I. Introduction
By notice of motion dated May 24, 2017 (Docket Item ("D.I.") 93), plaintiff moves to file a "Supplemental Pleadings." For the reasons set forth below, plaintiff's motion is denied.
II. Facts
In or around 1983, plaintiff, a music producer and composer, entered into a music production business with Ford Kinder and Sarah Aquino, which did business through a New York corporation named "Kinder, Bryant & Aquino Ltd." ("KBA") (Amended Complaint dated May 7, 2016 (D.I. 23) ("Am. Compl.") ¶ 1; Declaration of Patrick J. Monaghan, Jr., Esq., dated Feb. 12, 2016 (D.I. 20) ("Monaghan First Decl.") ¶ 28). Aquino sold her share of KBA to plaintiff and Kinder in or about 1985, at which point plaintiff believed that the name of the corporation changed from "Kinder, Bryant & Aquino Ltd." to "Kinder & Bryant Ltd." ("K & B") (Am. Compl. ¶¶ 1-2; Monaghan First Decl. ¶ 28). In 1989, plaintiff and Kinder dissolved their partnership and entered into a new agreement (Am. Compl. ¶ 24; Agreement, dated Nov. 8, 1989 ("1989 Separation Agreement"), annexed as Ex. A to Complaint, dated October 26, 2015 (D.I. 1) ("Complaint") ). Pursuant to that agreement, Kinder agreed to pay plaintiff a sum totaling less than $30,000.00 and to remove any reference to plaintiff from the corporation's name, including her name or initials (Am. Compl. ¶ 24; 1989 Separation Agreement).
In or before 1991, plaintiff retained Monaghan as her attorney to investigate Kinder for allegedly breaching the 1989 Separation Agreement, and in 1991 Monaghan filed suit on plaintiff's behalf against Kinder in New York State court, asserting that Kinder had failed to pay plaintiff certain royalties pursuant to that agreement or to provide an accounting ("1991 N.Y.S. Action") (Am. Compl. ¶¶ 23-24; see Bryant v. Kinder, Index No. 8721/91, Complaint dated Nov. 8, 1991, annexed as Ex. K to Complaint). The 1991 N.Y.S. Action was settled in 1994 (Am. Compl. ¶¶ 23-24).
On July 13, 2007, while the 2000 N.Y.S. Action was pending, plaintiff retained Monaghan for a third time to sue Kinder and numerous corporate defendants including some of the same defendants named in the 2000 N.Y.S. Action, such as Sunbow Productions, Inc. ("Sunbow"), for allegedly failing to pay royalties and other sums owed to plaintiff ("2007 S.D.N.Y. Action") (see Byant v. AB Droits Audiovisuels, 07 Civ. 6395 (PAC)(HBP) (S.D.N.Y.), Complaint dated July 13, 2007 (D.I. 1) ). The 2007 S.D.N.Y. Action was stayed on September 30, 2009 by the Honorable Sidney H. Stein, United States District Judge, to whom the matter was then assigned, until the 2000 N.Y.S. Action was resolved (Bryant v. AB Droits Audiovisuels, 07 Civ. 6395 (PAC)(HBP) (S.D.N.Y.), Order of Judge Stein, dated Sept. 30, 2009 (D.I. 68) ("Sept. 30, 2009 Order") ). The 2007 S.D.N.Y. Action remains stayed (Bryant v. AB Droits Audiovisuels, 07 Civ. 6395 (PAC)(HBP) (S.D.N.Y.), Order of the undersigned, dated Mar. 8, 2017 (D.I. 147) ("Mar. 8, 2017 Order") ).
In or around 2012, plaintiff claims to have discovered that KB was never a valid legal entity, and that her former music production business had continued to operate under the name "Kinder, Bryant & Aquino Ltd." from 1983 through 1996 (Am. Compl. ¶ 7). In my Report and Recommendation dated December 16, 2016, I described the events that transpired after this discovery as follows:
[Plaintiff] instructed Monaghan to write to the judge presiding over the 2000 N.Y.S. Action and disclose these facts (Am. Compl. at 6-7, n.1-2). Monaghan declined to do so, and against his advice, plaintiff herself wrote a letter to the court detailing her discoveries (Letter to Hon. Margaret Garvey, J.S.C., dated Sept. 28, 2012, annexed as Ex. C to Complaint; Am. Compl. at 6-7 n.1-2[) ] .... Monaghan thereafter moved to withdraw from further representation of plaintiff in that case, and that motion was granted on November 23, 2012 (Am. Compl. at 6-7 n.1-2). In 2014, Monaghan also moved to withdraw from the federal court action and that motion was granted in November of 2014 (Pl. Opp. at 53)
(Report and Recommendation of the undersigned, dated Dec. 16, 2016 (D.I. 65) ("Dec. 16, 2016 R & R") at 8). Plaintiff retained attorney Anthony Motta
Plaintiff commenced this action on October 26, 2015 (Complaint). The Amended Complaint asserted fraud and legal malpractice claims against Monaghan
On May 10, 2016, Monaghan filed a motion to dismiss the fraud and malpractice claims against him (Motion to Dismiss of Patrick J. Monaghan, Jr., Esq., dated May 10, 2016 (D.I. 48) ). By Opinion and Order dated March 6, 2017, which adopted my December 16, 2016 Report and Recommendation in its entirety, Judge Crotty granted summary judgment dismissing plaintiff's claim for legal malpractice to the extent that it was predicated on either Monaghan's alleged (1) failure to discover and inform plaintiff and the courts that KBA had not been renamed K & B and (2) withholding of documents after he withdrew as plaintiff's counsel (Opinion and Order of Judge Crotty, dated Mar. 6, 2017 (D.I. 76) ("Mar. 6, 2017 Order") at 8-9; Dec. 16, 2016 R & R at 45-60). However, Judge Crotty found that summary judgment was not appropriate with respect to plaintiff's claim for legal malpractice predicated on both Monaghan's failure to make certain applications or his alleged conflict of interest with Kinder during the 2000 N.Y.S. Action (Mar. 6, 2017 Order at 12; Dec. 16, 2016 R & R at 45-60). In particular, Judge Crotty rejected Monaghan's contention that plaintiff's malpractice claim was barred by the applicable three year statute of limitations, finding that Monaghan had failed to show that the statute of limitations could not be tolled by the continuous representation doctrine (Mar. 6, 2017 Order at 9-10; Dec. 16, 2016 R & R at 61-62).
Judge Crotty also granted dismissal of the fraud claims, finding that plaintiff had failed to allege her claims with particularity as required by Fed.R.Civ.P. 9(b) (Mar. 6, 2017 Order at 12-13; Dec. 16, 2016 R & R at 34-45). In light of plaintiff's pro se status, Judge Crotty afforded her one final opportunity to replead her fraud claims and permitted her to file a Second Amended Complaint no later than thirty days after the issuance of the Order, i.e., April 17, 2017 (Mar. 6, 2017 Order at 12-13).
Plaintiff requested and was granted several extensions of time to amend her complaint and was ultimately given until May 24, 2017 to file her Second Amended Complaint (Order of the Undersigned, dated May 3, 2017 (D.I. 86) at 4). Plaintiff sent a letter to Judge Crotty dated May 23, 2017 indicating that she would not be filing a Second Amended Complaint and that she wished to proceed with the surviving aspects of her claim for malpractice (Letter of Anne Bryant to Judge Crotty, dated May 23, 2017 (D.I. 92) ("Bryant Letter") at 2). In that same letter plaintiff stated that she had "newly discovered information that [was] pertinent to [her claim for legal malpractice] and [also] appear[ed] to make out a prima facie case for NY JUD. LAW § 487 Attorney Deceit or Collusion [sic ]" (Bryant Letter at 2). She advised Judge
Plaintiff did not file a Second Amended Complaint on May 24, 2017. Instead, she filed a notice of motion pursuant to Fed.R.Civ.P. 15(c) 5 and (d) to "supplement" her pleading (Plaintiff's Motion to Amend the Pleadings, dated May 24, 2017 (D.I. 93) ("Pl. Mot.") at 1-2)
Plaintiff also appears to seek to allege a claim for attorney deceit pursuant to New York Judiciary Law Section 487 based on those same facts (Pl. Mot. at 14). Specifically, plaintiff alleges that Monaghan's deficient representation of her throughout the 2007 S.D.N.Y. Action rose above the level of ordinary malpractice and "indicate[d] deceit[ ] and strongly suggest[ed] collusion" between Monaghan and named defendants (Pl. Mot. at 14-15). Plaintiff also alleges that Monaghan, in concert with defendants in the 2007 S.D.N.Y. Action, "designed a Complaint that could spin in the [f]ederal [c]ourts through years of [m]otion [p]ractice" resulting in excessive cost to plaintiff (Pl. Mot. at 13). Plaintiff seeks treble damages based on either the amount that she expended on litigating the 2007 S.D.N.Y. Action or the amount that she lost as a result of Monaghan's alleged misrepresentation (Pl. Mot. at 15). Plaintiff does not appear to replead any of the other fraud claims that she had previously alleged but were dismissed.
Monaghan argues that plaintiff's attempt to amend her complaint is futile and that her motion should, therefore, be denied (Memorandum of Law of Patrick J. Monaghan, Jr., Esq., in Opposition to Plaintiff's Motion, dated June 21, 2017 (D.I. 97) ("Def. Mem.") at 6-9). Furthermore, Monaghan argues that plaintiff's additional factual allegations in support of her claim for malpractice are barred by New York's three year statute of limitations for legal malpractice and that the doctrine of continuous representation does not save plaintiff's claim (Def. Mem. at 8). In support of this argument, Monaghan proffers a declaration with exhibits, including an email from Monaghan to plaintiff dated October 1, 2012 which states:
I will not perform any more services for you since you have effectively terminated me and you have taken actions directly on your own behalf in the case. I suggest that you continue your ongoing search for alternate counsel. I will send you the papers I file with the Court.
(Monaghan's Email to Anne Bryant dated Oct. 1, 2012, annexed as Ex. 4 to Declaration of Patrick J. Monaghan, Jr., Esq., dated June 21, 2017 (D.I. 98) ("Monaghan Second Decl.") ). Accordingly, Monaghan asserts that even if the doctrine of continuous representation applies, it would only toll the statute of limitations until the end of 2012 at the latest. (Def. Mem. at 11). Monaghan admits that he remained plaintiff's counsel in the 2007 S.D.N.Y. Action through 2014, but notes that the case was stayed from 2009 through his withdrawal as counsel in 2014 and, therefore, "there was nothing to do in the case" (Def. Mem. at 11). Monaghan also argues that plaintiff fails to allege damages sufficiently (Def. Mem. at 11).
With respect to plaintiff's replead claim for attorney deceit under New York Judiciary Law Section 487, Monaghan contends that it is fatally deficient because it still fails to satisfy the heightened pleading requirements of Fed.R.Civ.P. 9(b) (Def. Mem. at 8). Specifically, Monaghan argues that plaintiff failed to identify a possible
III. Analysis
A. Legal Standards-Procedural Issues
1. Motion to Amend a Pleading Pursuant to Fed.R.Civ.P. 15(a)
As an initial matter, plaintiff inaccurately describes her motion as one for leave to serve supplemental pleading under Fed.R.Civ.P. 15(d) (Pl. Mot. at 1). Rule 15(d) provides, in pertinent part, that "the court may, on just terms, permit a party to serve a supplemental pleading setting out any transaction, occurrence or event that happened after the date, of the pleading to be supplemented." Fed.R.Civ.P. 15(d) (emphasis added). Plaintiff's proposed amendments are based on events that occurred nearly a decade before she filed her original Complaint. Accordingly, plaintiff's motion is properly characterized as a motion to amend her pleadings pursuant to Fed.R.Civ.P. 15(a)(2). See Cummings-Fowler v. Suffolk Cty. Cmty. Coll.,
The standards applicable to a motion to amend a pleading pursuant to Fed.R.Civ.P. 15(a)(2) are well settled and require only brief review. Leave to amend a pleading should be freely granted "when justice so requires." Fed.R.Civ.P. 15(a) ; Foman v. Davis,
A proposed amended complaint is futile when it fails to state a claim. See Health-Chem Corp. v. Baker,
In assessing the futility of a proposed amended pleading, the factual allegations set forth in the proposed amended pleading are assumed to be true. See Max Impact, LLC v. Sherwood Group, 09 Civ. 0902 (LMM),
In evaluating a motion under Fed.R.Civ.P. 12(b)(6), the court must determine whether the plaintiff has alleged any facially plausible claims. See Virgil v. Town of Gates,
The Court of Appeals has repeatedly noted that the trial court has "broad" discretion in ruling on a motion to amend. Local 802, Associated Musicians v. Parker Meridien Hotel,
2. Formal Pleading Requirements
Although my research has not disclosed any federal authority addressing whether a claim under New York Judiciary Law Section 487 must be pleaded with particularity, New York's courts have held that such a claim must be pleaded with particularity under the New York analog to Rule 9(b). See Facebook, Inc. v. DLA Piper LLP,
In essence, Rule 9(b) places two ... burdens on fraud plaintiffs-the first goes to the pleading of the circumstances of the fraud, the second to the pleading of the defendant's mental state. As to the first, we have held that the complaint must "(1) detail the statements (or omissions) that the plaintiff contends are fraudulent, (2) identify the speaker, (3) state where and when the statements (or omissions) were made, and (4) explain why the statements (or omissions) are fraudulent." Eternity Global Master. Fund Ltd. v. Morgan Guar. Trust Co. of N.Y.,, 187 (2d Cir. 2004) (internal quotation marks omitted). As to the second, though mental states may be pleaded "generally," Plaintiffs must nonetheless allege facts "that give rise to a strong inference of fraudulent intent." Lerner v. Fleet Bank, N.A., 375 F.3d 168 , 290-91 (2d Cir. 2006). 459 F.3d 273
Loreley Fin. (Jersey) No. 3 Ltd. v. Wells Fargo Sec., LLC,
"The particularity requirement of Rule 9(b) serves to 'provide a defendant with fair notice of a plaintiff's claim, to safeguard a defendant's reputation from improvident charges of wrongdoing, and to protect a defendant against the institution of a strike suit.' " Rombach v. Chang,
Although Rule 9(b) permits "[m]alice, intent, knowledge, and other conditions of a person's mind [to] be alleged generally," courts "must not mistake the relaxation of Rule 9(b)'s specificity requirement regarding condition of mind for a license to base claims of fraud on speculation and conclusory allegations[,] ... plaintiffs must allege facts that give rise to a strong inference of fraudulent intent." Acito v. IMCERA Group. Inc.,
A plaintiff can establish a strong inference of scienter " 'either (a) by alleging facts to show that defendants had both motive and opportunity to commit fraud, or (b) by alleging facts that constitute strong circumstantial evidence of conscious misbehavior or recklessness.' " Kalnit v. Eichler,, 138-39 (2d Cir. 2001). "Where motive is not apparent, it is still possible to plead scienter by identifying circumstances indicating conscious behavior by the defendant, though the strength of the circumstantial allegations must be correspondingly greater," 264 F.3d 131 Id . at 142 .
380544 Canada, Inc. v. Aspen Tech., Inc.,
B. Legal Standards-Substantive Issues
1. Legal Malpractice
"[A] cause of action for legal malpractice pose[s] a question of law which [can] be determined on a motion to dismiss." Achtman v. Kirby, McInerney & Squire, LLP,
A complaint that essentially alleges either an "error of judgment" or a "selection of one among several reasonable courses of action" fails to state a claim for malpractice .... Generally, an attorney may only be held liable for "ignorance of the rules of practice, failure to comply with conditions precedent to suit, or for his neglect to prosecute or defend an action."
Achtman v. Kirby, McInerney & Squire, LLP,
New York Law limits a plaintiff's "recovery in legal malpractice actions to pecuniary damages." McPhillips v. Bauman,
Where a plaintiff seeks damages for the value of a lost claim, she "must establish the elements of proximate cause and actual damages by 'demonstrat[ing] that "but for" the attorney's conduct the client would have prevailed in the underlying matter ...' " Kirk v. Heppt,
2. Attorney Deceit Under New York Judiciary Law § 487
New York Judiciary Law Section 487 provides:
An attorney or counselor who:
1. Is guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party; or,
2. Wilfully delays his client's suit with a view to his own gain; or, wilfully receives any money or allowance for or on account of any money which he has not laid out, or becomes answerable for,
Is guilty of a misdemeanor, and in addition to the punishment prescribed therefor by the penal law, he forfeits to the party injured treble damages, to be recovered in a civil action.
To establish a claim under New York Judiciary Law § 487, a plaintiff must show, at a minimum, "that defendan[t]: (1) [is] guilty of deceit or collusion, or consent[ed] to any deceit or collusion; and (2) had an intent to deceive the court or any party." Ray v. Watnick,
Further, the statute "is not a codification of a common-law cause of action for fraud" and the "operative language at issue-'guilty of any deceit'-focuses on the attorney's intent to deceive, not the deceit's success." Amalfitano v. Rosenberg,
C. Application of the Foregoing Principles
Plaintiff seeks to amend her complaint in two respects. First, plaintiff proposes to add three new bases for her claim of malpractice against Monaghan in connection with his representation of plaintiff in the 2007 S.D.N.Y. Action (Pl. Mot. at 8-9). Second, plaintiff argues that those same facts establish a claim for attorney deceit under New York Judiciary Law Section 487, a claim which she previously raised in both the Complaint and the Amended Complaint, albeit on different factual grounds, and which was dismissed without prejudice by Judge Crotty in his March 6, 2017 Order (Pl. Mot. at 14).
1. Additional Factual Bases for Plaintiff's Malpractice Claim
As noted above, plaintiff seeks to assert three new bases for her legal malpractice
Monaghan argues that the proposed amendments are futile (Def. Mem. at 8-11). He principally argues that plaintiff's malpractice claim is barred by New York's statute of limitations, and has submitted a declaration and supporting exhibits indicating that his professional relationship with plaintiff ended in October 2012 and that her new specifications are time-barred (Def. Mem. at 8-11). However, Monaghan's declaration and his exhibits cannot be considered at this stage. Because the futility analysis under Rule 15(a) is essentially the same as the analysis used to resolve a motion under Rule 12(b)(6), the court cannot consider an affirmative defense that is not clear from the face of the proposed amended complaint. See Journal Publ'g Co. v. Am. Home Assurance Co., supra,
Monaghan also argues that plaintiff has failed to allege sufficiently that plaintiff was damaged as the result of his alleged malpractice (Def. Mem. at 4). As explained above, even if an attorney-client relationship is found and an attorney's negligence has been established, in order to state a claim for legal malpractice the complaint must plausibly allege that plaintiff suffered, actual damages and that the attorney's malpractice was the proximate cause of those damages. See Kirk v. Heppt,
As an initial matter, even if I assume that plaintiff's proposed Second Amended Complaint adequately alleges that Monaghan's representation of plaintiff during the 2007 S.D.N.Y. Action was negligent, it is fatally deficient to the extent plaintiff was injured as a result of harm to her reputation. New York law requires a plaintiff to plead and prove pecuniary loss in order to state a claim of legal malpractice. See Calcutti v. SBU, Inc.,
With respect to plaintiff's allegations that Monaghan's conduct during the 2007 S.D.N.Y. Action (1) caused her to incur the costs and expenses of litigation and (2) precluded her from collecting past due royalties from the defendants, she has adequately plead damages that are pecuniary in nature. However, under New York law, a plaintiff who asserts a claim for legal malpractice must allege facts demonstrating that the attorney's negligence was the "proximate cause" of her damages. See Law Practice Mmgmt. Consultants, LLC. v. M & A Counselors & Fiduciaries, LLC.,
Plaintiff alleges that Monaghan was negligent by (1) failing to object to Sunbow's motion to dismiss, (2) failing to object to Sunbow's corporate disclosure statement and (3) failing to properly serve certain defendants (Pl. Mot. 8-9).
Plaintiff's proposed amendments contain only a conclusory allegation that Monaghan's failure to object to Sunbow's motion to dismiss and its corporate disclosure statement "effectively poisoned the well" and had permitted Sunbow's attorney "to drive the narrative in the case without license to do so, affording her [the ability] to craft the [2007 S.D.N.Y. Action for her own purposes]" (Pl. Mot. at 9-10). However, plaintiff has failed to plead any facts "that would even suggest that, but for [Monaghan's failure to object to these submissions], [she] would have prevailed" in or not sustained ascertainable damages from the 2007 S.D.N.Y. Action. Law Practice Mgmt. Consultants. LLC v. M & A Counselors & Fiduciaries, LLC, supra,
Plaintiff also alleges that Monaghan committed malpractice by failing to serve several defendants who never made an appearance in the 2007 S.D.N.Y. Action (Pl. Mot. at 8). Plaintiff asserts that she has "direct claims with respect to royalties for [her] musical works" against these defendants (Pl. Mot. at 8 n.11). However, notwithstanding this conclusory allegation, plaintiff does not identify what claims she would have asserted against these defendants or when those claims arose, nor does she allege facts explaining why she likely would have prevailed on her claims against those defendants. See Stonewell Corp. v. Conestoga Title Ins. Co.,
Accordingly, plaintiff's motion to file a Second Amended Complaint to add new factual allegations in support of her malpractice claim is denied.
2. Attorney Deceit Under New York Judiciary Law Section 487
Leave to file plaintiff's proposed amended Section 487 claim is also denied for failure to comply with Fed.R.Civ.P. 9(b).
In order to prevail on a Section 487 claim, a plaintiff must establish "that defendan[t]: (1) [is] guilty of deceit or collusion, or consent[ed] to any deceit or collusion; and (2) had an intent to deceive the court or any party." Ray v. Watnick,
Plaintiff's proposed claim for "Attorney Deceit" in her proposed Second Amended Complaint differs from that alleged in her Amended Complaint. In her Amended Complaint, plaintiff alleged that Monaghan deceived the court in all three actions by "propounding the misrepresented 'fact' that Kinder & Bryant Ltd[.] was the legal [New York] Corporation of which Plaintiff was a co-owner," causing plaintiff to enter into fraudulent settlements (Am. Coml. ¶¶ 23-40). In my December 16, 2016 Report and Recommendation, I found that this allegation was insufficient to state a claim for attorney deceit because the
Amended Complaint assert[ed] that Monaghan "knew or should have known"
that KBA's name had not actually been changed to K & B and that his failure to discover and disclose this fact to plaintiff in connection with the actions he litigated for her was deceitful .... [P]laintiff does not allege how or when Monaghan knew or could have learned that KBA's name had not actually been changed nor does she identify what motive he had to conceal these facts from her.
(Dec. 16, 2016 R & R at 40-41). Put simply, I concluded that plaintiff had failed to allege facts sufficient to establish either of the two elements of a Section 487 claim-that Monaghan was guilty of deceit and had an intent to deceive the court or plaintiff-warranted dismissal of that claim.
Plaintiff's proposed amendment to her claim for attorney deceit is premised on Monaghan's deficient performance as counsel throughout the 2007 S.D.N.Y. Action. Plaintiff alleges that Monaghan's conduct during the 2007 S.D.N.Y. Action suggests collusion between Monaghan and defendants (Pl. Mot. at 13). Plaintiff further alleges that Monaghan prepared a faulty complaint in concert with defendants to delay the ultimate resolution of the case (Pl. Mot. at 13). Despite its new factual allegations, the proposed claim is deficient for largely the same reasons as her previous Section 487 claim.
Plaintiff's claim fails because she does not plausibly allege facts that imply collusion between Monaghan and defendants, or that Monaghan had an intent or motive to deceive the court or any party. Rather, plaintiff makes conclusory allegations of collusion with no supporting facts to suggest motive. She does not identify any particular statements in or omissions from the 2007 S.D.N.Y. Complaint that were fraudulent nor does she explain how it was deficient. She does not, for example, explain why the complaint was somehow advantageous to the defendants in the 2007 S.D.N.Y. Action, which is what one would expect to see if a plaintiff's attorney had colluded with the defendants in an action. She also fails to allege facts suggesting a reason for Monaghan to prolong the 2007 S.D.N.Y. Action.
Plaintiff also appears to claim that Monaghan's alleged failures, discussed in the preceding section, amounted to more than malpractice, and, in the aggregate, Monaghan's actions somehow suggest that he had colluded with defendants in order to protract the 2007 S.D.N.Y. Action. However, plaintiff does not explain how these failures were fraudulent or how they imply collusion with defendants. See Mazzone v. Town of Southampton, CV 16-4515 (JFB)(ARL), --- F.Supp.3d ----, ----,
Plaintiff has also failed to plead any facts demonstrating that Monaghan harbored an intent to deceive either her or the court. Instead, plaintiff attempts to raise a strong inference of intent to collude by pointing to the fact that she incurred costs and expenses in the 2007 S.D.N.Y. Action, and that that financial burden grew in correlation with the amount of time it has taken to resolve the 2007 S.D.N.Y. Action. However, that fact does not, in and of itself, raise an inference that Monaghan
Therefore, plaintiff's motion to amend her complaint to allege a Section 487 claim is also denied.
IV. Conclusion
Accordingly, for all the foregoing reasons, plaintiff's motion to file a second amended complaint is denied. Given the age of this matter and the multiple opportunities plaintiff has had to state her claims, plaintiff is denied leave to further amend her complaint. The only remaining claim in this action will be plaintiff's legal malpractice claim against Monaghan, based on: (1) Monaghan's alleged conflict of interest with Kinder and (2) Monaghan's allegedly deficient filings in the 2000 N.Y.S. Action. The Clerk of the Court is respectfully requested to mark Docket Item 93 closed.
SO ORDERED
Notes
I recite only those facts relevant to my resolution of the pending motion. The background of this case is set forth more fully in the Order of the Honorable Paul A. Crotty, United States District Judge dated March 6, 2017 and my Report and Recommendation dated December 16, 2016 (D.I. 65). The reader's knowledge of the factual and procedural background of this case is presumed.
Plaintiff alleged in her Amended Complaint that she entered into this settlement believing that KB was a viable, legal corporation, which, as explained below, was not accurate. Accordingly, plaintiff claims that she was fraudulently induced into the settlement for the 1991 N.Y.S. Action (Am. Compl. ¶ 23).
Plaintiff terminated Motta in 2013 (Plaintiff's Reply Memorandum of Law in Support of Her Motion to file Supplemental Pleadings, dated June 30, 2017 (D.I. 105) ("Pl. Reply Mem.") at 5).
The Amended Complaint also asserted fraud claims against Silverman. However, as noted above, all claims against Silverman were dismissed with prejudice in June 2017 (Opinion and Order of Judge Crotty, dated June 22, 2017 (D.I. 100) ).
Although Fed.R.Civ.P. 10(b) requires parties to "state [their] claims or defenses in numbered paragraphs, each limited as far as practicable to a single set of circumstances," plaintiff's proposed Second Amended Complaint does not set out her claims in separately numbered paragraphs. Because plaintiff is proceeding pro se, her pleadings must be construed liberally in her favor and I shall not deny her motion on this issue of form. See Rauch v. RCA Corp.,
In particular, plaintiff alleges that Monaghan failed to properly serve, or obtain waiver of service from, the following defendants: Sunbow, Sunbow Entertainment LLC, Sony Legacy a/k/a Legacy Recordings, Sony Wonder, Sony BMG Music Entertainment Inc., TV Loonland AG, Starwild Music Inc., Wildstar Music Inc., Apollo's Chariot Music and Banana Alert Music (Pl. Mot. at 8-9). All of these defendants, with the exception of Starwild Music Inc., Wildstar Music Inc., Apollo's Chariot Music and Banana Alert Music, made appearances in, and were voluntarily dismissed by plaintiff from, the 2007 S.D.N.Y. Action (Bryant v. AB Droits Audiovisuels, 07 Civ. 6395 (PAC) (HBP) (S.D.N.Y.), Voluntary Dismissal Without Prejudice Pursuant to Fed.R.Civ.P. 41(a)(1)(A)(i), dated Mar. 21, 2017 (D.I. 152) ("2007 S.D.N.Y. Voluntary Dismissal") ).
The motion to dismiss dated January 4, 2008 was filed by attorney Gloria Phares jointly on behalf of Sunbow, as well as Loonland UK Ltd., Metrodome Group P.L.C., Rhino Entertainment Co., Sony ATV Songs L.L.C. BMI, Sony/ATV Tunes L.L.C (ASCAP), Sony BMG Music Entertainment Inc. and TV Loonland Home Entertainment Ltd (see Sunbow's Motion to Dismiss).