Opsitnick et al v. Crumpler
ORDER: Crumpler's Motion to Dismiss 10 is GRANTED in part and DENIED in part.Plaintiffs' breach of contract claim against Crumpler is DISMISSED, and plaintiffs' request for punitive damages is DISMISSED. Plaintiffs' legal malpractice claim against Crumpler survives. Signed by Chief Judge James C. Dever III on 4/28/2014. A copy of the order was mailed to the pro se plaintiffs. (Sawyer, D.)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
ROBERT OPSITNICK., JR.
and ANNA M. OPSITNICK.,
JUNIUS ALLEN CRUMPLER, ill,
On December 4, 2013, Robert Opsitnick, Jr., and Anna M. Opsitnick ("plaintiffs" or
"Opsitnicks") filed a civil action against Junius Allen Crumpler, ill ("defendant" or "Crumpler"),
alleging breach of contract and legal malpractice. See Compl. [D.E. 1]. Robert Opsitnick, Jr. is a
member ofthe Massachusetts Bar, but he and his wife Anna Opsitnick (both Massachusetts citizens)
filed suit prose against Crumpler. Crumpler is a North Carolina citizen and a member of the North
Carolina Bar. Jurisdiction is based on diversity. See 28 U.S.C. § 1332(a). On January 23, 2014,
Crumpler filed a motion to dismiss for failure to state a claim upon which relief can be granted. See
[D.E. 10]. On February 20,2014, the Opsitnicks responded in opposition [D.E. 15]. As explained
below, Crumpler's motion to dismiss is granted in part and denied in part.
In October 2009, the Opsitnicks retained J. Allen Crumpler, ill, Attorney at Law, PLLC to
represent them in a civil suit in Wake County Superior Court. See [D.E. 1-2]. In that civil suit, the
Opsitnicks' adult daughter was suing them concerning her trust fund.
The Opsitnicks paid
Crumpler's law firm $10,000, and Crumpler's law firm agreed to represent the Opsitnicks in
all pre-trial work for Superior/District Court matters relating to civil case #: 09 CVS
2069. Representation may include arguing summary judgment and all dispositive
motions at the trial court level. Representation does not include trial work which
will, if necessary, be covered under a separate fee agreement ... [or] any appeals ...
relating to this case.
[D.E. 1-2] 2 (emphasis omitted).
According to the Opsitnicks, complaint, Crumpler failed to advise the Opsitnicks ofpending
discovery requests and deposition notices, responded to some discovery requests without consulting
the Opsitnicks, failed to file a motion to dismiss, and failed to file a timely motion for summary
judgment. See [D .E. 1] 2-3. Moreover, according to the complaint, Crumpler, s failures culminated
in the Wake County Superior Court sanctioning Crumpler on December 7, 2010. See [D.E. 1-8].
At the sanctions hearing, the Opsitnicks advised the Superior Court that they wished to
discharge Crumpler, and the Superior Court permitted Crumpler to withdraw. See [D.E. 1-7] 29-30.
The Superior Court then removed the case from the trial calendar and ordered
that [the Opsitnicks] have 60 days to employ new counsel and notify the Trial Court
Administrator of Wake County of the name of their new counsel, and said counsel
shall have 60 days thereafter to complete all discovery. Thereafter, the matter shall
be reset on the trial calendar or motion calendar by the Trial Court Administrator of
Although the Opsitnicks, complaint does not mention what happened after the Superior Court
permitted Crumpler to withdraw, Crumpler contends that the Opsitnicks then decided to proceed
pro se in the underlying litigation. See [D.E. 11] 2. According to Crumpler, about six months after
the sanctions hearing and Crumpler, s withdrawal, the Opsitnicks went to trial and ''were found to
have, in concert, breached a position of trust and confidence in the management of their daughter, s
trust fund and Judgment was entered against the Opsitnicks for $51 ,243.23 in compensatory damages
[and] $285,000 in punitive damages.'' Id. 3.
According to the Opsitnicks' complaint in this case:
The Defendant had a Duty of Care to Plaintiffs, his Clients, under North
Carolina Revised Rules of Professional Conduct, to communicate and keep them
informed of all aspects of the case, etc.
Defendant breached the Duty of Care by Plaintiffs allegations 1 through 26
above, incorporated herein.
Plaintiffs suffered injury by further prolonged litigation and costs of new
representation and were adversely [a]ffected by representations made by defendant
to the court forcing Plaintiffs to trial without proper representation.
30. Defendant[']s actions, more specifically his failure to act, while representing
Plaintiffs in case 09 CVS 2069 caused Plaintiffs injuries and said injuries were
foreseeable to the Defendant and were Grossly Negligent.
Defendant was found to be Grossly Negligent by The Honorable Judge
Robert H. Hobgood.
[D.E. 1] 4. The Opsitnicks seek $250,000 in compensatory damages, $750,000 in punitive
damages, costs, and reasonable attorney's fees from Crumpler for legal malpractice. ld.
A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure for "failure
to state a claim upon which relief can be granted" tests whether the complaint is legally and factually
sufficient. See Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009); Bell Atl. Com. v. Twombly, 550
U.S. 544,562--63,570 (2007); Coleman v. Md. Court of Appeals, 626 F.3d 187, 190 (4thCir. 2010),
aff'd, 132 S. Ct. 1327 (2012); Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008); accord
Erickson v. Pardus, 551 U.S. 89, 93-94 (2007) (per curiam). In considering a motion to dismiss, a
court need not accept a complaint's legal conclusions drawn from the facts.
U.S. at 678. Similarly, a court ''need not accept as true unwarranted inferences, unreasonable
conclusions, or arguments." Giarratano, 521 F.3d at 302 (quotation omitted); see Iqbal, 556 U.S.
at 677-79. Moreover, a court may take judicial notice ofpublic records without converting a motion
to dismiss into a motion for summary judgment.
See,~' Fed. R.
Evid. 201; Tellabs. Inc. v. Makor
Issues & Rights. Ltd., 551 U.S. 308, 322 (2007); Philips v. Pitt Cnty. Mem'l Hosp., 572 F.3d 176,
180 (4th Cir. 2009).
The parties agree that North Carolina law governs the dispute. Crumpler moves to dismiss
the Opsitnicks' breach of contract claim because the Opsitnicks' contract was with J. Allen
Crumpler, ill, Attorney at Law, PLLC, see [D.E. 1-2] 2, yet the Opsitnicks sued Crumpler in this
caseonlyinhis individual capacity. See [D.E. 11] 4--5. Under North Carolina law, "[a]nauthorized
agent who enters into a contract on behalf of a disclosed principal generally is not personally liable
to third parties [for breach of contract] since the contract is with the principal." Baker v. Rushing,
104 N.C. App. 240,248,409 S.E.2d 108, 112 (1991); see Forbes Homes. Inc. v. Trimpi, 318 N.C.
473,479-80,349 S.E.2d 852, 856 (1986); Walston v. R. B. Whitley & Co., 226 N.C. 537, 540, 39
S.E.2d 375, 377 (1946). Thus, the court grants Crumpler's motion to dismiss the breach of contract
As for the Opsitnicks' legal malpractice claim against Crumpler, Crumpler ftrst argues that
the Opsitnicks improperly rely on theNorth Carolina Ru1es ofProfessional Conduct to establish civil
liability for legal malpractice. See [D.E. 11] 6. The Opsitnicks respond that their legal malpractice
claim is "not based solely on the Ru1es of Professional Conduct." [D.E. 16] 8.
The Opsitnicks may not rely solely on a breach of the Ru1es of Professional Conduct to
establish civil liability for legal malpractice. See, ~. Laws v. Priority Tr. Servs. ofN.C .. L.L.C.,
610 F. Supp. 2d 528, 531 (W.D.N.C. 2009), aff'd, 375 F. App'x 345 (4th Cir. 2010) (per curiam)
(unpublished); Great-West Life &Annuity Ins. Co. v. Bu1lock, 202 F. Supp. 2d461, 465 (E.D.N.C.
2002); Crumley & Assocs .. P.C. v. Charles Peed & Assocs .. P.A., 730 S.E.2d 763, 768 (N.C. Ct.
App. 2012); Baars v. Campbell Univ .. Inc., 148 N.C. App. 408, 421, 558 S.E.2d 871, 879 (2002);
Webster v. Powell, 98 N.C. App. 432, 439, 391 S.E.2d 204, 208 (1990), affd, 328 N.C. 88, 399
S.E.2d 113 (1991) (per curiam); McGeev. Eubanks, 77N.C. App. 369,374,335 S.E.2d 178, 181-82
(1985). Nonetheless, the complaint plausibly alleges that Crumpler violated implicit representations
that "(1) he possesse[d] the requisite degree of learning, skill, and ability necessary to the practice
ofhis profession and which others similarly situated possess; (2) hew[ould] exert his best judgment
in the prosecution of the litigation entrusted to him; and (3) he w[ould] exercise reasonable and
ordinary care and diligence in the use of his skill and in the application of his knowledge to his
client's cause." Hodges v. Carter, 239N.C. 517,519,80 S.E.2d 144, 145-46 (1954). Thus, because
the complaint does not rely solely on a breach of the Rules of Professional Conduct and because the
complaint (including the attachments) plausibly alleges a duty of care and breach ofthat duty of care,
the court declines to conclude that the Opsitnicks' legal malpractice claim relies solely on
Crumpler's violations of the Rules of Professional Conduct.
Next, Crumpler argues that the complaint reveals that the Opsitnicks have failed to plausibly
allege proximate cause because theWake County Superior Court gave them the opportunity to retain
new counsel, to have "60 days thereafter to complete all discovery," and to then get a new date for
motions and a trial. [D.E. 1-7] 30. According to Crumpler, the Wake County Superior Court
essentially gave the Opsitnicks the opportunity to "redo" the discovery and motions practice that the
Opsitnicks contend that Crumpler botched and then to have a fair trial with new counsel. See [D.E.
11] 10. Thus, Crumpler argues that the Opsitnicks cannot show that his alleged legal malpractice
proximately caused any injury to them. See id. 12-13. The Opsitnicks respond that they have
plausibly alleged that Crumpler's legal malpractice foreseeably caused them injury in the underlying
case, including (at a minimum) causing them to incur additional litigation costs and to be
disadvantaged in the litigation that took place after Crumpler withdrew. See [D.E. 16] 9-11.
"To establish that negligence is a proximate cause of the loss suffered, the plaintiff must
establish that the loss would not have occurred but for the attorney's conduct." Rorrer v. Cooke, 313
N.C. 338, 361, 329 S.E.2d 355, 369 (1985); see also Gram v. Davis, 128 N.C. App. 484, 489,495
S.E.2d 384, 387-88 (1998) (allowing recovery of litigation costs associated with remedying the
effects of attorney malpractice). The Opsitnicks' complaint crosses the line of plausibility as to
proximate cause because (at a minimum) they plausibly allege that they incurred additional litigation
costs to remedy the effects of Crumpler's alleged malpractice. Accordingly, Crumpler's motion to
dismiss the legal malpractice claim is denied.
Finally, Crumpler moves to dismiss the Opsitnicks' request for punitive damages. The
Opsitnicks' request for punitive damages does not plausibly allege that Crumpler is liable for
punitive damages under North Carolina law. Cf. N.C. Gen. Stat.§§ 1D-1, 1D-5, 1D-10, 1D-15; see
Martinezv. Nat'l Union Fire Ins. Co., 911 F. Supp. 2d 331,339 (E.D.N.C. 2012); Estrada v. Consol.
Util. Servs.. Inc., No. 5:10-CV-161-RLV, 2011 WL 2174467, at *2-3 (W.D.N.C. June 2, 2011)
(unpublished). Thus, the court grants Crumpler's motion to dismiss the Opsitnicks' request for
In sum, Crumpler's motion to dismiss [D.E. 10] is GRANTED in part and DENIED in part.
Plaintiffs' breach of contract claim against Crumpler is DISMISSED, and plaintiffs' request for
punitive damages is DISMISSED. Plaintiffs' legal malpractice claim against Crumpler survives.
SO ORDERED. This J.8... day of April2014.
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