Dow v. Jones

• Decision Date: 26 September 2002
• Docket Number: No. CIV.A. CCB-01-2303.,CIV.A. CCB-01-2303.
• Parties: Jeffrey DOW v. James Benny JONES, et al.
• Court: U.S. District Court — District of Maryland

Page 491

232 F.Supp.2d 491

Jeffrey DOW v. James Benny JONES, et al.

No. CIV.A. CCB-01-2303.

United States District Court, D. Maryland.

September 26, 2002.

COPYRIGHT MATERIAL OMITTED

David C. Wright, Andrew Charles Meehan, Wright and Meehan, Chestertown, MD, for Plaintiff.

James Benny Jones, Washington, DC, Edwin H. Harvey, Washington, DC, for Defendant.

MEMORANDUM

BLAKE, District Judge.

This case arises from the legal representation of Jeffrey Dow ("plaintiff") by attorneys James Benny Jones, then a partner of Seals Jones Wilson Garrow & Evans, LLP ("firm"), and Edwin H. Harvey (collectively, "defendants"). (First Am. Compl. at ¶¶ 11, 15; Def. Jones' Supplemental Mot. and Defs.' Mot. to Dismiss at 2). On or about October 3, 1996, plaintiff, then a radio disc jockey and mayoral candidate, was charged with perverted sexual practice, sex offenses in the second and third degrees, and assault in the second degree. (First Am. Compl. at ¶¶ 8-9). While plaintiff was initially represented by the Office of the Public Defender for Wicomico County, he retained Jones and the firm in November 1996 to represent him in the criminal case. (Id. at ¶¶ 11-13; Mot. to Dismiss at ¶ 4). In early 1997, plaintiff retained Harvey to serve as co-counsel to Jones in the criminal case. (First Am. Compl. at ¶ 15; Def. Jones' Supplemental Mot. and Defs.' Mot. to Dismiss at 2).

On or about July 31, 1997, a jury in the Circuit Court for Wicomico County found the plaintiff guilty of perverted sexual practice and sex offenses in the second and third degrees. (First Am. Compl. at ¶ 18). Plaintiff was then sentenced to fifteen years in prison, all but seven years suspended, and thirty-six months supervised probation. (Id. at ¶ 19).

In March 1999, plaintiff filed in his criminal case a petition for post-conviction relief, alleging ineffective assistance of counsel. (Id. at ¶ 21). An evidentiary hearing was held on August 23, 1999, and on March 6, 2000, the Circuit Court for Wicomico County issued an order vacating plaintiff's prior convictions and granting him a new trial. (Id. at ¶ 22). On November 16, 2001, the Circuit Court for Wicomico County entered a nolle prosequi as to the criminal charges against plaintiff. (Id.).

Plaintiff sued defendants alleging three counts of legal malpractice and one count of actual malice. (Id. at ¶¶ 23-72). On August 3, 2001, the case was removed to this court from the Circuit Court for Wicomico County. Now pending before the court are two motions: (1) plaintiff's motion for entry of default against Jones; and (2) defendants' motion to dismiss, or in the alternative, transfer the case to the United States District Court for the District of Columbia.¹

I. Plaintiff's Request for Entry of Default Against Jones

On July 15, 2002, plaintiff moved for entry of default against Jones pursuant to Rule 55(a) of the Federal Rules of Civil Procedure. (Pl.'s Req. for Entry of Default). Plaintiff asserted that Jones was properly served with the summons and complaint on June 19, 2002 and that he failed to answer or otherwise defend within twenty days, or by July 9, 2002, as required by Rule 12(a)(1)(A) of the Federal Rules of Civil Procedure. (Id.).

The clerk of court did not enter an order of default against Jones because information contained in the plaintiff's request and accompanying affidavit was incorrect. Specifically, plaintiff's documents state that, "As of the date of the filing of this Request for Entry of Default, no answer or Motion to Dismiss or for Summary Judgment, nor any other pleading, has been filed by Defendant James Benny Jones." (Id.). In reality, Jones had filed a motion to dismiss on July 12, 2002, three days before plaintiff filed the request for entry of default. Appreciating this error, the court sent a letter to plaintiff's counsel on July 16, 2002 informing him that Jones' motion to dismiss predated plaintiff's request for entry of default. Plaintiff has not responded to this letter or reiterated his request for entry of default. Rather, plaintiff submitted a response to defendants' motion to dismiss on July 29, 2002.

While a default pursuant to Rule 55(a) may be entered against any party who fails to respond as stipulated by the Federal Rules of Civil Procedure, "[o]f course, the court has discretion to grant additional time to a party to plead or otherwise defend." 10A CHARLES ALAN WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE § 2682 (3d ed.1995). In First Am. Bank, N.A. v. United Equity Corp., 89 F.R.D. 81, 86-87 (D.D.C.1981), the court refused an entry of default, notwithstanding the fact that defendant's motion to dismiss was untimely by nearly a month, because "the plaintiff has not alleged that it was substantially prejudiced by the delay in the filing." See also Mason & Hanger-Silas Mason Co., Inc., v. Metal Trades Council of Amarillo, Texas and Vicinity, AFL-CIO, 726 F.2d 166, 168 (5th Cir.1984); Martin v. Delaware Law Sch. of Widener Univ., 625 F.Supp. 1288, 1296 n. 3 (D.Del.1985), aff'd, 884 F.2d 1384 (3d Cir.1989). In addition, the First American Bank court emphasized that its refusal was consistent with "the judicial preference for a decision on the merits." 89 F.R.D. at 86-87. See also U.S. v. Shaffer Equip. Co., 11 F.3d 450, 453 (4th Cir.1993) (stating the "strong policy" of the Fourth Circuit "that cases be decided on their merits").

In the instant case, Jones' motion to dismiss was untimely by only three days. Further, that plaintiff suffered no substantial prejudice by this brief delay is evidenced by his decision to respond to defendants' motion to dismiss rather than reiterate his request for entry of default. Mindful of the Fourth Circuit's strong preference that cases be decided on their merits, this court will exercise its discretion and deny plaintiff's request for an entry of default.

II. Defendants' Motion to Dismiss, or in the Alternative, to Transfer the Case to the United States District Court for the District of Columbia

Defendant Jones moved to dismiss plaintiff's complaint on seven grounds, and the other defendants, Harvey and the firm, joined Jones' motion on six of the grounds. (Mot. to Dismiss; Def. Jones' Supplemental Mot. and Defs.' Mot. to Dismiss).

A. Failure to state a claim

Defendants contend that plaintiff's complaint fails to state a claim upon which relief can be granted, warranting dismissal under Rule 12(b)(6) of the Federal Rules of Civil Procedure. (Mot. to Dismiss at 1). Plaintiff's amended complaint alleges three counts of legal malpractice and one count of "actual malice," which is a claim for punitive damages based on intentional misrepresentation. (First Am. Compl.).

"A motion to dismiss under Rule 12(b)(6) tests the sufficiency of a complaint; importantly, it does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses." Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir.1992). When ruling on a 12(b)(6) motion, the court must view the complaint in the light most favorable to the plaintiff and accept the plaintiff's factual allegations, as well as all reasonable inferences therefrom, as true. See Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir.1993); Martin, 980 F.2d at 952; Westray v. Porthole, Inc., 586 F.Supp. 834, 836 (D.Md.1984). Consequently, a motion to dismiss under Rule 12(b)(6) may be granted only when "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); see also Rogers v. Jefferson-Pilot Life Ins. Co., 883 F.2d 324, 325 (4th Cir.1989). In addition, because the court is testing the legal sufficiency of the claims, the court is not bound by the plaintiff's legal conclusions. Randall v. United States, 30 F.3d 518, 522 (4th Cir.1994); Labram v. Havel, 43 F.3d 918, 921 (4th Cir.1995) (affirming Rule 12(b)(6) dismissal with prejudice because plaintiff's alleged facts failed to support her conclusion that the defendant owed her a fiduciary duty at common law); Faulkner Adver. Assocs., Inc. v. Nissan Motor Corp., 945 F.2d 694, 695 (4th Cir.1991) ("self-serving, inaccurate legal conclusions cannot rescue a factually deficient complaint").

1. Legal malpractice

The Court of Appeals of Maryland has long stated that in order to maintain a cause of action for legal malpractice, "a plaintiff must allege: 1) the attorney's employment; 2) his neglect of a reasonable duty; and 3) loss to the client proximately caused by that neglect of duty." Roginsky v. Blake, 131 F.Supp.2d. 715, 719-20 (D.Md.2000), aff'd, 238 F.3d 414 (4th Cir. 2000) (citing Noble v. Bruce, 349 Md. 730, 709 A.2d 1264, 1269 (1998); Flaherty v. Weinberg, 303 Md. 116, 492 A.2d 618, 624 (1985); Kendall v. Rogers, 181 Md. 606, 31 A.2d 312 (1943)). The Court of Special Appeals of Maryland, however, recently held that plaintiffs claiming "criminal malpractice," or "legal malpractice arising from a criminal prosecution," must additionally prove: "4) the criminal plaintiff's initiation of post conviction, appellate, or habeas relief premised on the lawyer's error; 5) and, ultimately, the criminal plaintiff's successful pursuit of post conviction, appellate, or habeas relief based on attorney error." Berringer v. Steele, 133 Md. App. 442, 758 A.2d 574, 591, 604 (2000).

Plaintiff's amended complaint alleges facts pertaining to each element. First, the complaint states that plaintiff retained attorneys Jones and Harvey, and the firm, to represent him in the criminal case. (First Am. Compl. at ¶¶ 11-13, 15). Second, the complaint alleges that the defendants neglected their reasonable duties by, inter alia, failing to investigate the case, neglecting to move for a change of venue, and refusing to object to damaging hearsay evidence. (First Am. Compl. at ¶¶ 24-27; 34-38; 44-64). Third, plaintiff claims that he suffered losses...