United States District Court, D. Connecticut
JAMES D. COHEN, Plaintiff,
EDWARD ROSENTHAL, individually and as the sole member of ROSENTHAL LAW FIRM, LLC, Defendant.
RULING ON DEFENDANT'S MOTION TO DISMISS
CHARLES S. HAIGHT, JR. SENIOR UNITED STATES DISTRICT JUDGE.
James Cohen brings this action pro se against his
former attorney, Defendant Edward Rosenthal. Plaintiff
initially brought state common law claims for (1) breach of
contract, (2) breach of the implied covenant of good faith
and fair dealing, (3) misrepresentation, and (4) unjust
enrichment, invoking this Court's diversity jurisdiction
pursuant to 28 U.S.C. § 1332. Defendant moved to dismiss
Plaintiff's Amended Complaint, and the Court granted that
motion as to all claims but allowed Plaintiff an opportunity
to re-plead his breach of the implied covenant of good faith
and fair dealing claim. Cohen v. Rosenthal, No.
3:15-cv-01043, 2016 WL 7340280, at *9-10 (D. Conn. Dec. 19,
2016). Familiarity with this Ruling is assumed.
filed a Second Amended Complaint on January 30, 2017. Doc.
38. Defendant then filed a motion to dismiss that Second
Amended Complaint on March 9, 2017. Doc. 41. This Ruling
resolves that motion.
obtained a judgment in Connecticut Superior Court in his
favor against Roll-A-Cover, LLC ("RAC") and Michael
Morris in June 2010. Doc. 38 at 1-2 & n.1. On December 1,
2011, Plaintiff retained Defendant, a Connecticut attorney,
and the parties signed an "Agreement for Legal
Services" authorizing Defendant to collect for Plaintiff
the judgment against RAC and Morris. Id. ¶
Plaintiff's allegations center around Defendant's
refusal to properly collect on this judgment.
addressing Defendant's first motion to dismiss, the Court
held that Plaintiff was barred by the Rooker-Feldman
doctrine from asserting any unjust enrichment claim and
collaterally estopped from asserting any contract related
claims based on Defendant's actions or inactions in
collecting on the judgment from RAC. Cohen, 2016 WL
7340280 at *4-7. The Court concluded that to the extent
Plaintiff's breach of contract and breach of the implied
covenant of good faith and fair dealing claims were based on
Defendant's actions or inactions related to collecting on
the judgment from Morris such claims were not barred by
either doctrine. Id. at *5, 7. In addition, the
Rooker-Feldman doctrine did not bar Plaintiff's
misrepresentation claims. Id. at *5. The Court,
however, ultimately dismissed Plaintiff's breach of
contract and misrepresentation claims because such claims
were barred by the statute of limitations. Id. at
*7-8 (holding that because Plaintiff's breach of contract
claim sounded in tort, the three-year statute of limitations
applied and Plaintiff's claim was untimely, and that the
same statute of limitations barred Plaintiff's
misrepresentation claim). The Court also dismissed
Plaintiff's breach of the implied covenant of good faith
and fair dealing claim because Plaintiff had made only
limited allegations related to the claim and failed at all to
specify what conduct by Defendant constituted actions taken
in bad faith to support the claim. Id. *9.
the very limited allegations made by Plaintiff, the Court
allowed Plaintiff the opportunity to re-plead a breach of the
implied covenant of good faith and fair dealing claim.
Cohen, 2016 WL 7340280, at *9. In doing so, the
Court recounted the legal standard in detail so that
Plaintiff could attempt to properly plead such a claim.
Id. In particular, the Court noted that such a claim
requires alleging facts supporting that a defendant has taken
actions (or inactions) in bad faith and that bad faith
requires "more than mere negligence." Id.
(quoting Kim v. State Farm Fire & Cas. Co., No.
15-cv-879, 2015 WL 6675532, at *3 (D. Conn. Oct. 30, 2015))
(internal quotation marks omitted). The Court also recognized
that Plaintiff's own allegations initially appeared to
contradict that Defendant had acted in bad faith by alleging
that Defendant was only going to be paid based on the amounts
he collected, and thus, Defendant's only incentives would
have been to diligently collect on the judgment. Id.
at *9 n.17. Plaintiff attempted to comply with the
Court's Ruling and guidance by filing a Second Amended
Complaint. Doc. 38.
facts pled in Plaintiff's Second Amended Complaint are
essentially the same as those pled in Plaintiff's Amended
Complaint, although the allegations focus on Defendant's
lack of action related to collecting on the judgment from
Morris. The Court will recount them fully here.
retained Plaintiff to collect on the judgment against RAC and
Morris. See Doc. 38 at 2 ¶ 3. Any collections
from RAC were stayed because of a bankruptcy proceeding,
however, Morris remained liable for the judgment and had
sufficient assets to satisfy the remaining amounts owed.
Id. at 2-3 ¶¶ 4-5. Defendant, a member of
the Connecticut Bar and Connecticut Bar Association
terminated his collection efforts in May 2012 with an
uncollected balance of $1, 020, 565. Id. at 3
¶¶ 7, 9. As a result of "Defendant's bad
faith and unfair dealing with regard to the Agreement, "
Plaintiff accepted a settlement from RAC, and after applying
that, the uncollected judgment remained at $900, 069 as of
June 30, 2017. Id. at 3 ¶ 11.
alleges that Defendant breached the implied covenant of good
faith and fair dealing in a variety of ways, which led to
Morris being able to transfer and get rid of his assets and
Plaintiff's inability to recover on the judgment.
Id. at 4-5 ¶¶ 2-3. Plaintiff lists the
following breaches in his Second Amended Complaint, stating
that Defendant: represented that his law firm was licensed to
practice law in Connecticut, misled Plaintiff to believe that
he had the experience and ability to collect on the judgment,
misled Plaintiff to believe he had the experience to deal
with Morris and would aggressively pursue Morris's
assets, purposely failed to pursue Morris's assets,
choose not to participate in an examination of Morris, failed
to pursue collections of Morris's assets per the terms of
the Agreement, failed to depose or examine Morris, failed to
demand disclosure of Morris's assets, failed to obtain
and act on property or bank executions, failed to file liens
and writs of attachments against Morris's assets and/or
LLC ownerships, failed to seize Morris's motor vehicles
or real estate, and failed to communicate with Plaintiff
regarding all collection efforts. Id. at 4-5 ¶
Standard of Review
plaintiff must set forth sufficient factual allegations,
which accepted as true, "state a claim to relief that is
plausible on its face" in order to survive a Rule
12(b)(6) motion to dismiss. Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570, (2007)) (internal quotation
marks omitted). In applying this standard, the Court is
guided by "'[t]wo working principles.'"
Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009)
(quoting Iqbal, 556 U.S. at 678). First, all factual
allegations in the complaint must be accepted as true and all
reasonable inferences must be drawn in Plaintiff's favor
although the Court need not accept "legal
conclusions" or similar conclusory statements. See
Id. Second, "[d]etermining whether a complaint
states a plausible claim for relief will . . . be a
context-specific task that requires the reviewing court to
draw on its judicial experience and common sense" and
only if a complaint states a plausible claim for relief will
it survive a motion to dismiss. Id. (quoting
Iqbal, 556 U.S. at 679) (internal quotation marks
under this standard, however, the Court must liberally
construe pro se pleadings and hold them to a less
rigorous standard of review than pleadings drafted by an
attorney. See Bertin v. United States, 478 F.3d 489,
491 (2d Cir. 2007). Moreover, pro se pleadings and
briefs must be read "to raise the strongest arguments
they suggest." Id. (quoting Burgos v.
Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)) (internal
quotation marks omitted). The Court's review at the
motion to dismiss stage may include documents that are either
incorporated by reference into the complaint or attached as
exhibits as well as public records. See Blue Tree Hotels
Inv. (Canada), Ltd. v. Starwood Hotels & Resorts
Worldwide, Inc., 369 F.3d 212, 217 (2d Cir. 2004). Here,
Plaintiff repeatedly cites in his Second Amended Complaint to
documents filed in connection with the first motion to
dismiss that this Court took judicial notice of in its prior
Ruling, including the contract between the parties. The Court
will consider these documents by again taking judicial notice
of them as public records and because Plaintiff has
incorporated them by reference in his Second Amended