Esposito v. Chestnut
| Decision Date | 16 May 2020 |
| Docket Number | 18 Civ. 11245 (PGG) |
| Parties | LUISA CASTAGNA ESPOSITO, Plaintiff, v. CHRISTOPHER CHESTNUT, individually and as a partner of CHESTNUT, L.L.P., and WILLIE GARY, individually and as a partner of WILLIAMS, PARENTI, LEWIS & WATSON LLC, Defendants. |
| Court | U.S. District Court — Southern District of New York |
Pro se Plaintiff Luisa Castagna Esposito has sued Defendants Christopher Chestnut and Willie Gary in their individual capacities and as partners of their respective law firms, Chestnut, L.L.P. and Williams, Parenti, Lewis, & Watson LLC.1 Chestnut and Gary represented Esposito in a civil "sexual assault and battery case" that she brought against another lawyer - non-party Allen Isaac - in New York state court in 2008 (the "Isaac case"). (Am. Cmplt. (Dkt. No. 8) ¶ 1)
Isaac represented Esposito in a personal injury automobile accident case that she brought in 2002, and Esposito claimed that, during that representation, Isaac had "sexually molested [her] by grabbing her breast inside her bra and her buttocks." (Id. ¶¶ 15, 17) In August 2015, after seven years of litigation, defendants in the Isaac case were granted summary judgment and Esposito's case was dismissed. (Aug. 11, 2015 N.Y.C. Civ. Ct. Order (Dkt. No.24-5)) In the instant case, Esposito claims that Defendants Chestnut and Gary committed legal malpractice in representing her in the Isaac case.
Esposito commenced the instant action on December 3, 2018. (Dkt. No. 1) The Amended Complaint asserts (1) breach of contract; (2) breach of fiduciary duty; (3) negligence; (4) legal malpractice; (5) "dishonesty and incompetence"; and (6) "alleged grand larceny conspiracy to defraud." (Am. Cmplt. (Dkt. No. 8) ¶¶ 64-79) Defendants have moved to dismiss under Fed. R. Civ. P. 12(b)(6), arguing that (1) Esposito's amendment of her complaint violates Fed. R. Civ. P. 15; (2) service of the initial pleadings was untimely under Fed. R. Civ. P. 4(m); (3) Esposito's claims are barred by the applicable three-year statute of limitations; and (4) the Amended Complaint fails to state a claim upon which relief may be granted. (Gary Br. (Dkt. No. 25); Chestnut Br. (Dkt. No. 41))
On December 10, 2019, the Court referred Defendants' motions to Magistrate Judge Ona Wang for a Report and Recommendation ("R&R"). (Order (Dkt. No. 43)) On April 20, 2020, Judge Wang issued an R&R in which she rejects Defendants' improper amendment, untimely service, and statute of limitations arguments, but recommends that the Amended Complaint be dismissed for failure to state a claim. (R&R (Dkt. No. 49)) Both sides submitted objections to the R&R. For the reasons stated below, Judge Wang's R&R will be adopted in part, and the Amended Complaint will be dismissed as time-barred.
Esposito retained the law firm of Pollack, Pollack, Isaac & Decicco, LLP ("Pollack") to represent her in a lawsuit arising out of injuries that she suffered in a 2002 car accident. (Aug. 11, 2015 N.Y.C. Civ. Ct. Order (Dkt. No. 24-5) at 32; Am. Cmplt. (Dkt. No. 8) ¶ 15) As the trial date approached, Brian Isaac - a Pollack partner - told Esposito that his father, Allen Isaac ("Isaac"), would serve as trial counsel. (Aug. 11, 2015 N.Y.C. Civ. Ct. Order (Dkt. No. 24-5) at 3) In 2005, Esposito met with Isaac several times to prepare for trial. (Id.) During these meetings, Isaac "sexually molested [Esposito] by grabbing her breast inside her bra and her buttocks." (Am. Cmplt. (Dkt. No. 8) ¶ 17) Isaac also "cajoled [Esposito] to repeatedly perform oral sex on him as partial payment for" his legal services; "requested that [Esposito] send him provocative photos"; and "demanded that [Esposito] try on clothing in front of him." (Id. ¶¶ 19-22) Esposito reported Isaac's conduct to law enforcement, but Isaac was never arrested or criminally prosecuted. (Id. ¶¶ 25, 28)
On December 26, 2008, Esposito filed a civil "sexual assault and battery" lawsuit against Isaac in New York County Civil Court. (Id. ¶ 1; Aug. 11, 2015 N.Y. Civ. Ct. Order (Dkt. No. 24-5) at 3) Esposito named as defendants Isaac, Isaac's law firm (Gladstein & Isaac),Harvey Gladstein - Isaac's partner - and Pollack. (Aug. 11, 2015 N.Y. Civ. Ct. Order (Dkt. No. 24-5) at 2-3) Esposito's claims against Isaac were dismissed as of 20093 because he was not properly served. (Id. at 3 (); Esposito v. Isaac, 68 A.D.3d 483 (1st Dep't 2009) (). At some unknown time, Esposito's claims against Pollack were dismissed because of Esposito's failure to fulfill discovery obligations. (Aug. 11, 2015 N.Y. Civ. Ct. Order (Dkt. No. 24-5) at 3 ())
In August 2013, Esposito retained Defendants Gary and Chestnut, and another lawyer, Andrew Maloney, to represent her in the Isaac case.4 (Am. Cmplt. (Dkt. No. 8) ¶ 30) Gary was the lead lawyer, and Chestnut and Maloney served as his "minions." (Id. ¶ 47) According to Esposito, Gary displayed "bravado" and made "promises about getting success" in her case. (Id. ¶ 41) Gary told Esposito that he planned to hold a press conference and create a video about her case to attract press coverage, and would pressure the remaining defendants to settle. (Id. ¶ 44) Gary created the video, but never made it public, and he never held a press conference. (Id. ¶ 46) In October 2013, Defendants made a $25 million demand on Esposito's behalf.5 (Id. ¶ 56)
In 2013, the remaining defendants in the Isaac case - Gladstein & Isaac and Isaac's partner Gladstein - moved for summary judgment. (Id. ¶ 49) In opposing that motion, Gary and Chestnut "failed to perform ordinary reasonable practice standards by" not finding "case law to support their arguments" and failing to "submit crucial evidence in their opposition papers." (Id. ¶¶ 49-50)
On August 11, 2015, Judge David Cohen of the New York County Civil Court granted defendants' motion for summary judgment, and Esposito's remaining claims in the Isaac case were dismissed. (Aug. 11, 2015 N.Y. Civ. Ct. Order (Dkt. No. 24-5)) Judge Cohen reasoned that Isaac's alleged misconduct could not be attributed to his law firm Gladstein & Isaac, and that Isaac's partner Gladstein had no duty to supervise Isaac, and therefore could not be held liable for Isaac's misconduct. (Id. at 4-9)
"Over the summer months and continuing into the Fall of 2015," Esposito became "flabbergasted as she came to the realization that Gary was trying to completely derail and bury her case." (Am. Cmplt. (Dkt. No. 8) ¶ 51) During this time, Defendants did not "return[] her phone calls or answer[] her emails." (Id.) They "conjur[ed] up all kinds of stories and excuses for a long string of incidents in mishandling her cases," "fabricat[ed] meetings," failed to involve Esposito "in staged mediation meetings," and "refus[ed] to actually demand or prepare for a jury trial." (Id.) According to Esposito, these "actions and inactions . . . make a strong case to charge the Gary team with legal malpractice and outright fraud." (Id.)
Maloney authored a motion to reargue with respect to Judge Cohen's summary judgment decision, and filed papers in support of that motion on September 23, 2015. (Mot.Reargue (Dkt. No. 51)) On October 15, 2015, Maloney appeared for a hearing, and "handled himself in a manner that screams for his disbarment."6 (Am. Cmplt. (Dkt. No. 8) ¶ 54)
On December 28, 2015, Edward Griffith - another attorney - emailed Defendants and Maloney to inform them that Esposito had retained him to represent her. (Pltf. Opp. (Dkt. No. 45) at 5)7 Accordingly, Griffith asked Defendants and Maloney to complete a "substitution of counsel" form. (Id.) On January 7, 2016, Maloney emailed Judge Cohen's law secretary copies of the motion to reargue papers and "a Consent to Change Attorney Form executed by . . . Esposito with the name and address of her new attorneys." (Id. at 6; Pltf. Opp. to Def. Obj. (Dkt. No. 57) at 3) Maloney copied Gary and Chestnut on his email. (Pltf. Opp. (Dkt. No. 45) at 6)
Esposito filed the Complaint on December 3, 2018, naming Gary, Chestnut, Maloney, and "Jane and John [D]oes" as defendants. (Cmplt. (Dkt. No. 2)) The Complaint asserts that this (Id. ¶ 4)
Esposito applied to proceed in forma pauperis ("IFP"), and her application was granted on March 25, 2019. (Dkt. Nos. 1, 4)
On April 15, 2019, Chief Judge McMahon ordered Esposito to show cause why her case should not be dismissed for lack of subject matter jurisdiction, given that Esposito andMaloney are both New York residents. (Order (Dkt. No. 6)) On May 8, 2019, Esposito filed the Amended Complaint, which removes Maloney and the John and Jane Does as defendants.
On May 20, 2019, the case was reassigned to this Court. The next day, this Court issued an Order of Service, which instructed the Clerk of Court to arrange for the U.S. Marshals Service to serve Gary and Chestnut given Esposito's IFP status. (Dkt. No. 13) A summons was issued as to both Defendants on May 22, 2019. (See May 22, 2019 Dkt. Entry) Gary was served on July 9, 2019. (Dkt. No. 27) The Marshals attempted to serve Chestnut on June 12, 2019, but were not successful. (Dkt. No. 15) On June 18, 2019, Esposito filed a letter that provided a new address for Chestnut (Dkt. No. 18), and the Court issued a second Order of Service three days later. (Dkt. No. 29) Another summons for Chestnut was issued on August 7, 2019. (See 8/7/...
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