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Cohen v. Rosenthal

United States District Court, D. Connecticut

August 14, 2017

JAMES D. COHEN, Plaintiff,
EDWARD ROSENTHAL, individually and as the sole member of ROSENTHAL LAW FIRM, LLC, Defendant.



         Plaintiff 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.

         Plaintiff 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.

         I. Background[1]

         Plaintiff 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. ¶ 3.[2] Plaintiff's allegations center around Defendant's refusal to properly collect on this judgment.

         In 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.

         Given 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.

         The 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.

         Defendant 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.[3] 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.

         Plaintiff 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 ¶ 2.

         II. Standard of Review

         A 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 omitted).

         Even 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 Complaint.

         III. ...

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