Zappin v. Carey Douglas Kessler & Ruby PLLC
| Docket Number | 2:22-CV-00292 |
| Decision Date | 30 August 2023 |
| Parties | ANTHONY ZAPPIN, Plaintiff, v. CAREY DOUGLAS KESSLER & RUBY, PLLC, S. BENJAMIN BRYANT, Defendants. |
| Court | U.S. District Court — Southern District of West Virginia |
Pending before the Court are the Defendants' Motion to Dismiss and for a Pre-Filing Injunction and its accompanying Memorandum of Law in Support of the Motion to Dismiss and for a Pre-Filing Injunction (ECF Nos. 11 12), as well as the Defendants' Motion to Dismiss Plaintiff's Amended Complaint and for a Pre-Filing Injunction and its accompanying Memorandum of Law in Support of the Motion to Dismiss Plaintiff's Amended Complaint and for a Pre-Filing Injunction (ECF Nos. 17 18), filed on November 29, 2022 and December 29, 2022 respectively. By Administrative Order entered on July 20 2022, this matter was referred to the undersigned United States Magistrate Judge for the submission of proposed findings of fact and a recommendation for disposition pursuant to 28 U.S.C. § 636(b)(1)(B). (ECF No. 5) Having examined the Amended Complaint (ECF No. 16), the additional pleadings of record and pertinent legal authority, the undersigned has concluded that the Motions to Dismiss and for a Pre-Filing Injunction should be GRANTED for the reasons stated infra:
Plaintiff's Factual Allegations
The Plaintiff has filed a lengthy Complaint against these Defendants, however, the bulk of which outlines his initial troubles during his New York divorce and child custody proceedings, which later became the basis for the New York disciplinary proceedings resulting in the loss of the Plaintiff's New York law license, which lead to the reciprocal disciplinary proceedings before the West Virginia Supreme Court of Appeals resulting in the loss of the Plaintiff's West Virginia law license. (ECF No. 16 at 2-35)[1] In this civil action, the Plaintiff alleges that the Defendants were negligent and committed numerous acts of malpractice in representing him in the reciprocal disciplinary proceedings in West Virginia, asserting that the Defendants failed to hold Rachael Cipoletti accountable for violations of Rule 3.8 of the Rules of Professional Conduct to the extent that she did not refute that the New York disbarment had no evidentiary support, but instead, she proceeded to prosecute the disbarment proceedings against the Plaintiff; that had the Defendants raised the Rule violations issues, in all likelihood, the reciprocal disciplinary proceedings would have been dismissed or withdrawn. (Id. at 35-57, ¶¶ 46-53) The Plaintiff also alleges that the Defendants failed to hold Ms. Cipoletti accountable for violations of Rule 3.3 of the Rules of Professional Conduct to the extent that she lied about the Plaintiff receiving a hearing on the merits before the New York disciplinary proceeding and that had the Defendants raised this Rule violation issue, in all likelihood, the reciprocal disciplinary proceedings would have been dismissed or withdrawn. (Id. at 37-38, ¶¶ 54-57) The Plaintiff further alleges that the Defendants also failed to hold Ms. Cipoletti accountable when she brought “new uncharged, unlitigated and false allegations against Plaintiff in the reciprocal disciplinary proceeding” upon which the Hearing Panel Subcommittee Majority and later the West Virginia Supreme Court of Appeals relied heavily when imposing reciprocal discipline against the Plaintiff, resulting in his disbarment; had the Defendants challenged these falsehoods, in all likelihood the reciprocal disciplinary proceeding would have been dismissed or withdrawn. (Id. at 39-40, ¶¶ 58-61) The Plaintiff alleges that the Defendants were also negligent in the reciprocal disciplinary proceedings by failing to file a motion to compel discovery against Ms. Cipoletti, which would have revealed that she possessed exculpatory evidence, including communications from counsel for the New York Attorney Grievance Committee, Jorge Dopico and Kevin Doyle and their West Virginia counsel, Ancil Ramey, were exerting pressure on Ms. Cipoletti to pursue the reciprocal disciplinary proceedings against the Plaintiff; had the Defendants moved to compel the production of this information, the reciprocal disciplinary proceedings against the Plaintiff would have been dismissed or withdrawn. (Id. at 4041, ¶¶ 62-64) The Plaintiff alleges that the Defendants were negligent by failing to challenge the constitutionality and appropriateness of imposing reciprocal discipline on the Plaintiff before the West Virginia Supreme Court of Appeals instead of the Hearing Panel Subcommittee, as West Virginia did not have a collateral estoppel procedure to discipline attorneys - an issue that the West Virginia Office of Disciplinary Counsel had observed in a prior case and the West Virginia Supreme Court of Appeals recently held - had the Defendants raised this argument, the outcome of the reciprocal disciplinary proceedings against the Plaintiff would have been in his favor. (Id. at 41-42, ¶¶ 65-67)
The Plaintiff asserts a single count as to these Defendants based on state law: negligence/legal malpractice. (Id. at 42) The Plaintiff alleges that the Defendants owed him a duty of professional care, loyalty and diligence, however, by the misconduct outlined supra, they breached that duty; and had they exercised the ordinary care and diligence in representing the Plaintiff during the collateral estoppel disciplinary proceedings, a reasonable person or jury would conclude that the outcome of would have been substantially more favorable to the Plaintiff. (Id., ¶¶ 68-71)
The Plaintiff asserts that the Defendants negligence was a proximate cause of his damages, including but not limited to, the loss of his license to practice law in West Virginia, loss of wages, loss of potential earning power, damage to the Plaintiff's personal and professional reputations, as well as emotional pain and suffering. (Id. at 43, ¶ 72)
On July 19, 2022, the Plaintiff, proceeding pro se,[2] filed his Complaint against the Defendants asserting a state law claim of legal malpractice; the Defendant law firm and its primary attorney, Defendant Bryant, represented the Plaintiff in the matter of Lawyer Disciplinary Board v. Zappin, Case No. 18-250, 2021 WL 595869 (W.Va.). (ECF No. 1) On November 7, 2022, the Defendants filed their Answer[3] (ECF No. 9), and subsequently on November 29, 2022, filed their Motion to Dismiss and for a Pre-Filing Injunction and Memorandum of Law in Support of the Motion to Dismiss and for a Pre-Filing Injunction. (ECF Nos 11, 12) On November 30, 2022, the undersigned issued an order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975) advising the Plaintiff of his right to file a response to the Defendants' Motion no later than December 16, 2022. (ECF No. 13)[4]
Following the receipt of a Rule 26(f) Report of Planning Meeting (ECF No. 14), the undersigned entered a Scheduling Order (ECF No. 15) on December 15, 2022.
On December 27, 2022, without seeking leave of the Court,[5] the Plaintiff filed an Amended Complaint.[6] (ECF No. 16) On December 29, 2022, the Defendants filed their Motion to Dismiss Plaintiff's Amended Complaint and for a Pre-Filing Injunction[7] as well as a Memorandum of Law in Support of the Motion to Dismiss Plaintiff's Amended Complaint and for a Pre-Filing Injunction. (ECF Nos. 17, 18) The undersigned issued another Roseboro order again advising the Plaintiff to file a response no later than January 17, 2023. (ECF No. 19) On January 17, 2023, the Plaintiff moved for an extension of time to respond to the Defendants' Motion, to January 27, 2023 (ECF No. 20), which the undersigned granted (ECF No. 21).[8] The Plaintiff did not file a response to the Defendants' Motion, despite having been given the extra time to do so, prompting the undersigned to issue an Order on January 31, 2023 directing the Plaintiff to show cause no later than February 10, 2023 why this action should not be recommended for dismissal pursuant to Rule 41(b) of the Federal Rules of Civil Procedure and Rule 41.1 of the Local Rules. (ECF No. 24) The Plaintiff filed a response to the show cause Order on February 10, 2023, indicating that he was unaware that his responsive pleading had not been delivered in spite of mailing same via FedEx (ECF No. 25)[9]; that same day, the Plaintiff also filed his Memorandum of Law in Opposition to Defendant's Motion to Dismiss (ECF No. 26). Finally, the Defendants filed their Reply (ECF No. 28), consequently, this matter is fully briefed and ready for resolution.
Defendants' Argument in Support of Dismissal and Pre-Filing Injunction[10]
The Defendants point out that the West Virginia Lawyer Disciplinary Board sought revocation of the Plaintiff's law license based on the fact that his law license had been suspended and he was disbarred by the State of New York. (ECF No. 18 at 2) The Defendants represented the Plaintiff through the hearing held before the Hearing Panel Sub-Committee and ceased its representation on August 24, 2020 - the Plaintiff was proceeding pro se when the Disciplinary proceeding reached the West Virginia Supreme Court of Appeals. (Id.)
The Defendants state that the Plaintiff had already been disbarred in New York when they represented him, and liken this suit to the one already litigated in New York where the Plaintiff also alleged malpractice against his New York attorneys during the disciplinary proceedings in New York - the Second Circuit held that the Plaintiff was disbarred for misconduct independent of any alleged negligence on behalf of his counsel. (Id. at 4) The Defendants argue that for the same reasons articulated in the New York case Zappin v. Supple et al, 2022...
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