102 F.3d 660 (2nd Cir. 1996), 477, Newman & Schwartz v. Asplundh Tree Expert Co., Inc.

Docket Nº:477, Docket 96-7405.
Citation:102 F.3d 660
Party Name:NEWMAN & SCHWARTZ, Plaintiff-Appellant, v. ASPLUNDH TREE EXPERT CO., INC., Defendant-Appellee.
Case Date:December 17, 1996
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

Page 660

102 F.3d 660 (2nd Cir. 1996)

NEWMAN & SCHWARTZ, Plaintiff-Appellant,


ASPLUNDH TREE EXPERT CO., INC., Defendant-Appellee.

No. 477, Docket 96-7405.

United States Court of Appeals, Second Circuit

December 17, 1996

Argued Oct. 10, 1996.

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Paul A. Batista, New York City, for Plaintiff-Appellant.

Walter P. Loughlin, New York City (Latham & Watkins, of counsel), for Defendant-Appellee.

Before OAKES, CARDAMONE and MAHONEY, [*] Circuit Judges.

OAKES, Senior Circuit Judge:

Plaintiff-Appellant Newman & Schwartz appeals from dismissal of its complaint on defendant's Fed.R.Civ.P. 12(b)(6) motion. The judgment, dated March 14, 1996, and entered in the United States District Court for the Southern District of New York, Deborah A. Batts, Judge, found that plaintiff had failed to state a claim upon which relief could be granted, and dismissed its complaint. See Newman & Schwartz v. Asplundh Tree Expert Co., 917 F.Supp. 265 (S.D.N.Y.1996). We have jurisdiction pursuant to 28 U.S.C. § 1291. We reverse and remand.



Plaintiff-Appellant Newman & Schwartz ("N & S"), a New York law firm, filed this action against Defendant-Appellee Asplundh Tree Expert Co. ("Asplundh") on February 7, 1995. The complaint sought to recover legal fees which N & S allegedly earned representing Robert E. Bates ("Bates"), a corporate executive of Vanguard Meters Service, Inc. ("Vanguard"), who was named as a defendant in a criminal indictment in the Supreme Court of the State of New York. N & S contended that Asplundh had guaranteed the obligation of Vanguard, its wholly owned corporate subsidiary, to pay Bates's legal fees in the criminal litigation.

On April 24, 1995, Asplundh gave notice that it would move for an order under Fed.R.Civ.P. 12(b)(6) to dismiss N & S's complaint for failure to state a claim on which relief could be granted. The motion was supported by an evidentiary affirmation ("Affirmation") of an Asplundh executive, Phillip E. Tatoian, Jr., and Asplundh's legal memorandum in support of the motion. The Affirmation was 16 paragraphs and attached several exhibits, including copies of correspondence to which no reference had been made in the complaint. The Affirmation detailed information including Asplundh's account of its purchase of Vanguard and Bates's alleged activities at Vanguard, and made mention of an attorney who allegedly represented Bates in the criminal investigation.

On or about June 8, 1995, N & S opposed the motion to dismiss. Asplundh's reply papers were served and filed on or about June 29, 1995, and the dismissal motion was submitted

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on that day to the district court, without oral argument.

On March 12, 1996, Judge Batts dismissed N & S's complaint in its entirety. Appellant filed...

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