Fletcher v. Hoeppner Wagner & Evans et al

Filing 48

OPINION AND ORDER denying 39 Response and Renewed Motion to Dismiss Plaintiffs complaint. Signed by Judge Rudy Lozano on 4/22/15. (mc)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
PAUL FLETCHER,
Plaintiff,
vs.
HOEPPNER WAGNER & EVANS,
LLP, et al.,
Defendants.

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Cause No. 2:14-CV-231

OPINION AND ORDER
This matter is before the Court on the Defendant, Hoeppner
Wagner & Evans, LLP’s Response and Renewed Motion to Dismiss
Plaintiff’s complaint, filed by Defendant, Hoeppner Wagner & Evans,
LLP, on March 9, 2015 (DE #39).

For the reasons set forth below,

the motion (DE #39) is DENIED.

BACKGROUND
Plaintiff, Paul Fletcher, filed his complaint pro se on July
7, 2014, alleging legal malpractice against the law firm Hoeppner
Wagner & Evans, LLP (hereinafter “HWE”), Shambaugh, Kast, Beck &
Williams, LLP, and Wayne Golomb, an individual.

On January 12,

2015, HWE filed a motion to dismiss for failure to state a claim
and lack of subject matter jurisdiction, claiming the Court lacked
diversity jurisdiction and the legal malpractice claim was barred

by the applicable two-year statute of limitations.

(DE #25).

Subsequently, Plaintiff filed an amended complaint on March 6, 2015
(DE #38). Because there was a new complaint, the Court then denied
as moot HWE’s motion to dismiss (DE #41).
HWE filed the instant motion to dismiss for failure to state
a claim in the amended complaint (DE #39) and this Court also
allowed it to incorporate previous argument and case law in support
of the pending motion to dismiss.

(DE #43.)

The only claim HWE

now makes is that the alleged acts of legal malpractice occurred
two years before the filing of Plaintiff’s complaint, and are
therefore barred by the statute of limitations.

Plaintiff filed a

response to the instant motion to dismiss on March 23, 2015 (DE
#44).

To date, no reply has been filed.

Therefore, the motion is

fully briefed and ready for adjudication.

DISCUSSION
Motion to Dismiss for Failure to State a Claim
Federal Rule of Civil Procedure 12(b)(6) provides for the
dismissal of a complaint, or any portion of a complaint, for
failure to state a claim upon which relief can be granted.

“To

survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to state a claim to relief that
is plausible on its face.”

Ashcroft v. Iqbal, 556 U.S. 662, 678
2

(2009) (internal quotations omitted); see also Ray v. City of
Chicago, 629 F.3d 660, 662-63 (7th Cir. 2011) (citation omitted)
(“While the federal pleading standard is quite forgiving . . . the
complaint must contain sufficient factual matter, accepted as true,
to state a claim to relief that is plausible on its face.”).
A complaint should not be dismissed for failure to state a
claim “unless it appears beyond doubt that the plaintiff can prove
no set of facts in support of his claim which would entitle him to
relief.”

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 561 (2007)

(quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). Plus, Iqbal
requires that a plaintiff plead content which allows this Court to
draw a reasonable inference that the defendant is liable for the
alleged misconduct.

556 U.S. at 678.

In ruling on a motion to dismiss brought pursuant to Federal
Rule

of

Civil

reasonable

Procedure

inferences

12(b)(6),

that

favor

the

the

court

must

all

construe

plaintiff,

draw

the

allegations of the complaint in the light most favorable to the
plaintiff,

and

accept

as

true

allegations in the complaint.
Regulation,

300

F.3d

750,

all

well-pleaded

a

motion

to

and

Thompson v. Ill. Dep't of Prof'l

753

(7th

Cir.

2002);

Silverstein, 939 F.2d 463, 466 (7th Cir. 1991).
withstand

facts

dismiss,

a

complaint

v.

In order to

must

“operative facts” upon which each claim is based.

Perkins

allege

the

Kyle v. Morton

High Sch., 144 F.3d 448, 454-55 (7th Cir. 1998); Lucien v. Preiner,

3

967 F.2d 1166, 1168 (7th Cir. 1992).

A plaintiff is required to

include allegations in the complaint that “plausibly suggest that
the plaintiff has a right to relief, raising that possibility above
a ‘speculative level’ ” and “if they do not, the plaintiff pleads
itself out of court.”

E.E.O.C. v. Concentra Health Servs., Inc.,

496 F.3d 773, 776 (7th Cir. 2007) (quoting in part Twombly, 550
U.S. at 569 n. 14 (2007)).

“Factual allegations must be enough to

raise a right to relief above the speculative level, on the
assumption that all the allegations in the complaint are true (even
if doubtful in fact).”

Twombly, 550 U.S. at 555 (quotation marks,

ellipsis, citations and footnote omitted). Thus, a “plaintiff must
do better than putting a few words on paper that, in the hands of
an imaginative reader, might suggest that something has happened to
her that might be redressed by the law.”

Swanson v. Citibank,

N.A., 614 F.3d 400, 403 (7th Cir. 2010) (emphasis in original).

Statute of Limitations
The factual allegations do not need to be parsed through at
this point in the litigation.

What is important, is Plaintiff

alleges malpractice against HWE in its representation of him in a
lawsuit pending in Lake County, Indiana, filed against Fidelity (a
stock brokerage service), and an individual named Mark Zupan.
All parties agree that the statute of limitations for a claim

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of legal malpractice is two years.

Ind. Code Ann. § 34-11-2-4.

Both parties also agree that legal malpractice actions are subject
to the “discovery rule,” which provides the statute of limitations
does not begin to run until the plaintiff “knows, or in the
exercise of ordinary diligence could have discovered, that he had
sustained an injury as the result of the tortious act of another.”
Biomet, Inc. v. Barnes & Thornburg, 791 N.E.2d 760, 764 (Ind. Ct.
App. 2003) (citing Morgan v. Benner, 712 N.E.2d 500 (Ind. Ct. App.
1999)).
filed

The only issue in this motion is whether Plaintiff timely
this

lawsuit

on

July

7,

2014.

HWE

concedes

that

“[g]enerally, a statute of limitations affirmative defense is not
susceptible to disposition on a rule 12(b)(6) motion to dismiss.”
(DE #26, p. 9 quoting Salas v. Wisconsin Dept. Of Corrections, 493
F.3d 913 (7th Cir. 2007)).
In arguing the complaint was untimely, HWE first points to the
amended complaint, where by “mid-February 2012, Plaintiff was
becoming frustrated because he felt that HWE was not engaging in
necessary discovery in a timely manner, nor following up with
discovery requests responsive to deposition testimony and produced
documents.”

(Am. Compl., DE #38 ¶ 60.)

It also points to the

allegation that “[b]y June 2012, in frustration, Plaintiff withheld
payment of fees from HWE in an effort to get HWE’s attention and to
make sure that the discovery he wanted done would be undertaken and
completed.”

(Id. ¶ 73.)

The Court does not believe these
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allegations meet the necessary standard of the “discovery rule.”
Indeed, Biomet holds the two year limitations period does not start
until the plaintiff knows that “he had sustained an injury as the
result of the tortious act of another.”

791 N.E.2d at 765.

From

February 2012 to June 2012, while Plaintiff was frustrated with the
representation, there is nothing in the amended complaint that
shows

he

knew

he

representation.

had

suffered

an

injury

because

of

HWE’s

The Court concurs with Plaintiff that no injury

occurred until after HWE was given leave to withdraw as Plaintiff’s
attorney on July 6, 2012, when a new judge was assigned to the case
and closed discovery without Plaintiff receiving the discovery he
wanted.

(Am. Compl., DE #38, ¶¶ 73-74.)

The amended complaint

alleges that as a result of failing to conduct discovery, Zupan was
granted summary judgment in the underlying case in May of 2013,
which caused damage to Plaintiff.
Biomet
doctrine,”

goes
which

on

to

holds

adopt
“the

(Id. ¶ 77.)
the

statute

“continuous
of

representation

limitations

does

not

commence until the end of an attorney’s representation of a client
in the same matter in which the alleged malpractice occurred.” Id.
at 765.

This rule:
[I]s
available
and
appropriate
in
those
jurisdictions (like Indiana) adopting the damage
and discovery rules.
The policy reasons are as
compelling for allowing an attorney to continue his
efforts to remedy a bad result, even if some
damages have occurred and even if the client is
fully aware of the attorney’s error. The doctrine
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is fair to all parties concerned. The attorney has
the opportunity to remedy, avoid or establish that
there was no error or attempt to mitigate the
damages.
The client is not forced to terminate
this relationship, though the option exists. The
result is consistent with all expressed policy
bases for the statute of limitations.
791 N.E.2d at 766.

Even assuming, arguendo, that Plaintiff did

know of his injury and suffered damage in June of 2012 (as HWE
contends), the complaint would still be timely under the continuous
representation rule.
on July 6, 2012.

HWE’s representation of Plaintiff terminated

(Pl.’s Ex. 1, ¶ 73.)

Plaintiff had until July 6,

2014 (2 years after the attorney client relationship terminated) to
file his legal malpractice cause of action.

July 6, 2014 fell on

a Sunday, so Plaintiff actually had until July 7, 2014 to file his
complaint, and that is the exact date he filed this action.
#1).

(DE

As such, Plaintiff’s complaint is timely.

CONCLUSION
For the reasons set forth above, Defendant, Hoeppner Wagner &
Evans, LLP’s Response and Renewed Motion to Dismiss Plaintiff’s
complaint (DE #39) is DENIED.

DATED:

April 22, 2015

/s/ RUDY LOZANO, Judge
United States District Court

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