Rinker v. Amori
| Decision Date | 22 March 2016 |
| Docket Number | CIVIL ACTION NO. 3:15-1293 |
| Parties | THOMAS RINKER and MICHELLE RINKER, Plaintiffs v. SCOTT AMORI, ESQ., et al., Defendants |
| Court | U.S. District Court — Middle District of Pennsylvania |
(JUDGE MANNION)
Pending before the court are the defendants' motions to dismiss the plaintiffs' second amended complaint, (Doc. 40), pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6). (Doc. 43, Doc. 45). Plaintiffs allege claims of professional negligence, breach of contract, and loss of consortium based upon defendants' legal representation in a mortgage foreclosure action and related proceedings. Based upon the court's review of the relevant documents, the court will GRANT IN PART Amori defendants' motion, and it will GRANT IN PART the motion of defendant Marsh since it finds that some of Mr. Rinker's claims can proceed against all defendants at this stage of the proceedings.
The plaintiffs, Thomas Rinker and Michelle Rinker, husband and wife, ("Rinkers"), filed the instant action alleging legal malpractice on June 30, 2015. (Doc. 1). The named defendants were Scott Amori, Esq., the law firm of Amori & Associates, LLC, (hereinafter "Amori" defendants), and James Marsh, Esq. John Does 1-10 were also defendants. It was alleged that the court had subject matter jurisdiction based on diversity of citizenship pursuant to 28 U.S.C. §1332. Plaintiffs alleged that they resided in New York and that defendants were citizens of Pennsylvania. On August 7, 2015, defendant Marsh filed a motion to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(6) arguing plaintiffs failed to state a claim for professional negligence and punitive damages. (Doc. 7). An amended complaint was filed by the plaintiffs on September 11, 2015. (Doc. 12). The Doe defendants were terminated since they were not included as parties in the amended complaint. The court also issued an order and dismissed defendant Marsh's motion to dismiss plaintiffs' original complaint as moot. (Doc. 13).
On September 15, 2015, plaintiffs filed a Certificate of Merit under Pa.R.Civ.P. 1042.3.1 (Doc. 14). Counsel for plaintiffs certified that a licensedprofessional has supplied a written statement that there is a reasonable basis to conclude that the care, skill or knowledge exercised or exhibited by the defendants in the work alleged in the complaint fell outside of the acceptable professional standards and that this conduct caused the plaintiffs' alleged harm.
On September 30, 2015, defendant Marsh filed a motion to dismiss plaintiffs' amended complaint, (Doc. 15), and a brief in support, (Doc. 16). On November 13, 2015, after default was set aside, Amori defendants filed a motion to dismiss plaintiffs' amended complaint, (Doc. 31), and a brief in support, (Doc. 32). Plaintiffs were granted extensions of time to respond to defendants' motions. On December 15, 2015, plaintiffs filed a second amended complaint ("SAC"). (Doc. 40). Since plaintiffs' SAC was filed with consent of defendants' counsel and it superseded their amended complaint, the court dismissed the motions to dismiss plaintiffs' amended complaint. (Doc. 41).
On December 23, 2015, Amori defendants filed a motion to dismiss plaintiffs' SAC, (Doc. 43). They filed their brief in support with Exhibits on January 6, 2016, (Doc. 44). On January 13, 2016, defendant Marsh filed a motion to dismiss plaintiffs' SAC, (Doc. 45), and a brief in support, (Doc. 46).
After being granted an extension of time, plaintiffs filed their brief in opposition to both motions to dismiss on February 3, 2016. (Doc. 53). Amori defendants filed a reply brief in support of their motion on February 16, 2016. (Doc. 54). Defendant Marsh did not file a reply brief. Both motions to dismissare ripe for review.
In 2011, Mr. Rinker executed a fee agreement and retained attorney Marsh to represent him in a mortgage foreclosure action he instituted with respect to a commercial property he owned in Monroe County Court of Common Pleas.2 Marsh was a transactional attorney with extensive experience in business and real estate law and, had represented Mr. Rinker and his family's business since 1969. In 2013, attorney Marsh obtained a judgment in the mortgage foreclosure action in favor of Mr. Rinker. See Rinker v. Gilliland, No. 3620 CV 2012,Monroe County C.C.P. After obtaining the judgment in Monroe County, Mr. Rinker discovered that attorney Marsh failed to include a rents provision in his property's mortgage which precluded him from collecting significant rents from his tenants. Before attorney Marsh drafted the property's mortgage, he failed to explain and/or advise Mr. Rinker of any provisions which should be included in the property's mortgage despite the fact that Marsh knew Mr. Rinker had no legal expertise. There was no strategic advantage to exclude a rents provision in the mortgage for Mr. Rinker's commercial property, and the omission was not within Marsh's discretion as an attorney. The lack of a rent provision was an obvious errorcommitted by attorney Marsh. As such, plaintiffs allege that attorney Marsh failed to properly advise Mr. Rinker and protect his interests, and that he caused Mr. Rinker damages.
In August 2013, Mr. Rinker retained attorney Amori and entered into a fee agreement with Amori defendants to provide him with legal representation, including paying back taxes owed on his commercial property and to bid on his property at sheriff's tax sale. Mr. Rinker gave Amori $2,000 after he stated that he needed this money to acquire the property back from the sheriff's sale. Mr. Rinker alleges that Amori should have advised him to pay the taxes on his property before the sheriff's sale to prevent the sale. Mr. Rinker alleges that attorney Amori failed to pay the back taxes and failed to attend the sheriff's sale. He also alleged that attorney Amori failed to give him notice of the date of the sheriff's sale of his property. Consequently, Mr. Rinker states that his property was purchased by a third party at a later judicial tax sale. See Monroe County C.C.P. No. 453 Civil 2014. Mr. Rinker alleges that attorney Amori then attempted to cover up his negligence by not telling him about the sale of his property. As such, Mr. Rinker alleges that attorney Amori's legal malpractice caused him to lose his $350,000 property and suffer damages as well as severe emotional distress.
Specifically, plaintiffs allege that they lost their 22 year old business of operating a bar/restaurant and apartments. Plaintiffs state that they were unable to pay bills and worried about caring for their children. Plaintiffs were forced to change their lifestyle and Mr. Rinker worked three jobs to pay taxes.Both plaintiffs allegedly suffered from depression and anxiety as well as emotional distress. Mrs. Rinker was prescribed anti-depression medication and plaintiffs' marriage suffered due to the alleged malpractice.
Plaintiffs assert three counts against all defendants, to wit: Count I, professional negligence, malpractice and negligence; Count II, breach of contract and, breach of covenant of good faith and fair dealing; and Count III, loss of consortium. As relief, plaintiffs seek compensatory damages, including damages for emotional distress, as well as attorney's fees and costs.
The defendants' motions to dismiss are brought pursuant to the provisions of Fed.R.Civ.P. 12(b)(6). This rule provides for the dismissal of a complaint, in whole or in part, if the plaintiff fails to state a claim upon which relief can be granted. The moving party bears the burden of showing that no claim has been stated, Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005), and dismissal is appropriate only if, accepting all of the facts alleged in the complaint as true, the plaintiff has failed to plead "enough facts to state a claim to relief that is plausible on its face," Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 1974 (2007) (). The facts alleged must be sufficient to "raise a right to relief above the speculative level." Twombly, 550 U.S. 544, 127 S. Ct. at 1965. This requirement "calls forenough fact[s] to raise a reasonable expectation that discovery will reveal evidence of" necessary elements of the plaintiff's cause of action. Id. Furthermore, in order to satisfy federal pleading requirements, the plaintiff must "provide the grounds of his entitlement to relief," which "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) (brackets and quotations marks omitted) (quoting Twombly, 550 U.S. 544, 127 S. Ct. at 1964-65).
In considering a motion to dismiss, the court generally relies on the complaint, attached exhibits, and matters of public record. See Sands v. McCormick, 502 F.3d 263 (3d Cir. 2007). The court may also consider "undisputedly authentic document[s] that a defendant attaches as an exhibit to a motion to dismiss if the plaintiff's claims are based on the [attached] documents." Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993). Moreover, "documents whose contents are alleged in the complaint and whose authenticity no party questions, but which are not physically attached to the pleading, may be considered." Pryor v. Nat'l Collegiate Athletic Ass'n, 288 F.3d 548, 560 (3d Cir. 2002). However, the court may not rely on other parts of the record in determining a motion to dismiss. See Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994).
Generally, the court should grant leave to amend a complaint before dismissing it as merely deficient. See, e.g., Fletcher-Harlee Corp. v. PoteConcrete Contractors, Inc., 482 F.3d 247, 252 (3d Cir. 2007); Grayson v. Mayview State Hosp., 293...
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