Opinion
20-CV-5602 (LGS) (KNF)
03-10-2021
ANTHONY ZAPPIN, Plaintiff, v. J. RICHARD SUPPLE, JR., HINSHAW &CULBERTSON, LLP, Defendants.
TO THE HONORABLE LORNA G. SCHOFIELD, UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION
KEVIN NATHANIEL FOX UNITED STATES MAGISTRATE JUDGE
BACKGROUND
The plaintiff proceeding pro se commenced this action against J. Richard Supple, Jr. (“Supple”) and Hinshaw &Culbertson, LLP (“HC”) asserting “negligence/legal malpractice” and breach of contract. On July 24, 2020, the Clerk of Court issued electronic summonses. See Docket Entry Nos. 8 and 9. On July 27, 2020, the complaint was dismissed for lack of subject matter jurisdiction and the plaintiff “granted leave to file an amended complaint within 30 days of the date of this order repleading his allegations regarding diversity jurisdiction. If Plaintiff fails to file an amended complaint within 30 days, or seek an extension of time to do so upon showing of good cause, the Court shall enter judgment dismissing this action for lack of subject matter jurisdiction.” Docket Entry No. 10. On August 24, 2020, the plaintiff filed an amended complaint, asserting “negligence/legal malpractice, ” breach of contract and fraud. The plaintiff alleges:
Days after Sarah Jo Hamilton asked to withdraw from representing Plaintiff in the New York disciplinary matter in September 2016, Plaintiff began searching for new counsel.... Plaintiff reached out to [Supple] because it appeared that he had
experience in collateral estoppel disciplinary proceedings. Indeed, Plaintiff would later learn that Supple was in fact the pioneer of collateral estoppel disciplinary proceedings in the First Department having filed the first attorney discipline matter in that jurisdiction using collateral estoppel Prior to Plaintiff formally retaining Defendants as his counsel, Plaintiff provided all the filings in the New York disciplinary matter up to that point in time to Defendant Supple.... Plaintiff decided to retain Defendants because Defendant Supple had what appeared to be a detailed defense strategy. Specifically, Defendant Supple laid out four (4) things he intended to do if he was retained: i. File a motion to clarify the First Department's September 19, 2016 order granting the First Department Attorney Grievance Committee's (“AGC”) April 22, 2016 collateral estoppel petition; ii. File a motion for reconsideration of the First Department's September 19, 2016 order granting the AGC's April 22, 2016 collateral estoppel petition; iii. File a motion to stay the collateral estoppel proceeding pending the outcome of Plaintiff's appeal in the underlying matrimonial action; and iv. Attempt to engage in settlement negotiations with the AGC in hopes of diffusing the animus the AGC and Staff Attorney Kevin Doyle held towards Plaintiff. Based on the representations of Defendant Supple that he would undertake this defense strategy, Plaintiff retained Defendants to represent him in the New York collateral estoppel disciplinary matter. However, . . . after Plaintiff retained Defendants to represent him, Defendant Supple failed to follow through on any of the items laid out above.
Thereafter, the plaintiff made a motion for an order directing that the defendants be served pursuant to 28 U.S.C. § 1915(d), which was granted on August 27, 2020, and it was
ORDERED that to allow Plaintiff, who is proceeding in forma pauperis, to effect service on Defendants through the U.S. Marshals Service, the Clerk of Court is instructed to send Plaintiff one U.S. Marshals Service Process Receipt and Return form (“USM-285 form”) for each Defendant. Within thirty days of the date of this Order, Plaintiff must complete a USM-285 form for each Defendant and return the forms to the Court. If Plaintiff does not wish to use the Marshals Service to effect service, Plaintiff must notify the Court in writing within thirty days of the date of this Order and request that a summons be issued directly to Plaintiff. If within thirty days, Plaintiff has not returned the USM-285 forms or requested a summons, under Rule 41(b) of the Federal Rules of Civil Procedure, the Court may dismiss this action for failure to prosecute. Upon receipt of the completed USM-285 forms, the Clerk of Court shall issue a summons and deliver to the Marshals Service all of the paperwork necessary for the Marshals Service to effect service upon each Defendant. It is further ORDERED that regardless of the method of service Plaintiff chooses, Plaintiff must effect service within 120 days of the date the summons is issued. It is Plaintiff's responsibility to inquire of the Marshals Service whether service has been made and, if necessary, to request an extension of time for service. See Meilleur v. Strong, 682 F.3d 56, 63 (2d Cir. 2012), cert. denied, 133 S.Ct. 655 (2012). If within 120 days of issuance of the summons, Plaintiff has not made service or requested an extension of time in which to do so, under Rules
4(m) and 41(b) of the Federal Rules of Civil Procedure, the Court may dismiss this action for failure to prosecute.... The Clerk of Court is respectfully directed to (1) mail a copy of this Order to the pro se Plaintiff, together with an information package and the USM-285 forms, (2) close Docket No. 13 and (3) re-open this action.Docket Entry No. 16.
On August 27, 2020, the Clerk of Court reopened the case and sent the information package to the plaintiff, including USM-285 forms. On October 20, 2020, the plaintiff filed two affidavits of service by Raymond Hollingsworth, each stating that “SUMMONS IN A CIVIL ACTION and COMPLAINT” were served and:
I, Raymond Hollingsworth, being duly sworn, depose and say: I am over the age of 18 years and not a party to this action, and that within the boundaries of the state where service was effected, I was authorized by law to make service of the documents and informed said person of the contents herein.Docket Entry Nos. 18 and 19.
In his affidavits, Raymond Hollingsworth states that on: (a) “September 29, 2020, 10:17 am EDT, ” he served J. Richard Supple, Jr., “Recipient Name/Address: Daniel Sayers as Building Messenger Center Agent, 405 Lexington Avenue, Messenger Center New York, NY 10174, ” Docket Entry No. 18; and (b) “September 29, 2020, 11:04 am EDT, ” he served HC, “Recipient Name/Address: Anthony Williams, Hinshaw & Culbertson LLP: 800 Third Avenue 13th Floor, New York, NY 10022, ” Docket Entry No. 19. On October 21, 2020, the Clerk's Certificate of Default was entered in this action for the defendants' failure to answer or otherwise move with respect to the amended complaint.
Before the Court are: (1) a motion by the defendants for an order “pursuant to Rule 55(c) of the Federal Rules of Civil Procedure (“FRCP”) dismissing Plaintiff Anthony Zappin's (“Plaintiff”) First Amended Complaint for lack of personal jurisdiction or, alternatively, vacating the October 21, 2020 clerk's default entered against them, ” Docket Entry No. 23; (2) a motion by the plaintiff “to set aside the Clerk's Entry of Default” and direct the defendants to answer the amended complaint or, alternatively, to permit the plaintiff to serve HC by alternative means, Docket Entry No. 26; (3) the defendants' cross-motion for an order, “pursuant to Rule 12(b)(2), 12(b)(5), 12(b)(6) and 4(m) of the Federal Rules of Civil Procedure, ” dismissing the amended complaint, Docket Entry No. 29; and (4) the plaintiff's motion for an order deeming the defendants served or, alternatively, directing an evidentiary hearing in connection with service, Docket Entry No. 34.
DEFENDANTS' RULE 55(c) MOTION DOCKET ENTRY NO. 23
The defendants argue that: (I) “this Court does not have jurisdiction over defendants because plaintiff did not properly serve them”; and (II) “alternatively, defendants' default should be vacated.” They assert that “[c]ourts in this district and others have found dismissal appropriate when a motion to vacate the entry of default reveals an indisputable lack of personal jurisdiction over the defendant.” According to the defendants,
Plaintiff filed an Affidavit of Service stating that service was effectuated on Mr. Supple on September 29, 2020 by serving the Summons and First Amended Complaint upon Daniel Sayers as “building messenger center agent” at 405 Lexington Avenue, New York, New York 10174, the address for Clyde & Co (“Clyde”), the law firm where Mr. Supple is now a partner. (See Doc. Entry #18 and Supple Decl. ¶2). However, Mr. Supple was not present at Clyde's office on September 29, 2020. (See Supple Decl. ¶3). Mr. Supple denies being personally served with the Summons and First Amended Complaint and the Affidavit of Service does not state that he was ever mailed a copy of the Summons and First Amended Complaint. (See Supple Decl. ¶¶4-5; Doc. Entry #18). Additionally, Mr. Supple avers that the Summons and First Amended Complaint were not received at his office or delivered to the building (See Supple Decl. ¶6), that Daniel Sayers does not work at Clyde or for any business that support's Clyde's operations, and that no one working on behalf of building management is authorized to act as agent to accept service of process on his behalf. Indeed, persons manning the reception desk at the building where the Clyde office is located do not, as a matter of practice, accept hand-delivered packages on behalf of building tenants. Rather, they will call an employee of the tenant to the ground floor of the building to accept the
package in-person, which never occurred on September 29, 2020 with respect to Plaintiff's First Amended Complaint (See Supple Decl. ¶¶8-10). As such, service of process was not properly effectuated pursuant to FRCP 4(e) or under state law.
The defendants contend that the plaintiff also failed to serve HC properly.
The Affidavit of Service on Hinshaw states that on September 29, 2020, at approximately 11:04 A.M., Raymond Hollingsworth purportedly served “Anthony Williams” with the Summons and First Amended Complaint in this action. (See Doc. Entry #19). This is not proper service. As noted in the Declaration of Ellen B. Silverman, Co-Managing Partner of Hinshaw's New York City Office, there is no individual known as Anthony Williams that works for Hinshaw. (See Silverman Decl. ¶3). Moreover, the Affidavit of Service does not indicate that “Anthony Williams” is an “officer, managing or general agent, or any other agent” or that he identified himself as Hinshaw's agent authorized to accept service of process or as having any affiliation with Hinshaw. (See Doc. Entry # 19). Indeed, “Anthony Williams” is not an individual authorized to accept service of process on behalf of Hinshaw. (See Silverman Decl. ¶3). Furthermore, Hinshaw is located within an office tower, staffed by a building manager and security personnel, none of which are named “Anthony Williams.” (See Silverman Decl. ¶4). The building security team further confirms that an “Anthony Williams” does not appear within its records of the tenants that occupy the office building. Id. The building visitor's log for September 29, 2020 does not reflect that anyone by the name of Raymond Hollingsworth or Anthony Williams was present in the building on September 29, 2020. (Id. at ¶5). In fact, the building visitor's log for September 29, 2020 does not reflect that any visitors signed in for the 13th floor where Hinshaw's office is located and is the sole business occupying that floor. Id. Ms. Silverman also confirms that none of the building personnel or building security team are authorized to accept service on Hinshaw's behalf. (Id. at ¶¶6-7).... The only Hinshaw employees in the office on September 29, 2020 were the office manager and a staff member responsible for reviewing the daily mail received. Id. Ms. Silverman confirmed that no one attempted to hand deliver any papers to the office on September 29, 2020. Id.
According to HC it did not learn of this action until October 19, 2020. On that date,
an employee found a copy of the Summons and Amended Complaint inside of the open bin intended for deliveries located outside of Hinshaw's lobby door on the 13th floor. (See Silverman Decl. ¶8). This bin is checked and emptied every day. Id. A review of the building visitor's log confirms that Raymond Hollingsworth signed in on October 19, 2020. (Id., Ex. A). Additionally, upon passing security on October 19, 2020 and riding the elevator to the 13th floor, Hinshaw's security camera recorded Raymond Hollingsworth depositing the Summons and Complaint without any envelope or other paper in the delivery bin located outside of Hinshaw's lobby door on the 13th floor. (Id., Ex. B). Mr. Hollingsworth departed the 13th floor without ever speaking to or coming in contact with any employee or
partner of Hinshaw. As such, Hinshaw was not properly served and the First Amended Complaint should be dismissed.
Alternatively, the defendants request that the default be vacated because no personal jurisdiction has been established, no unreasonable and intentional delay in responding to the amended complaint exists, no prejudice exists to the plaintiff from a delay and the defendants have several meritorious defenses, including lack of personal jurisdiction, statute of limitations since the plaintiff “commenced this action one day before the 3 year limitations period for malpractice-based claims expired, ” he cannot prove the defendants' malpractice, and “the Rooker-Feldman doctrine bars this lawsuit.” In support of their motion, the defendants submitted declarations by Supple, Ellen B. Silverman (“Silverman”) with Exhibit A (“the visitor's log and photograph of Raymond Hollingsworth”) and Exhibit B (“still images from our security camera with a date and time stamp”) and Ashley R. Newman with Exhibit A (“the First Department's March 8, 2018 decision disbarring Plaintiff”).
PLAINITIFF'S MOTION DOCKET ENTRY NO. 26
The plaintiff made a motion for an order: (1) “Setting aside the Clerk's Entry of Default entered on October 21, 2020 (Dkt. No. 21) so that this matter may be determined on the merits”; (2) “Directing Defendant J. Richard Supple, Jr. to answer Plaintiff's Amended Complaint forthwith”; (3) “Deeming Defendant Hinshaw & Culbertson LLP served and directing the firm to answer Plaintiff's Amended Complaint forthwith”; and (4) “In the alternative with respect to Defendant Hinshaw & Culbertson LLP, permitting Plaintiff to serve Defendant Hinshaw & Culbertson LLP by alternative means as set forth in Section E of the accompanying Memorandum of Law.” The plaintiff argues that: (A) “the Court should vacate the Clerk's Entry of Default and this proceeding should be tried on the merits”; (B) “Defendants raised legal defenses in bad faith in their motion to set aside”; (C) “Defendant J. Richard Supple, Jr. has been served and should be directed immediately to respond to plaintiff's amended complaint”; (D) “the Court should deem defendant Hinshaw & Culbertson LLP served”; and (E) “in the alternative, the Court should permit plaintiff to serve defendant Hinshaw & Culbertson LLP through alternative electronic means. The plaintiff does not object to the defendants' request to vacate the October 21, 2020 default. He asserts that
this is not the proper stage for the Court to determine Defendants legal defenses to Plaintiff's claims in the Amended Complaint. Defendants' defenses to Plaintiff's claims should be raised in an Answer or a Rule 12 motion. Still, Plaintiff must briefly point out that Defendants identified a number of anticipated legal defenses in their November 3, 2020 Motion to Set Aside that are completely meritless and are ostensibly raised in bad faith.... It is . . . inappropriate for the Court to resolve the issue of causation at this early pleading stage.... Plaintiff's claims against Defendants do not complain of injuries caused by a state court judgment, but rather injuries cause [sic] specifically by Defendants negligent and intentionally subversive acts.... Nor does Plaintiff ask that this Court reject the First Department's disciplinary decision. More importantly, Plaintiff's claims, particularly those asserting legal malpractice and negligence, are independent from the collateral estoppel disciplinary matter.... Plaintiff's fraud claim plainly arises out of the same set of operative facts as set forth in the original complaint.
According to the plaintiff, Supple has been served properly on November 4, 2020, as the affidavit of service indicates, because the summons and the amended complaint were left with his wife at their home in Brooklyn and he did not raise any objection to this attempt at service. Concerning HC, the process server attempted to serve it on two occasions: (1) “on September 29, 2020, when the process server was unable to make it past the front desk at H&C LLP's building and accordingly left the Amended Complaint and Summons at the front desk”; and (2) on October 19, 2020, as the defendants concede, when “their office [was] closed as a result of the COVID-19 pandemic and that the process server left the Amended Complaint and Summons in the drop box outside their office front door.” “By way of closing their office due to COVID-19, Defendant H&C LLC has made it virtually impossible to effect personal service on the firm” and HC conceded that it received the amended complaint. Since the process server complied with HC's request to leave the papers in the box outside of its office, under the circumstances, service on HC was reasonably calculated to give HC notice of this lawsuit and an opportunity to respond.
The plaintiff asserts that Silverman, HC's “co-managing partner,' stated in her declaration in support of the defendants' motion that “as a result of the Coronavirus pandemic, the members of the New York City office [of Hinshaw & Culbertson LLP] have almost exclusively been working remotely from their homes, ” acknowledging that HC's office is effectively closed. Since personal service on HC is impracticable, the Court should direct alternative methods of service, namely,
a. by sending a copy of the Amended Complaint and Summons via e-mail to the managing partners of Defendant H&C LLP's New York Office; and together with
b. by sending a copy of the Amended Complaint and Summons via USPS first class mail to Defendant H&C LLP's New York Office addressed to its managing partners.
The plaintiff asserts that the proposed alternative methods are reasonably calculated to give HC notice and comport with due process. In support of his motion, the plaintiff submitted his declaration.
DEFENDANTS' CROSS-MOTION TO DISMISS DOCKET ENTRY NO. 29
The defendants argue: (1) “plaintiff failed to timely and properly serve defendants warranting dismissal”; (2) “plaintiff failed to comply with Rule 4(m) as extended by Court order and the Court must dismiss the complaint”; (3) “plaintiff cannot establish good cause for an extension of time to serve defendants”; (4) “the Court should not exercise its discretion to extend plaintiff's time to serve”; (5) “plaintiff's legal malpractice and fraud claims are barred by the statute of limitations”; (6) “plaintiff cannot collaterally attack the judgment rendered in the state disbarment action”; (7) “plaintiff's legal malpractice claim is meritless”; (8) “plaintiff's claim for fraud is insufficiently pled”; and (9) “plaintiff's breach of contract claim fails.”
The defendants assert that they “only learned of this lawsuit when Plaintiff's process server placed a copy of the First Amended Complaint (without any envelope) inside of a bin intended for package deliveries outside of Hinshaw's lobby door and advised Mr. Supple of same.” According to the defendants, the plaintiff's first attempt to serve them allegedly in September 2020, “is based upon falsified Affidavits of Service, stating service was made upon individuals unknown to each Defendant, with no authority to accept service on either Defendants' behalf.” The defendants contend that, “even if Hinshaw has actual knowledge of this litigation, this awareness does not abrogate the requirement of proper service under the Federal Rules.” Moreover, the plaintiff's contention that HC closed its office, making it “impossible” to serve mischaracterizes the facts because, “while the attorneys in the New York City office almost exclusively work remotely as a result of the Covid-19 pandemic, there are employees in the office every day.” Moreover, “the bin located outside of Hinshaw's lobby door is not intended for service or [sic] process, but rather for package deliveries.” After the plaintiff's process server's only attempt to serve HC, “the server dropped a copy of the papers in a bin intended for deliveries. This is not sufficient to effectuate service under the law.” The plaintiff also failed to use other authorized methods of service under New York law and his time to serve the defendants expired under Fed.R.Civ.P. 4(m). In support of his allegation that he attempted to serve Supple through substituted service on his wife at his home, the plaintiff submitted “false and fabricated evidence because Mr. Supple's wife was never served.” “Mr. Supple's wife denies being served with the Summons and First Amended Complaint. She avers that a process server did not come to her home on November 2, 2020 or at any other time and at the time of the alleged service on November 2, 2020, at 10:29 A.M., “she was in the midst of an uninterrupted conference call with co-workers from 10:00 A.M. to 11:00 A.M” and “she did not respond to a visitor to her home for several hours before or after this call or on any other date.” Moreover,
Ms. [Mary Catherine] Teegarden also disputes the physical description of her within the Affidavit of Service (i.e. that she is between 5'4”-5'6” tall and has brown hair). Ms. Teegarden is nearly a half-foot taller at 5'10” and has grey hair. (See Teegarden Aff. ¶¶ 6-7). Furthermore, since childhood, Ms. Teegarden has exclusively used her middle name, Catherine, and never changed her last name to Supple when she married; thus, she would never have identified herself as “Mary Supple”.
Thus, the plaintiff's service on “Mary Supple” was fraudulent and not properly effectuated pursuant to Fed.R.Civ.P. 4(e) or state law. Since the plaintiff failed to serve either defendant, dismissal for lack of personal jurisdiction is warranted.
The defendants argue that, “[u]nder Rule 12(b)(5), a party may file a motion to dismiss due to insufficiency of service of process, including where service of process did not comply with Rule 4(m)” The defendants assert that the plaintiff “failed to properly serve Defendants within the time required by FRCP 4(m) and cannot establish good cause nor a basis for the Court to exercise its discretion to extend the time for service.” The plaintiff was already given an extension of the Rule 4(m) service period, but failed to comply. The summons for each defendant issued on July 24, 2020, and the plaintiff was given 120 days from issuance of the summons to complete the service. Although the plaintiff filed an amended complaint, that filing did not toll the plaintiff's time to effect service. Having failed to serve the defendants within the time allotted by the Court, the complaint must be dismissed. The plaintiff failed to request an extension of time to serve the defendants and his “efforts” made to date are based on “false and fraudulently submitted information.” According to the defendants, the plaintiff's failure to serve the defendants timely is not the result of circumstances beyond his control and he has not been diligent. Rather than utilizing the United States Marshals Service approved by the Court, the plaintiff elected to use a private process server and submitted “falsified and unsworn” affidavits of service. Thereafter, despite obtaining an entry of default, the plaintiff, “in apparent recognition that service upon Mr. Supple was defective, ” engaged another process server to attempt service at Supple's home, which was also fraudulent and improper. The plaintiff did not seek additional time to serve the defendants after they provided affidavits detailing service deficiencies. Rather, the plaintiff abandoned any attempt to serve the defendants but now relies on his second attempt to serve Supple; thus, he cannot establish good cause. The defendants assert that they will be prejudiced if the plaintiff is given additional time because they “would be forced to defend an action after the original service period and the statute of limitations for legal malpractice, on a meritless claim” expired. The defendants “had no reason to expect that this action was forthcoming, particularly as it was filed on the eve of the expiration of the statute of limitations (after the voluntary dismissal of an action in another jurisdiction), and service has still not been completed more than four months after the limitations period would have expired if the complaint was never filed.” For the same reasons the plaintiff failed to establish good cause, the Court should not exercise its discretion to extend time to serve the defendants.
The defendants assert that, as a result of the plaintiff's failure to serve the defendants, his claims are time barred because the plaintiff “filed his complaint 1 day prior to the expiration of the statute of limitations for the malpractice and fraud claims, ” tolling the statute of limitations until November 21, 2020, when it resumed, to expire the following day, November 22, 2020; thus, his fraud and incidental negligence claims are precluded by the expiration of the statute of limitations. Even if the fraud claim asserted for the first time in the amended complaint relates back to the initial complaint, as a result of the plaintiff's failure to serve the defendants timely and properly under Rule 4(m), the fraud and negligence claims are time barred.
The defendants next argue that the claims are precluded by the Rooker-Feldman doctrine because: (a) the plaintiff “lost in state court, on multiple occasions, resulting in his New York law license being revoked on March 8, 2018”; (b) “the injury that Plaintiff alleges stems from the First Department's decisions, finding Plaintiff in violation of the rules of professional misconduct and disbarring him based upon Justice Cooper's findings in his divorce proceeding”; (c) “Plaintiff's claim that Defendants' malpractice caused him harm would require this Court to determine that “but for” Defendants' actions, the disciplinary proceeding would not have resulted in the loss of his New York law license”; (d) “[t]his review would require this Court to conduct a hypothetical re-examination of the disciplinary proceeding and conclude that the state court wrongly decided Plaintiff's disbarment and to speculate that had different actions been taken a different judgment would have resulted”; and (e) “Plaintiff's alleged injury is the loss of his license to practice law, which resulted from the state court judgments finding him guilty of professional misconduct and revoking his license.”
Concerning the plaintiff's legal malpractice claim, it is meritless because the plaintiff alleges that the defendants “failed to file specific motions in his disciplinary proceeding collaterally attacking the Appellate Division's already-rendered order estopping him from denying egregious misconduct or engage in settlement discussions with the Grievance Committee, resulting in Plaintiff sustaining damages with respect to his West Virginia law license.” However, the defendants “were never retained to represent him in connection with a separate disciplinary hearing involving his West Virginia law license, ” and the plaintiff's allegations that the defendants' conduct related to his “New York disciplinary proceeding cannot support a finding that, but for those alleged actions, Plaintiff would not have lost his West Virginia law license.” According to the defendants, the West Virginia “bar authorities' decision to institute virtually automatic reciprocal proceedings based on their own disciplinary rules, after an independent investigation of Plaintiff's conduct, resulting in the loss of Plaintiff's West Virginia law license, is not ‘fairly traceable' to Defendants' actions or inactions.” To the extent that the plaintiff argues that the defendants' failure to file motions in the New York disciplinary case resulted in damages related to his New York law license, he “fails to allege or establish the essential ‘but for' causation necessary to sustain such a claim.” The defendants request that the Court take judicial notice of: (1) “Judge Cooper's February 29, 2016 decision in Plaintiff's underlying divorce proceeding finding”; and (2) “the First Department's November 21, 2017 affirmance of Justice Cooper's findings on appeal.” The defendants maintain that
Plaintiff fails to plead facts demonstrating what a motion to clarify or reconsider would have accomplished or how either motion would have changed the outcome of his New York disciplinary case. He does not allege the existence of dispositive new facts, a change in the law or that the Appellate Division misapprehended the law in granting collateral estoppel that could have been asserted in a motion to reconsider. Nor does Plaintiff assert facts suggesting beyond self-serving speculation that if Defendants had sought to plea bargain with the Grievance Committee, the prosecutor would have been willing to bargain based on the record of Plaintiff's egregious misconduct or that lesser discipline would have resulted. Instead, Plaintiff just disagrees with the Court's rulings.... Indeed, after Defendants withdrew from representing him, Plaintiff moved to stay the disciplinary proceeding pending the outcome of his appeal and sought vacatur of the findings in the divorce proceeding, all of which were rejected when the Appellate Division affirmed Justice Cooper's findings. In fact, even if Plaintiff had obtained a stay or filed a motion to reconsider, upon the First Department affirming Justice Cooper's February 29, 2016 decision and affirming the separate decision to impose sanctions against Plaintiff for his malicious and harassing conduct, the New York disciplinary proceeding would have proceeded based upon the numerous confirmed findings of professional misconduct and resulted in the same outcome, i.e. Plaintiff's disbarment. Moreover, the First Department's affirmance and demonstrated record of Plaintiff's misconduct make it highly unlikely that the First Department would have approved any plea bargain.
The defendants contend that the plaintiff failed to allege fraud with the specificity required by Rule 9(b) of the Federal Rules of Civil Procedure. The plaintiff asserts that “Mr. Supple made representations during the course of the attorney client relationship regarding motions he intended to file or actions he intended to take, ” but “fails to allege why any of these alleged representations were false at the time they were made, ” apart from his conclusory speculation about falsity or the statements and counsel's knowledge of any falsity. Moreover, the plaintiff seeks damages for fraud based on the same conduct he alleges is the basis for his malpractice action, which is not permitted under New York law. The plaintiff's breach of an implied promise to use due care as a result of failing to file certain motions or engage in settlement discussions must be dismissed under New York law because it arises from the same set of facts as, and is duplicative of, his legal malpractice claim. In support of their crossmotion, the defendants submitted declarations by their attorney Schuyler B. Krauss with exhibits, Mary Catherine Teegarden and Supple.
PLAINTIFF'S MOTION FOR HEARING DOCKET ENTRY NO. 34
The plaintiff argues: (A) “defendant Supple should be deemed served as of November 2, 2020 based on the photographic evidence taken by the process server”; (B) “without declaring defendants served—particularly with respect to the third attempt—an evidentiary hearing will be required that will undoubtedly be messy”; (C) “good cause exists to deem defendants served as of December 23, 2020 (defendant H&C LLP) and December 31, 2020 (defendant [Supple])”; and (D) “the Court should exercise its discretion to deem defendants served as of December 23, 2020 (defendant H&C LLP) and December 31, 2020 (Defendant Supple).” The plaintiff asserts that the process server took a photograph “of the Supple's residence when he served Mrs. Supple on November 2, 2020, ” and the photograph's “metadata confirms it was taken at 10:29am on November 2, 2020, ” when the process server attested he served Mrs. Supple. The plaintiff contends that he did not provide the process server with the name of the defendant's wife, and the evidence refutes her assertions. The defendants asked the Court to dismiss the case “based solely on their declarations contesting service with respect to the first two times each defendant was served, ” which warrants an evidentiary hearing to resolve factual issues in light of the process servers' affidavits. To the extent that the Court has any concerns that the defendants were not served either on September 29, 2020, October 19, 2020 or November 2, 2020, it should deem the plaintiff's service on HC on December 23, 2020, and Supple on December 31, 2020 good and effective service.
According to the plaintiff, good cause exists to serve the defendants “a third time—which has already been completed just days after raising their objections which they admit they withheld for ‘weeks'—to quell their objections.” The plaintiff asserts that he paid for service to avoid the potential delays caused by the Marshals Service. Furthermore, the plaintiff acted diligently in attempting to serve the defendants and no prejudice exists to the defendants from deeming the defendants served based on the service effected on December 23, 2020, and December 31, 2020. The defendants have misrepresented the statute of limitations because: (a) “due to Governor Cuomo's Executive Order 202.8 (and subsequent executive orders), the statute of limitations for Plaintiff's state law claims was tolled” and does not expire until June 19, 2021; and (b) the defendants' assertion that they withdrew from representing the plaintiff in the collateral estoppel disciplinary action on July 21, 2017 is false because “Defendant Supple never sought or obtained permission from the First Department to withdraw.” Even in the absence of good cause, the plaintiff asserts that the Court should exercise its discretion to deem the defendants served as of December 23, 2020, and December 31, 2020.
PLAINITFF'S OPPOSITION TO THE CROSS-MOTION TO DISMISS
The plaintiff argues: (i) “defendants' request to dismiss this action with prejudice based on their conclusory and baseless objections to service is meritless and should be denied”; (ii) “plaintiff's claims are not time-barred”; (iii) “plaintiff's state law claims of legal malpractice (negligence), breach of contract and fraud are not barred by the Rooker-Feldman doctrine”; (iv) “plaintiff has sufficiently pled ‘but-for' causation in support of his legal malpractice claim”; and (v) “plaintiff has sufficiently pled a claim for fraud.”
The plaintiff asserts that his motion for an order deeming that the defendants have been served should be granted, or, alternatively, an order should issue directing an evidentiary hearing concerning the issue of service; thus, it is not appropriate to dismiss the complaint based on the service objections. The defendants' argument that the plaintiff's claims are time-barred, based on the alleged failure to serve the defendants within the 120-day period set forth by the court, is meritless and frivolous. The plaintiff contends that he served both defendants twice within the 120-day period and presented prima facie evidence of service in the form of an affidavit of service stating that the defendants were served on September 29, 2020, and Supple was served at his home on November 2, 2020. Furthermore, the plaintiff showed good cause to extend the service period in his motion for an order deeming that the defendants have been served. The plaintiff maintains that the statute of limitations has not expired on any of his claims in this action based on New York law, since Governor Cuomo's executive orders issued as a result of the COVID-19 pandemic tolled the statute of limitations for claims governed by New York law. Although the defendants notified the plaintiff that they were withdrawing from representing the plaintiff on July 21, 2017, they do not dispute that they never sought or obtained permission to withdraw; thus, their notification is not operative with respect to the end date of the defendants' representation. The plaintiff maintains that his fraud claim added in the amended complaint is not time-barred because it relates back to his original complaint.
Concerning legal malpractice, breach of contract and fraud claims, the plaintiff contends that they are not barred by the Rooker-Feldman doctrine because the doctrine does not apply to independent claims such as legal malpractice and he is not alleging that the First Department's March 8, 2018 disciplinary decision is the injury he suffered; rather, he alleges that the injury is caused by the defendants' “negligent and intentionally harmful conduct during their representation of Plaintiff, ” in the collateral estoppel disciplinary action, “which took place months before the First Department's disciplinary decision” on March 8, 2018. The plaintiff “has not asserted in the Amended Complaint that his injuries were caused by the First Department's disciplinary decision itself” or “asked this Court to reject that First Department's March 8, 2018 disciplinary decision.” According to the plaintiff,
while Plaintiff's claims will no doubt involve aspects of the collateral estoppel disciplinary action and a jury may ultimately make a conclusion that is at odds with the First Department's March 8, 2018 disciplinary decision, that does not preclude Plaintiff from asserting his independent state law claims of legal malpractice (negligence), breach of contract and fraud against Defendants in this action.
Moreover, in the amended complaint, the plaintiff asserts “that Defendants' negligent and intentional harmful actions during their representation of Plaintiff caused injury to Plaintiff by placing his West Virginia law license in jeopardy.” Even assuming that Rooker-Feldman doctrine applies to the plaintiff's injuries in New York, “it could not apply to any injury Plaintiff complains of in West Virginia because Plaintiff brought his claims before the reciprocal disciplinary proceeding in West Virginia concluded.”
In support of their contention that the plaintiff failed to plead sufficiently but-for-causation to sustain his legal malpractice claim, the defendants “essentially ask this Court to take Justice Cooper's findings and the First Department's decisions as conclusive.” However, the plaintiff alleges that the defendants' “failure to raise substantial issues concerning Justice Cooper's findings and the First Department's and the AGC's procedures was negligent, intentionally harmful and the ‘but for' cause of his injury.” Thus, the plaintiff “raised a triable issue of fact as to whether Defendant was negligent in failing to raise them during the course of his representation of Plaintiff and whether ‘but for' Defendants' negligence the outcome of the collateral estoppel disciplinary proceeding would have been different.” Additionally, the plaintiff asserted sufficiently “but-for” causation with respect to his injuries in West Virginia because, based on the factual allegations in the complaint, it was reasonably foreseeable to the defendants that their negligent representation in New York would cause injury to the plaintiff in West Virginia. Since a triable issue of fact exists with respect to but-for causation, dismissal of the legal malpractice claim is not warranted.
With respect to fraud, the plaintiff contends that the complaint alleges sufficiently that Supple knew his statements and representations to the plaintiff were false when he made them. Since Supple's intent and scienter must be adduced based on facts, testimony and corroborating evidence, and triable issues of fact exist with respect to Supple's knowledge, dismissal of the fraud claim is not appropriate.
DEFENDANTS' REPLY
The defendants contend that the plaintiff failed to establish that the alleged September, October or November 2020 service attempts constitute adequate service, as set forth in the defendants' motion to vacate the default, and he did not refute the defendants' evidence. Furthermore, the plaintiff failed to establish good cause for extending the time to serve before the 120 days expired and his failure to serve is not due to circumstances beyond his control. Since the plaintiff did not refute the defendants' evidence, no hearing is necessary. The defendants assert that they were permitted to withdraw from representation of the plaintiff by providing notice to him and he never objected to that notice; thus, the attorney-client relationship terminated as of July 21, 2017.
The defendants assert that the Rooker- Feldman doctrine applies to the plaintiff's legal malpractice claim because to ascertain the claim, the Court “will have to assess whether the outcome of the attorney disciplinary proceeding would have been different, i.e. it would have to reject the March 8, 2018 disbarment order in contravention of Rooker-Feldman.” Moreover, the plaintiff asserts “that his injuries are distinct from being disbarred in New York, yet, Plaintiff fails to allege what injuries he has aside from being disbarred.” Even assuming that the plaintiff's claims do not invite the Court to reject the March 18, 2018 disbarment order, his claims are inextricably intertwined with it and “fail under Rooker-Feldman.” The doctrine also applies to the plaintiff's claims relating to his West Virginia law license because “West Virginia's disciplinary rules provides that a final adjudication of professional misconduct in another jurisdiction conclusively establishes the misconduct for purposes of the reciprocal West Virginia disciplinary proceeding (See W.Va. R. Law. Disc. P. 3.20), such that any claim pertaining to losing Plaintiff's West Virginia license is inextricably intertwined with the New York Disbarment Order.” Since the New York disbarment order, rendered prior to this action, serves as the predicate for establishing the plaintiff's misconduct in the West Virginia proceeding, his legal malpractice claim “is clearly inviting review and rejection” of the New York judgment.
The defendants contend that the legal malpractice claim fails as a matter of law because he does not allege the requisite “but-for” causation since he “cannot establish that a different outcome would have resulted, an integral part of raising a malpractice claim.” The plaintiff cannot establish a malpractice claim against the defendants for the loss of his West Virginia law license as the causal links are too attenuated and speculative. Moreover, since the defendants were not retained to represent the plaintiff in West Virginia, even if they were aware of the possibility of reciprocal disciplinary proceedings, they cannot be held responsible for the actions taken by an independent entity upon an independent investigation of the plaintiff's conduct and the due process afforded to the plaintiff in the New York proceeding. The defendants maintain that the plaintiff's fraud claim, the gravamen of which is the defendants' failure to “fulfill their professional duties, ” must be dismissed as duplicative of his legal malpractice and breach of contract claims because it arises out of the same set of operative facts.
DEFENDANTS' OPPOSITION TO THE PLAINTIFF'S MOTION FOR HEARING
The defendants contend that: (i) the plaintiff failed to serve them within the 120 days extended service period; and (ii) the plaintiff failed to establish a basis for extending the time to serve. The defendants reiterate their arguments concerning service of process made in their motion to vacate the default and motion to dismiss.
LEGAL STANDARD RULE 55(c)
“The court may set aside an entry of default for good cause.” Fed.R.Civ.P. 55(c).
Under Rule 55(c), the principal factors bearing on the appropriateness of relieving a party of a default are whether the default was willful, whether setting it aside would prejudice the adversary, and whether a meritorious defense is presented. Defaults are not favored, particularly when the case presents issues of fact, and doubts are to be resolved in favor of a trial on the merits.Meehan v. Snow, 652 F.2d 274, 277 (2d Cir. 1981) (internal citations omitted).
The standard for setting aside a default is “lenient, ” id., and “less rigorous than the “excusable neglect” standard for setting aside a default judgment by motion pursuant to Rule 60(b), ” id. at 276.
APPLICATION OF LEGAL STANDARD RULE 55(c)
Although the defendants assert in their motion to vacate the default that “[c]ourts in this district and others have found dismissal appropriate when a motion to vacate the entry of default reveals an indisputable lack of personal jurisdiction over the defendant, ” they make no citation to any binding legal authority in support of their argument that dismissal of the complaint is warranted based on their motion to vacate the default under Rule 55(c), which does not contemplate any relief other than setting the default aside. The Court finds that no basis exists to dismiss the complaint on a motion to set aside the default pursuant to Rule 55(c). Thus, granting that part of the defendants' motion to set aside the default under Rule 55(c) seeking dismissal of the complaint, Docket Entry No. 23, is not warranted.
The defendants assert that no intentional and unreasonable delay in responding to the amended complaint exists because they were not served properly with process, and they first learned of this action on October 19, 2020, when an employee found the amended complaint. The plaintiff does not assert any prejudice from setting the default aside; on the contrary, he seeks an order setting the default aside in his motion. The defendants assert, inter alia, a lack of personal jurisdiction defense based on improper service. The Court finds that: (a) the defendants' failure to appear was not willful; (b) no prejudice is asserted by any party; and (c) the defendants asserted a potentially meritorious defense, lack of personal jurisdiction based on improper service, which the plaintiff vigorously oppose in his motion. Accordingly, granting: (1) that part of the defendants' motion seeking to set the default aside under Rule 55(c), Docket Entry No. 23; and (2) that part of the plaintiff's motion seeking to set the default aside under Rule 55(c), Docket Entry No. 26, is warranted.
LEGAL STANDARD RULE 12(b)(1)
A party may assert lack of subject-matter jurisdiction “by motion.” Fed.R.Civ.P. 12(b)(1).
A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it. See Fed.R.Civ.P. 12(b)(1). In resolving a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), a district court . . . may refer to evidence outside the pleadings. See Kamen v. American Tel. & Tel. Co., 791 F.2d 1006, 1011 (2d Cir.1986). A plaintiff asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it exists.Makarova v. U.S., 201 F.3d 110, 113 (2d Cir. 2000).
[The] Rooker-Feldman [doctrine] bars the federal courts from exercising jurisdiction over claims “brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments.” Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284, 125 S.Ct. 1517, 161 L.Ed.2d 454 (2005). We have clarified that in order to satisfy the requirements of Rooker -Feldman, the defendant must satisfy the following four requirements: First, the federal-court plaintiff must have lost in state court. Second, the plaintiff must complain of injuries caused by a state-court judgment. Third, the plaintiff must invite district court review and rejection of that judgment. Fourth, the statecourt judgment must have been rendered before the district court proceedings commenced. Hoblock [v. Albany Cty. Bd. of Elections], 422 F.3d [77, 85 (2d Cir. 2005)] (internal quotation marks and modifications omitted). The causation requirement is only satisfied if “the third party's actions are produced by a state court judgment and not simply ratified, acquiesced in, or left unpunished by it.” Id. at 88.Sykes v. Mel S. Harris & Assocs. LLC, 780 F.3d 70, 94 (2d Cir. 2015).
APPLICATION OF LEGAL STANDARD RULE 12(b)(1)
The defendants' notice of motion does not state that the defendants move to dismiss the complaint for lack of subject matter jurisdiction under Rule 12(b)(1). The defendants' argument that the plaintiff's claims are barred by the Rooker-Feldman doctrine is analyzed under the Rule 12(b)(1) standard. The plaintiff alleges in his amended complaint that “[a]s a direct and proximate result of Defendants' negligence and failure to exercise reasonable diligence and care in their representation of Plaintiff, Plaintiff has suffered injury and damages with respect to his West Virginia law license.” The defendants assert that the plaintiff's “alleged injury is the loss of his license to practice law, which resulted from the state court judgments finding him guilty of professional misconduct and revoking his license.” The plaintiff asserts that Rooker-Feldman does not apply to his independent claims and the injury he asserts was caused by the defendants' negligent acts during their representation of the plaintiff in the collateral disciplinary matter, which took place months before the March 8, 2018 disciplinary decision.
The plaintiff does not contest that he lost in the state court and that he commenced this action after the state-court judgment was rendered. The plaintiff does not allege, as the defendants assert, that his injuries, i.e. the loss of his license to practice law, resulted from the state-court March 8, 2018 decision “finding him guilty of professional misconduct and revoking his license.” Rather, he asserts that his injuries were caused by the defendants' conduct that occurred during the course of their representation in the disciplinary matter that preceded and led to the March 8, 2018 decision. The Court finds that the defendants' actions of which the plaintiff complains were not produced by the March 8, 2018 state-court judgment and not “simply ratified, acquiesced in, or left unpunished by it.” Sykes, 780 F.3d at 94. Moreover, the plaintiff does not seek in this action that the Court reject the March 8, 2018 state-court decision. Since the plaintiff does not complain of injury by the state-court judgment and he does not seek rejection of the state-court judgment, his causes of action are not barred by the Rooker-Feldman doctrine. See Sung Cho v. City of New York, 910 F.3d 639, 645-46 (2d Cir. 2018) (“claims sounding under the [Fair Debt Collection Practices Act], [Racketeer Influenced and Corrupt Organizations Act], and state law speak not to the propriety of the state court judgments, but to the fraudulent course of conduct that defendants pursued in obtaining such judgments.”). Accordingly, dismissing the complaint for lack of subject matter jurisdiction under the Rooker-Feldman doctrine is not warranted.
LEGAL STANDARD RULE 4(m)
If a defendant is not served within 90 days after the complaint is filed, the courton motion or on its own after notice to the plaintiff-must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.Fed. R. Civ. P. 4(m).
“[D]istrict courts have discretion to grant extensions, and may do so even in the absence of ‘good cause.'” Meilleur v. Strong, 682 F.3d 56, 61 (2d Cir. 2012). “Rule 4 of the Federal Rules is to be construed liberally ‘to further the purpose of finding personal jurisdiction in cases in which the party has received actual notice, '” and “incomplete or improper service will lead the court to dismiss the action unless it appears that proper service may still be obtained. ” Romandette v. Weetabix Co., 807 F.2d 309, 311 (2d Cir. 1986) (quoting Grammenos v. Lemos, 457 F.2d 1067, 1070 (2d Cir. 1972)). “[T]he court has power, under Fed.R.Civ.P. 4(a), if the service is invalid or improper, to cause additional or new summons to be issued and good service attempted.” Grammenos, 457 F.2d at 1071.
APPLICATION OF LEGAL STANDARD RULE 4(m)
The defendants assert that the plaintiff “failed to properly serve Defendants within the time required by FRCP 4(m) and cannot establish good cause nor a basis for the Court to exercise its discretion to extend the time for service.” The plaintiff asserts that the affidavit of service is prima facie evidence that he served the defendants within the 120 days period provided by the August 27, 2020 order.
The summonses to the defendants issued on July 27, 2020. The plaintiff was directed by the August 27, 2020 order to “effect service within 120 days of the date the summons is issued.” Calculating 120 days from the date of the summonses issued, July 27, 2020, by following Rule 6 of the Federal Rules of Civil Procedure, results in November 25, 2020, as the service deadline directed by the August 27, 2020 order. The August 27, 2020 order governing the time to effect service, not the Rule 4(m) 90-day requirement, is the operative timing in this case. Thus, the plaintiff could not have violated Rule 4(m) because that rule did not govern the time to effect service. The “Affidavit of Service” by Raymond Hollingsworth of the summons and complaint on each defendant was filed on October 20, 2020, indicating the date of service: September 29, 2020. An “Affidavit of Service” by Felsal Abddelrahman was filed on November 19, 2020, stating that on November 2, 2020, he left the summons and complaint with “Mary Supple” at Supple's home address and mailed them to that home address on November 4, 2020. Since September 29, 2020, and November 2, 2020, precede November 25, 2020, and an affidavit of service is presumed to be valid, see Samaan v. City of New York, No. 18 Civ. 9221, 2020 WL 3073292, at *3 (S.D.N.Y. June 10, 2020) (“presumption of validity . . . attaches to affidavits of service”), the Court finds that service of the summons and complaint was not untimely under the August 27, 2020 order. The defendants concede that much when they assert that the plaintiff failed to “properly serve” them within the time directed by the order. However, the defendants' untimely service defense under Rule 4(m) appears to depend on the success of their defense of insufficient service, pursuant to Rule 12(b)(5), which will be determined separately under that standard. Although the defendants argue that, “[u]nder Rule 12(b)(5), a party may file a motion to dismiss due to insufficiency of service of process, including where service of process did not comply with Rule 4(m), ” they fail to support their argument with citation to any binding authority. In support of their motion to vacate the default, the defendants submitted Silverman's declaration, stating that “the first time Hinshaw learned of this action was on October 19, 2020.” Assuming that Silverman's declaration is admissible evidence on the defendants' motion to dismiss, and construing liberally Rule 4(m) since the defendants “received actual notice, ” Romandette, 807 F.2d at 311, before November 25, 2020, the Court finds that, under the circumstances, granting the defendants' motion to dismiss the amended complaint for failure to serve timely under Rule 4(m) is not warranted.
LEGAL STANDARD RULE 12(b)(5)
A party may assert by motion “insufficient service of process” as a defense to a claim for relief. Fed.R.Civ.P. 12(b)(5). “[Q]uestions of sufficiency of service concern ‘the manner in which service has been made and not . . . the court's power to adjudicate defendant's rights and liabilities.'” Santos v. State Farm Fire & Cas. Co., 902 F.2d 1092, 1095 (2d Cir. 1990) (quoting Wright & Miller § 1353, at 578-79). “Where an independent process server files an affidavit affirming that the requirements of Rule 4(e) have been complied with, ‘[t]he mere denial of receipt of service . . . is insufficient to overcome the presumption of validity' of that affidavit.” J & J Sports Productions, Inc. v. Arnoat, No. 06 Civ. 2103, 2007 WL 2042981 at *1 (S.D.N.Y. July 12, 2007) (quoting Nolan v. City of Yonkers, 168 F.R.D. 140, 144 (S.D.N.Y. 1996)). “Once a defendant raises a challenge to the sufficiency of service of process, the plaintiff bears the burden of proving its adequacy, ” and “[c]onclusory statements are insufficient to overcome a defendant's sworn affidavit that he was not served. If service of process was not sufficient, the Court has discretion to dismiss the action, but dismissal is not mandatory.” Darden v. DaimlerChrysler N. Am. Holding Corp., 191 F.Supp.2d 382, 387 (S.D.N.Y. 2002).
APPLICATION OF LEGAL STANDARD RULE 12(b)(5)
The defendants assert in their motion to dismiss that the plaintiff failed to serve them properly because the plaintiff's first service “attempt, ” in September of 2020, is based on “Affidavits of Service, stating service was made upon individuals unknown to each Defendant, with no authority to accept service on either Defendants' behalf.” The defendants failed to submit evidence in support of their motion to dismiss to establish that “service was made upon individuals unknown to each Defendant, with no authority to accept service on either Defendants' behalf.” Rather, they rely on the evidence they submitted in support of their motion to vacate the default.
Service on HC
In the “Affidavit of Service” by Raymond Hollingsworth, filed on October 20, 2020, he states, “being duly sworn, ” that HC was served with the summons and complaint on September 29, 2020, at “11:04 am EDT, ” and “Recipient Name/Address: Anthony Williams, Hinshaw & Culbertson LLP: 800 Third Avenue 13th Floor, New York, NY 10022.” However, Raymond Hollingsworth was not “duly sworn” when he made statements in his “Affidavit of Service, ” because only Raymond Hollingsworth's signature appears on that document and no signature by any other person appears on that document or any statement that Raymond Hollingsworth was sworn by, and subscribed the document before, anyone. Thus, the “Affidavit of Service, ” Docket Entry No. 19, is not presumptively valid.
Silverman states in her declaration that, “pursuant to 28 U.S.C. 1746, ” she “hereby declares under penalty of perjury, as follows.” 28 U.S.C. §1746 provides:
Wherever, under any law of the United States or under any rule, regulation, order, or requirement made pursuant to law, any matter is required or permitted to be supported, evidenced, established, or proved by the sworn declaration, verification, certificate, statement, oath, or affidavit, in writing of the person making the same (other than a deposition, or an oath of office, or an oath required to be taken before a specified official other than a notary public), such matter may, with like force and effect, be supported, evidenced, established, or proved by the unsworn declaration, certificate, verification, or statement, in writing of such person which is subscribed by him, as true under penalty of perjury, and dated, in substantially the following form:
(1) If executed without the United States: “I declare (or certify, verify, or state) under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on (date).
(Signature)”.
(2) If executed within the United States, its territories, possessions, or commonwealths: “I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date).
(Signature)”.
Silverman's declaration is not admissible evidence because it does not state that the statements in the declaration subscribed by Silverman are “true and correct, ” as required by 28 U.S.C. §1746. Moreover, Silverman does not state in her declaration that she has personal knowledge of the factual assertions contained therein. Silverman asserts that: (1) “[t]he building manager confirmed to me that none of the members of the building security team are named ‘Anthony Williams'”; (2) “[t]he building manager further confirmed that an ‘Anthony Williams' does not appear within its records of the tenants that occupy the office building”; (3) the building manager advised “that security staff located at the front desk in the building do not accept hand-delivered packages from third parties, unless the tenant in the building has provided prior permission”; (4) “[t]he building visitor's log for September 29, 2020 does not reflect that anyone by the name of Raymond Hollingsworth or Anthony Williams was present in the building on September 29, 2020”; (5) “the building visitor's log for September 29, 2020 does not reflect any visitors to the 13th floor where Hinshaw's office is located”; and (6) “[a] true and accurate copy of the visitor's log and photograph of Raymond Hollingsworth are attached collectively hereto as Exhibit A.” Although Silverman states that the building manager “confirmed” for her and “advised” her of certain matters, she did not identify the building manager or provide an affidavit from the building manager. Silverman did not explain the basis for her personal knowledge: (i) about “the members of the security team”; (ii) “that an ‘Anthony Williams' does not appear within [the building's] records of the tenants”; (iii) “that security staff located at the front desk in the building do not accept hand-delivered packages from third parties, unless the tenant in the building has provided prior permission”; (iv) “[t]he building visitor's log for September 29, 2020 does not reflect that anyone by the name of Raymond Hollingsworth or Anthony Williams was present in the building on September 29, 2020”; (v) “the building visitor's log for September 29, 2020 does not reflect any visitors to the 13th floor where Hinshaw's office is located”; and (vi) that Exhibit A is “a true and accurate copy of the visitor's log and photograph of Raymond Hollingsworth are attached collectively” or when and who created the visitor log and the photograph. Thus, Silverman's assertions about what was “confirmed” for her and what she was “advised” do not establish the truth of the facts asserted, since Silverman does not assert that she is employed by the building's management or security team.
Silverman states that: (a) “there is no individual named ‘Anthony Williams' that works for Hinshaw, either as an attorney or staff member”; (b) “there is no individual by the name of ‘Anthony Williams' that has been authorized to accept service on Hinshaw's behalf”; (c) “[t]he only Hinshaw employees in the office on September 29, 2020 were the office manager and a staff member responsible for reviewing the daily mail received”; (d) “[b]oth employees have advised that no one attempted to hand deliver any papers to the office on September 29, 2020”; (e) “the first time Hinshaw learned of this action was on October 19, 2020, when an employee found a copy of the Summons and Amended Complaint inside of the open bin intended for deliveries located outside of our lobby door on the 13th floor”; (f) on October 19, 2020, “Mr. Hollingsworth departed the 13th floor without ever speaking to or coming into contact with any employee or partner of Hinshaw & Culbertson, LLP”; and (g) “[u]pon discovering the Summons and Amended Complaint in our mail bin, Hinshaw advised Mr. Supple of the lawsuit and immediately began preparation of this Motion.” Although Silverman asserts that no “Anthony Williams” has been authorized to accept service on HC's behalf, she does not state who is authorized to accept service and she does not identify the two HC employees, alleged to be “[t]he only Hinshaw employees in the office on September 29, 2020, ” or assert that those two unidentified employees are not authorized to accept service of process. Silverman does not explain how she knows that “[t]he only Hinshaw employees in the office on September 29, 2020 were the office manager and a staff member, ” given that she was absent from the office on that day. No affidavits by the two employees alleged to have been present at the office on September 29, 2020, were submitted in support of the motion stating “that no one attempted to hand deliver any papers to the office on September 29, 2020.” Silverman did not identify “any employee or partner of Hinshaw & Culbertson, LLP” with whom she alleged the process server did not speak or have contact when he “departed the 13th floor” on October 19, 2020, and she does not state that she was one of those persons who was present in HC's office on the 13th floor on October 19, 2020. No affidavit by “any employee or partner” is submitted in support of the motion establishing that “Mr. Hollingsworth departed the 13th floor without ever speaking to or coming into contact with” any law firm employee or partner. Although Silverman states that “there is no individual named ‘Anthony Williams' that works for Hinshaw, either as an attorney or staff member, ” she does not declare, as required by 28 U.S.C. §1746, that her statement “is true and correct.” In light of the deficiencies in the “Affidavit of Service” on HC, deficiencies in Silverman's declaration and under the circumstances of this case, the Court finds that the September 29, 2020 service of process on HC was insufficient process; however, under the circumstances of this case where HC received actual notice of the action on October 19, 2020, the Court is not convinced that dismissal of the claims against HC, under Fed.R.Civ.P. 12(b)(5), is warranted.
Service on Supple
The “Affidavit of Service” by Raymond Hollingsworth, filed on October 20, 2020, states that Supple was served with the summons and complaint on September 29, 2020, at “11:17 am EDT, ” and “Recipient Name/Address: Daniel Sayers as Building Messenger Center Agent, 405 Lexington Avenue, Messenger Center, New York, NY 10174.” However, Raymond Hollingsworth was not “duly sworn” when he made statements in his “Affidavit of Service, ” because only Raymond Hollingsworth's signature appears on that document and no signature by any other person appears on that document or any statement that Raymond Hollingsworth was sworn by, and subscribed the document before, anyone. Thus, the “Affidavit of Service, ” Docket Entry No. 18, is not presumptively valid.
Supple states in his declaration that he is a partner in the law firm Clyde & Co U.S. LLP (“Clyde”) and: (a) he has not been “personally served with plaintiff's summons or amended complaint”; (b) he has “not personally received a mailed or delivered copy of plaintiff's summons or amended complaint”; (c) he “was not in the Clyde office on September 29, 2020”; (d) he has “knowledge of the policies and procedures of the Clyde office as well as the Chrysler Building reception desk staff (“Chrysler Building Staff”) with respect to attempted deliveries to the Firm from third parties” (e) “The Chrysler Building Staff does not accept hand-delivered packages from third parties; but rather, will call an employee of the designated recipient to the ground floor so the package can be hand delivered in-person”; (f) “[n]o one from the Chrysler Building Staff contacted the Firm on September 29, 2020 to advise of an attempt to deliver documents to me”; (g) “[n]o one named Daniel Sayers is employed by the Firm or by any business contracted by the Firm for support services in the Firm's New York office”; (h) “I never authorized anyone to accept service of plaintiff's summons or amended complaint”; and (i) “[n]o employee of the Chrysler Building management company is an agent of the Firm or authorized to accept service of process on the Firm, me, or any other lawyer or staff member employed by the Firm.” Supple did not rebut Silverman's statement that, “[u]pon discovering the Summons and Amended Complaint in our mail bin, Hinshaw advised Mr. Supple of the lawsuit and immediately began preparation of this Motion.” In light of the deficiency in the “Affidavit of service” and Supple's declaration, the Court finds that the September 29, 2020 service of process on Supple was insufficient process; however, under the circumstances of this case where HC received actual notice of the action on October 19, 2020, and “[u]pon discovering the Summons and Amended Complaint in our mail bin, Hinshaw advised Mr. Supple of the lawsuit and immediately began preparation of” the motion to vacate the default, Supple received actual notice of the action on or about October 19, 2020, the Court is not convinced that dismissal of the claims against Supple under Fed.R.Civ.P. 12(b)(5) is warranted.
LEGAL STANDARD RULE 12(b)(2)
A party may assert by motion “lack of personal jurisdiction” as a defense to a claim for relief. Fed.R.Civ.P. 12(b)(2). “Questions of personal jurisdiction go to ‘whether the controversy or defendant has sufficient contact with the forum to give the court the right to exercise judicial power over defendant,' Wright & Miller § 1351, at 560.” Santos, 902 F.2d at 1095. “[T]he law of the forum state governs the exercise of personal jurisdiction in a diversity case in federal court.” Marine Midland Bank, N.A. v. Miller, 664 F.2d 899, 901 (2d Cir. 1981).
The plaintiff bears the burden of establishing that the court has jurisdiction over the defendant when served with a Rule 12(b)(2) motion to dismiss. Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 507 (2d Cir.1994). A plaintiff may carry this burden “by pleading in good faith ... legally sufficient allegations of jurisdiction, i.e., by making a ‘prima facie showing' of jurisdiction.” Jazini v. Nissan Motor Co., Ltd., 148 F.3d 181, 184 (2d Cir.1998) (quoting Ball v. Metallurgie Hoboken-Overpelt, S.A., 902 F.2d 194, 197 (2d Cir.1990)). A plaintiff can make this showing through his “own affidavits and supporting materials[, ]” Marine Midland Bank, N.A. v. Miller, 664 F.2d 899, 904 (2d Cir.1981), containing “an averment of facts that, if credited ..., would suffice to establish jurisdiction over the defendant.” Metropolitan Life Ins. Co. v. Robertson-Ceco Corp., 84 F.3d 560, 567 (2d Cir.1996) (quoting Ball v. Metallurgie Hoboken-Overpelt, S.A., 902 F.2d 194, 197 (2d Cir.1990)). “[W]here the issue is addressed on affidavits, all allegations are construed in the light most favorable to the plaintiff and doubts are resolved in the plaintiff's favor [.]” A.I. Trade Finance, Inc. v. Petra Bank, 989 F.2d 76, 79-80 (2d Cir.1993).Whitaker v. Am. Telecasting, Inc., 261 F.3d 196, 208 (2d Cir. 2001).
APPLICATION OF LEGAL STANDARD RULE 12(b)(2)
The defendants do not assert that they are not amenable to service of process under New York law or that the Court's assertion of personal jurisdiction over them under New York law does not comport with the requirement of due process. The defendants assert that no personal jurisdiction exists because the plaintiff “failed to timely and properly serve them.” Having found, under the circumstances, that: (1) granting the defendants' motion to dismiss the amended complaint for failure to serve timely under Rule 4(m) is not warranted; and (2) the Court is not convinced that dismissal of the claims against the defendants under Fed.R.Civ.P. 12(b)(5) is warranted, the Court finds that no basis exists to grant the defendants' motion to dismiss under Fed. R. civ. P. 12(b)(2).
LEGAL STANDARD RULE 12(b)(6)
A party may assert, by motion, the defense of “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6).
To 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.” A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 1974 (2007)).
“Conclusory allegations that the defendant violated the standards of law do not satisfy the need for plausible factual allegations.” Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111, 191 (2d Cir. 2010) (citing Twombly, 550 U.S. at 555, 127 S.Ct. at 1965). On a motion pursuant to Rule 12(b)(6), all facts alleged in the complaint are assumed to be true and all reasonable inferences are drawn in the plaintiff's favor. See Interpharm, Inc. v. Wells Fargo Bank, Nat'l Ass'n, 655 F.3d 136, 141 (2d Cir. 2011). “[T]he complaint is deemed to include any written instrument attached to it as an exhibit or any statements or documents incorporated in it by reference.” Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir. 1991).
APPLICATION OF LEGAL STANDARD RULE 12(b)(6)
Legal Malpractice and Fraud Statutes of Limitations
“[A]n action to recover damages for malpractice, other than medical, dental or podiatric malpractice, regardless of whether the underlying theory is based in contract or tort” must be “commenced within three years.” New York Civil Practice Law and Rules (“CPLR”) § 214(6).
An action to recover damages for legal malpractice must be commenced within three years from the accrual of the claim. Accrual is measured from the commission of the alleged malpractice, when all facts necessary to the cause of action have occurred and the aggrieved party can obtain relief in court, regardless of when the
operative facts are discovered by the plaintiff. However, “causes of action alleging legal malpractice which would otherwise be barred by the statute of limitations are timely if the doctrine of continuous representation applies.”Farage v. Ehrenberg, 124 A.D.3d 159, 163-64, 996 N.Y.S.2d 646, 650-51 (2014) (internal citations omitted).
“For the continuous representation doctrine to apply to an action sounding in legal malpractice ..., there must be clear indicia of an ongoing, continuous, developing, and dependent relationship between the client and the attorney[, ] which often includes an attempt by the attorney to rectify an alleged act of malpractice.” That doctrine “tolls the [s]tatute of [limitations only where the continuing representation pertains specifically to the matter in which the attorney committed the alleged malpractice.” Thus “if there is merely a ‘continuing general relationship with [an attorney] ... involving only routine contact for miscellaneous legal representation ... unrelated to the matter upon which the allegations of malpractice are predicated' ..., the toll will not be found.”Int'l Electron Devices (USA) LLC v. Menter, Rudin & Trivelpiece, P.C., 71 A.D.3d 1512, 1512-13, 898 N.Y.S.2d 388, 389 (2010) (internal citations omitted).
“[A]n action based upon fraud; the time within which the action must be commenced shall be the greater of six years from the date the cause of action accrued or two years from the time the plaintiff or the person under whom the plaintiff claims discovered the fraud, or could with reasonable diligence have discovered it.” CPLR § 213(8). “[C]ourts will not apply the fraud statute of limitations if the fraud allegation is only incidental to the claim asserted; otherwise fraud would be used as a means to litigate stale claims.” Powers Mercantile Corp. v. Feinberg, 109 A.D.2d 117, 120, 490 N.Y.S.2d 190, 192 (1985).
The defendants assert that, “[a]s a result of Plaintiff's failure to timely serve Defendants, Plaintiff's claims are time barred” because, although the “Plaintiff filed his complaint 1 day prior to the expiration of the statute of limitations for the malpractice and fraud claims” and his filing tolled the statute of limitations, he did not serve the defendants within the 120 days as ordered by the August 27, 2020 order. The defendants failed to: (1) explain, under the argument “Plaintiff's Legal Malpractice and Fraud Claims are Barred by the Statute of Limitations” in their memorandum of law, how they calculated that “Plaintiff filed his complaint 1 day prior to the expiration of the statute of limitations for the malpractice and fraud claims; and (2) identify the date of accrual of the plaintiff's legal malpractice and fraud claims. The plaintiff filed his complaint on July 20, 2020. It appears that the defendants believe that: (a) the plaintiff's claims would expire on July 21, 2020; and (b) July 21, 2017 is the accrual date for the plaintiff's legal malpractice and fraud claims. The Court assumes that the defendants' July 21, 2017 letter addressed “Martin R. Gold, Esq. c/o Dentons U.S. LLP” and “Kevin M. Doyle, Esq. Supreme Court, Appellate Division, First Judicial Department, ” advising that “this firm has withdrawn from representing Mr. Zappin” serves as the basis for the defendants' belief that July 21, 2017 is the date on which the plaintiff's legal malpractice and fraud claims accrued. The defendants failed to explain why the date of their letter, July 21, 2017, is the date on which the plaintiff's legal malpractice and fraud claims accrued and they did not provide any legal authority to support their position that the letter's July 21, 2017 date is the date on which the plaintiff's legal malpractice and fraud claims accrued. The Court finds that the defendants failed to establish the date on which the plaintiff's legal malpractice and fraud claims accrued, which is fatal to their statute of limitation defense.
The defendants concede that the complaint was timely filed. They assert that, “[w]hile the filing of a complaint tolls the statute of limitations, failure to complete service of the summons within the time required by Rule 4(m) ends the tolling period, and the statute of limitations once again begins to run. See Frasca v. U.S., 921 F.2d 450, 453 (2d Cir. 1990).” The defendants do not make citation to any binding authority for the proposition that federal caselaw applies in determining the issue of tolling in this action. “In diversity cases, ‘state statutes of limitations govern the timeliness of state law claims', and state law ‘determines the related questions of what events serve to commence an action and to toll the statute of limitations.'” Diffley v. Allied-Signal, Inc., 921 F.2d 421, 423 (2d Cir. 1990). Given that the defendants did not establish the date on which the plaintiff's legal malpractice and fraud claims accrued, and the Court determined that (i) granting the defendants' motion to dismiss the amended complaint for failure to serve timely under Rule 4(m) is not warranted and (ii) dismissing the complaint based on Rule 12(b)(2) and Rule 12(b)(5) is not warranted, no basis exists on which to grant the defendants' motion to dismiss the legal malpractice and fraud claims as time-barred.
Legal Malpractice
It is well established law that “[a]n action for legal malpractice requires proof of three essential elements: (1) the negligence of the attorney; (2) that the negligence was the proximate cause of the loss sustained, and (3) proof of actual damages (see, Creative Inception v Andrews, 50 A.D.2d 553 ) ...” (Mendoza v. Schlossman, 87 A.D.2d 606, 607, 448 N.Y.S.2d 45 (1982), appeal withdrawn 57 N.Y.2d 778 (1982), and O'Brien v. Spuck, 99 A.D.2d 910, 911, 472 N.Y.S.2d 514 (1984)) [material in brackets added]. Recently, we stated, in Bernstein v. Oppenheim & Co., P.C., 160 A.D.2d 428, 430, 554 N.Y.S.2d 487 (1st Dept.1990), that “[a]n attorney is liable in a malpractice action if it can be proved that his conduct fell below the ordinary and reasonable skill and knowledge commonly possessed by a member of the profession ... [citation omitted] ...”Prudential Ins. Co. of Am. v. Dewey Ballantine, Bushby, Palmer & Wood, 170 A.D.2d 108, 114, 573 N.Y.S.2d 981, 985 (1991), affd, 80 N.Y.2d 377, 605 N.E.2d 318 (1992)
The defendants assert that the plaintiff “fails to allege or establish the essential ‘but for' causation necessary to sustain” his claim that the defendants' failure to file motions in the New York disciplinary matter resulted in damages to his New York law license, leading to the loss of his West Virginia license, namely, he does not allege what a motion to clarify or reconsidered would have accomplished or how either motion would have changed the outcome of his New York disciplinary case. The plaintiff contends that he alleges sufficiently that the defendants' failure to make certain motions and raise timely certain issues was the “but for” cause of his injury.
The amended complaint identifies sufficiently and in a detailed manner, the defendants' omissions and acts that the plaintiff asserts caused his injuries. Whether the plaintiff will be able to “establish the essential ‘but for' causation necessary to sustain” his legal malpractice action is not an issue before the Court on the motion to dismiss for failure to state a claim under Rule 12(b)(6). Assuming all facts alleged in the complaint to be true and drawing all reasonable inferences in the plaintiff's favor, the Court finds that the plaintiff pled sufficient factual content that “allows the court to draw the reasonable inference that the defendants] are liable for the misconduct alleged.” Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949. Thus, dismissing the plaintiff's legal malpractice cause of action under Rule 12(b)(6) is not warranted.
Fraud
In an action to recover damages for fraud, the plaintiff must prove a misrepresentation or a material omission of fact which was false and known to be false by defendant, made for the purpose of inducing the other party to rely upon it, justifiable reliance of the other party on the misrepresentation or material omission, and injury.Lama Holding Co. v. Smith Barney Inc., 88 N.Y.2d 413, 421, 668 N.E.2d 1370, 1373 (1996) (citations omitted).
“In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person's mind may be alleged generally.” Fed.R.Civ.P. 9(b).
In the amended complaint, the plaintiff alleges as follows:
XI. Defendant Supple's Fraud
45. As discussed above, Defendant Supple made numerous representations to Plaintiff (and his father) concerning actions that he intended to take in the collateral estoppel disciplinary proceeding in Plaintiff's defense. This included representations concerning the filing on a motion to clarify, a motion for
reconsideration and a motion to stay. Similarly, in the Summer of 2017, Defendant Supple made numerous representation that he intended to prepare, was preparing and intended to file a federal Section 1983 suit on Plaintiff's behalf to attempt to enjoin the collateral estoppel disciplinary proceeding.
46. As set forth above, Defendant Supple failed to make good on any of these representations. Plaintiff believes, however, that Defendant Supple never had any intention of making good on these representations when they were made to Plaintiff. Instead, Defendant Supple's actual motivation in making the statements was to pacify Plaintiff and string him along.
47. Upon information and belief, Defendant Supple strung Plaintiff along and made these repeated knowingly false representations to Plaintiff for two reasons: (i) Defendant Supple did not want to take any action in Plaintiff's collateral estoppel disciplinary matter that would weaken the AGC's to use collateral estoppel as a disciplinary tool; and (ii) Defendant Supple did not want to take any action that would embarrass, undermine or otherwise bring light to the corruption of the AGC or members of the New York judiciary. In fact, Plaintiff believes that it is possible that Defendant Supple was either threatened or received a quid pro quo to undermine Plaintiff's defense of the collateral estoppel disciplinary matter.
48. Regardless, Defendant Supple made numerous material representations to Plaintiff that he relied on in the course of defending the collateral estoppel disciplinary proceeding. Yet, it is apparent that Defendant Supple knew these representations were false and were not going to be carried out when he made the representations. Consequently, Plaintiff was defrauded by Defendant Supple.
The defendants assert that the plaintiff did not allege why any of the alleged representations were false at the time they were made or that Supple had knowledge of their falsity and his fraud cause of action is duplicative because it is based on the same conduct as his legal malpractice cause of action. The plaintiff contends that he asserted, in paragraph 46 of the amended complaint, that Supple knew his representations were false when he made them, and he raised a triable issue of fact about whether Supple had the requisite knowledge.
The plaintiff's contentions are meritless. The amended complaint is devoid of any allegations explaining with particularity the falsity of Supple's representations at the time they were made. Asserting that Supple “failed to make good on any of these representations, ” and he never intended to make good on them, but only made them “to pacify Plaintiff and string him along, ” without more, does not satisfy the requirement that the complaint must allege a material omission of fact which was false and known to be false by Supple and made for the purpose of inducing the plaintiff to rely upon it. The plaintiff's conclusory allegations without the required particularity of the circumstances constituting fraud are not sufficient to satisfy the heightened pleading requirements of Rule 9(b). Accordingly, dismissing the plaintiff's fraud cause of action for failure to comply with Rule 9(b) is warranted.
Breach of Contract
The defendants assert that the breach of contract cause of action is duplicative of the legal malpractice cause of action because it arises out of the same set of facts as the legal malpractice cause of action, does not involve distinct actual damages, and requires identical proof required for the legal malpractice cause of action. The plaintiff did not address the defendants' argument that his breach of contract cause of action is duplicative of his legal malpractice cause of action.
“Where an individual claim of breach of contract arises out of the same facts as an asserted legal malpractice cause of action and does not allege distinct damages, the breach of contract claim is duplicative of the malpractice claim.” DiTondo v. Meagher, 85 A.D.3d 1385, 1385, 924 N.Y.S.2d 666, 667 (2011). The plaintiff's breach of contract claim arises out of the same facts as his legal malpractice cause of action and does not allege distinct damages; thus, it is duplicative of the legal malpractice cause of action. Accordingly, dismissing the breach of contract cause of action is warranted.
RECOMMENDATION
For the foregoing reasons, I recommend:
a) granting that part of the defendants' motion, Docket Entry No. 23, seeking to set aside the default under Rule 55(c), and denying that part of the defendants' motion, Docket Entry No. 23, seeking dismissal of the complaint;
b) granting that part of the plaintiff's motion, Docket Entry No. 26, seeking to set aside the default under Rule 55(c), and denying that part of the plaintiff's motion, Docket Entry No. 26, seeking other relief;
c) denying that part of the defendants' cross-motion, Docket Entry No. 29, seeking to dismiss the complaint for lack of subject matter jurisdiction under Rule 12(b)(1) based on the Rooker-Feldman doctrine;
d) denying that part of the defendants' cross-motion, Docket Entry No. 29, seeking to dismiss the amended complaint for failure to serve timely under Rule 4(m);
e) denying that part of the defendants' cross-motion, Docket Entry No. 29, seeking to dismiss the amended complaint based on insufficient service of process under Rule 12(b)(5);
f) denying that part of the defendants' cross-motion, Docket Entry No. 29, seeking to dismiss the amended complaint based on lack of personal jurisdiction under Rule 12(b)(2);
g) denying that part of the defendants' cross-motion, Docket Entry No. 29, seeking to dismiss legal malpractice and fraud causes of action as time-barred;
h) denying that part of the defendants' cross-motion, Docket Entry No. 29, seeking to dismiss the legal malpractice cause of action for failure to state a claim under Rule 12(b)(6);
i) granting that part of the defendants' cross-motion, Docket Entry No. 29, seeking to dismiss the fraud cause of action for failure to comply with the heightened requirements of Rule 9(b);
j) granting that part of the defendants' cross-motion, Docket Entry No. 29, seeking to dismiss the breach of contract cause of action as duplicative; and
k) denying the plaintiff's motion for a hearing, Docket Entry No. 34, as moot.
FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court. Any requests for an extension of time for filing objections must be directed to Judge Lorna G. Schofield. Failure to file objections within fourteen (14) days will result in a waiver of objections and will preclude appellate review. See Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466 (1985); Cephas v. Nash, 328 F.3d 98, 107 (2d Cir. 2003).