Mohamed v. Donald J. Nolan, Ltd.

• Decision Date: 28 August 2013
• Docket Number: No. 12–CV–3139 (NGG)(JMA).,12–CV–3139 (NGG)(JMA).
• Citation: 967 F.Supp.2d 647
• Parties: Moataz MOHAMED, individually and as personal representative of the estates of Aly Rashad Aly Mohamed and Baria Zaki Mohamed, deceased, Plaintiff, v. DONALD J. NOLAN, LTD., d/b/a/ Nolan Law Group and Donald J. Nolan, individually, Defendants.
• Court: U.S. District Court — Eastern District of New York

967 F.Supp.2d 647

Moataz MOHAMED, individually and as personal representative of the estates of Aly Rashad Aly Mohamed and Baria Zaki Mohamed, deceased, Plaintiff,

v.DONALD J. NOLAN, LTD., d/b/a/ Nolan Law Group and Donald J. Nolan, individually, Defendants.

No. 12–CV–3139 (NGG)(JMA).

United States District Court,

E.D. New York.

Aug. 28, 2013.

Adam H. Russ, Isaac Alony, Wasser and Russ LLP, New York, NY, Amir R. Tahmassebi, Konicek & Dillon P.C., Geneva, IL, for Plaintiff.

Thomas A. Leghorn, Wilson Elser Moskowitz Edelman & Dicker LLP, White Plains, NY, Joseph L. Francoeur, Wilson Elser Moskowitz Edelman & Dicker LLP, New York, NY, for Defendants.

MEMORANDUM & ORDER

NICHOLAS G. GARAUFIS, District Judge.

Before the court is Defendants' motion to dismiss Plaintiff's Amended Complaint for failure to state a claim arguing, among other things, that Plaintiff's legal malpractice claims are time-barred. Because Plaintiff filed these claims more than nine years after the alleged malpractice, and because Plaintiff has failed to adequately allege that Defendants fraudulently concealed their purported malpractice, New York and Illinois law dictate that the motionto dismiss be GRANTED. As any attempt to amend would be futile, Plaintiff's Amended Complaint is DISMISSED WITH PREJUDICE.

I. BACKGROUNDA. Factual Background¹

On October 30, 1999, Plaintiff's parents, Aly Rashad Aly Mohamed and Baria Zaki Mohamed, boarded EgyptAir flight 990 in Los Angeles, California, bound for Cairo, Egypt. (Am Compl. (Dkt. 4) ¶¶ 8–10.) In the early hours of October 31, 1999, EgyptAir flight 990 tragically crashed into the Atlantic Ocean approximately sixty miles south of Nantucket, Massachusetts, killing Plaintiff's parents. ( Id. ¶¶ 11–12.)

In the weeks following the crash, Plaintiff and his family members were approached by an EgyptAir representative. ( See id. ¶ 20.) Plaintiff accepted a sum of money described as “insurance” proceeds from EgyptAir. ( See id. ¶¶ 20–25.) The EgyptAir representative never explained that this money was in exchange for a full release of all legal claims against EgyptAir or that Plaintiff and his family members should consult an attorney. ( See id.)

On or about June 9, 2000—after Plaintiff had accepted EgyptAir's settlement offer—Defendant Donald J. Nolan (“Nolan”) contacted Plaintiff in an effort to have Defendant Donald J. Nolan, Ltd. d/b/a Nolan Law Group (“Nolan Law Group”) represent him in all claims arising from the EgyptAir flight 990 crash. ( Id. ¶ 27.) On August 19, 2000, Plaintiff and the Nolan Law Group entered into a retainer agreement in which Defendants agreed to represent Plaintiff against EgyptAir, The Boeing Company (“Boeing”), and the Parker Hannifin Corporation (“Parker”). ( Id. ¶¶ 28–29; see Retainer Agreement (Ex. A to Am. Compl. (Dkt. 4–1)).) In order to secure this agreement, Defendants “misled plaintiff and made representations as to actions that would be taken that they did not intend to complete,” including an attempt to vacate Plaintiff's release he had executed with EgyptAir. (Am. Compl. ¶¶ 31–33.)

On October 30, 2001, Defendants, on Plaintiff's behalf, filed suit in the Southern District of New York against EgyptAir, Boeing, and Parker identifying Plaintiff as his parents' purported “personal representative”; this case was later transferred to the Eastern District of New York as part of a multidistrict litigation (the “Underlying Case”). ( See id. ¶ 34.) At the time of filing, however, Defendants had not ensured that Plaintiff was properly appointed by a court as the personal representative of his parents' estate. ( See id. ¶ 35.)

While the litigation was pending, Defendant Nolan Law Group (via the attorney of record, Jerry Skinner) moved to withdraw as counsel on February 28, 2008. Mot. to Withdraw, In re Air Crash Near Nantucket Island, Mass., on Oct. 31, 1999 (“ In re Crash ”), No. 00–MD–1344 (BMC)(RML) (E.D.N.Y. Feb. 28, 2008), Dkt. 455.² On June 27, 2008, Plaintiff noticed his consent to Defendants' motion to withdraw. Mohamed Aff., id. (E.D.N.Y. June 27, 2008), Dkt. 507. And on August 15, 2008, the Honorable Brian M. Cogan granted Defendants' motion. Order, id (E.D.N.Y. Aug. 15, 2008), Dkt. 519, at 1.

On March 29, 2010, Judge Cogan, on motion of the defendants in the Underlying Case, dismissed Plaintiff's action on the ground that he had not been timely appointed the personal representative of his parents' estate and therefore lacked the capacity to sue. ( See Mar. 29, 2010, Mem. & Order (Ex. C to Am. Compl. (Dkt. 4–3)) (“Underlying Dismissal”) at 7–8.) Judge Cogan reasoned that because Plaintiff's claims were subject to the Death on the High Seas Act (“DOHSA”), his failure to be properly appointed the personal representative of his parents' estate by October 31, 2002—the end of the three-year statute of limitations period that began to run from his parents' death, see46 U.S.C. § 30106—required dismissal. ( See Underlying Dismissal at 8–9 & n. 4.) In doing so, Judge Cogan rejected Plaintiff's attempt to characterize his nearly ten-year delay as “justified” by Defendants' alleged malpractice in failing to secure Plaintiff's personal representative status. ( See id. at 9–10 (“Having chosen to retain his attorney, plaintiff is responsible for his attorney's negligent conduct or bad advice in connection with the action.”).) Judge Cogan noted that Plaintiff's attempts to “obtain personal representative status since 2001 indicate[d] that he was personally aware that he did not have the right to bring the action without first becoming representative of his parents' estates.” ( Id. at 10.)

B. Procedural History

On June 22, 2012, Plaintiff, invoking the court's diversity jurisdiction, filed his Complaint seeking compensatory and punitive damages against Defendants for their alleged malpractice, (Compl. (Dkt. 1).) On August 1, 2012, Plaintiff filed an Amendment Complaint. (Am. Compl.)

On January 4, 2013, Defendants filed the fully-briefed motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6), which included: (1) their memorandum in support (Def. Mem. (Dkt. 22)); (2) Plaintiff's opposition; (Pl. Opp'n (Dkt. 23)); and (3) Defendants' reply (Def. Reply (Dkt. 26)).

On January 29, 2013, Plaintiff moved for leave to file a sur-reply. (Pl. Sur–Reply (Dkt. 27).) Over Defendants' objection ( see Jan. 30, 2013, Def. Ltr. (Dkt. 29)), the court granted Plaintiff's application (Feb. 1, 2013, Order (Dkt. 30)) and permitted Defendants to submit a sur-sur-reply ( see Feb. 5, 2013, Order (Dkt. 33)), which they filed on February 12, 2013 (Def. Sur–Sur–Reply (Dkt. 34)).

II. STANDARD OF REVIEW

In considering a motion to dismiss for failure to state a claim for which relief can be granted filed under Federal Rule of Civil Procedure 12(b)(6), a court must assume all the alleged facts to be true and construe the complaint in the light most favorable to the plaintiff. See In re NYSE Specialists Sec. Litig., 503 F.3d 89, 95 (2d Cir.2007). To survive the motion, a claim must be more than a mere recitation of the elements of a cause of action or series of legal conclusions. See Ashcroft v. Iqbal, 556 U.S. 662, 677–79, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). The complaint instead must provide enough factual content that, when taken as true, would allow a court to draw a “reasonable inference” that the plaintiff is entitled to relief. Id. at 678, 129 S.Ct. 1937. This means that a claim for relief must be plausible; it must raise more than “the mere possibility of misconduct” by a defendant. Id. at 678–79, 129 S.Ct. 1937.

The materials a court may consider when deciding a motion to dismiss filed under Rule 12(b)(6) are limited. “[A] district court may consider the facts alleged in the complaint, documents attached to the complaint as exhibits, and documents incorporated by reference in the complaint.” DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir.2010). “Courts may also properly consider ‘matters of which judicial notice may be taken....’ ” Halebian v. Berv, 644 F.3d 122, 131 n. 7 (2d Cir.2011) (citation omitted). Specifically, “[a] court may take judicial notice of a document filed in another court not for the truth of the matters asserted in the other litigation, but rather to establish the fact of such litigation and related filings.” Global Network Commc'ns, Inc. v. City of N.Y., 458 F.3d 150, 157 (2d Cir.2006) (internal quotation marks omitted). “[W]hen matters outside the pleadings are presented in response to a 12(b)(6) motion,” a district court must either “exclude the additional material and decide the motion on the complaint alone” or “convert the motion to one for summary judgment under [Federal Rule of Civil Procedure 56] and afford all parties the opportunity to present supporting material.” Fonte v. Bd. of Managers of Continental Towers Condo., 848 F.2d 24, 25 (2d Cir.1988); see alsoFed.R.Civ.P. 12(d).

III. DISCUSSION

Defendants have moved to dismiss Plaintiff's Amended Complaint pursuant to Federal Rule 12(b)(6) on a number of grounds, including that the malpractice claims are barred by the relevant statutes of limitations and repose in New York and Illinois. As both sources of substantive law—which the court must apply when sitting in diversity, see generally Guaranty Trust Co. v. York, 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079 (1945); Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938)—require dismissal of Plaintiff's claims, the court need not, and therefore does not, resolve the choice-of-law issue or address Defendants' other contentions.

A. Choice of Law

Unfortunately, the parties have not crystalized the issue of which state's law should apply. Throughout their papers, both sides contend that their arguments are supported by both New York law—which would likely apply in the absence of an agreement to the contrary, see generally Licci ex rel. Licci v. Lebanese Canadian Bank, SAL, 672 F.3d 155, 157–58 (...