MEMORANDUM OPINION AND ORDER
LORETTA A. PRESKA, Senior District Judge.
Before the Court are two motions to dismiss filed by (1) Defendants Thomas McGarrity and Rosenblatt & McGarrty, LLP, and (2) Defendant Lawrence Glynn. (McGarrity Mot., Oct. 7, 2016, ECF No. 24; Glynn Mot., Oct. 7, 2016, ECF No. 25). Plaintiff Terracciano filed an opposition, which Plaintiff's counsel termed an "Affirmation," (Opp., Jan. 17, 2017, ECF No. 46), to which Defendants filed replies, (Glynn Reply, Feb. 7, 2017, ECF No. 55; McGarrity Reply, Feb. 7, 2017, ECF No. 57). Plaintiff has failed adequately to allege diversity jurisdiction. However, if the Court did have jurisdiction it would find that Plaintiff has failed to state a claim for either legal malpractice or breach of contract and that amendment of the Complaint would be futile. Accordingly, Defendants' motions to dismiss are granted and the case is dismissed.
The following facts are drawn from the Complaint and other documents incorporated by reference. Plaintiff Terracciano brings this action for breach of contract and negligence in the form of legal malpractice, alleging that he retained Defendants McGarrity, Rosenblatt & McGarrty, LLP, and Glynn to represent him in a guardianship case involving his parents, Laura and Fiore Terracciano, in exchange for a $10,000 retainer fee. (Compl. ¶¶ 4, 14, Feb. 19, 2016, ECF No. 1). Plaintiff's brother, Paul Terracciano, had brought a case in Supreme Court, Westchester County, before Judge Emmett Murphy seeking to have his parents declared incompetent persons ("IPs") and guardianship over his parents and his parents' property. (
The Complaint alleges that the Defendants agreed via their retainer agreement to carry out the following tasks: (1) to appear at an impending February 20, 2013, hearing to contest the incompetency of Laura and Fiore Terracciano and other statements made by Paul Terracciano, (2) to move to dismiss the guardianship proceeding on the basis of improper service, (3) to obtain affidavits attesting to the mental fitness of Laura and Fiore Terracciano, (4) to retrieve from the court file a copy of the underlying petition and related affidavits, (5) to file notices of appearances by February 4, 2013, (6) to set up a meeting with Court Evaluator Steward McMillan, (7) to produce affidavits attesting to the mental fitness of Laura and Fiore Terracciano to Court Evaluator McMillan, (8) to produce to the court financial records showing that Paul Terracciano had misappropriated funds belonging to Laura and Fiore Terracciano, and (9) to subpoena witnesses Jean Prem Howe and Chuck Howe, who would be able to attest to the mental fitness of Laura and Fiore Terracciano. (Compl. ¶ 9).
On his breach of contract claim, Plaintiff alleges that Defendants breached each one of the agreements listed above, noting in particular that Defendant Glynn failed to prepare for the February 2013 hearing, reading the petition only minutes before it began, and that Defendant McGarrity failed to attend at all. (
On his negligence claim, Plaintiffs alleges substantially the same conduct described above. Plaintiff alleges that the Defendants owed him a duty of effective and meaningful representation, which they breached by failing to file the proper motions, failing to attend the February 2013 hearing, failing to obtain necessary records, failing to call necessary witnesses, failing to object to an in camera questioning of Laura and Fiore Terracciano to determine their competency, failing to file a notice of appeal, and other errors described above. (
II. LEGAL STANDARD
Rule 12(b) (6) permits a district court to dismiss a complaint for "failure to state a claim upon which relief can be granted" upon a motion by a defendant. Fed. R. Civ. P. 12(b)(6). In considering such a motion, courts must accept all non-conclusory factual allegations as true and draw "all reasonable inferences in the plaintiff's favor."
A complaint will survive a motion to dismiss, however, only if it "contain[s] sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'"
In ruling on a 12(b) (6) motion, a court may consider the complaint as well as "any written instrument attached to the complaint as an exhibit or any statements or documents incorporated in it by reference."
III. DIVERSITY JURISDICTION
Defendants argue that Plaintiff has not proved diversity, which is the only basis for federal jurisdiction over this case. In order for a court to assert diversity jurisdiction, a plaintiff must allege that the case "is between . . . citizens of different states." 28 U.S.C. § 1332(a)(1). "It is firmly established that diversity of citizenship should be distinctly and positively averred in the pleadings, or should appear with equal distinctness in other parts of the record."
The Complaint alleges only that Plaintiff "maintains a residence in Palm City, Florida," and that Defendants maintain their principal place of business in White Plains, New York. (Compl. ¶¶ 1-2). However, it is well-established that "a statement of the parties' residence is insufficient to establish their citizenship."
Furthermore, in an action that Plaintiff commenced only one week after he filed the Complaint in this case, Plaintiff stated that "at all times hereinafter mentioned, Plaintiff Richard Terracciano was and still is a resident of the State of New York." (McGarrity Mot. Ex. E ¶ 1). The Court notes, as an initial matter, that it may take judicial notice of documents filed in other courts and with other adjudicatory bodies.
However, it is inappropriate for the Court to consider the unsworn statements of counsel in a memorandum of law, including the opposition to a motion to dismiss.
Accordingly, the Court finds that the Complaint has failed adequately to allege that the parties have complete diversity of citizenship. Although leave to amend should be "freely given when justice so requires," Fed. R. Civ. Proc. 15(a), leave to amend should not be given where amendment of the complaint would be futile because the complaint has failed to state a claim upon which relief may be granted.
IV. STATUTE OF LIMITATIONS
Under New York law, a legal malpractice claim accrues when the alleged malpractice is committed, and it must be commenced within three years of such conduct regardless of whether the underlying theory is based in contract or tort. N.Y. C.P.L.R. § 214(6). Defendants contend that the alleged negligence occurred on February 20, 2013, and that the three-year statute of limitations for legal malpractice expired on February 20, 2016. (Glynn Mot. at 12; McGarrity Mot. at 15). In the alternative, Defendants note that the retainer agreement between Plaintiff and Defendant McGarrity and Rosenblatt provided for retention through Judgment, which was rendered in April 2013. (McGarrity Mot. at 13). While New York law allows tolling of the statute of limitations for the period following the alleged malpractice until the attorney's representation of the client on the particular matter is completed,
Plaintiff Terracciano first attempted to file the Complaint on February 19, 2016. (Compl., Feb. 19, 2016, ECF No. 1). However, Plaintiff filed the document in an incorrect format and failed to file a civil cover sheet in accordance with the Local Rules of the Southern District of New York, and the case was administratively closed on March 2, 2016. (Closing Order, Mar. 2, 2016, ECF No. 3). On August 1, 2016, Plaintiff corrected the deficiency and moved to reopen the case, (Mot. to Reopen, Aug. 1, 2016, ECF No. 4), which the Court granted on August 3, 2016, (Order, Aug. 3, 2016, ECF No. 5). Therefore, the question before the Court is which of the foregoing dates the Complaint can be deemed to have been filed.
The Court of Appeals has instructed that local rules have the force of law so long as they do not conflict with a rule prescribed by the Supreme Court, Congress, or the Constitution.
The Court finds that Plaintiff's filing the Complaint in an incorrect format and failing to file a civil cover sheet qualify as errors as to form. Furthermore, Defendants do not allege that Plaintiff's non-compliance with the local rule was willful. If the Court were to enforce the local rule regarding the required formatting of ECF documents and the filing of a civil cover sheet, Plaintiff would necessarily lose a right because his legal malpractice claim would be barred by the three-year statute of limitations. A fortiori, Defendants argue that the
V. FAILURE TO STATE A CLAIM
a. Breach of Contract
A complaint for breach of contract under New York law must allege: "(1) the existence of an agreement; (2) adequate performance of the contract by the plaintiff; (3) breach of contract by the defendant; and (4) damages."
However, the allegations supporting the breach of contract claim are virtually identical allegations supporting the malpractice claim. (
Accordingly, if the Court had jurisdiction, Plaintiff's breach of contract claim would be dismissed as duplicative of his legal malpractice claim.
b. Legal Malpractice
i. Legal Standard
The elements of a legal malpractice claim under New York law are (1) attorney negligence, (2) proximate cause, and (3) damages.
To demonstrate proximate cause, a district court must find that "but for the attorney's negligence, what would have been a favorable outcome was an unfavorable outcome."
Plaintiff advances several arguments concerning how Defendants negligently represented him — all of them fail to allege plausibly the elements of a legal malpractice claim. First, Plaintiff argues that Defendants should have gone to the courthouse to obtain copies of the petition prior to the February 2013 hearing. (Opp. at 14). However, on January 17, 2013, two days after the petitions were filed, Judge Murphy issued a sealing order. (
Second, Plaintiff argues that the Defendants should have produced financial records at the February 2013 hearing that would have established that Paul Terracciano had misappropriated Fiore and Laura Terracciano's funds, whereas Plaintiff had not. However, upon receiving a copy of the petition at the February 2013 hearing, Defendant Glynn moved for a continuance insofar as the "petition alleges financial misconduct" by Plaintiff. (Opp. Ex. 2 at 6-7). Judge Murphy denied the continuance on the grounds that it was important to make an expeditious determination regarding the guardianship application. (
Third, Plaintiff claims that Defendants' failure to call certain witnesses who would have attested to Fiore and Laura Terracciano's mental fitness, and to provide affidavits attesting to their mental fitness to the Court Evaluator, "caused Plaintiff to lose his one opportunity to prevent the guardianship from being created; to prove his parents were competent; . . . and to continue to act as attorney in fact under viable powers of attorney. (Compl. ¶ 55). In his Opposition, Plaintiff further relies on a July 2014 report prepared by property guardian McLaughlin concerning whether Plaintiff misappropriated his parents' money. (Opp. at 19). The report concluded after interviewing several witnesses that "Laura and Fiore Terracciano understood the nature and consequences of these transactions, the objects of their bounty and executed the transactions willingly." (
However, upon review of the record, the Court cannot conclude that Plaintiff's arguments amount to anything more than "[s]peculative contentions about what might have happened had the defendant attorney . . . taken a different approach in litigating a case on behalf of the plaintiff."
Plaintiff's allegation that the guardianship court would have discounted this evidence had Defendant Glynn called certain witnesses and ignored its own in camera observations of Fiore and Laura's mental fitness is mere speculation. Plaintiff has therefore failed to allege plausibly that he would have prevailed in the underlying action but for Defendants' failure to call certain witnesses at the February 2013 hearing and to provide certain affidavits to the Court Evaluator.
Fourth, Plaintiff's allegation that the failure of Defendants McGarrity and McGarrity & Rosenblatt LLP to appear at the February 20 hearing and Defendants' failure to file notices of appearances by February 4, 2013, caused Plaintiff's unfavorable outcome are no more than mere speculation. (Compl. ¶ 9). As an initial matter, Plaintiff did have representation at the February 2013 hearing in the form of Defendant Glynn, who was designated "of counsel" by the retainer agreement. (Aff. in support of Am. Mot. Dismiss Ex. 2). That Plaintiff would have received a favorable outcome at the February 2013 hearing had Defendant McGarrity attended in addition to Defendant Glynn is pure speculation. Furthermore, Plaintiff has not pleaded "specific facts" — nor could he since it is undisputed that Defendant Glynn was Plaintiff's counsel of record at the hearing — showing how the date on which Defendants filed a notice of appearance in the underlying action caused Plaintiff's unfavorable outcome.
In his Opposition, Plaintiff also argues that Defendants were the proximate cause of his unfavorable outcome because they never filed a cross-petition for Plaintiff to become guardian. (Opp. at 15). As an initial matter, Plaintiff did not include this allegation in the Complaint, and thus it is not properly before the Court.
Plaintiff further argues in his Opposition that the guardianship court declined to re-appoint Paul as guardian in post-judgment proceedings because Paul refused to be subjected to cross-examination regarding his fitness as guardian and bank records showing he engaged in certain financial improprieties. (Opp. at 16-17). Accordingly, Plaintiff alleges that Defendants' failure to cross-examine Paul on these topics during the February 2013 hearing was the proximate cause of Paul being named guardian. (
Furthermore, Plaintiff misstates and omits several of Judge Murphy's reasons in the decision dated June 21, 2016 for declining to re-appoint Paul Terracciano as guardian. These include: "(i) he has previously been removed as Guardian of the IPs' Person for accosting Fiore's Court-appointed counsel in Court; (ii) his intractable hostility to his brother; (iii) in November 2014, he approved a medical procedure for Fiore, despite his awareness of the fact that Groppe was Guardian of Fiore's Person at that time; and (iv) his `letter/oral' application made during the post-judgment hearing was dismissed, due to his failure to re-appear personally in Court to be subject to cross-examination on that application." (Glynn Aff. Ex. E (June 21, 2016, Decision) at 51-52, Oct. 7, 2016, ECF No. 27). All four of Judge Murphy's stated justifications for denying Paul Terracciano's application to be re-appointed guardian were therefore based on events that occurred after Defendants had concluded their representation of Plaintiff. Because Defendants could not have made any of these arguments at the earlier February 2013 hearing, the Court would not find that they were negligent for failing to do so.
Plaintiff's legal malpractice claim would fail for the additional reason that Plaintiff filed numerous motions after the February 2013 hearing by different counsel in which he sought the same relief.
Accordingly, if the Court had jurisdiction over this case, it would find that none of Plaintiff's claims for legal malpractice are meritorious and that amendment of the Complaint would be futile.
For reasons stated above, Plaintiff has failed adequately to plead diversity jurisdiction. If the Court did have jurisdiction, it would hold that Plaintiff has failed to state a claim either for breach of contract or legal malpractice and, thus, finds that amendment of the Complaint would be futile. Accordingly, Defendants' motions to dismiss (ECF Nos. 24, 25) are granted, and all other pending motions are denied as moot. The case is dismissed.