Kirk v. Heppt

• Decision Date: 09 January 2008
• Docket Number: No. 05 CIV. 9977(RWS).,05 CIV. 9977(RWS).
• Citation: 532 F.Supp.2d 586
• Parties: Daniel KIRK and Linda Kirk, Plaintiffs, v. Joseph M. HEPPT, Esq., Defendant.
• Court: U.S. District Court — Southern District of New York

532 F.Supp.2d 586

Daniel KIRK and Linda Kirk, Plaintiffs, v. Joseph M. HEPPT, Esq., Defendant.

No. 05 CIV. 9977(RWS).

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

January 9, 2008.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Daniel Kirk, Middletown, NJ, pro se. Linda Kirk, Middletown, NJ, pro se.

Joseph M. Heppt, Esq., New York, NY, pro se.

OPINION

SWEET, District Judge.

Defendant, pro se, Joseph M. Heppt ("Heppt" or the "Defendant") has moved, presumably under Rule 12(b)(6), Fed. R.Civ.P., to dismiss the four causes of action set forth in the complaint of plaintiffs, pro se, Daniel Kirk ("Daniel") and Linda Kirk (collectively, the "Kirks" or the "Plaintiffs"). The Kirks have cross-moved to dismiss the counterclaim of Heppt alleging breach of contract, account stated, and defamation.

For the reasons set forth below, the causes of action for mail fraud, violation of N.Y. Penal Code § 190.60, and violation of N.Y. General Business Law § 349 are dismissed. The cause of action for breach of fiduciary duty is dismissed in part. The cross-motion to dismiss the counterclaims is granted in part and denied in part.

Prior Proceedings

The Kirks initiated this action against Heppt, Daniel's former lawyer, on November 28, 2005. The complaint alleged breach of contract, fraudulent misrepresentation, breach of fiduciary duties, mail fraud. and violation of N.Y. General Business Law § 349 arising out of the representation by Heppt of Daniel in an action brought on behalf of Daniel against Daniel's former employer (Compl. ¶). The Honorable Sidney H. Stein dismissed Daniel's action on August 31, 2004. Kirk v. Schindler Elevator Corp., No. 03 Civ. 8688(SHS), 2004 WL 1933584 (S.D.N.Y. Aug.31, 2004). The Kirks' motion to amend their Complaint in the instant action pursuant to Fed.R.Civ.P. 15(a) was denied by this Court on March 20, 2006. Kirk v. Heppt, 423 F.Supp.2d 147, 151 (2006). Discovery has proceeded.

After alleging the facts (Compl. ¶¶ 9-21), the Kirks' Complaint sets forth four causes of action: mail fraud in violation of 18 U.S.C. § 1341, a scheme to defraud in violation of New York Penal Code § 190.60, breach of fiduciary duty, and violation of N.Y. General Business Law. § 349. In addition, Plaintiffs assert in their prayer for relief that they are entitled to treble damages under New York Judiciary Law § 487. The instant action is before this Court on diversity jurisdiction under 28 U.S.C. 1332, as the Plaintiffs are alleged to reside in New Jersey, the Defendant in New York (Compl. ¶¶ 2, 4).

The Heppt motion was submitted on May 16, 2007. The cross-potion of the Kirks was submitted on June 6, 2007.

The 12(b)(6) Standard

In the absence of any designation and any Local Rule 56.1 Statements, the motion to dismiss certain causes of action in the complaint will be treated as Rule 12(b)(6) motions.

In considering a motion to dismiss pursuant to Rule 12(b)(6), Fed.R.Civ.P., the Court construes the complaint liberally, "accepting all factual allegations in the complaint as true, and drawing all reasonable inferences in the plaintiff's favor," Chambers v. Time Warner, 282 F.3d 147, 152 (2d Cir.2002) (citing Gregory v. Daly, 243 F.3d 687, 691 (2d Cir.2001)), although mere "conclusions of law or unwarranted deductions" need not be accepted. First Nationwide Bank Gelt Funding. Corp., 27 F.3d 763, 771 (2d Cir.1994) (quotation marks and citation omitted).

On a motion to dismiss, "[t]he issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Villager Pond, Inc. v. Town of Darien, 56 F.3d 375, 378 (2d Cir.1995) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)). In other words, "`the office of a motion to dismiss is merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof.'" Eternity Global Master Fund Ltd. v. Morgan Guar. Trust Co. of New York, 375 F.3d 168, 176 (2d Cir.2004) (quoting Geisler v. Petrocelli, 616 F.2d 636, 639 (2d Cir.1980)). "Once a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint." Bell Atlantic Corp. v. Twombly, ___ U.S. ___, ___, 127 S.Ct. 1955, 1969, 167 L.Ed.2d 929 (2007).

The pleadings of pro se plaintiffs are liberally construed and held "to less stringent standards than formal pleadings drafted by lawyers," Erickson v. Pardus, ___ U.S. ___, ___, 127 S.Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007) (citing Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976)). See also Boddie v. Schnieder, 105 F.3d 857, 860 (2d Cir.1997). Courts interpret pro se pleadings "to raise the strongest arguments that they suggest." Cruz v. Gomez, 202 F.3d 593, 597 (2d Cir.2000) (internal quotation marks and citation omitted). However, pro se plaintiffs are not exempt from the relevant rules of procedural and substantive law, including the pleading standards outlined in the Federal Rules of Civil Procedure. See Ally v. Sukar, 128 Fed.Appx. 194, 195 (2d Cir. Apr.19, 2005) (citing Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir.1983)). The "duty to liberally construe a plaintiff's complaint [is not] the equivalent of a duty to re-write it." 2 Moore's Federal Practice 12.34[1][b], at 12-61. Therefore, "[d]ismissal under Rule 12(b)(6) is proper if the complaint lacks an allegation regarding an element necessary to obtain relief," Id., § 12.34[4][a], at 12-72.7 (2004), as "[a] plaintiff's obligation to provide the `grounds' of his `entitlement to relief require more than labels and conclusions." Twombly at 1964-65 (citing Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986)).

The Fraud Claims are Dismissed

The Plaintiffs' first cause of action alleges a violation of 18 U.S.C. § 1341, the federal mail fraud statute, and is based upon the mailing of allegedly fraudulent invoices from Heppt's office in Manhattan to the Kirks' residence in New Jersey (Compl. ¶ 23). However, there is no private right of action for violations of the federal mail fraud statute. See Pharr v. Evergreen Garden, Inc., 123 Fed.Appx. 420, 422 (2d Cir.2005) ("The law in this circuit is clear that [18 U.S.C. § 1341] does not support any private right of action."). The cause of action for mail fraud under 18 U.S.C. § 1341 is dismissed.

In addition, the Complaint can be read as asserting a claim for common law fraud. To maintain a claim for common law fraud, a plaintiff must be able to show a causative link between the alleged fraud and his claimed damages. See, e.g., Friedman v. Anderson, 23 A.D.3d 163, 803 N.Y.S.2d 514, 517 (N.Y.App.Div.2005) (granting a motion to dismiss a fraud claim for failure to demonstrate that defendants' actions were the proximate cause of the claimed losses). With regard to fraud arising from the mailed invoices, the March 20, 2006, Memorandum Opinion denying the Plaintiffs leave to file an amended complaint stated that the Plaintiffs "will be unable to demonstrate that Defendant's mailing of fraudulent invoices was the proximate cause of their alleged injuries." Kirk v. Heppt, 423 F.Supp.2d at 151.

The Plaintiffs' second cause of action alleges a scheme to defraud, in violation of New York Penal Law § 190.60. The New York State Legislature modeled the "scheme to defraud" crime on the federal mail fraud statute. People v. First Meridian Planning Corp., 86. N.Y.2d 608, 616, 635 N.Y.S.2d 144, 658 N.E.2d 1017 (1995); William C. Donnino, Practice Commentary, N.Y. Penal Law § 190.60 (McKinney 1998) ("Given parallel language in the two statutes, New York courts have found federal cases construing the mail fraud statute relevant to the `construction of New York's `scheme to defraud.'"). Because neither the New York State legislature nor any New York court has interpreted § 190.60 as providing a private cause of action, the claim based on the N.Y. Penal Law § 190.60 is dismissed.

The N.Y. General Business Law § 349 Cause of Action is Dismissed

New York General Business Law § 349 applies solely to matters affecting the consumer public at large. Vitolo v. Mentor H/S. Inc., 213 Fed.Appx. 16, 17 (2d Cir.2007). Private contract disputes, unique to the parties, are not covered by the statute. Oswego Laborers' Local 214 Pension Fund v. Marine Midland Bank, N.A., 85 N.Y.2d 20, 24-25, 623 N.Y.S.2d 529, 647 N.E.2d 741 (1995). See also' Amadasu v. Ngati, et al., No. 05 Civ. 2585(JFB), 2006 WL 842456, *11, 2006 U.S. Dist. Lexis 19654, at *35-36 (E.D.N.Y. Mar. 27, 2006) (dismissing a Section 349 claim arising out of an attorney-client relationship for failure to state a consumer protection claim) (citing, inter alia, Exxonmobil Inter-America, Inc. v. Advanced Info. Eng'g Servs., Inc., 328 F.Supp.2d 443, 447 (S.D.N.Y.2004)).

The Complaint here is limited to a dispute between the Plaintiffs and the. Defendant arising out of the attorney-client relationship, which is essentially contractual in nature. The broader impact on consumers at large is not adequately alleged. For the reasons stated above, the Plaintiffs' claim based on New York General Business Law § 349 is dismissed as a matter of law.

The Claim for Breach of Fiduciary Duty is Dismissed in Part

Although the Kirks have not explicitly asserted a cause of action for legal malpractice, under New York law, claims for legal malpractice and claims for breach of fiduciary duty in the context of attorney liability are coextensive. Weil, Gotshal & Manges, LLP v. Fashion Boutique of Short Hills, Inc., 10 A.D.3d 267, 780 N.Y.S.2d 593, 596 (N.Y.App.Div.2004); see also Nordwind v. Rowland, No. 04 Civ. 9725(AJP), 2007 WL 2962350, *5, 2007 U.S. Dist. LEXIS 75764, at *20 (S.D.N.Y. Oct. 10, 2007) (citations omitted); Guiles v. Simser, 35 A.D.3d 1054, 826 N.Y.S.2d 484, 485 (N.Y.App.Div.2006) (treating Plaintiffs cause of action, although labeled as a breach of fiduciary duty, as a claim...