Carry v. Raybin et al

Filing 16

REPORT AND RECOMMENDATION: For the reasons stated above, the Magistrate Judge recommends that the motion to dismiss 14 and statute of limitations grounds be GRANTED and that this case be DISMISSED with prejudice. Signed by Magistrate Judge Joe Brown on 11/3/11. (xc:Pro se party by regular and certified mail.)(tmw)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
EILEEN CARRY,
Plaintiff
v.
DAVID LOUIS RAYBIN and
HOLLINS, RAYBIN & WEISMAN, P.C.,
Defendants

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No. 3:11-0818
Judge Sharp/Brown

TO: THE HONORABLE KEVIN H. SHARP
REPORT AND RECOMMENDATION
For

the

reasons

stated

below,

the

Magistrate

Judge

recommends that the Defendants’ motion to dismiss (Docket Entry 14)
on the grounds that the complaint fails to state a claim upon which
relief can be granted because the Plaintiff’s claims are barred by
the statute of limitations T.C.A. § 28-3-104(a)(2) be GRANTED.
LEGAL BACKGROUND
The Plaintiff in this matter in 2005 became involved in
a dispute with Deborah Gonzales, M.D., which led to criminal
charges being placed against her.

The Magistrate Judge takes

judicial notice that the Plaintiff filed two lawsuits against Dr.
Gonzales in 2006, Cases 3:06-0157 and 3:06-0466.

Both of these

cases were dismissed on summary judgment.1

1

The Plaintiff has again sued Dr. Gonzales in a case which is
presently pending (Case 3:11-0446). It appears that there is a motion
to dismiss or for summary judgment by Dr. Gonzales, and the Plaintiff has
failed to respond in the time allowed. The Magistrate Judge will prepare
a separate report and recommendation in that matter.

The complaint in this matter (Docket Entry 1), as amended
by Docket Entry 8, alleges civil rights violations, breach of
contract, breach of implied contract, breach of covenant of good
faith and fair dealing, breach of ethical and fiduciary duty,
breach of trust, breach of standard, intentional misrepresentation,
deceptive

business

practice,

failure

to

recuse,

malpractice,

negligence, incompetence and misconduct, collusion, fraud, and
theft, against the named Defendants.
In the complaint Plaintiff alleges that she hired Mr.
Raybin and his law firm to represent her in criminal charges
pending against her out of the Gonzales matter in Davidson County.
She alleges that Mr. Raybin had promised to defend her, and instead
of doing so, on Friday afternoon of the August 26, 2005, entered
into

a

settlement

of

her

case

with

the

Assistant

District

Attorney.2 Plaintiff contends that this was without her knowledge,
permission, and against her express instructions.

The complaint

alleges that she was notified of this settlement on August 26,
2005.
The Plaintiff has filed no response to this motion to
dismiss within the time provided by the Rules.

2
The Plaintiff seems to take some delight in abbreviating the title
of the Assistant District Attorney.
If the Plaintiff intends to
abbreviate the title, she should use “Ass’t.”
The use of the her
abbreviation is totally inappropriate.

2

LEGAL DISCUSSION
In their memorandum in support of the motion to dismiss,
the Defendants provide the correct standard of review under Fed. R.
Civ. P. 12(b)(6), although for some reason they do cite cases from
the 1970's and 1980's, rather than the more recent cases of Bell
Atlantic v. Twombly, 127 S.Ct. 1955 (2007), and Ashcroft v. Iqbal,
129 S.Ct. 1937 (2009).
It is crystal clear that the complaint must be construed
in the light most favorable to the Plaintiff and its well-pleaded
facts must be accepted as true.

However, the Court did not accept

the true conclusions or unwarranted factual interference. Iqbal at
1949-50.
Applying this standard, the Magistrate Judge believes
that the Plaintiff’s complaint clearly fails to state a cause of
action that is not barred by the statute of limitations. Tennessee
Code

Annotated § 28-3-104(a)(2) provides:
The following actions shall be commenced within either
after the cause of action accrued . . . prove action and
suits against attorneys . . . for malpractice whether the
actions are grounded or based in contract or tort.
The Plaintiff’s cause of action accrued on August 26,

2005.

The present case was filed on August 26, 2011.

Thus, if the

one-year statute of limitation applies, this case is grossly
outside that limitation.
It appears that the Plaintiff has attempted to avoid the
statute

of

limitations

for

malpractice
3

by

alleging

contract

actions.

The statute of limitations for contracts in Tennessee is

six years under T.C.A. § 28-3-109(a)(3).

If this statute of

limitations was to be applied, the Plaintiff would have filed her
complaint on the last possible day.
The Magistrate Judge believes, however, that the one-year
statute of limitations is the applicable statute.

A recent case

decided by the Federal District Court of East Tennessee, Keszthelyi
v. Tune Entrekin & White, P.C., 2008 WL 1869740 (E.D. Tenn. 2008)
addresses this particular issue.

In that case the plaintiff

alleged both malpractice and breach of contract against the law
firm for providing bad advice and under a theory that a defense
counsel has a contractual obligation to provide the best defense.
Chief Judge Edgar pointed out that that the six-year cause of
action

under

T.C.A.

§

28-3-109(a)(3)

applied

contracts not otherwise expressly provided.

on

actions

for

He then went on to

point out that T.C.A. § 28-3-104(a)(2) provided that suits against
attorneys for malpractice, whether the action was grounded or based
in contract or tort, had a one-year statute of limitations.

He

also went on to point out that the breach of contract claim was
identical in nature and content to the malpractice claim and, thus,
subject to the one-year statute of limitations.
The

Magistrate

Edgar’s analysis.

Judge

fully

agrees

with

Chief

Judge

All of the activities complained about involve

the Defendants’ representation of the Plaintiff as her attorney.

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Therefore,

this

case

is

subject

to

a

one-year

statute

of

limitations, rather than a six-year statute of limitations and as
such the claim is barred and must be dismissed.
RECOMMENDATION
For

the

reasons

stated

above,

the

Magistrate

Judge

recommends that the motion to dismiss and statute of limitations
grounds be GRANTED and that this case be DISMISSED with prejudice.
Under Rule 72(b) of the Federal Rules of Civil Procedure,
any

party

has

14

days

from

receipt

of

this

report

and

recommendation in which to file any written objections to this
recommendation with the District Court.

Any party opposing said

objections shall have 14 days from receipt of any objections filed
in this report and recommendation in which to file any responses to
said objections.

Failure to file specific objections within 14

days of receipt of this report and recommendation can constitute a
waiver of further appeal of this recommendation.

Thomas v. Arn,

474 U.S. 140 106 S. Ct. 466, 88 L.Ed.2d 435 (1985), Reh’g denied,
474 U.S. 1111 (1986).
ENTER this 3rd day of November, 2011.
/s/ Joe B. Brown
JOE B. BROWN
United States Magistrate Judge

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