Esposito v. Gary et al

Filing 280

ORDER for 272 Report and Recommendations, 107 Motion to Dismiss filed by Willie E. Gary, Williams, Parenti, Lewis & Watson LLC, Willie. As discussed above, Judge Wang's 2024 R&R (Dkt. No. 272) recommends that the Second Amended Comp laint be dismissed as to both Defendants for failure to state a claim. Only Defendant Gary moved to dismiss the SAC, however. Accordingly, Judge Wang's R&R is adopted as to Defendant Gary and not adopted as to Defendant Chestnut, and the SAC& #039;s claims against Defendant Gary are dismissed for failure to state a claim. Given the analysis in this Order, however, Plaintiff is directed to show cause by October 24, 2024, why her claims against Chestnut in the SAC should not likewise be dismissed. The Clerk of Court is directed to terminate the motion (Dkt. No. 107), to terminate Gary as a defendant, and to mail a copy of this Order to pro se Plaintiff. SO ORDERED. (Gary, Willie Gary (individually and as a partner of Williams, Parenti, Watson, Gary) terminated.) (Signed by Judge Paul G. Gardephe on 9/24/24) (yv)

E.

Gary's Motion to Dismiss the Second Amended Complaint
and the Attorney Withdrawal Motions
On April 29, 2022, Defendant Gary moved to dismiss the SAC under Fed. R. Civ.

P. 12(b)(6). (Gary Mot. (Dkt. No. 108)) Defendant Gary argues that the SAC should be
dismissed because (1) it fails to state a claim; (2) the SAC's claims are "clearly contradicted by
documentary evidence" (Gary Br. (Dkt. No. 108) at 19); (3) the SAC "'raises a new legal theory
that would require the gathering and analysis of facts not already considered by the Defendant'"
and therefore causes undue prejudice (id. at 30 (quoting Laber v. Harvey. 438 F.3d 404 (4th Cir.
2006)); and (4) the claims are time-barred. (See id.)
On May 6, 2022, this Court referred Defendant Gary's motion to Judge Wang for
an R&R. (Dkt. No. 115)
On November 14, 2022, Esposito's attorneys moved to withdraw. (Pltf. Atty.
Mot. (Dkt. No. 142)) Judge Wang granted that motion on January 18, 2023. (Order (Dkt. No.
153)) Esposito entered a pro se appearance on January 19, 2023. (Dkt. No. 155)
On February 3, 2023, Defendant Chestnut's attorneys moved to withdraw. (Def.
Chestnut Atty. Mot. (Dkt. No. 160)) Judge Wang directed Chestnut to respond to the withdrawal
motion. (Dkt. No. 163) Defendant Chestnut entered a pro se appearance on March 5, 2023.
(Dkt. No. 164) On April 13, 2023, Defendant Chestnut filed an Answer to the SAC. (Chestnut
Answer (Dkt. No. 167))

F.

The Magistrate Judge's R&R
Defendant Gary argues that the SAC should be dismissed for failure to state a

claim. (Gary Br. (Dkt. No. 108)) In a February 5, 2024 R&R, Judge Wang recommends that the
SAC be dismissed as to both Defendant Gary and Defendant Chestnut for failure to state a
claim. (2024 R&R (Dkt. No. 272))

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As to Counts One through Six of the SAC which allege legal malpractice
Judge Wang explains that a plaintiff asserting such a claim under New York law must allege:
"'(1) an attorney-client relationship at the time of the alleged malpractice; (2) attorney
negligence; (3) proximate causation and (4) actual damage to the client."' (Id. at 8 (quoting
Bryant v. Silverman, 284 F.Supp.3d 458, 470 (S.D.N.Y. 2018)). Judge Wang notes that "[t]he
specific instances of alleged malpractice now arise from two events: (1) the JAMS mediation,
and (2) the loss at summary judgment." (2024 R&R (Dkt. No. 272) at 9)
For Count One legal malpractice arising out of the JAMS mediation session
Judge Wang notes that, "[a]ccording to Plaintiff's version of events in the SAC, Plaintiff knew at
the mediation that a settlement offer had been made, and that Defendants had explained why they
had rejected it." (Id. at 11 (citing SAC (Dkt. No. 92) 1130-32) (emphasis in original))
"Defendants did not 'fail to communicate' a $750,000 settlement offer (if one was actually
made); rather, Plaintiff 'acquiesced' in the decision or accepted their advice not to take it, and
now, seeks to find them liable for pressuring her to ratify their rejection of the offer." (Id. at 1112) Judge Wang notes that "lawyers 'are not guarantors of a favorable outcome in litigation,'
and their reasonable strategic decisions made in the course of representing a client do not amount
to malpractice." (Id. at 10 (quoting Iannazzo v. Day Pitney LLP, 04 Civ. 7413 (DC), 2007 WL
2020052, at *6 (S.D.N.Y. July 10, 2007)) As such, Esposito's claims regarding Defendants'
conduct at the mediation "cannot support a claim for malpractice, as it falls squarely in the
province of reasonable strategic decisions," and even if "a lawyer or their client may have
misjudged their chances on a dispositive motion or at settlement[, such a miscalculation] cannot
give rise to a claim of legal malpractice in hindsight." (Id. at 12)

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and their clients believe too strongly in their own chances of success or cannot see
weaknesses in their case. That a lawyer or their client may have misjudged their
chances on a dispositive motion or at settlement cannot give rise to a claim of
legal malpractice in hindsight.
(Id.(footnotes omitted))
"When presented with offers of settlement, clients customarily look to their
attorneys for advice....Ultimately, though, the decision of whether to accept a settlement offer
is one for the client." Ayala v.Fischman, 97 Civ.6698 (LMM), 2001 WL 1491292, at *4
(S.D.N.Y. Nov.26, 2001). Here, while Esposito contends that Defendants unilaterally rejected
the settlement offer, she acknowledges that she was aware of the offer. Indeed, she states that
she had concerns about rejecting the offer, but never expressed those concerns to Defendants.
(SAC (Dkt. No.92) ,r,r 32-33) The SAC's allegations thus demonstrate that Esposito ac quiesced
in Defendants' rejection of the offer. She now regrets accepting their advice, saying that "[b]ut
for the incorrect information imparted by Gary and Chestnut, [she] would have accepted the
$750,000 offer." (Id. ,r 104) But as the cases cited above demonstrate, and for the reasons
explained by Judge Wang, strategic decisions of this sort do not provide a basis for a legal
malpractice claim.
As to the reasonableness of rejecting the alleged $750,000 settlement offer,
Esposito repeatedly asserts

in the SAC that if "the case would have proceeded to trial[,] ...

[she] would have obtained a judgment of at least $25 million." (SAC (Dkt. No.92) ,r 74; see
also id.,r,r 79, 84, 89) Given these allegations, Esposito has not plausibly alleged that
\

Defendants gave "improper advice " when they told her that she could obtain much more than
$750,000 if she proceeded to trial. Toussie, 2023 W L 5152509, at *6 (quoting Marks Polarized
Corp.. 124 Misc.2d at 267).

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