HUA HOU and LUQIN SUN v. BERRY APPLEMAN & LEIDEN, LLP and CLAUDIA VILLASENOR-SANCHEZ
Civil Action No. 3:21-CV-2958-D
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION
June 23, 2022
Pro se plaintiffs Hua Hou (“Hou“) and Luqin Sun (“Sun“) (collectively, “plaintiffs,” unless the context indicates otherwise) sue defendants Berry Appleman & Leiden, LLP (“BAL“) and Claudia Villasenor-Sanchez, Esquire (collectively, “defendants,” unless the context indicates otherwise), alleging claims for legal malpractice and breach of fiduciary duty in connection with immigration-law services. Defendants move under
I
In 2018 Stem, Inc. (“Stem“) retained BAL to file an H-1B1 visa petition for Hou,
Stem later received a Request for Evidence (“RFE“) from U.S. Citizenship and Immigration Services (“USCIS“) related to Hou‘s H-1B visa petition. But on April 2, 2019, before the RFE and H-1B petition were completed, Stem rescinded its job offer to Hou due to adverse business conditions. In an email,3 Stem stated:
[a]ll Stem activity regarding processing of your H1-B visa application to the USCIS must also cease, as will any work by Stem‘s lawyers (BAL) that would incur additional cost to Stem. Per your request, however, Stem will ask BAL to submit the RFE documents they already have in hand shortly before the May 27th deadline. We hope this provides you with the additional time you need to find alternative employment.
On May 2, 2019 BAL received notice from USCIS that Hou‘s H-1B petition was withdrawn and that Sun‘s H-4 change of status application was denied. But BAL did not notify plaintiffs of these USCIS decisions, despite the fact that Hou sent emails inquiring about the status of the case on May 27, 29, and 30, 2019. Plaintiffs allege that defendants’ failure to inform them about the withdrawal and denial of their petitions caused them to begin accruing time in an unlawful immigration status,5 without their knowledge, on May 2, 2019.
In October 2019 Hou received a job offer from Amazon LLC (“Amazon“). On November 19, 2019 Amazon filed an H-1B petition and a change of status application on Hou‘s behalf. Although Hou received an H-1B approval notice, his change of status
On January 13, 2020 plaintiffs interviewed for their new visas in the Beijing Consular Office. They were not granted visas, however, because they had accrued more than six months of unlawful presence in the United States. Plaintiffs attempted to apply for a waiver, but “the consular did not have enough time to deal with it.” Compl. ¶ 18. And plaintiffs were not called in for another interview due to the COVID-19 pandemic.
On November 24, 2021 plaintiffs filed this lawsuit, alleging that defendants committed legal malpractice and breached their fiduciary duty to plaintiffs by failing to notify them about USCIS‘s May 2, 2019 decisions withdrawing Hou‘s H-1B petition and denying Sun‘s application for change of status. Plaintiffs also allege that defendants’ omission caused them to accumulate more than 180 days out of lawful immigration status in the United States. Defendants move to dismiss plaintiffs’ action under
II
In deciding a
III
The court begins with defendants’ contention that plaintiffs’ legal malpractice claim should be dismissed because it is time-barred.
A
Defendants maintain that plaintiffs’ legal malpractice claim is barred by the statute
B
Limitations is an affirmative defense. See
In Texas, “[t]he statute of limitations for legal malpractice is two years after a cause
C
Defendants cannot obtain a dismissal at the
Considering the facts plaintiffs have pleaded, the court is unable to conclude that defendants’ limitations defense appears clearly on the face of plaintiffs’ complaint, i.e., that plaintiffs have pleaded themselves out of court by admitting to all of the elements of the defense. The court therefore holds that defendants are not entitled to dismissal of plaintiffs’ action at the
IV
The court turns next to defendants’ contention that plaintiffs’ legal malpractice claim must be dismissed for failure to plausibly plead a breach of defendants’ duties, and to plausibly plead causation.
A
“Attorneys owe their clients the duty to act with ordinary care—i.e., in a manner consistent with the standard of care that would be expected to be exercised by a reasonably prudent attorney.” Beck v. L. Offs. of Edwin J. (Ted) Terry, Jr., P.C., 284 S.W.3d 416, 426 (Tex. App. 2009, no pet.). Complaints that an attorney failed to meet this duty of ordinary care sound in negligence. See, e.g., id. (“Complaints about an attorney‘s care, skill, or diligence in representing a client implicate this duty of ordinary care and sound in negligence.“); Cosgrove v. Grimes, 774 S.W.2d 662, 664 (Tex. 1989) (“An attorney malpractice action in Texas is based on negligence.“). To establish a claim for legal malpractice, a client-plaintiff must demonstrate that “(1) the lawyer owed a duty of care to the client; (2) the lawyer breached that duty; and (3) the lawyer‘s breach proximately caused damage to the client.” Rogers v. Zanetti, 518 S.W.3d 394, 400 (Tex. 2017).
B
1
Defendants first maintain that, because they were retained by Stem to file Hou‘s H-1B petition, any duty they owed to plaintiffs is limited in scope to the H-1B petition and any duty owed to plaintiffs terminated upon completion of this purpose. Defendants therefore
2
“An attorney-client relationship depends on a contract, express or implied, between the parties.” Simpson v. James, 903 F.2d 372, 376 (5th Cir. 1990). “When an attorney-client relationship is established, the relation generally terminates once the purpose of the employment is completed, absent a contrary agreement.” Id.; see Sealed Party v. Sealed Party, 2006 WL 1207732, at *6 (S.D. Tex. May 4, 2006) (“In the absence of an agreement to the contrary, or special circumstances, an attorney-client relationship generally terminates upon the completion of the purpose of the employment.“). “Court[s] look[] to the actions of the parties as a manifestation of their intent concerning the purpose of their attorney-client relationship.” Gen. Elec. Co. v. Mitsubishi Heavy Indus., Ltd., 2011 WL 13201855, at *7 (N.D. Tex. Sept. 12, 2011) (Furgeson, J.). Once an attorney-client relationship terminates, a legal injury cannot occur because the attorney has no duty to the client at that point. See Haase v. Abraham, Watkins, Nichols, Sorrels, Agosto & Friend, LLP, 404 S.W.3d 75, 89 (Tex. App. 2013, no pet.) (“The date of [defendant‘s] withdrawal is significant in one respect: it represents the last possible time in which [defendant] could have committed a
3
The court cannot determine at this stage of the litigation whether the purpose of defendants’ alleged attorney-client relationships with Hou and Sun was completed on April 2, 2019. Defendants do not appear to dispute plaintiffs’ allegations, and it is at least theoretically possible that, although it was Stem who retained BAL, defendants owed independent duties to Hou and/or Sun related to the H-1B petition. See Austin T. Fragomen, Jr. et al., H-1B Handbook § 1:51 (2022 ed.) (explaining that although H-1B cases may be pursued without representation of the worker, they may also involve an explicit or implied dual representation of both the employer and the employee). And the April 2, 2019 email from Stem at most establishes that Hou was told that “any work by Stem‘s lawyers (BAL) that would incur additional cost to Stem” must cease. Ds. Br., Ex. A at 1 (emphasis added). But Hou was also told in the email that “Stem will ask BAL to submit the RFE documents they already have in hand shortly before the May 27th deadline. We hope this provides you with the additional time you need to find alternative employment.” Id. Thus the court cannot conclude, based on this document alone, that BAL‘s work with respect to Hou‘s H-1B petition or Sun‘s change of status application—and the purpose of the alleged attorney-client
Moreover, defendants’ argument that plaintiffs have failed to allege duty or breach—because any further efforts by defendants regarding the H-1B petition would have been futile—misapprehends the nature of plaintiffs’ allegations. Plaintiffs do not allege that defendants breached their duty by notifying USCIS that Stem had withdrawn its offer of employment and withdrawing Hou‘s H-1B application; instead, they allege that defendants breached their duty by taking these actions and failing to inform plaintiffs that USCIS had withdrawn the H-1B petition and denied the change of status application.
C
1
Defendants next maintain that plaintiffs have not alleged facts that enable the court to reasonably infer that defendants proximately caused their damages because plaintiffs never actually accrued time in an unlawful immigration status. Alternatively, assuming that plaintiffs accrued unlawful status, defendants contend that plaintiffs’ injuries would have occurred regardless of defendants’ omission because their visas were dependent on Stem‘s offer of employment and that their damages were due to plaintiffs’ leaving the United States on a “rush” basis, not defendants’ alleged omission. Plaintiffs respond, inter alia, that they have plausibly alleged causation because defendants’ omission caused them to accumulate time in an unlawful immigration status without their knowledge and this harm was
2
“To establish proximate cause, a plaintiff must prove both cause in fact and foreseeability.” Taylor v. Scheef & Stone, LLP, 2020 WL 4432848, at *4 (N.D. Tex. July 31, 2020) (Fitzwater, J.) (citing Hall v. Stephenson, 919 S.W.2d 454, 466 (Tex. App. 1996, pet. denied)). “Cause in fact means that the defendant‘s act or omission was a substantial factor in bringing about the injury that would not otherwise have occurred.” Id. (quoting Hall, 919 S.W.2d at 466). In other words, the “cause-in-fact standard requires not only that the act or omission be a substantial factor but also that it be a but-for cause of the injury or occurrence.” Rogers, 518 S.W.3d at 403. “Foreseeability means that the actor should have anticipated the dangers that his negligent act created for others. [It] does not require that the actor anticipate the precise consequences of his actions.” Hall, 919 S.W.2d at 466 (citation omitted). “These elements cannot be satisfied by mere conjecture, guess, or speculation.” Bd. of Trs. of Fire & Police Retiree Health Fund v. Towers, Perrin, Forster & Crosby, Inc., 191 S.W.3d 185, 190 (Tex. App. 2005, no pet.) (quoting IHS Cedars Treatment Ctr. of Desoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 798-99 (Tex. 2004)).
With respect to legal malpractice claims, “[t]he determination of proximate cause is usually a question of fact.” Off. Stanford Invs. Comm. v. Greenberg Traurig, LLP, 2014 WL 12572881, at *6 (N.D. Tex. Dec. 17, 2014) (Godbey, J.) (quoting Millhouse v. Wiesenthal, 775 S.W.2d 626, 627 (Tex. 1989)). “Nonetheless, causation may be determined as a matter of law if the circumstances are such that reasonable minds could not arrive at a different
3
The court concludes that defendants’ argument that plaintiffs never accrued unlawful presence, and were thus incorrectly advised by Amazon‘s counsel that they were out of status for over 180 days, is a factual question that must be decided in a procedural context that is not confined to an evaluation of plaintiffs’ complaint, such as a summary judgment motion. For the purposes of this
The court also rejects defendants’ arguments that plaintiffs have failed to adequately plead causation: because plaintiffs would have accrued this unlawful presence regardless of any omissions by defendants, and, once they accrued 180 days of unlawful status, plaintiffs did not need to expedite their departure from the United States. These arguments again misapprehend the nature of the allegations in plaintiffs’ complaint. Plaintiffs do not allege that defendants caused their damages by informing USCIS that Stem‘s offer of employment had been rescinded or by withdrawing the H-1B petition; rather, they allege that defendants caused their damages by failing to inform plaintiffs when USCIS withdrew Hou‘s H-1B petition and denied Sun‘s accompanying application for change of status. Plaintiffs allege that defendants’ omission led them to unknowingly accrue more than 180 days of unlawful
Plaintiffs’ complaint alleges sufficient facts to plausibly plead a claim that defendants’ failure to notify plaintiffs of USCIS‘s May 2, 2019 decisions constituted a breach of their duties as attorneys and proximately caused plaintiffs’ damages. The court therefore holds that plaintiffs have stated a claim for legal malpractice, and it denies defendants’ motion to dismiss in this respect.
V
The court now turns to defendants’ contention that plaintiffs’ claim for breach of fiduciary duty violates the Texas anti-fracturing rule.
A
“Under Texas law, . . . ‘[w]hether allegations against a lawyer, labeled as breach of fiduciary duty, fraud, or some other cause of action, are actually claims for professional negligence or something else is a question of law to be determined by the court.‘” Huerta v. Shein, 498 F. Appx. 422, 427 (5th Cir. 2012) (per curiam) (alteration in original) (quoting Nabors v. McColl, 2010 WL 255968, at *2 (Tex. App. Jan. 25, 2010, pet. denied) (mem. op.)). Texas courts apply “[t]he anti-fracturing rule [to] prevent[] plaintiffs from converting
B
The court holds that plaintiffs’ claim for breach of fiduciary duty violates the Texas anti-fracturing rule. This is because plaintiffs rely on the same factual allegations that support their legal malpractice claim to support their breach of fiduciary duty claim. And plaintiffs allege that defendants breached their fiduciary duty to plaintiffs because “BAL and [Villasenor-Sanchez] failed to use ordinary care in [their] representation of Sun[,]” and because their omission breached their “duty to exercise reasonable care in the representation
The court therefore grants defendants’ motion to dismiss plaintiffs’ breach of fiduciary duty claim.
VI
The court grants plaintiffs leave to replead. The court‘s usual practice when granting a motion to dismiss is to permit the plaintiffs at least one opportunity to replead, unless it is clear that the defects are incurable or the plaintiffs advise the court that they are unwilling
*
For the reasons explained, the court grants in part and denies in part defendants’ motion to dismiss. The court grants plaintiffs 28 days from the date this memorandum opinion and order is filed to file a second amended complaint.9
June 23, 2022.
SIDNEY A. FITZWATER
SENIOR JUDGE