Bryant v. Silverman, 15 Civ. 8427 (PAC)(HBP)

• Citation: 284 F.Supp.3d 458
• Decision Date: 14 February 2018
• Docket Number: 15 Civ. 8427 (PAC)(HBP)
• Parties: Anne BRYANT, Plaintiff, v. Noel L. SILVERMAN, Esq., et al., Defendants.
• Court: U.S. District Court — Southern District of New York

284 F.Supp.3d 458

Anne BRYANT, Plaintiff,

v.Noel L. SILVERMAN, Esq., et al., Defendants.

15 Civ. 8427 (PAC)(HBP)

United States District Court, S.D. New York.

Signed February 14, 2018

Anne Bryant, Stony Point, NY, pro se.

Patrick J. Monaghan, Jr., Monaghan, Monaghan, Lamb & Marchisio, Montvale, NJ, Urban S. Mulvehill, O'Neill, DiManno & Kelly, New York, NY, for Defendants.

OPINION AND ORDER

HENRY PITMAN, United States Magistrate Judge

I. Introduction

By notice of motion dated May 24, 2017 (Docket Item ("D.I.") 93), plaintiff moves to file a "Supplemental Pleadings." For the reasons set forth below, plaintiff's motion is denied.

II. Facts ¹

In or around 1983, plaintiff, a music producer and composer, entered into a music production business with Ford Kinder and Sarah Aquino, which did business through a New York corporation named "Kinder, Bryant & Aquino Ltd." ("KBA") (Amended Complaint dated May 7, 2016 (D.I. 23) ("Am. Compl.") ¶ 1; Declaration of Patrick J. Monaghan, Jr., Esq., dated Feb. 12, 2016 (D.I. 20) ("Monaghan First Decl.") ¶ 28). Aquino sold her share of KBA to plaintiff and Kinder in or about 1985, at which point plaintiff believed that the name of the corporation changed from "Kinder, Bryant & Aquino Ltd." to "Kinder & Bryant Ltd." ("K & B") (Am. Compl. ¶¶ 1–2; Monaghan First Decl. ¶ 28). In 1989, plaintiff and Kinder dissolved their partnership and entered into a new agreement (Am. Compl. ¶ 24; Agreement, dated Nov. 8, 1989 ("1989 Separation Agreement"), annexed as Ex. A to Complaint, dated October 26, 2015 (D.I. 1) ("Complaint") ). Pursuant to that agreement, Kinder agreed to pay plaintiff a sum totaling less than $30,000.00 and to remove any reference to plaintiff from the corporation's name, including her name or initials (Am. Compl. ¶ 24; 1989 Separation Agreement).

In or before 1991, plaintiff retained Monaghan as her attorney to investigate Kinder for allegedly breaching the 1989 Separation Agreement, and in 1991 Monaghan filed suit on plaintiff's behalf against Kinder in New York State court, asserting that Kinder had failed to pay plaintiff certain royalties pursuant to that agreement or to provide an accounting ("1991 N.Y.S. Action") (Am. Compl. ¶¶ 23–24; see Bryant v. Kinder, Index No. 8721/91, Complaint dated Nov. 8, 1991, annexed as Ex. K to Complaint). The 1991 N.Y.S. Action was settled in 1994 (Am. Compl. ¶¶ 23–24).²

Plaintiff retained Monaghan again in 2000 to sue Kinder and others in New York State court for breaching the settlement of the 1991 N.Y.S. Action ("2000 N.Y.S. Action") (Am. Compl. ¶ 25; see Bryant v. Broadcast Music Inc., Index No. 5192/00, Complaint, excerpts annexed as Ex. L. to Complaint).

On July 13, 2007, while the 2000 N.Y.S. Action was pending, plaintiff retained Monaghan for a third time to sue Kinder and numerous corporate defendants including some of the same defendants named in the 2000 N.Y.S. Action, such as Sunbow Productions, Inc. ("Sunbow"), for allegedly failing to pay royalties and other sums owed to plaintiff ("2007 S.D.N.Y. Action") (see Byant v. AB Droits Audiovisuels, 07 Civ. 6395 (PAC)(HBP) (S.D.N.Y.), Complaint dated July 13, 2007 (D.I. 1) ). The 2007 S.D.N.Y. Action was stayed on September 30, 2009 by the Honorable Sidney H. Stein, United States District Judge, to whom the matter was then assigned, until the 2000 N.Y.S. Action was resolved (Bryant v. AB Droits Audiovisuels, 07 Civ. 6395 (PAC)(HBP) (S.D.N.Y.), Order of Judge Stein, dated Sept. 30, 2009 (D.I. 68) ("Sept. 30, 2009 Order") ). The 2007 S.D.N.Y. Action remains stayed (Bryant v. AB Droits Audiovisuels, 07 Civ. 6395 (PAC)(HBP) (S.D.N.Y.), Order of the undersigned, dated Mar. 8, 2017 (D.I. 147) ("Mar. 8, 2017 Order") ).

In or around 2012, plaintiff claims to have discovered that KB was never a valid legal entity, and that her former music production business had continued to operate under the name "Kinder, Bryant & Aquino Ltd." from 1983 through 1996 (Am. Compl. ¶ 7). In my Report and Recommendation dated December 16, 2016, I described the events that transpired after this discovery as follows:

[Plaintiff] instructed Monaghan to write to the judge presiding over the 2000 N.Y.S. Action and disclose these facts (Am. Compl. at 6–7, n.1–2). Monaghan declined to do so, and against his advice, plaintiff herself wrote a letter to the court detailing her discoveries (Letter to Hon. Margaret Garvey, J.S.C., dated Sept. 28, 2012, annexed as Ex. C to Complaint; Am. Compl. at 6–7 n.1–2[) ] .... Monaghan thereafter moved to withdraw from further representation of plaintiff in that case, and that motion was granted on November 23, 2012 (Am. Compl. at 6–7 n.1–2). In 2014, Monaghan also moved to withdraw from the federal court action and that motion was granted in November of 2014 (Pl. Opp. at 53)

(Report and Recommendation of the undersigned, dated Dec. 16, 2016 (D.I. 65) ("Dec. 16, 2016 R & R") at 8). Plaintiff retained attorney Anthony Motta³ to replace Monaghan in the 2000 N.Y.S. Action, but proceeded, pro se in the 2007 S.D.N.Y. Action (Pl. Reply Mem. at 5).

Plaintiff commenced this action on October 26, 2015 (Complaint). The Amended Complaint asserted fraud and legal malpractice claims against Monaghan⁴ (Am. Compl. ¶¶ 23–42). Plaintiff's fraud claims against Monaghan were premised on his alleged failure to discover or to disclose to plaintiff, and the courts in all three actions, that KBA was still a "valuable[ ] legal [New York] corporation in 1991" (Am. Compl. ¶¶ 23–40). Plaintiff's claim for malpractice was predicated on four factual specifications arising from Monaghan's representation of plaintiff during the 2000 N.Y.S. Action (Am. Compl. ¶ 41). Specifically, plaintiff alleged that Monaghan had committed malpractice in connection with the 2000 N.Y.S. Action by: (1) failing to make certain filings, including applications for a default judgment, for attorney sanctions and for two subpoenas; (2) simultaneously representing Kinder; (3) failing to discover and inform plaintiff and the court that KBA had not been renamed K & B in 1985 and (4) withholding key documents from plaintiff and Motta (Am. Compl. ¶ 41). Notwithstanding the passage of more than three years—the applicable limitations period—since the occurrence of the alleged incidents of malpractice, plaintiff alleged that the statute of limitations did not bar her malpractice claim because Monaghan had a continuing relationship of trust with her as demonstrated by his appearance on her behalf in the 2007 S.D.N.Y. Action through November 2014.

On May 10, 2016, Monaghan filed a motion to dismiss the fraud and malpractice claims against him (Motion to Dismiss of Patrick J. Monaghan, Jr., Esq., dated May 10, 2016 (D.I. 48) ). By Opinion and Order dated March 6, 2017, which adopted my December 16, 2016 Report and Recommendation in its entirety, Judge Crotty granted summary judgment dismissing plaintiff's claim for legal malpractice to the extent that it was predicated on either Monaghan's alleged (1) failure to discover and inform plaintiff and the courts that KBA had not been renamed K & B and (2) withholding of documents after he withdrew as plaintiff's counsel (Opinion and Order of Judge Crotty, dated Mar. 6, 2017 (D.I. 76) ("Mar. 6, 2017 Order") at 8–9; Dec. 16, 2016 R & R at 45–60). However, Judge Crotty found that summary judgment was not appropriate with respect to plaintiff's claim for legal malpractice predicated on both Monaghan's failure to make certain applications or his alleged conflict of interest with Kinder during the 2000 N.Y.S. Action (Mar. 6, 2017 Order at 12; Dec. 16, 2016 R & R at 45–60). In particular, Judge Crotty rejected Monaghan's contention that plaintiff's malpractice claim was barred by the applicable three year statute of limitations, finding that Monaghan had failed to show that the statute of limitations could not be tolled by the continuous representation doctrine (Mar. 6, 2017 Order at 9–10; Dec. 16, 2016 R & R at 61–62).

Judge Crotty also granted dismissal of the fraud claims, finding that plaintiff had failed to allege her claims with particularity as required by Fed.R.Civ.P. 9(b) (Mar. 6, 2017 Order at 12–13; Dec. 16, 2016 R & R at 34–45). In light of plaintiff's pro se status, Judge Crotty afforded her one final opportunity to replead her fraud claims and permitted her to file a Second Amended Complaint no later than thirty days after the issuance of the Order, i.e., April 17, 2017 (Mar. 6, 2017 Order at 12–13).

Plaintiff requested and was granted several extensions of time to amend her complaint and was ultimately given until May 24, 2017 to file her Second Amended Complaint (Order of the Undersigned, dated May 3, 2017 (D.I. 86) at 4). Plaintiff sent a letter to Judge Crotty dated May 23, 2017 indicating that she would not be filing a Second Amended Complaint and that she wished to proceed with the surviving aspects of her claim for malpractice (Letter of Anne Bryant to Judge Crotty, dated May 23, 2017 (D.I. 92) ("Bryant Letter") at 2). In that same letter plaintiff stated that she had "newly discovered information that [was] pertinent to [her claim for legal malpractice] and [also] appear[ed] to make out a prima facie case for NY JUD. LAW § 487 Attorney Deceit or Collusion [sic ]" (Bryant Letter at 2). She advised Judge Crotty that she would be submitting a motion to file "Supplemental Pleadings" pursuant to Federal Rules of Civil Procedure 15(c) and (d) (Bryant Letter at 2–3).

Plaintiff did not file a Second Amended Complaint on May 24, 2017. Instead, she filed a notice of motion pursuant to Fed.R.Civ.P. 15(c) 5 and (d) to "supplement" her pleading (Plaintiff's Motion to Amend the Pleadings, dated May 24, 2017 (D.I. 93) ("Pl. Mot.") at 1–2)⁶ and attached her proposed amended pleading to her motion (Pl. Mot. at 5–17). Her proposed amended pleading alleges that, during the 2007 S.D.N.Y. Action, Monaghan had (1) failed to serve, or obtain waiver of service from, several defendants,⁷ (2) failed to object to Sunbow's ...