent himself" during his criminal proceedings is the representation which Plaintiff asserts proved to be false. Plaintiff has articulated a "representation," thereby satisfying the first factor of the Nielson test.
That said, Plaintiff's claim again fails to demonstrate that the speaker knew at the time the representation/statement was made that it was false or would not be honored. See Nielson, 419 P.2d at 516. Plaintiff has not articulated any evidence to suggest that Defendant Thomas Thinnes did not intend to allow Plaintiff to meaningfully participate in his own representation at the time they entered into an attorney-client relationship. To the contrary, Plaintiff even concedes that "Mr. Thinnes' representation, loyalty and integrity" to Plaintiff were "not in question at [the time of the first trial]." (Doc. # 83 at 9). Therefore, by Plaintiffs own admission, Defendant Thomas Thinnes could not have known at the time he promised that Plaintiff could participate in his own defense that he would not honor that promise. Moreover, McAlister v. Citibank, 829 P.2d 1253, 1260 (Ariz.Ct.App. 1992) establishes that fraud can only be established by unfulfilled promises concerning future events if those statements regarding those events "were made with the present intent not to perform." Id. (citing Spudnuts v. Lane, 641 P.2d 912, 914 (Ariz.Ct.App. 1982). Simply put, that is not what transpired between Defendant Thomas Thinnes and Plaintiff. At most, Plaintiff can establish that Defendant Thomas Thinnes decided before Plaintiff's second trial that he did not want Plaintiff's active participation. However, that does not establish fraud at the time their relationship was formed. To the extent that Plaintiff argues that Defendant Thomas Thinnes violated the rules of Professional Conduct in failing to provide "loyal representation," those concerns are not cognizable in a federal diversity action for fraud. As a result, the Thinnes Defendants' and Defendant Owens' motion to dismiss will be granted in its entirety.
Plaintiff's Second Amended Complaint fails completely to identify a single representation made by Defendant Owens to Plaintiff. As a result, Plaintiff's Second Amended Complaint fails as to Defendant Owens. Plaintiff's assertion that Defendant Owens was an employee of Defendant Thomas Thinnes and profited from his professional relationship with Defendant is of no import when evaluating whether fraudulent statements were made by Defendants to Plaintiff.
In accordance with the foregoing,
IT IS ORDERED THAT
1. The Thinnes Defendants' Motion to Dismiss Plaintiff's January 4, 2006 Amended Complaint (Doc. # 84) is GRANTED.
2. Defendants Thomas A. Thinnes (deceased), the Estate of Thomas A. Thinnes, Thomas A. Thinnes, P.A., and Benjamin A. Thinnes as the personal representative of the Estate of Thomas A. Thinnes are hereby DISMISSED with prejudice.
3. Defendant Robert Owens, through his joinder with the Thinnes Defendants' Motion to Dismiss, is hereby DISMISSED with prejudice.
4. Plaintiff's Second Amended Complaint is hereby DISMISSED with prejudice in its entirety as fully explained herein and judgment shall be entered by the Clerk in favor of all Defendants.
5. The Clerk shall terminate this action.