Jones v. Lattimer , 29 F. Supp. 3d 5 ( 2014 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
MABLE JONES,
Plaintiff,
Civil Action No. 12-2050 (BAH)
v.
Judge Beryl A. Howell
GREGORY L. LATTIMER, et. al.,
Defendants.
MEMORANDUM OPINION
Pending before the Court is the defendant Gregory Lattimer’s motion to dismiss the
plaintiff’s claims against him or, alternatively, to grant summary judgment in his favor, under
Federal Rules of Civil Procedure 12(b)(6) and 56. Def.’s Mot. Dismiss Alt. Summ. J. (“Def.’s
Mem.”), ECF No. 17. The plaintiff alleges in this legal malpractice suit that both defendants,
who are attorneys, breached their duty of care to the plaintiff while representing her in a
wrongful death action by negligently providing her settlement advice, thereby leading her to
reject multiple settlement offers. See generally Complaint (“Compl.”), ECF No. 1-2.1 The
defendant argues that the plaintiff has failed to state a cause of action under applicable D.C. law
and that, in any event, the plaintiff’s claims are barred by the statute of limitations. For the
reasons stated below, the defendant’s motion is denied.
1
This case was originally filed in the Superior Court for the District of Columbia and timely removed to this Court,
under 18 U.S.C. § 1332, because the amount in controversy exceeds $75,000 and there is complete diversity
between the parties. The plaintiff is domiciled in Pennsylvania, the defendant Ted Williams is domiciled in
Maryland, with his place of business in the District of Columbia, and defendant Gregory Lattimer has his place of
business in the District of Columbia. See Notice of Removal ¶¶ 2, 3, ECF No. 1.
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I. BACKGROUND
The complaint alleges that the plaintiff’s son was shot and killed on September 1, 2000,
by officers of the Prince George’s County Police Department, who, after conducting surveillance
of the son’s car in Maryland, followed him into Virginia, where he was shot five times. Compl.
¶¶ 9–13. The plaintiff subsequently retained the defendants to represent her to pursue wrongful
death and civil rights claims “arising out of and/or relating to the death of her son.” Id. ¶ 4.
During that representation, the defendants filed a lawsuit in this Court on behalf of the plaintiff
“Individually and as the Personal Representative of her son’s estate,” in December 2000. Id. ¶
15. This suit was subsequently transferred to the District of Maryland, id. ¶ 20, and, on April 2,
2008, resolved with summary judgment granted to the defendants, id. ¶ 27. This decision was
affirmed by the U.S. Court of Appeals for the Fourth Circuit on December 8, 2009, and the
plaintiff’s petition for rehearing was denied on January 5, 2010. Id. ¶¶ 28–30.
After the Fourth Circuit’s final decision, defendant Lattimer sent an email, dated April 7,
2010, the text of which is set out in the complaint, advising the plaintiff that although “the
appendix [was sent] to the printer,” he is “finally convinced that the way the Fourth Circuit
handled the case makes it extremely unlikely that the Supreme Court would grant a Writ.” Id. ¶
31. He further advised that “no matter how much I tried to convince you that we had a real
chance with the Supreme Court, I can not convince myself of that fact” and “that I too am
convinced that any further expenditure of resources in this matter would be ill-advised.” Id.(emphasis in original).
While the federal case was pending in this Court and the District of Maryland, the
defendants also represented the plaintiff in a wrongful death action before the Circuit Court for
Prince George’s County, Maryland. Id. ¶¶ 21–22. Although the plaintiff prevailed in a 2006
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jury trial in that local action, the verdict in the plaintiff’s favor was struck since, under the law of
Virginia, which applied since that was the place of the son’s wrongful death, the plaintiff, as
personal representative of her son’s estate, did not have a substantive legal right to recover
damages when her son’s child was the only permissible beneficiary and had previously settled
the claim. Id. ¶¶ 22, 24–27.
During the course of the parallel federal and local lawsuits, the plaintiff alleges that she
turned down settlement offers “made to her of ‘$3 million while the case was still in federal
court in D.C.’ and the ‘$1 million after the Maryland Circuit Court trial,’ ” because the
defendants “never advised [her] of the risk” and “failed to advise [her] that she lacked standing
to pursue a claim and should accept the monies being offered.” Id. ¶ 32 (citing text of defendant
Lattimer’s email, dated April 7, 2010). According to the plaintiff, if she had not been given
“erroneous advice,” she “would have accepted the settlement offers” and has now “forever lost
her ability to collect any monies associated with the death of her son.” Id.The plaintiff filed the instant complaint on December 4, 2012, asserting two claims of
legal malpractice, one against each defendant. Defendant Williams has answered the complaint,
see Williams Answer, ECF No. 4,2 and discovery is proceeding pursuant to a Scheduling Order
entered on February 28, 2014. See Feb. 28, 2014 Scheduling Order.
II. LEGAL STANDARD
To survive a motion to dismiss under Rule 12(b)(6), a plaintiff need only plead “enough
facts to state a claim to relief that is plausible on its face” and to “nudge[ ] [his or her] claims
across the line from conceivable to plausible.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007); see also FED. R. CIV. P. 12(b)(6). “[A] complaint [does not] suffice if it tenders ‘naked
2
Defendant Williams raises several affirmative defenses but does not raise either the statute of limitations or failure
to state a cause of action based on “judgmental immunity” defenses at issue in the instant motion. Williams Answer
at 6.
3
assertion[s]’ devoid of ‘further factual enhancement.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (alteration in original) (quoting Twombly, 550 U.S. at 557). “[T]he plaintiff [must] plead[
] factual content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id.; accord Rudder v. Williams, 666 F.3d 790, 794 (D.C. Cir.
2012). The Court “must assume all the allegations in the complaint are true (even if doubtful in
fact) . . . [and] must give the plaintiff the benefit of all reasonable inferences derived from the
facts alleged.” Aktieselskabet AF 21. November 2001 v. Fame Jeans Inc., 525 F.3d 8, 17 (D.C.
Cir. 2008) (citations and internal quotation marks omitted).
The Federal Rules of Civil Procedure provide that if “matters outside the pleadings are
presented to and not excluded by the court, the motion must be treated as one for summary
judgment,” and if a motion is so converted, “[a]ll parties must be given a reasonable opportunity
to present all the material that is pertinent to the motion.” FED. R. CIV. P. 12(d). “The decision
to convert a motion to dismiss into a motion for summary judgment . . . is committed to the
sound discretion of the trial court.” Flynn v. Tiede-Zoeller, Inc., 412 F. Supp. 2d 46, 50 (D.D.C.
2006). “In exercising this discretion, the ‘reviewing court must assure itself that summary
judgment treatment would be fair to both parties.’ ” Bowe–Connor v. Shinseki, 845 F. Supp. 2d
77, 85–86 (D.D.C. 2012) (quoting Tele-Commc’ns of Key W., Inc. v. United States, 757 F.2d
1330, 1334 (D.C. Cir. 1985)).
III. DISCUSSION
Defendant Lattimer argues that the plaintiff’s claim against him, which is set out in Count
I of the Complaint, should be dismissed, pursuant to Federal Rule of Civil Procedure 12(b)(6), on
two grounds: first, the plaintiff has failed to state a cause of action for legal malpractice because
D.C. law does not recognize a claim for “negligent settlement advice,” Def.’s Mem. at 9–12;
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and, second, the plaintiff’s claims are barred by the three-year statute of limitations that applies
to legal malpractice actions under D.C. Code § 12-301. Id. at 12–13. In view of the fact-specific
inquiries on which these arguments are based, defendant Lattimer also invites the Court to
consider factual matters outside of the Complaint to grant him summary judgment pursuant to
Federal Rule of Civil Procedure 56. Each of the defendant’s arguments are addressed, seriatim,
below.
A. SUFFICIENCY OF CLAIM FOR NEGLIGENT SETTLEMENT ADVICE
To prove legal malpractice under D.C. law, a plaintiff must (a) “show an applicable
standard of care;” (b) “prove a breach of that standard;” and (c) “demonstrate a causal
relationship between the violation and the harms enumerated in the complaint.” In re Estate of
Curseen, 890 A.2d 191, 193 (D.C. 2006) (citing O’Neil v. Bergan, 452 A.2d 337, 341
(D.C.1982)); see also Crawford v. Katz, 32 A.3d 418, 427 (D.C. 2011); Biomet Inc. v. Finnegan
Henderson LLP, 967 A.2d 662, 664–65 (D.C. 2009). Defendant Lattimer contends that the
plaintiff cannot meet these elements for a viable legal malpractice claim because the gravamen of
her complaint concerns conduct for which attorneys in the District of Columbia are cloaked with
“judgmental immunity,” and therefore dismissal of the complaint against him is warranted.
Def.’s Reply Pl.’s Opp’n Mot. Summ. J. (“Def.’s Reply”) at 17, ECF No. 22. The Court
disagrees.
At the outset, the parties dispute whether Maryland or District of Columbia law applies to
evaluate the sufficiency of the plaintiff’s legal malpractice claim. While the parties do not
dispute that Maryland law recognizes a legal malpractice claim based on providing negligent
settlement advice, see Def.’s Reply at 13–16; Pl.’s Opp’n Def.’s Mot. Dismiss Alt. Summ J. &
Request Oral Arg. (“Pl.’s Opp’n”) at 22, ECF No. 21; see also Thomas v. Bethea, 351 Md. 513,
5
528–29 (Md. 1998) (recognizing claim for legal malpractice for “an attorney’s recommendation
regarding the settlement of a dispute”), they differ on whether D.C. law recognizes a
corresponding claim for negligent settlement advice. Relying on the D.C. Court of Appeals
decision in Biomet Inc., 967 A.2d 662, the defendant contends that D.C. law does not recognize
such a legal malpractice claim based on “negligent recommendation.” See Def.’s Mem. at 9;
Def.’s Reply at 17. The plaintiff disputes this interpretation of D.C. law, Pl.’s Opp’n at 24–26,
but, in any event, contends that under D.C. choice of law principles, Maryland law, not D.C. law,
is applicable. Id. at 18–21.
When exercising diversity jurisdiction, a federal court applies the choice of law of the
forum state. Shaw v. Marriott Int’l, Inc., 605 F.3d 1039, 1045 (D.C. Cir. 2010); Mastro v.
Potomac Elec. Power Co., 447 F.3d 843, 857 (D.C. Cir. 2006) (choice of law analysis implicated
“when [federal court is] deciding state-law claims under diversity or supplemental jurisdiction”);
Williams v. First Gov’t Mortg. & Investors Corp., 176 F.3d 497, 499 (D.C. Cir. 1999) (citing
Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941)). Under District of Columbia
choice of law principles, “the Court must first determine whether a ‘true conflict’ exists between
the laws of the competing jurisdictions.” Margolis v. U-Haul Int’l, Inc., 818 F. Supp. 2d 91, 100
(D.D.C. 2011). Assuming such a conflict exists, District of Columbia “law will be applied
unless the foreign state has a greater interest in the controversy.” Jones v. Clinch, 73 A.3d 80, 82
(D.C. 2013) (quoting Kaiser-Georgetown Cmty. Health Plan, Inc. v. Stutsman, 491 A.2d 502,
509 (D.C. 1985)).
The Court is not persuaded that a “true conflict” exists between the law of Maryland and
the District of Columbia under the circumstances alleged in this case.3 In Biomet Inc., the D.C.
3
If there were a conflict in the applicable law between this forum and Maryland the Court would still decline to
engage in a choice of law analysis because the allegations in the plaintiff’s complaint are insufficient to evaluate
6
Court of Appeals used the term “judgmental immunity” to describe a doctrine that the court
dated back to the 19th century Supreme Court case of National Savings Bank v. Ward, 100 U.S.
195, 198 (1880), which held that “an attorney is not liable for mistakes made in the honest
exercise of professional judgment.” 967 A.2d at 665. The Court of Appeals, in essence,
promulgated a “reasonableness” standard, permitting an attorney sued for legal malpractice to
prevail on grounds of “judgmental immunity,” upon demonstrating “that (1) the alleged error is
one of professional judgment, and (2) the attorney exercised reasonable care in making his or
her judgment.” Id. at 666 (emphasis added). See also Encyclopaedia Britannica, Inc. v.
Dickstein Shapiro, LLP, No. 10-0454, 2012 WL 8466139, at *17 (D.D.C. Feb. 2, 2012) (noting
that “the alleged attorney error to which the judgmental immunity principle applies must actually
be a mistake of professional judgment,” particularly “regarding an unsettled proposition of law,”
but does not cover “a simple administrative error”).
This standard bears little substantive difference to Maryland’s standard, which requires
the plaintiff to allege that the recommendation “was one that no reasonable attorney, having
undertaken a reasonable investigation into the facts and law as would be appropriate under the
circumstances, and with knowledge of the same facts, would have made.” Thomas, 351 Md. at
520 (quoting Prande v. Bell, 105 Md. App. 636, 656 (1995)) (emphasis added). Consequently,
adequately the choice of law issues raised by the defendant’s motion “and therefore [choice of law analysis is] better
suited to resolution on motions for summary judgment,” after an opportunity for discovery. La Reunion Aerienne v.
Socialist People’s Libyan Arab Jamahiriya, 477 F. Supp. 2d 131, 137 (D.D.C. 2007), aff’d in part on other grounds,
appeal dismissed in part, 533 F.3d 837 (D.C. Cir. 2008); see also Clark Material Handling, Inc. v. Toyota Material
Handling, U.S.A., Inc., No. 3:12-CV-510, 2012 WL 6107682, at *1 (W.D.N.C. Dec. 10, 2012) (declining to engage
in choice of law analysis at motion to dismiss stage in order to fully develop factual record at the close of
discovery); Speedmark Transp., Inc. v. Mui, 778 F. Supp. 2d 439, 444 (S.D.N.Y. 2011) (finding that choice of law
determination is “premature on [] motion to dismiss, since the record” lacked necessary development for the fact-
specific analysis) (collecting cases); Arlandson v. Hartz Mountain Corp., 792 F. Supp. 2d 691, 699–700 (D.N.J.
2011) (recognizing that “[d]ue to the factual inquiry that may be necessary to properly weigh the [choice of law]
Restatement factors, it can be inappropriate or impossible for a court to conduct that analysis at the motion to
dismiss stage when little or no discovery has taken place”) (internal quotation marks and citations omitted).
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despite the D.C. Court of Appeals’ use of the term “immunity,” under both Maryland and D.C.
law, an attorney in a legal malpractice suit must still prove that he or she “exercised reasonable
care,” Biomet Inc., 967 A.2d at 666, or acted as a “reasonable attorney” would under the same
circumstances in order to avoid liability. Thomas, 351 Md. at 520. See Harris Teeter, Inc. v.
Moore & Van Allen, PLLC, 390 S.C. 275, 302 (S.C. 2010) (“The core of this [judgmental
immunity] rule is nothing more than a tautology; it has always been clear that so long as an
attorney exercises a reasonable degree of skill and care he will not suffer liability. Adopting a
separate rule that restates that cardinal principle of our malpractice jurisprudence and
denominates it an ‘immunity’ certainly is de trop.”); Sun Valley Potatoes, Inc. v. Rosholt,
Robertson & Tucker, 981 P.2d 236, 240 (Idaho 1999) (“Rather than being a rule which grants
some type of ‘immunity’ to attorneys, [judgmental immunity] appears to be nothing more than a
recognition that if an attorney’s actions could under no circumstances be held to be negligent,
then a court may rule as a matter of law that there is no liability.”).
Notably, courts applying D.C. law have entertained legal malpractice claims based on
negligent settlement recommendations, undercutting defendant Lattimer’s argument that such
claims are foreclosed under D.C. law. See Def.’s Mem. at 9–12. In the legal malpractice case of
Seed Co., Ltd. v. Westerman, 840 F. Supp. 2d 116, 127 (D.D.C. 2012), the district court declined
to grant summary judgment to the defendants on the plaintiffs’ claim that they had refused a
settlement offer based on the defendants’ advice. Id. The court “deem[ed] that it would not be
appropriate at this stage to grant summary judgment . . . with respect to the plaintiffs’ erroneous
legal advice claim, and denie[d] their motion . . . to allow the parties to develop a factual record
regarding this claim.” Id. See also Crawford v. Katz, 32 A.3d 418, 434 (D.C. 2011) (remanding
legal malpractice case to trial court to address in the first instance “bad legal advice” argument
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based on defendants’ settlement advice); Estate of Darby v. Medhin, 1991 U.S. Dist. LEXIS 752,
at *4 (D.D.C. Jan. 22, 1991) (“Under District of Columbia law, a settlement attorney is
responsible for negligent advice given to a party to the settlement even though that party is not
his client.”).
The defendant relies on Mills v. Cooter, 647 A.2d 1118, 1121 (D.C. 1994), for the
proposition that the plaintiff cannot maintain a legal malpractice suit based on “erroneous legal
judgment.” Yet this case simply does not hold that D.C. law denies recovery for claims of
negligent settlement advice. In Mills, and unlike in Biomet, Inc., the plaintiff failed to present
evidence that the defendant had violated the applicable standard of care through his own
oversight or negligence and, instead, essentially disagreed with his lawyer’s trial strategy. Id.Contrary to the defendant’s argument regarding “judgmental immunity” under D.C. law, the
court expressly stated that “[w]e do not suggest that a legal malpractice claim could never lie as a
result of an attorney’s exercise of flawed legal judgment.” Id. at 1122–23 (citing Mims v. Mims,
635 A.2d 320, 325 n.12 (D.C. 1993)) (emphasis in original).
Set against the explanation in Biomet Inc. for when an attorney’s “honest exercise of
professional judgment” precludes a legal malpractice claim, 967 A.2d at 665, the Court now
turns to the allegation at issue here. Defendant Lattimer correctly sums up the plaintiff’s
complaint against him as providing her “with ‘negligent recommendations’ that she relied upon
to her detriment” when she rejected “multiple settlement offers made to her of at least $1
million.” Def.’s Mem. at 9. Specifically, the plaintiff alleges that the defendant advised her to
reject the settlement offers “because her case had much greater value,” Compl. ¶ 36, at the same
time that he “failed to advise [her] that she lacked standing to pursue a claim and should accept
the monies being offered,” id. ¶ 32. As the defendant construes these allegations, the plaintiff
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points to “no facts of which [counsel] was unaware but should have known,” “no deadlines that
should have been met that were not,” and “no defendants and/or claims that should have been
pursued, but were not.” Def.’s Reply at 17. Rather, the defendant contends that the plaintiff
accuses him of recommending that she reject the settlement offers due to his “fail[ure] to
research, investigate, and reasonably advise her of the risks associated with rejecting the
settlement offers.” Id. at 20. In his view, even if these allegations were correct, and his
“judgment was erroneous,” Def.’s Mem. at 11, this would not show “derelictions on the part of []
counsel” and therefore “cannot form the basis of a claim for legal malpractice.” Id.
Putting aside the defendant’s vigorous denial of the factual allegations underlying the
instant complaint,4 the defendant’s argument misses the point. The plaintiff is not disputing the
reasonableness or correctness of the legal advice the defendant says he provided about her lack
of standing in her personal capacity. Rather, the plaintiff disputes that she received this advice at
all. She also directly contradicts the defendant’s assertion that he recommended acceptance of
the settlement offers and alleges instead that the defendant advised her to reject those offers for
reasons that she has outlined in her Complaint. See Compl. ¶¶ 35–36 (“Through Mr. Lattimer’s
representation of Plaintiff, he negligently advised her on multiple occasions that she should turn
down any settlement offers;” “Plaintiff, in reliance upon Mr. Lattimer’s negligent advice,
4
Defendant Lattimer asserts that he, in fact, told the plaintiff that she “had no viable cause of action in her personal
capacity” and recommended that she accept the settlement offers. Def.’s Reply at 20–21. These assertions are
bolstered by the excerpts provided of defendant Lattimer’s testimony in the Orphan’s Court for Prince George’s
County on August 17, 2001, see Def.’s Reply at 18, as well as the fact that after negotiating a settlement offer in
2004, he “personally informed” opposing counsel that he would recommend its acceptance, id. at 10. Moreover, he
has provided two affidavits, backed up with over 20 exhibits, to show that the plaintiff, who is “well-educated,” was
involved in “every aspect of the settlement discussions” that occurred on five separate occasions and “steadfastly
refused” to accept the settlement offers “against the advice of counsel, for reasons as silly as not wanting her ex-
husband to recover anything, or not wanting the lawyers representing her ex-husband to be paid attorneys’ fees off
the death of her son.” Def.’s Mem. at 9 (emphasis in original); Aff. of Gregory L. Lattimer, ¶¶ 7–14, ECF No. 17-
20 (summarizing settlement discussions terminated and/or offers rejected by the plaintiff from October 2002–March
2003, when $4,450,000 offer rejected; from November 2003 to early 2004; in March 2005; before the 2006 trial
when $1,000,000 offer rejected; and after the 2006 trial, when $1,000,000 offer rejected); Supp. Aff. of Gregory L.
Lattimer ¶ 4, ECF No. 22-3. Notwithstanding these substantive factual showings, as explained infra, summary
judgment is inappropriate at this time.
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decided to turn down two settlement offers;” Mr. Lattimer “fail[ed] to competently advise her as
to the risk of turning down both settlement offers and, in fact, recommend[ed] that she do so”).
These are factual disputes over whether advice was given, not disputes over the reasonableness
of the defendant’s legal advice. Consequently, the determination of whether the plaintiff
received the legal advice the defendant claims he gave is not suitable for resolution on a motion
to dismiss.
In sum, the plaintiff has plead sufficient facts in her Complaint to state a claim for legal
malpractice. The plaintiff states that defendant Lattimer owed the plaintiff “a reasonable duty,”
which included “making appropriate and reasonable settlement recommendations to Plaintiff.”
Compl. ¶ 35. The plaintiff also states that defendant Lattimer “never advised Plaintiff of the risk
associated with turning down” a $3 million settlement offer while her wrongful death action was
in federal court, and a $1 million settlement offer while the case was in Maryland Circuit Court.
See Compl. ¶ 32. The plaintiff further alleges that defendant Lattimer “negligently advised [the
plaintiff] on multiple occasions that she should turn down any settlement offers” and that the
plaintiff turned down these two settlement offers in reliance on this advice. Id. ¶ 35. The
plaintiff pleads that this “negligent legal advice . . . was the proximate cause of Plaintiff’s loss of
two settlement offers.” Id. ¶ 37. Thus, the plaintiff has sufficiently pled a viable claim for legal
malpractice under either Maryland or D.C. law. Accordingly, the Court denies the defendant’s
motion to dismiss due to the plaintiff’s failure to state a claim.
B. STATUTE OF LIMITATIONS IS LIKELY NO BAR TO COMPLAINT
Defendant Lattimer contends that the plaintiff’s suit is time-barred because, under any of
three possible dates of accrual, the latest of which was “four(4) years and eight(8) months before
plaintiff’s complaint was filed in this case,” Def.’s Mem. at 13, the statute of limitations had
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already expired by the time the plaintiff filed her complaint. The plaintiff counters that the
continuing representation theory applies, which tolls the statute of limitations until the date when
the defendant ceased representing the plaintiff “ ‘in the subject matter in which the error has
occurred.’ ” Pl.’s Opp’n at 30 (quoting Mallen & Smith, Section 23.13 at 419). Although
defendant Lattimer discounts the plaintiff’s continuous representation argument as “unabashedly
frivolous,” Def.’s Reply at 21, such hyperbole is no substitute for facts. Accordingly, because a
critical, undisputed allegation in the Complaint makes clear that the defendant continued to
represent the plaintiff up to April 2010, within the three-year statute of limitation, the Court
denies the defendant’s motion to dismiss and finds that the plaintiff’s suit is timely.
The applicable statute of limitations under District of Columbia law for legal malpractice
is three years “from the time the right to maintain the action accrues.” D.C. Code § 12-301(8);
see also Wagner v. Sellinger, 847 A.2d 1151, 1154 (D.C. 2004); Knight v. Furlow, 553 A.2d
1232, 1233 (D.C. 1989). D.C. follows the “injury” rule, under which a cause of action for “legal
malpractice accrues when the plaintiff-client suffers actual injury.” See Hunt v. Bittman, 482 F.
Supp. 1017, 1020 (D.D.C. 1980), aff’d, 652 F.2d 196 (D.C. Cir. 1981). In legal malpractice
cases, however, the D.C. Court of Appeals has adopted the “continuous representation” rule,
under which “the cause of action is tolled until the attorney ceases to represent the client in the
specific matter at hand.” R.D.H. Commc’ns, Ltd. v. Winston (Winston), 700 A.2d 766, 768 (D.C.
1997) (adopting the continuous representation rule); see also Encyclopaedia Britannica, Inc.,
2012 WL 8466139, at *6 (“Under this rule, ‘when the injury to the client may have occurred
during the period the attorney was retained, the malpractice cause of action does not accrue until
the attorney’s representation concerning the particular matter in issue is terminated.’ ” (quoting
Winston, 700 A.2d at 768)). “The rule’s primary purpose is to avoid placing a client in the
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untenable position of suing his attorney while the latter continues to represent him.” Winston,
700 A.2d at 768 (quoting Williams v. Mordkofsky, 901 F.2d 158, 163 (D.C. 1990)). For that
reason, the rule is limited “to situations in which the attorney who allegedly was responsible for
the malpractice continues to represent the client in that case.” Williams, 901 F.2d at 163
(quoting Glamm v. Allen, 57 N.Y.2d 87, 94 (N.Y. 1982)).
Defendant Lattimer contends that the plaintiff’s instant negligence cause of action began
to accrue on one of three dates: first, on November 27, 2006, when the plaintiff sent a letter on
her own to the Prince George’s County Executive seeking a settlement for $2 million, after
which the defendant was not “involved in any way” in settlement discussions “of any kind,”
Def.’s Mem. at 6, 12; second, on January 26, 2007, when the plaintiff’s local wrongful death
case was terminated upon the Court of Special Appeals of Maryland affirmance of the trial
court’s ruling striking the verdict in the plaintiff’s favor, id. at 13; or, third, on April 2, 2008
when the plaintiff’s federal claims were dismissed by the U.S. District Court for Maryland. Id.;
see also id. Ex. 11, ECF No. 17-12 (docket sheet in federal case indicating that the clerk was
directed to close the case on this date). 5 The defendant argues that the latest of these dates still
falls outside of the three-year statute of limitations for legal malpractice, rendering the plaintiff’s
case untimely.
According to the plaintiff, the defendant’s representation of the plaintiff continued “well
after December 4, 2009 (i.e. three years before the filing of the Complaint),” because the
defendant continued to “render services” to the plaintiff after this date. Pl.’s Opp’n at 31. The
plaintiff’s Complaint sets out the contents of an email, dated April 7, 2010, sent from defendant
5
The Court may take notice of matters of public record, such as judicial opinions and orders, on a motion to dismiss
without converting it into a summary judgment motion. Jacobsen v. Oliver, 201 F. Supp. 2d 93, 110 (D.D.C. 2002)
(citing Marshall Cnty. Health Care Auth. v. Shalala, 988 F.2d 1221, 1222 (D.C.Cir. 1993)). The consideration of
this order closing the case, therefore, does not militate that the Court convert the instant motion into a summary
judgment motion.
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Lattimer to the plaintiff informing her that he had “been doing legal research for the last week”
and had “sent the appendix over to the printer” but found it “extremely unlikely that the Supreme
Court would grant a Writ,” Compl. ¶ 31, to review the Fourth Circuit’s unpublished per curiam
order affirming the district court’s grant of summary judgment for the defendants. See Pl.’s
Opp’n Ex. 17, ECF No. 21-17. The defendant elaborates in this same email that he did “not want
to abandon the case” and that he “tried to convince [the plaintiff] that [they] had a real chance
with the Supreme Court.” Compl. ¶ 31.
Defendant Lattimer does not deny that he sent the April 7, 2010, email regarding an
appeal of the federal case, or dispute the authenticity of the contents as relayed by the plaintiff.
Instead, he attempts to discount the relevance of this email to the timeliness of the instant suit by
distinguishing between the plaintiff’s federal litigation and the plaintiff’s litigation in Maryland
Circuit Court, claiming that “the federal court survival action for the benefit of the Estate[] is not
the same litigation as the litigation in which she is contending that negligence occurred.” See
Def.’s Reply at 22. This assertion is puzzling, however, since the plaintiff is plainly claiming
negligence in both the federal and state litigation, because she rejected settlements on the
defendant’s purported advice in both actions.
In any event, even if the federal and state litigation concluded at different times,
defendant Lattimer represented the plaintiff in both cases, which were so closely related that the
continuous representation rule applies to both. Courts have provided “little guidance” regarding
the scope of a “particular matter at issue.” De May v. Moore & Bruce, LLP, 584 F. Supp. 2d
170, 181 (D.D.C. 2008) (collecting cases) (quoting Winston, 700 A.2d at 768). Certainly, the
continuous representation rule does not apply where the attorney represents the same client in a
wholly different matter, see id., or where the client finds new representation for the same matter.
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See, e.g., Encyclopaedia Britannica, Inc., 2012 WL 8466139, at *15–16 (finding that defendant,
who had represented plaintiff in PTO patent litigation, did not continuously represent the
plaintiff in litigation to enforce patents against other parties, in part because plaintiff “retained
another firm to actually handle the litigation”). Yet, where, as here, the plaintiff continues to be
represented by the same attorney, even after an adverse decision, the statute of limitations period
is tolled for the period of that representation. See Winston, 700 A.2d at 769 (finding that
continuous representation rule tolled statute of limitations, even after plaintiff’s FCC petition
was denied due to defendant’s error, in part because plaintiff did not “hire[] a new attorney” and
chose “to stay the course with” defendant).
Moreover, as the court found in De May, the continuous representation rule may extend
to different legal actions where they “all relate[]” to the same issue. 584 F. Supp. 2d at 182. In
that case, the defendants’ creation of four trusts for the plaintiff and subsequent representation of
the plaintiff in a tax audit and Tax Court litigation related to those trusts were deemed related
matters for purposes of tolling under the continuous representation rule because the issues “all
related to . . . defendants’ attempt to structure these trusts to minimize plaintiffs’ tax burden.” Id.The court held that the defendants continuously represented the plaintiff for almost a decade
where “defendants’ roles in creating and amending the trusts, administering the trusts, and
defending the trusts against the IRS were all inextricably intertwined and without interruption for
almost a decade.” Id. at 182. That case is similar to the facts in the instant case in which both
the federal and state cases arose out of the same incident involving the wrongful death of the
plaintiff’s son.
Here, defendant Lattimer presents two theories to bolster his argument that the
continuous representation rule ceased to be tolled more than three years before the plaintiff filed
15
the present suit. All his arguments are inapposite. First, defendant Lattimer claims that he was
no longer involved in settlement disputes after the date of the last settlement negotiation in
November 2006. Def.’s Mem. at 12. By focusing on one event in the course of litigation,
however, the defendant loses sight of the fact that the continuous representation rule tolls accrual
of the plaintiff’s cause of action until the representation in the litigation as a whole has ended,
not when the defendant ceased working on the particular issue giving rise to the cause of action.
See Winston, 700 A.2d at 769. The defendant does not otherwise contest that he continued to
represent the plaintiff past this date. Def.’s Mem. at 12.
Second, the defendant argues that the plaintiff’s federal and state actions are not related
because the plaintiff did not have a personal right to recovery in the federal case. Def.’s Reply at
21–22. Such a distinction is specious. The plaintiff retained the defendant to represent her in
claims arising from the same facts and against the same defendants in actions that were litigated
concurrently. Compl. ¶¶ 15–29, 34. The defendant fails to point to a single case that finds that
the right to recovery determines whether representation is continuous. See Def.’s Reply at 21–
22. In fact, defendant Lattimer originally argued in his Motion to Dismiss that the Court could
“take into account the lawsuit that was [] pending in the U.S. District Court for Maryland” for
purposes of determining tolling under the continuous representation rule. Def.’s Mem. at 13.
The defendant’s own recounting of the facts amply demonstrates that the two actions are related.
See Def.’s Mem. at 6. The defendant concedes that the plaintiff was offered a $1 million
settlement of her state law claims by Prince George’s County if she agreed to dismiss her federal
court lawsuit against the same defendant and its employees, further confirming the inter-
relatedness of the parallel actions. See id. Thus, the continuous representation rule applies to
toll the statute of limitations until defendant Lattimer’s representation of the plaintiff ceased,
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which was, at the earliest, on April 7, 2010, when the defendant informed the plaintiff that he
had “sent an appendix” for the plaintiff’s writ of certiorari “to the printer” and had “been doing
legal research for the last week,” but nonetheless advised the plaintiff to stop the litigation.
Compl. ¶ 31.6 Accordingly, because it is clear from the face of the complaint that the defendant
represented the plaintiff within three years of the plaintiff filing the complaint, and because the
defendant’s countervailing arguments are unavailing, the Court denies the defendant’s motion to
dismiss the complaint as barred by the statute of limitations.
C. The Court Will Not Convert the Motion to Dismiss To a Summary Judgment
Motion With Respect to Defendant’s Failure to State A Cause of Action
Claim
Defendant Lattimer filed the instant motion before the parties had much opportunity to
obtain discovery. See Def.’s Mem.; April 4, 2013, Minute Order. “As the Supreme Court and
this Circuit have repeatedly held, summary judgment is ordinarily appropriate only after the
plaintiff has been given an adequate opportunity to conduct discovery.” McWay v. LaHood, 269
F.R.D. 35, 39 (D.D.C. 2010); accord Convertino v. U.S. Dep’t of Justice, 684 F.3d 93, 99 (D.C.
Cir. 2012) (“[S]ummary judgment is premature unless all parties have ‘had a full opportunity to
conduct discovery.’ ” (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986)));
Americable Int’l v. Dep’t of Navy, 129 F.3d 1271, 1274 (D.C. Cir. 1997) (“[S]ummary judgment
ordinarily ‘is proper only after the plaintiff has been given adequate time for discovery.’ ”
(quoting First Chi. Int’l v. United Exch. Co., 836 F.2d 1375, 1380 (D.C. Cir. 1988))). The
6
The plaintiff has not requested an opportunity for discovery with respect to defendant Lattimer’s statute of
limitations claim in order to adequately respond to defendant Lattimer’s argument. See Jones Aff. ¶¶ 23–24.
Indeed, the facts alleged in the pleadings are sufficient to resolve the statute of limitations issue raised by the
defendant. See Jacobsen, 201 F. Supp. 2d at 109 (noting that resolution of statute of limitations defense on motion
to dismiss is “unusual” but resolved the issue because “there [were] no outstanding factual issues in dispute that
would preclude the resolution of this issue on a motion to dismiss”). Accordingly, because further factual
development is not necessary and because the Court need not consider “matters outside the pleadings,” FED. R. CIV.
P. 12(d), the Court will not convert the defendant’s motion to dismiss on statute of limitations grounds into a motion
for summary judgment. See Flynn, 412 F. Supp. 2d at 50 (deciding to convert motion to dismiss into summary
judgment motion “is committed to the sound discretion of the trial court”).
17
exercise of discretion under Federal Rule of Civil Procedure 12(d) to convert a motion to dismiss
to a motion for summary judgment is usually only appropriate where (1) the evidence submitted
is sufficiently comprehensive to conclude that further discovery would be unnecessary; and (2)
the non-moving party has not been unfairly disadvantaged by being unable to access the sources
of proof necessary to create a genuine issue of material fact. See, e.g., FED. R. CIV. P. 12(d) (“All
parties must be given a reasonable opportunity to present all material that is pertinent to the
motion.”); Tele–Commc’ns of Key West, 757 F.2d at 1334 (requiring court to “assure itself that
summary judgment treatment would be fair to both parties” before converting motion to dismiss
to motion for summary judgment).
The plaintiff in this case has requested discovery before consideration of summary
judgment in order to “shed light on the veracity of defendant Lattimer’s allegations . . . [in order]
to adequately oppose defendant Lattimer’s motion for summary judgment.” Pl.’s Opp’n at 32.
The plaintiff has submitted a sworn declaration attesting that further discovery is necessary to,
inter alia, “ascertain the research and investigation allegedly conducted by [the defendant] prior
to the filing of a lawsuit on my behalf,” Affidavit of Mable Jones (“Jones Aff.”) ¶ 23, ECF No.
21-4, to uncover “any information or documentation to demonstrate that Mr. Lattimer uncovered
more information and witnesses than law enforcement,” id. ¶ 24, and to determine if the
defendant’s affidavit correctly states that the defendant “actually conducted adequate research to
determine the viability” of the plaintiff’s claims. Id. ¶ 25. See also Pl.’s Opp’n at 31–33. The
defendant responds that further discovery is not necessary because it will only confirm what the
defendant has already “explained . . . to the plaintiff at the outset” of the representation. Def.’s
Reply at 24. The defendant argues that “there is no discovery that the plaintiff can obtain,
18
manufacture, or create that will suggest” that the defendant did not “take all necessary actions.”
Id.
The Court disagrees with defendant Lattimer’s contention that discovery is unnecessary
with respect to his claim that the plaintiff has failed to state a cause of action. In light of the
plaintiff’s contradictory views of what transpired in her communications with her prior counsel,
the Court concludes that the plaintiff has not had a “reasonable opportunity to present all
material that is pertinent” to the issues raised by the instant motion. See FED. R. CIV. P. 12(d).
Accordingly, the Court will not convert the defendant’s motion to dismiss into a motion for
summary judgment with respect to the defendant’s first claim for dismissal.
IV. CONCLUSION
For the foregoing reasons, the Court concludes that the defendant’s motion to dismiss
must be DENIED. An appropriate order accompanies this Memorandum Opinion.
Digitally signed by Hon. Beryl A.
Howell
Date: March 6, 2014 DN: cn=Hon. Beryl A. Howell,
o=District of Columbia, ou=U.S.
District Court for the,
email=Howell_Chambers@dcd.uscour
ts.gov, c=US
__________________________
Date: 2014.03.06 12:34:34 -05'00'
BERYL A. HOWELL
United States District Judge
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