FISHER v. IGWE et al

Filing 10

OPINION. Signed by Judge Robert B. Kugler on 3/14/2018. (tf, )

UNPUBLISHED OPINION
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE

Theresa C. FISHER,
Plaintiff,
v.
Emeka IGWE and THE IGWE FIRM, P.A.
Defendants.

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Civil No. 17-5983 (RBK/AMD)
OPINION

KUGLER, United States District Judge:
This matter comes before the Court on Defendant Emeka Igwe and the Igwe Firm, P.A.’s
motion to dismiss Plaintiff Theresa Fisher’s complaint under Federal Rule of Civil Procedure
12(b)(6). Because Plaintiff has failed to plead causation for damages in her legal malpractice claim,
Defendants’ motion is GRANTED.
I.

THE FACTS
Under Fed. R. Civ. P. 12(b)(6), we review the sufficiency of the complaint and take the

facts in the light most favorable to the plaintiff, Theresa Fisher.
The complaint begins by noting that a New Jersey Superior Court entered judgment for an
arbitration award of $276,836.34 in a defamation action against Fisher on October 8, 2016. On
February 19, 2016—we note the peculiar chronology of the complaint—Fisher, proceeding pro se,
filed for Chapter 7 bankruptcy, listing Jersey College as a creditor. Jersey College then filed an
adversary complaint on May 26, 2016, arguing that the $276,836.34 was nondischargeable debt
under 11 U.S.C. § 523(a)(6) because it had resulted from willful and malicious injury. Fisher, still
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proceeding pro se, filed an answer to the complaint on June 10, 2016. Months later, Jersey College
filed a motion for summary judgment with a return date of November 29, 2016. Ultimately, the
bankruptcy court, in a thorough and comprehensive opinion, found her debt was nondischargeable
under § 523(a)(6). See In re Fisher, No. 16-12991-ABA, 2017 WL 590306 (Bankr. D.N.J. Jan.
24, 2017).
The dispute today concerns Fisher’s counsel in the bankruptcy proceedings. Fisher’s
complaint alleges that she had retained Emeka Igwe of the Igwe Firm to represent her in the
bankruptcy and adversary proceeding, paying a $5,000 retainer fee. Igwe told told Fisher that he
would contact Jersey College to discuss the case, believing it to be “unjust and ludicrous.” (Compl.
¶ 12.) Two days prior to a hearing for the motion for summary judgment, Igwe advised Fisher that
he could not appear on her behalf, instead telling her to request a postponement. The complaint
specifies that Igwe told Fisher “once the Judge sees this case, and especially if you go by yourself
he will be lenient to throw this case into your bankruptcy,” i.e., find the debt dischargeable. Fisher
alleges she appeared pro se on the advice of her attorney and the judge granted a postponement.
The postponement was granted because of improperly-submitted papers, and to be fair to a pro se
defendant, the judge ordered a postponement. (Id. ¶ 14.) The judge permitted Jersey College to
present their arguments, but because Fisher was not prepared to do the same, she was ordered to
submit “a summary letter” by December 20, 2016. (Id. ¶ 15.) Fisher spoke with Igwe again after
this, stating that although she feared the outcome of the adversary proceeding, she was told “[y]ou
did a great job, have no worries, and that everything will be fine.” (Id.)
Fisher alleges she awaited further instruction from Igwe. When he called on December 16,
Fisher expressed her frustrations and said she was going to take a brief vacation, despite the
pendency of her bankruptcy. (Id. ¶ 16.) Igwe told Fisher he would prepare “the summary letter”
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by December 20, as requested by the court. Fisher states she was left with the impression that Igwe
would notify her of his appearance in the matter. (Id. ¶ 17.)
When Fisher returned from vacation, she contacted Igwe about the case’s status. The
complaint states that Igwe did not return her calls, but also states that Fisher was reassured that she
would be fine and that Jersey College would not prevail in the adversary proceeding. (Id. ¶ 18.)
Whatever happened, Fisher states she had “noted the next Court date as January 4, 2017,” but
discovered on that date that she had missed the court date. (Id. ¶ 19.) It is not clear from the
complaint whether the hearing took place on this date, but Fisher reached out to Igwe for advice
on how to approach the hearing. Igwe advised she appear, that she would likely win, and if she
lost he would “pursue an appeal and transfer the matter to the Pennsylvania courts.” (Compl. ¶ 20.)
On January 26, 2017, Fisher received some documents informing her that judgment in the
adversarial proceeding had been entered in favor of Jersey College. Fisher once again contacted
Igwe; Igwe requested the documents; Fisher delivered them by hand, and heard no response for
weeks. On February 8, 2017, Igwe stated that a security officer had misplaced the documents, and
Fisher faxed in the documents again. She got a call that evening. Igwe told her he was unable to
assist her with filing an appeal, which was due by January 24, 2017. The appeal already being late,
Fisher searched for new attorneys, retaining the law firm of Long, Marmero & Associates, LLP.
They filed a motion to extend the time to file an appeal on March 8, 2017. That was denied, and
the judgment for $276,836.34 could not be appealed.
Fisher filed this suit in the Superior Court of the State of New Jersey, County of Camden,
bringing claims of breach of contract (Count One), promissory estoppel (Count Two), and legal
malpractice (Count Three) against Igwe and his law firm, the Igwe Firm, seeking $281,836.34 in
damages, costs, and interest. After removing to federal court, Defendants have moved to dismiss
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the complaint under Fed. R. Civ. P. 12(b)(6). Defendants’ motion to dismiss addresses only
Fisher’s legal malpractice claim, and the Court will therefore only address that claim as well.
II.

JURISDICTION
This Court has “an independent obligation to determine whether subject-matter jurisdiction

exists, even in the absence of a challenge from any party.” Arbaugh v. Y&H Corp., 546 U.S. 500,
514 (2006). The alleged basis for this Court’s jurisdiction is under 28 U.S.C. § 1332, which
provides for “diversity of citizenship” jurisdiction. A defendant removing under 28 U.S.C. § 1441
establishes diversity, and thus subject-matter, jurisdiction “when she presents a claim between
parties of diverse citizenship that exceeds the required jurisdictional amount, currently $75,000.”
Arbaugh, 546 U.S. at 514; § 1332(a). Absent diversity or federal-question jurisdiction, a court
must remand the matter to state court. And when the decision to remand is a close one, district
courts are encouraged to err on the side of remanding the case back to state court. See Abels v.
State Farm Fire & Cas. Co., 770 F.2d 26, 29 (3d Cir. 1995) (“Because the lack of jurisdiction
would make any decree in the case void and the continuation of the litigation in federal court futile,
the removal statute should be strictly construed and all doubts should be resolved in favor of
remand.”) (citing Pullman Co. v. Jenkins, 305 U.S. 534, 537 (1939)).
This Court has once before had occasion to doubt its jurisdiction in this case, noting that it
ordered Defendants to establish the citizenship of the members of the Igwe Firm, P.C., an
unincorporated association. “Unincorporated associations remain mere collections of individuals,”
and those individuals “are the parties whose citizenship determines the diversity jurisdiction of a
federal court.” Navarro Sav. Ass'n v. Lee, 446 U.S. 458, 461 (1980). As such, we ordered the Igwe
Firm to establish the citizenship of its members. (See Doc. No. 8.)

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Defendants responded and now the citizenship of all parties is clear. Fisher has sued Emeka
Igwe as well as the Igwe Firm more generally. Mr. Igwe is a citizen of Delaware, and the other
two members of the Igwe Firm are citizens of Pennsylvania. Fisher, for her part, resides in New
Jersey. As the adversaries are not citizens of the same states, the parties are therefore diverse under
§ 1332. Fisher’s complaint also alleges that Igwe’s failure to represent her in her bankruptcy
proceedings precipitated damages of $276,836.34. She also paid him a $5,000 retainer fee to
represent her. She claims total damages of $281,836.34, plus costs, interest, and attorneys’ fees.
(Compl. ¶ 37.) The removed complaint facially satisfies § 1332.
III.

THE 12(b)(6) STANDARD
When considering a motion to dismiss a complaint for failure to state a claim, Fed. R. Civ.

P. 12(b)(6), the Court must accept all well-pleaded allegations in the complaint as true and view
them in the light most favorable to the non-moving party. A motion to dismiss may be granted
only if the plaintiff has failed to set forth fair notice of what the claim is and the grounds upon
which it rests that make such a claim plausible on its face. Bell Atlantic Corp. v. Twombly, 550
U.S. 544 (2007). Although Rule 8 does not require “detailed factual allegations,” it requires “more
than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (citing Twombly, 550 U.S. at 555).
In reviewing the sufficiency of a complaint, the Court must “tak[e] note of the elements
[the] plaintiff must plead to state a claim. Second, it should identify allegations that, because they
are no more than conclusions, are not entitled to the assumption of truth. Finally, [w]hen there are
well-pleaded factual allegations, [the] court should assume their veracity and then determine
whether they plausibly give rise to an entitlement to relief.” Connelly v. Lane Const. Corp., 809

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F.3d 780, 787 (3d Cir. 2016) (alterations in original) (internal citations and quotation marks
omitted).
IV.

DISCUSSION
Legal Malpractice
To state a legally sufficient claim for legal malpractice, Fisher must plead (1) the existence

of an attorney-client relationship creating a duty of care by the defendant attorney, (2) the breach
of that duty by Defendants, and (3) proximate causation of the damages claimed by Fisher. Jerista
v. Murray, 185 N.J. 175, 190–91 (2005). We assume, for purposes of this motion, that Fisher has
adequately pleaded duty and breach, as Defendants’ motion only challenges the third prong. They
argue that Fisher failed to plead proximate causation of damages. We agree.
Legal malpractice is a tort, and “a tortfeasor is liable if his conduct was a substantial factor
in bringing about the injuries, even where there are other intervening causes which were
foreseeable or were normal incidents of the risk created.” Mahoney v. McDonnell, 616 F. App’x
500, 505 (3d Cir. 2015) (citing Komlodi v. Picciano, 217 N.J. 387 (2014)) (internal quotation
marks removed). See also Froom v. Perel, 377 N.J. Super. 298, 313 (App. Div. 2005) (“plaintiff
must present evidence to support a finding that defendant's negligent conduct was a ‘substantial
factor’ in bringing about plaintiff’s injury, even though there may be other concurrent causes of
the harm.”). Put differently, proximate cause is “any cause which in the natural and continuous
sequence, unbroken by an efficient intervening cause, produces the result complained of and
without which the result would not have occurred.” Dawson v. Bunker Hill Plaza Associates, 673
A.2d 847, 853 (N.J. Super. Ct. App. Div. 1996) (internal quotations and citation omitted). For
example, “if a lawyer misses a statute of limitations and a complaint is dismissed for that reason,

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a plaintiff must still establish that had the action been timely filed it would have resulted in a
favorable recovery.” Conklin v. Hannoch Weisman, 678 A.2d 1060, 1071 (N.J. 1996).
Defendants’ motion to dismiss raises a great many allegations that are not within the four
corners of Fisher’s complaint, disputing the scope and nature of the facts alleged by Fisher. But
even though Defendants’ motion fails to direct its analysis at the sufficiency of the complaint, we
nonetheless agree that Fisher has failed to establish a causal connection between Defendants’
conduct and the damages she suffered. Nothing in the complaint indicates that the outcome of the
bankruptcy proceedings would have been any different had Igwe entered an appearance, filed
briefing, or challenged its disposition on appeal. Fisher has failed to plead any facts tending to
show causation—indeed, the complaint pointedly avoids any reference to the merits of the
underlying proceedings. Fisher’s complaint has failed to plead that Igwe’s engagement in the case
would have resulted in a favorable recovery. She has therefore failed to state a claim for legal
malpractice.
V.

CONCLUSION
Defendant’s motion is GRANTED as to the legal malpractice claim. An order follows.

Dated: March 14, 2018

/s Robert B. Kugler
ROBERT B. KUGLER
United States District Judge

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