LOPEZ-SIGUENZA v. RODDY, ESQUIRE et al
Filing
74
OPINION FILED. Signed by Chief Judge Jerome B. Simandle on 9/30/14. (js)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CARLOS E. LOPEZ-SIGUENZA a/k/a
CARLOS E. LOPEZ-SIQUENZA,
Plaintiff,
HONORABLE JEROME B. SIMANDLE
Civil No. 13-2005 (JBS/JS)
v.
MARK E. RODDY, ESQUIRE, et al.,
OPINION
Defendants.
APPEARANCES:
Benjamin Folkman, Esq.
Folkman Law Offices, P.C.
1949 Berlin Road, Suite 100
Cherry Hill, NJ 08003
-andJames A. Barry, Esq.
Michael A. Galpern, Esq.
Locks Law Firm LLC
457 Haddonfield Road, Suite 500
Cherry Hill, NJ 08003
Attorneys for Plaintiff Carlos E. Lopez-Siguenza
Jennifer L. Gottschalk, Esq.
Law Offices of Richard Sparaco
1920 Fairfax Avenue
Cherry Hill, NJ 08003
Attorney for Defendant Mark E. Roddy, Esquire
SIMANDLE, Chief Judge:
I. INTRODUCTION
After pleading guilty, serving a term of imprisonment and
being deported due to this conviction for sexual assault upon a
minor, Plaintiff Carolos E. Lopez-Siguenza hired a lawyer who
discovered that a purported birth certificate reflecting the
victim’s age as a minor was false and fraudulent, and that the
victim was actually older than the age of consent. Among others,
Plaintiff sued his former criminal defense lawyer alleging
malpractice, breach of fiduciary duty, and breach of contract.
This matter comes before the Court upon a motion to dismiss
by Defendant Mark E. Roddy, Esquire (“Roddy”) [Docket Item 49]
and Plaintiff’s cross-motion to amend [Docket Item 53.]
Because Defendant Roddy addresses Plaintiff’s cross-motion
to amend in his reply brief, and in the interest of efficiency,
the Court will consider the merits of both motions. The Court
exercises its discretion to decide these motions without oral
argument pursuant to L. Civ. R. 78.1. For the reasons discussed
below, the Court will deny Plaintiff’s cross-motion to amend and
grant Defendant Roddy’s motion to dismiss Plaintiff’s claims for
legal malpractice, breach of fiduciary duty, and breach of
contract. Plaintiff is granted leave to file a Second Amended
Complaint for legal malpractice, as explained below.
II. BACKGROUND
A. Factual Background
Plaintiff, Carlos E. Lopez-Siguenza, brought this action
after his conviction for Sexual Assault of a Minor was vacated,
but not before serving a three year prison term and being
deported to El Salvador.
2
The facts set forth here are those alleged in Plaintiff’s
Complaint which the Court must accept as true for the purposes
of the instant motion. Plaintiff is a native of El Salvador, who
at all relevant times, was residing in Northfield, New Jersey as
a Legal Permanent Resident. (Pl. Compl. [Docket Item 1] ¶¶ 1-2.)
On January 24, 2003, Melissa Aguilar Cruz (“Cruz”) reported to
the police and/or her social worker that she had sexual
intercourse with Plaintiff at various times in 2002. (Id. ¶ 10.)
Cruz and/or her guardians gave the police a handwritten Honduran
birth certificate for an individual named “Melissa Gabriela
Aguilar Guerrero,” which contained a Spanish language
inscription for the date of birth, translated to English as
March 3, 1987. (Id. ¶ 11.) The birth certificate contained a
National Identification Number of “1501870076600.” (Id.) The
police relied on this birth certificate and assumed that Cruz
was 14 years old and Plaintiff was 21 years old at the time they
engaged in sexual intercourse. (Id. ¶ 12.) On March 12, 2003,
Plaintiff was arrested by Detectives John Imfeld (“Imfeld”) and
James Hipple (“Hipple”) and charged with two counts of
Aggravated Sexual Assault, two counts of Child Abuse, and two
counts of Endangering Child Welfare. (Id. ¶ 13.) On July 8,
2003, Mark E. Roddy, Esquire, acting as Plaintiff’s defense
attorney, requested from the prosecutors a “certified and/or
3
notarized copy of the alleged victim’s birth certificate,” but
no such document was provided. (Id. ¶ 14.)
Plaintiff was indicted on one count of second degree Sexual
Assault, one count of third degree Endangering the Welfare of a
Child, and one count of fourth degree Child Abuse. (Id. ¶ 15.)
On March 12, 2004, after being advised by Roddy that he had no
chance of prevailing at trial, Plaintiff pleaded guilty to one
count of second degree Sexual Assault of a Minor and was
sentenced to three years in New Jersey State Prison. (Id. ¶ 16.)
Plaintiff served his prison term, was detained by Immigration
and Customs Enforcement, placed in removal proceedings, and
deported to El Salvador. (Id. ¶¶ 17-18.)
After Plaintiff’s deportation, his mother hired an
attorney, Jorge Coombs, Esquire (“Coombs”), to investigate
Plaintiff’s immigration case. (Id. ¶ 19.) Coombs noticed a
discrepancy between the name Cruz gave police and the name on
the birth certificate. (Id. ¶ 20.) Cruz gave her name to police
as “Melissa Aguilar Cruz” rather than “Melissa Aguilar
Guerrero.” On July 28, 2011, Coombs sent a letter to Francisco
Quezada (“Quezada”), Consul General of Honduras, in which he
requested verification of the birth certificate of “Melissa
Gabriela Aguilar Guerrero” with the National Identification
Number “1501870076600.” (Id. ¶ 21.) Coombs also sent an e-mail
to the Honduran Consulate’s staff attorney, Jose H. Palacios
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Guifaro, Esquire (“Guifaro”), requesting guidance on how to
decipher the Honduran National Identification Number. (Id. ¶
21.) On August 2, 2011, Coombs received a letter from Quezada
stating that his office could not verify the accuracy of the
birth certificate, nor could his office find the name “Melissa
Gabriela Aguilar Guerrero” or the National Identification Number
“1501870076600.” (Id.) On August 2, 2011, Coombs also received a
response from Guifaro stating that he found a birth certificate
for “Melissa Gabriela Andino Munoz” born on March 3, 1984 with a
Honduran National Identification Number of “1501-1984-00766.”
(Id. ¶ 23.) Coombs learned from the e-mail that numbers five
through eight in the identification number correspond to the
person’s year of birth. (Id.) Coombs then verified that “Melissa
Gabriela Andino Munoz” is currently registered as living in
southern New Jersey. (Id. ¶ 25.) On July 28, 2011, Coombs spoke
with Jose Rivera Sinclair, an ex-boyfriend of Cruz, who stated
that Cruz’s age was well known in the community. (Id. ¶ 28.) If
the birth certificate prosecutors relied on was not authentic,
and Cruz was born March 3, 1984, then Cruz was 18 years old in
2002, and not a minor.
Plaintiff subsequently filed for Post-Conviction Relief,
which was granted on August 2, 2012. (Id. ¶¶ 29-30.) Prosecutors
did not oppose the motion, taking the position that there was
probable cause for each count of the indictment, but prosecuting
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the case would cause wear and tear on the mental and emotional
state of Cruz and her family. (Id. ¶ 29.) On August 17, 2012,
prosecutors moved for an order to dismiss the indictment against
Plaintiff. (Id. ¶ 31.)
B. Procedural Background
Plaintiff filed this action on March 28, 2013. Plaintiff’s
Complaint asserts claims against Roddy for legal malpractice,
breach of fiduciary duty, and breach of contract. [Docket Item
1.] Plaintiff’s Complaint also asserted violations of 42 U.S.C.
§ 1983 and the New Jersey Civil Rights Act by Defendants
Atlantic City Police Department, Detective John Imfeld,
Detective James Hipple, the Atlantic County Prosecutor’s Office
(“ACPO”), and Assistant County Prosecutor Janet Gravitz. [Docket
Item 1.] On June 27, 2013, Defendants ACPO and Assistant
Prosecutor Gravitz filed a motion to dismiss, which the Court
granted by opinion and order entered March 31, 2014, dismissing
all claims against the ACPO and Gravitz with prejudice. [Docket
Items 65 & 66.] Defendant Roddy filed the instant motion to
dismiss pursuant to Fed. R. Civ. P. 12(b)(6). [Docket Item 49.]
Plaintiff filed his brief in opposition and cross-motion to
amend. [Docket Item 53.]
Additionally, Defendants Atlantic City Police Department,
Detective John Imfeld, and Detective James Hipple (collectively,
“County Defendants”) filed a motion to dismiss for failure to
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state a claim. [Docket Item 52.] Plaintiff voluntarily dismissed
claims against the County Defendants by stipulation entered July
10, 2014, rendering moot the County Defendants’ motion. [Docket
Item 72.] Accordingly, this Opinion only addresses Defendant
Roddy’s motion to dismiss [Docket Item 49] and Plaintiff’s
cross-motion to amend [Docket Item 53.]1
III. STANDARD OF REVIEW
A motion to dismiss under Federal Rule of Civil Procedure
12(b)(6) may be granted only if, accepting all well-pleaded
allegations in the complaint as true and viewing them in the
light most favorable to the plaintiff, a court concludes that
the plaintiff failed to set forth fair notice of what the claim
is and the grounds upon which it rests. Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007). A complaint will survive a
motion to dismiss if it contains sufficient factual matter to
“state a claim to relief that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009). Although a court
must accept as true all factual allegations in a complaint, that
1
Although all federal claims have been dismissed and Plaintiff
asserts only state law claims against Defendant Roddy, the Court
maintains subject-matter jurisdiction over these claims pursuant
to 28 U.S.C. § 1332. Plaintiff’s Amended Complaint states that
the amount in controversy exceeds $75,000 and the suit is
“between Plaintiff, a subject of a foreign state, who is
lawfully admitted for permanent residence in the United States
and who is domiciled in the State of Utah, and the Defendants,
who are citizens of the State of New Jersey.” [Am. Compl.
[Docket Item 53-2.])
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tenet is “inapplicable to legal conclusions,” and “[a] pleading
that offers labels and conclusions or a formulaic recitation of
the elements of a cause of action will not do.” Id. at 678.
If a responsive pleading has been served, “a party may
amend its pleading only with the opposing party’s written
consent or the court’s leave.” Fed. R. Civ. P. 15(a). “The court
should freely give leave when justice so requires.” Id. The
decision to grant leave to amend a complaint rests within the
sound discretion of the trial court. Massarsky v. General Motors
Corp., 706 F.2d 111, 125 (3d Cir. 1983). The district court may
deny leave to amend only if (a) the moving party's delay in
seeking amendment is undue, motivated by bad faith, or
prejudicial to the non-moving party; or (b) the amendment would
be futile. Adams v. Gould, Inc., 739 F.2d 858, 864 (3d Cir.
1984). “Futility” means that the complaint, as amended, would
fail to state a claim upon which relief could be granted. Shane
v. Fauver, 213 F.3d 113, 115 (3d Cir. 2000) (citation omitted).
In assessing “futility,” the court applies the same standard of
legal sufficiency as applies under Rule 12(b)(6). Id.
IV. DISCUSSION
Defendant Roddy argues that Plaintiff has failed to plead
sufficient facts to state a claim for legal malpractice, breach
of fiduciary duty, breach of contract, or any violation of
8
Plaintiff’s substantive rights under the Fourth and Fourteenth
Amendments.2 The Court will address each claim in turn.
A. Legal Malpractice
Plaintiff’s initial Complaint relies exclusively on the
facts set forth above for his claim of legal malpractice against
Defendant Roddy. Specifically, Plaintiff alleges that “Roddy,
acting as Plaintiff’s criminal defense attorney, requested from
the Prosecutors a ‘certified and/or notarized copy of the
alleged victim’s birth certificate.’ However, same was not
provided to Roddy or Plaintiff.” (Compl. ¶ 14.) Additionally,
Roddy advised Plaintiff “that he stood no chance of winning at
trial and the he should plead guilty.” (Id. ¶ 16.) Plaintiff
then pleaded guilty to one count of second degree Sexual Assault
of a Minor and was sentenced as a third degree offender to three
years in New Jersey State Prison. (Id.)
Plaintiff’s Amended Complaint includes additional
allegations against Defendant Roddy that after sending his July
8, 2003 letter, Roddy never “pursued the production of a
certified or notarized copy of the alleged victim’s birth
certificate from the Prosecutors.” (Am. Compl. [Docket Item 532] ¶ 57.) Further, Roddy allegedly never filed a motion to
2
Plaintiff does not assert a claim against Defendant Roddy for a
violation of Plaintiff’s substantive rights under the Fourth and
Fourteenth Amendments. Plaintiff’s § 1983 claims were directed
solely at the other defendants.
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compel to produce a copy of the birth certificate, never made an
effort to authenticate the birth certificate, and never
contacted any agent or employee of Honduras regarding the
alleged victim. (Id. ¶¶ 58-61.) As a result, “Roddy was
professionally negligent in his representation of Plaintiff, and
failed to exercise that degree of judgment and care exercised by
other similarly situated attorneys” and “Roddy breached his
ethical and professional duties to Plaintiff.” (Id. ¶¶ 62-63.)
In response to Plaintiff’s Amended Complaint, Defendant
Roddy maintains that Plaintiff has failed to state a claim for
legal malpractice. Defendant Roddy argues that Plaintiff has not
shown that Roddy’s alleged malpractice was the proximate cause
of his damages. Otherwise, Defendant Roddy does not address the
adequacy of Plaintiff’s Amended Complaint, but provides a
substantive response to Plaintiff’s allegations.3
3
In this Rule 12(b)(6) motion, the Court will not address
Defendant Roddy’s arguments to the extent they address the
merits of Plaintiff’s claim and not the legal sufficiency of his
pleadings. For example, Defendant Roddy notes in reply his
“diligent efforts” on Plaintiff’s behalf including “plea
bargaining the case down from sentencing in the second-degree
range to sentencing in the third-degree range, and his
successful petition for post-conviction relief resulting in the
dismissal of the underlying criminal indictment and plaintiff’s
exoneration.” (Def. Reply [Docket Item 56] at 4-5.) Such
arguments are inappropriate at this stage because a motion to
dismiss under Rule 12(b)(6) does not attack the merits of a
case, but merely tests the legal sufficiency of the pleadings.
See Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996).
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To recover for legal malpractice, a plaintiff must prove
(1) the existence of an attorney-client relationship creating a
duty of care by the defendant attorney, (2) the breach of that
duty by the defendant, and (3) proximate causation of the
damages claimed by the plaintiff. McGrogan v. Till, 771 A.2d
1187, 1193 (N.J. 2001); Conklin v. Hannoch Weisman, 678 A.2d
1060, 1070 (N.J. 1996). To fulfill his duties, an attorney must
exercise “‘that degree of reasonable knowledge and skill that
lawyers of ordinary ability and skill possess and exercise.’”
Gilles v. Wiley, Malehorn & Sirota, 783 A.2d 756, 760 (N.J.
Super. Ct. App. Div. 2001) (quoting St. Pius X House of
Retreats, Salvatorian Fathers v. Diocese of Camden, 443 A.2d
1052, 1060–61 (N.J. 1982)).
Plaintiff notes that a “detailed pleading is not required,
nor is a plaintiff required to establish anything; rather the
party need only plead enough facts to state a plausible claim.”
Call v. Czaplicki, Civ. 09-6561 (RBK/AMD), 2010 WL 3001395, at
*6 (D.N.J. July 28, 2010). In Call, the court found that
defendants’ challenge was “perfunctory at best and not based on
a critical reading” of plaintiffs’ amended complaint because
“[e]ach of the essential elements of a plausible claim for legal
malpractice are set out” in plaintiffs’ complaint. Id.
In the present case, Plaintiff’s Complaint and Amended
Complaint fail to sufficiently plead proximate causation of
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damages. Plaintiff’s Amended Complaint adequately states the
existence of an attorney-client relationship (Am. Compl. ¶¶ 15,
62, 63) and a breach of the duty owed to Plaintiff through
Roddy’s failure to follow-up on requests for a verified birth
certificate of the alleged victim, failure to file a motion to
compel, and failure to otherwise verify the alleged victim’s age
(Id. ¶¶ 56-63.) However, Plaintiff’s Amended Complaint contains
only a terse legal conclusion relevant to causation or injury to
Plaintiff as the result of Roddy’s alleged breach: “As a result
of the foregoing, Plaintiff was damaged.” (Id. ¶ 64.) Such a
bare conclusion fails to state how Plaintiff was harmed as a
result of Roddy’s allegedly substandard representation and is
insufficient to establish the proximate causation element
required to state a claim for legal malpractice.4
The requirement of pleading a plausible basis for the
causation element of malpractice by a criminal defense attorney
is especially acute in the present circumstances. According to
the Complaint and the Amended Complaint, the evidence of the
alleged victim’s age was provided by the victim and her family
and included a forged or fraudulent Honduran birth certificate.
That document was then supplied by the prosecutor to Roddy in
4
The present action is also distinguishable from Wiatt v.
Winston & Strawn LLP, where the court recounted extensive
factual allegations in plaintiffs’ amended complaint regarding
causation. 838 F. Supp. 2d 296, 309-12 (D.N.J. 2012).
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the discovery phase of the prosecution. Moreover, the pleadings
do not allege that Roddy committed malpractice in advising
Plaintiff to enter a plea of guilty to the single charge, but it
is Plaintiff’s conviction upon the plea of guilty that led to
his incarceration and deportation. Also, the pleadings do not
allege that Plaintiff told Roddy that the victim was actually
over 16 years old, so Roddy is not alleged to have neglected
evidence provided by Plaintiff about the victim’s age. Given the
Complaint’s recitation of multiple direct causes of conviction,
beginning with fabrication of evidence by the victim and/or her
family and the prosecutor’s reliance upon such evidence, the
Complaint’s lack of grounds for causation attributable to
attorney Roddy’s actionable conduct needs to be remedied if this
count is to state a claim. Therefore, the Court will grant
Defendant Roddy’s motion to dismiss as to Plaintiff’s legal
malpractice claim. The dismissal of this malpractice claim will
be without prejudice because it is likely that Plaintiff can
amend his pleading to allege the manner in which Roddy’s breach
of duty proximately caused damage as required by New Jersey law.
B. Breach of Fiduciary Duty
Plaintiff’s Complaint and Amended Complaint rely on
identical allegations as a basis for his claim for breach of
fiduciary duty against Defendant Roddy. Plaintiff alleges that
“[a]s a result of the attorney/client relationship between
13
Plaintiff and Roddy, there existed a fiduciary duty” and “[a]s a
direct and proximate result of the foregoing, Roddy has breached
his fiduciary duty, as a result of which Plaintiff has been
damaged.” (Id. ¶¶ 66-67.)
Defendant Roddy argues that Plaintiff’s pleadings are
insufficient to state a claim for breach of fiduciary duty
because Plaintiff has not alleged what acts or omissions by
Roddy amounted to a breach of fiduciary duty.
The law of fiduciary duty as it relates to attorneys is not
well-differentiated from legal malpractice under New Jersey law.
See Packard–Bamberger & Co., Inc. v. Collier, 771 A.2d 1194,
1203 (N.J. 2001). However, it is clear that “an attorney who
intentionally violates the duty of loyalty owed to a client
commits a more egregious offense than one who negligently
breaches the duty of care.” Id. Further, the Third Circuit has
opined that under New Jersey law a cause of action for breach of
fiduciary duty requires “the suffering of a loss or damages.”
Kanter ex rel. Estate of Schwartz v. Equitable Life Assur. Soc.
of U.S., 363 Fed. App’x 862, 866 (3d Cir. 2010). The Court of
Appeals emphasized the word “harm” in the Restatement’s version
of a claim for breach of fiduciary duty. Id. (citing In re
Estate of Lash, 776 A.2d 765, 769 (N.J. 2001), which cited
Restatement (Second) of Torts § 874 (“One standing in a
fiduciary relation with another is subject to liability to the
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other for harm resulting from a breach of duty imposed by the
relation.”)) Kanter appears to require a showing of actual
damages proximately cause by the breach of fiduciary duty. Thus,
to state a claim for breach of fiduciary duty, Plaintiff must
allege that Roddy’s conduct was a proximate cause of harm to
Plaintiff.
Plaintiff has failed to plead misconduct by Roddy as a
fiduciary beyond the negligent acts encompassed by Plaintiff’s
legal malpractice claim. Plaintiff contends that Roddy’s failure
to follow up on his requests for a verified birth certificate or
otherwise verify the alleged victim’s age supports a plausible
claim for breach of fiduciary duty. However, as Defendant Roddy
notes, neither Plaintiff’s Complaint nor Amended Complaint
identify with any specificity what acts or omissions by Roddy
constitute a breach of a fiduciary duty to Plaintiff. If
Plaintiff contends that Defendant Roddy’s failure to follow-up
on requests for a verified birth certificate of the alleged
victim or otherwise verify the alleged victim’s age constitutes
a breach of fiduciary duty, Plaintiff’s breach of fiduciary duty
claim is merely duplicative of, and no more egregious than, his
legal malpractice claim. Plaintiff must plead misconduct by
Roddy as a fiduciary, e.g., dishonesty, self-dealing, or breach
of loyalty, beyond a breach of a duty of care. Otherwise,
attorneys would be liable as fiduciaries for conduct that is no
15
more than negligence. Moreover, as noted above, Plaintiff has
failed to state with specificity any harm to Plaintiff
proximately caused by Roddy’s representation. Even viewed most
favorably to Plaintiff, his Complaint and Amended Complaint
contain no factual allegations related to causation or damages
beyond mere conclusory statements. Therefore, the Court will
grant Defendant Roddy’s motion to dismiss as to Plaintiff’s
claim for breach of fiduciary duty with prejudice.5
C. Breach of Contract
Like Plaintiff’s breach of fiduciary duty claim,
Plaintiff’s Complaint and Amended Complaint rely on identical
allegations as a basis for his claim for breach of contract
against Defendant Roddy. Plaintiff alleges that “[a]s a direct
and proximate result of the foregoing, Roddy has breached his
contract with Plaintiff, as a result of which Plaintiff has been
damaged.” (Id. ¶ 69.)
Defendant Roddy concedes that he and Plaintiff had a valid
contract, but argues that Plaintiff’s pleadings are insufficient
5
The Court’s conclusion is not based on Defendant Roddy’s
assertion that Plaintiff suffered no harm at all through
citation to attached exhibits showing that “defendant’s
representation of plaintiff [in post-conviction relief
proceedings] resulted in the granting of the Petition, vacating
plaintiff’s conviction, and ultimate dismissal of the indictment
against plaintiff.” (Def. Br. [Docket Item 49-1] at 8.) Such
arguments attack the merits of Plaintiff’s claim and are
inappropriate at this stage. The Court’s conclusion is based on
the absence of any factual allegations related to causation and
harm to Plaintiff.
16
because Plaintiff has not alleged what acts or omissions
constitute a breach. Plaintiff responds by citing the same
allegations as relied on above, namely, that Roddy failed to
follow up on his requests for a verified birth certificate or
otherwise verify the alleged victim’s age.
Under New Jersey law, a breach of contract claim requires
three elements: (1) the existence of a valid contract; (2) a
breach of that contract; and (3) resulting damage to the
plaintiff. Ramada Worldwide, Inc. v. Kim, Civ. 09–4534, 2010 WL
2879611, at *3 (D.N.J. July 15, 2010) (citing AT & T Credit
Corp. v. Zurich Data Corp., 37 F. Supp. 2d 367, 370 (D.N.J.
1999)).
The allegations in Plaintiff’s initial Complaint and
Amended Complaint are insufficient to state a claim for breach
of contract. First, although Defendant Roddy concedes the
existence of a contract with Plaintiff, Plaintiff’s Amended
Complaint only states that Roddy “act[ed] as Plaintiff’s
criminal defense attorney.” (Am. Compl. ¶ 15.) Plaintiff has not
alleged the existence of a contract with particularized
provisions that were breached. Second, Plaintiff has not
identified conduct that would constitute a breach of any
contract between him and Roddy. The Court is left to assume that
Roddy’s alleged failure to follow up on his request for a
verified birth certificate or otherwise verify the alleged
17
victim’s age constitutes a breach, but Plaintiff has failed to
make this clear. Finally, as discussed above, Plaintiff has
identified no harm resulting from Roddy’s allegedly deficient
representation beyond a mere legal conclusion.6 If the breach of
contract between lawyer and client is based upon some specific
promise made in that contract, the Complaint fails to supply
that ground. To permit a generalized claim for breach of
contract to proceed, when the breach is apparently based solely
upon the attorney’s malpractice, would also be duplicative of
the malpractice claim. Therefore, the Court will grant Defendant
Roddy’s motion to dismiss Plaintiff’s claim for breach of
contract with prejudice.
V. CONCLUSION
For the foregoing reasons, the Court will deny Plaintiff’s
cross-motion to amend and grant Defendant Roddy’s motion to
dismiss. The Court will dismiss Plaintiff’s malpractice claim
without prejudice, but dismiss Plaintiff’s claims for breach of
fiduciary duty and breach of contract with prejudice because
amendment of these claims would be futile. Plaintiff is granted
leave to file a Second Amended Complaint containing a legal
malpractice claim consistent with this Opinion within twenty-one
6
Again, the Court notes that its conclusion is not based on
Defendant Roddy’s contention that exhibits attached to his
moving papers substantively refute Plaintiff’s allegations
regarding Roddy’s failure to obtain relevant documents or
provide adequate representation.
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(21) days of the entry of the accompanying Order. An
accompanying order will be entered.
September 30, 2014
Date
s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge
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