Beach TV Props., Inc. v. Solomon
This text of 306 F. Supp. 3d 70 (Beach TV Props., Inc. v. Solomon) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
RUDOLPH CONTRERAS, United States District Judge
I. INTRODUCTION
With the inclusion of a few check marks on a form submitted in 1999, this litigation might have been avoided. In December of 1999, Defendant Henry Solomon, an attorney for Plaintiff Atlanta Channel, Inc. ("ACI"), submitted a form on ACI's behalf to the Federal Communications Commission ("FCC") without realizing that several key questions on the form remained unanswered. Because the form was incomplete, the FCC dismissed it, thereby blocking ACI's ability to obtain a special license that would have given it preference on the airwaves. Mr. Solomon filed a motion with the FCC asking it to reverse its dismissal of the form, but for twelve years the FCC sat on that motion. In the intervening years, Mr. Solomon retired from the practice of law. After several failed appeals of the FCC's dismissal, ACI filed suit in this Court alleging that Mr. Solomon was negligent when he filed the incomplete form, and now moves for summary judgment as to Mr. Solomon's liability. In his cross-motion for summary judgment, Mr. Solomon argues that ACI cannot recover because its malpractice claim is barred by the statute of limitations, because ACI was contributorily negligent by failing to complete the form itself, and because the far-reaching damage ACI now alleges it suffered was not proximately caused by the submission of the incomplete form. For the reasons set forth below, the Court finds that neither party has met its burden for a finding of summary judgment in its favor, and therefore denies both motions.
II. FACTUAL AND PROCEDURAL BACKGROUND
ACI is a broadcast television business that owns and operates a low power television ("LPTV") station with the call sign WTHC-LD in Atlanta, Georgia. Pl.'s Statement of Material Facts Not in Dispute ("Pl.'s SMF") ¶ 18, Pl.'s Mot. Partial Summ. J. ("Pl.'s Mot."), ECF No. 71-1; Def.'s Statement of Material Facts Not in Genuine Dispute ("Def.'s SMF") ¶ 1, Def.'s Mot. Summ. J. ("Def.'s Mot."), ECF No. 76-1. Through this license granted by the *77FCC, ACI broadcasts "visitor information to hotels in the Atlanta area." Pl.'s SMF ¶¶ 19-20; Def.'s Brief Supp. Mot. Summ. J. ("Def.'s Brief") at 4, ECF No. 76. From 1993 to 2009 and from 2016 to present, ACI has held the FCC license for this channel; from 2009 to 2016, the license was assigned to Beach TV Properties, Inc. ("Beach TV"). Pl.'s SMF ¶¶ 20-21. Both ACI and Beach TV are owned and operated by Jud Colley and Toni Davis. Id. ¶¶ 2-3.
In 1999, Congress enacted the Community Broadcasters Protection Act ("CBPA"),
In order to obtain a Class A license for an LPTV station, applicants must have completed and filed Statements of Eligibility with the FCC by January 28, 2000. See
On June 2, 2000, the FCC's Mass Media Bureau ("MMB") accepted Beach TV's Statements of Eligibility, and soon after granted Beach TV's stations Class A licenses. Pl.'s SMF ¶ 42. However, on June 9, 2000, the MMB dismissed ACI's Statement because it was incomplete.
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RUDOLPH CONTRERAS, United States District Judge
I. INTRODUCTION
With the inclusion of a few check marks on a form submitted in 1999, this litigation might have been avoided. In December of 1999, Defendant Henry Solomon, an attorney for Plaintiff Atlanta Channel, Inc. ("ACI"), submitted a form on ACI's behalf to the Federal Communications Commission ("FCC") without realizing that several key questions on the form remained unanswered. Because the form was incomplete, the FCC dismissed it, thereby blocking ACI's ability to obtain a special license that would have given it preference on the airwaves. Mr. Solomon filed a motion with the FCC asking it to reverse its dismissal of the form, but for twelve years the FCC sat on that motion. In the intervening years, Mr. Solomon retired from the practice of law. After several failed appeals of the FCC's dismissal, ACI filed suit in this Court alleging that Mr. Solomon was negligent when he filed the incomplete form, and now moves for summary judgment as to Mr. Solomon's liability. In his cross-motion for summary judgment, Mr. Solomon argues that ACI cannot recover because its malpractice claim is barred by the statute of limitations, because ACI was contributorily negligent by failing to complete the form itself, and because the far-reaching damage ACI now alleges it suffered was not proximately caused by the submission of the incomplete form. For the reasons set forth below, the Court finds that neither party has met its burden for a finding of summary judgment in its favor, and therefore denies both motions.
II. FACTUAL AND PROCEDURAL BACKGROUND
ACI is a broadcast television business that owns and operates a low power television ("LPTV") station with the call sign WTHC-LD in Atlanta, Georgia. Pl.'s Statement of Material Facts Not in Dispute ("Pl.'s SMF") ¶ 18, Pl.'s Mot. Partial Summ. J. ("Pl.'s Mot."), ECF No. 71-1; Def.'s Statement of Material Facts Not in Genuine Dispute ("Def.'s SMF") ¶ 1, Def.'s Mot. Summ. J. ("Def.'s Mot."), ECF No. 76-1. Through this license granted by the *77FCC, ACI broadcasts "visitor information to hotels in the Atlanta area." Pl.'s SMF ¶¶ 19-20; Def.'s Brief Supp. Mot. Summ. J. ("Def.'s Brief") at 4, ECF No. 76. From 1993 to 2009 and from 2016 to present, ACI has held the FCC license for this channel; from 2009 to 2016, the license was assigned to Beach TV Properties, Inc. ("Beach TV"). Pl.'s SMF ¶¶ 20-21. Both ACI and Beach TV are owned and operated by Jud Colley and Toni Davis. Id. ¶¶ 2-3.
In 1999, Congress enacted the Community Broadcasters Protection Act ("CBPA"),
In order to obtain a Class A license for an LPTV station, applicants must have completed and filed Statements of Eligibility with the FCC by January 28, 2000. See
On June 2, 2000, the FCC's Mass Media Bureau ("MMB") accepted Beach TV's Statements of Eligibility, and soon after granted Beach TV's stations Class A licenses. Pl.'s SMF ¶ 42. However, on June 9, 2000, the MMB dismissed ACI's Statement because it was incomplete.
A few weeks later, on December 13, 2000, Mr. Solomon emailed Mr. Colley about seeking further review of the dismissal with the FCC, and explained that in the meantime, "it d[id] not appear that the station [wa]s likely to suffer any harm as a result of" the dismissal.
During the first few years following the submission of the Application, Mr. Solomon communicated with ACI regarding its status, and in 2004 drafted a letter in support of the Application from U.S. Representative John Lewis of Georgia to be submitted to the FCC.
Also in 2008, Mr. Solomon began the process of winding down his practice at the Garvey firm due to his advanced age. See Ex. 25, Solomon Dep., Pl.'s Mot., ECF No. 72-5. The details regarding how he characterized this change to Mr. Colley remain murky. Mr. Colley summarizes Mr. Solomon's 2009 communications with him regarding this "transition" as follows: that Mr. Solomon told Mr. Colley that he would turn over responsibility for ACI and Beach TV matters to Melodie Virtue, another partner at the firm; that she would become the "front person" for ACI and Beach TV's dealings with the FCC; that Mr. Solomon would act "in the background" as a "consultant"; that Mr. Solomon would remain in Washington, D.C. and would maintain an office at the Garvey firm; that he would continue to perform a limited amount of work for the firm; and that he would continue to work on pro bono matters. Pl.'s SMF ¶ 64. In his deposition, Mr. Solomon said that he could not recall speaking with Mr. Colley or Ms. Davis about his retirement, see Solomon Dep. 108:2-17, 140:8-22, ECF No. 72-4, but now claims that he never told Mr. Colley that he "would be the back person regarding legal representation of ACI or any of the other businesses owned by Colley." 2d Solomon Decl. ¶ 8, Def.'s Opp'n, ECF No. 78-6.
On December 11, 2009, Mr. Solomon forwarded an email to Mr. Colley that contained an image of a "biker bar in Florida." See Ex. C, Pl.'s Mot., ECF No. 71-5. The image depicted three motorized scooters parked outside of a convenience store. In the email, Mr. Solomon told Mr. Colley, while referring to the photo: "Not me. Staying in DC forever. Transition will be smooth and I will be around to consult, etc."
Between 2008 and 2011, Mr. Solomon took several steps to wind down his practice. On July 1, 2010, his employment at the Garvey firm was officially terminated.
*79See Ex. 25, Solomon Dep. Mr. Solomon relinquished his Virginia bar license in 2009 and his D.C. license in 2011. Def.'s SMF ¶ 19. However, Mr. Solomon did not completely sever his relationship with the Garvey firm upon his termination and the relinquishment of his bar licenses. He continued to work from his office at the firm several days a week, and maintained a pro bono practice. Pl.'s SMF ¶¶ 70, 73. Additionally, at least in ACI's case, he continued to advise his former partners on their work before the FCC. See, e.g. , Ex. 41, Virtue Dep., Pl.'s Mot., ECF No. 72-7.
In February 2012, Congress passed the Spectrum Act, which Mr. Colley worried might affect ACI's LPTV spectrum usage rights. As such, he contacted Ms. Virtue, whom he believed he had been told would be the "front person" for all of ACI's dealings with the FCC, inquiring as to the status of ACI's December 2000 Application for Review. Pl.'s SMF ¶¶ 85-87. Up until Mr. Colley's email, Ms. Virtue had been unaware that ACI had an Application for Review pending before the FCC.
Upon further inquiry, Ms. Virtue learned that the Garvey firm did not have a complete record of the Application, and the FCC had "no records in its Public File regarding the Application for Review." Pl.'s SMF ¶¶ 90-91. Therefore, Ms. Virtue reconstructed the record for the Application for Review using documents provided by Mr. Colley and forwarded the reconstructed record to the FCC. She informed Mr. Colley that she was "in communication with Mr. Solomon about the Application for Review."
While Ms. Virtue had "notified the FCC in writing [that] she would be the contact person for other matters handled by Mr. Solomon for Beach TV," which at that point was the licensee for the relevant LPTV station, she did not notify the FCC in writing that she would be the contact person for the Application for Review, nor did she substitute as counsel of record.
*80Mr. Colley went on to lobby the FCC for an adjudication in his favor, using lobbyists not employed by the Garvey firm. Pl.'s SMF ¶ 108-09. One of those lobbyists was Benjamin Perez, an engineer who is also a licensed attorney. Colley Dep. 147:8-15, ECF No. 76-3; see also Ex. 10, Def.'s Mot., ECF No. 76-12. During that time, the FCC contacted Mr. Solomon requesting a copy of ACI's Statement of Eligibility. Pl.'s SMF ¶ 112. Mr. Solomon forwarded the request to Ms. Virtue, who supplied the FCC with a copy of the statement.
On November 8, 2012, the FCC denied the Application for Review, explaining that ACI's Statement of Eligibility had a "material deficiency" because it did not include answers to key questions. See Ex. G, Pl.'s SMF, ECF No. 71-9. The next day, Ms. Virtue sent a copy of the denial to Mr. Solomon for his review, and told him that she planned to file a Petition for Reconsideration with the FCC. Pl.'s SMF ¶¶ 118-19. Mr. Solomon offered to provide her with "input" and "wisdom" as she drafted the petition.
On November 21, 2012, Ms. Virtue emailed Mr. Colley and Ms. Davis discussing her recommendations for the Petition for Reconsideration. See Ex. 43, Virtue Dep., Pl.'s Mot., ECF No. 72-7. In the email, she also responded to a previous email from Ms. Davis in which Ms. Davis expressed her belief that this whole situation had arisen because of a clerical error by the Haley firm.
Upon finishing a draft of the Petition, Ms. Virtue sent a copy to Mr. Colley and Ms. Davis, and also left a copy on Mr. Solomon's chair in his Garvey firm office for him to review. See Ex. J, Pl.'s SMF, ECF No. 71-12; Ex. K, Pl.'s SMF, ECF No. 71-13. It appears that Mr. Solomon was in the office that day, because an hour and a half later, he responded to Ms. Virtue with comments. In those comments, he suggested
Maybe a short para. saying that what the FCC did to us vs. its flexibility vis-a-vis other filers, borders on disparate treatment. See Melody Music, Inc. v. FCC (a couple of cases followed and relied on MM doctrine. Similarly-situated parties can't be treated differently. Granted network stations though anti-trust violations/deception, but denied AM renewal where also deceptive practices.) Melody Music v. FCC,345 F.2d 730 (DC Cir. 1965). I haven't re-read the *81McElroy Electronics [Corp. v. F.C.C.] case, but I think MM was cited.990 F.2d 1351 (DC Cir. 1993). In any event, MM has been cited in a number of subsequent cases that you can easily find. Jud's Declaration excellent.
Ex. K, Pl.'s SMF. Seven minutes later, he sent another email, which read: "Also see fn. 13 White Mtn. Beg. Co, Inc. v. FCC
On October 7, 2014, the MMB denied the Petition for Reconsideration because "[t]he Atlanta Channel's initial Statement of Eligibility lacked any information supporting eligibility, and its corrected statement was untimely." Ex. 53, Virtue Dep., ECF No. 72-7. In response to this denial, Ms. Virtue emailed Mr. Colley and Ms. Davis explaining the process for filing an appeal of the decision to the D.C. Circuit. See Ex. 54, Virtue Dep., ECF No. 72-7. She also explained that it would be wise at that juncture to again consult with outside counsel regarding whether Beach TV and the Garvey firm had a conflict of interest that could affect the appeal.
Beach TV ultimately decided to file an appeal with the D.C. Circuit using a different law firm, but continued to retain the Garvey firm for other matters. The D.C. Circuit affirmed the FCC denial of the Petition for Review on September 23, 2015. See Beach TV Props., Inc. v. FCC ,
All three defendants moved to dismiss ACI and Beach TV's First Amended Complaint. See ECF Nos. 24, 25, 27. The Court granted the Garvey and Haley firms' motions, and granted in part and denied in part Mr. Solomon's. See Beach TV Props., Inc. v. Solomon , No. 15-cv-1823,
III. LEGAL STANDARD
A court may grant a motion for summary judgment when there is "no genuine *82dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "Material" facts are those capable of affecting the substantive outcome of the litigation, Anderson v. Liberty Lobby, Inc. ,
On summary judgment, the movant bears the initial burden of identifying portions of the record that demonstrate the absence of any genuine issue of material fact. See Fed. R. Civ. P. 56(c)(1) ; Celotex Corp. v. Catrett ,
IV. ANALYSIS
ACI and Mr. Solomon have each moved for a ruling in their favor regarding Mr. Solomon's liability for the submission of the incomplete Statement of Eligibility. See Pl.'s Mot.; Def.'s Mot. ACI argues that the Court should grant it summary judgment because it has demonstrated that Mr. Solomon committed malpractice when he submitted the incomplete form and because it filed suit within the statute of limitations period. Mr. Solomon argues that the Court should rule in his favor because he has demonstrated that ACI's suit is barred by the statute of limitations. In the alternative, Mr. Solomon argues that ACI was contributorily negligent when it forwarded the incomplete Statement of Eligibility to him for his review, and that ACI cannot show, as a matter of law, that it was Mr. Solomon's actions that led to the full extent of the loss ACI alleges it suffered in its Second Amended Complaint. For the reasons set forth below, the Court finds that questions of fact remain as to whether Mr. Solomon committed legal malpractice when he submitted the incomplete form, whether ACI's claim against Mr. Solomon is time-barred, and whether Mr. Solomon's actions proximately caused the full extent of ACI's injuries, and therefore denies both parties' motions for summary judgment.
A. Statute of Limitations1
The parties dispute whether ACI's claim of legal malpractice against Mr. Solomon is *83time-barred. Legal malpractice claims in the District of Columbia "may not be brought" more than three years "from the time the right to maintain the action accrues."
In response, Mr. Solomon claims that his representation of ACI ended upon his retirement in 2010. See Def.'s Opp'n at 13, ECF No. 78. In addition, he argues that the lulling doctrine is inapplicable, and his actions did not amount to fraudulent concealment. See
1. Date of Injury
When determining whether the statute of limitations on a claim has run, a court must first determine when the relevant cause of action accrued. See Williams v. Mordkofsky ,
ACI claims that it did not suffer an injury as a result of Mr. Solomon's alleged negligence until November 10, 2014, when *84it suffered the "actual injury" of incurring legal fees and expenses by taking an appeal of the FCC's decision to the D.C. Circuit. See Pl.'s Mem. at 14. ACI claims that this was the first injury it suffered because even though its application for a Class A license was denied on June 9, 2000, it has not yet suffered displacement from Channel 42. It explains that "ACI therefore did not lo[ ]se any existing right, remedy or interest when Mr. Solomon filed the incomplete ACI Statement in 1999. ACI had and retained the right to use Channel 42 of the broadcast spectrum in Atlanta because ACI held a low power television license. Mr. Solomon's mistake did not affect that right."
"At the earliest, [a cause of] action accrues 'when the plaintiff has sustained some injury, even if the injury occurs prior to the time at which the precise amount of damages can be ascertained.' " Bleck v. Power ,
Despite its arguments to the contrary, ACI suffered actual injury as a result of Mr. Solomon's alleged negligence on June 9, 2000, when the FCC dismissed ACI's Statement of Eligibility, thereby precluding it from applying for a Class A license. ACI explains, "[t]he sole reason for filing the ACI Statement in 1999 was to get Class A status for the WTHC-LD License and thus protect it from the possibility of displacement due to the FCC's promotion of new technology." Pl.'s Opp'n at 19, ECF No. 79. Therefore, the dismissal of the Statement of Eligibility, which precluded ACI from obtaining a Class A license for its LPTV station, was the first actual harm ACI suffered as a result of Mr. Solomon's alleged negligence. At that point, its station lost its chance to obtain the same protection from displacement as a full power television station has, and also possibly its opportunity to increase in value as a result of obtaining that license. See 2d Colley Decl. ¶ 23, ECF No. 79-3. Even though the full extent of the damages caused by the dismissal of the Statement of Eligibility may not have been apparent in 2000, the dismissal of the Statement was a real, concrete injury, and would have provided a basis for a malpractice suit in 2000 if ACI had chosen to sue Mr. Solomon then. See Pl.'s Opp'n at 22 ("ACI's damages are measured by the difference between ACI having a Class A license and not having a Class A license.")
Because ACI suffered an actual injury as the result of Mr. Solomon's alleged malpractice in 2000 but did not bring this suit until 2015-well beyond the three years required by the applicable statute of limitations-the Court must evaluate whether there are any applicable common law doctrines that excuse ACI's otherwise *85late filing. ACI claims that there are three: the continuous representation doctrine, lulling, and fraudulent concealment. The Court addresses each in turn.
1. Continuous Representation
ACI has invoked the continuous representation doctrine to argue that the statute of limitations has not run on its malpractice claim against Mr. Solomon. ACI claims that, because Mr. Solomon continued to represent the company in its attempt to secure a Class A license through at least October 26, 2012, the continuous representation doctrine tolled the statute of limitations during that time period, thereby making the suit that it brought only three years later timely. Pl.'s Mem. at 16. Mr. Solomon counters that the continuous representation doctrine does not make ACI's claim timely, because his representation of ACI ended upon his retirement in 2010 and ACI did not bring suit within three years of that date. The parties dispute whether Mr. Solomon ever clearly told ACI that he was retiring from the practice of law in 2010. The Court finds that because a material question of fact remains as to whether Mr. Colley and Ms. Davis reasonably believed that Mr. Solomon was still representing them in their pursuit of a Class A license, it is precluded from granting summary judgment on this issue to either party.
The continuous representation doctrine "tolls the statute of limitations for a legal malpractice claim during the time the attorney continues to represent the client in the relevant matter. The rule aims to avoid putting a client in the position of having to choose between (i) disrupting an ongoing lawyer-client relationship to enable bringing a malpractice claim and (ii) continuing the relationship but relinquishing the claim." Seed Company Ltd. v. Westerman ,
District of Columbia courts provide scant guidance of how a Court should determine when an attorney-client relationship ended when the client believes that an attorney continued to represent him after the attorney believes that the representation has ended. D.C. courts have, however, determined that formal withdrawal of an appearance before a tribunal is not required to end the representation; rather, the representation ends when the parties agree that it has ended.
*86See Rocha v. Brown & Gould , LLP,
"Where, as here, 'the substantive law of the forum state is uncertain or ambiguous, the job of the federal courts is carefully to predict how the highest court of the forum state would resolve the uncertainty or ambiguity.' " Boley v. Atl. Monthly Grp. ,
The New York Court of Appeals has held that the statute of limitations stops tolling when the client discovers or should have discovered that the attorney had abandoned his representation of the client. See Shumsky v. Eisenstein ,
California courts originally varied in their approach as well. See Gonzalez v. Kalu ,
Given this trend among state appellate courts, and the D.C. Court of Appeals's prior holding that "a client's perception of an attorney as his counsel is a consideration [for the court] in determining whether a[n attorney-client] relationship exists," Matter of Lieber ,
Based on the parties' declarations and depositions, there was clearly no meeting of the minds as to when Mr. Solomon's representation of ACI ended. Therefore, the Court must determine whether ACI's assumption that Mr. Solomon continued to represent it past October 26, 2012 was reasonable. Mr. Solomon highlights the following events as demonstrating that Mr. Colley and Ms. Davis understood, or at the very least should have understood, that Mr. Solomon was retiring from the practice of law, and therefore could no longer represent them. First, in late 2009, Mr. Solomon informed Mr. Colley that there would be a "transition" due to Mr. Solomon's age which would include Mr. Solomon turning over to his partner Ms. Virtue responsibility for all ACI and Beach TV matters. See Colley Decl. ¶ 16, ECF No. 72-1. Second, Mr. Solomon believes that Mr. Colley demonstrated that he understood Mr. Solomon to be retiring from the practice of law when he responded to Mr. Solomon's "Biker Bar" email by joking that the motorized scooters may have had Mr. Solomon and Mr. Colley's names on them. See Def.'s Opp'n at 15-16. And third, following Mr. Solomon's retirement in July 2010, Ms. Virtue began acting as ACI's replacement counsel by traveling to Florida to meet with Mr. Colley and Ms. Davis, and began serving as ACI's email point of contact, as demonstrated when Mr. Colley inquired in March 2012 as to the status of *88the Application for Review. Id. at 14. Indeed, following the biker bar email, Mr. Colley never emailed or spoke with Mr. Solomon again, Solomon Decl. ¶¶ 3-4, ECF No. 76-29, though perhaps that was because he did not believe he had any means of reaching him. See Ex. 8, Colley Dep., ECF No. 72-3 (email from Mr. Colley to Ms. Virtue on August 13, 2010 asking for Mr. Solomon's "email address and other contact info").
ACI argues that although Mr. Colley had been informed of the transition at some point in 2009, he was under the impression that Mr. Solomon had not terminated his representation of ACI and Beach TV, but rather was taking a step back from the work because of his age. See Pl.'s Mem. at 19. It explains that Mr. Colley and Ms. Davis were within reason in believing that Mr. Solomon was not disassociating himself from ACI's case entirely because Mr. Solomon had, when describing the transition, referred to Ms. Virtue as the future "front person" for ACI's dealings with the FCC and to himself as a consultant acting "in the background";2 had stated that he would be remaining in Washington, D.C.; and had mentioned that he would maintain an office at the Garvey Firm, from which he would be doing pro bono work.3 Colley Dep. at 17:4-14; 45:14-46:17; 54:17-55:21, ECF No. 72-2. ACI also argues that Mr. Solomon never informed Mr. Colley that he was relinquishing his bar licenses, and indeed, there is no evidence in the record that Mr. Colley was aware that Mr. Solomon had relinquished both of his bar licenses by 2011. Pl.'s Mem. at 5. Last, ACI points to the assistance Mr. Solomon gave Ms. Virtue, which included strategy pointers and case citations, as she attempted to encourage the FCC to rule on the long-pending *89Application for Review and as she drafted a Petition for Consideration on ACI's behalf following the denial of its Application for Review, contributions which were conveyed, to some extent, to Mr. Colley, and that appear consistent with the "background" role ACI claims Mr. Solomon told the company he would perform. Pl.'s Mem. at 8-9; Pl.'s SMF ¶¶ 131-32.
These accounts of who knew what and when raise sufficient questions of fact to preclude the Court from granting ACI or Mr. Solomon summary judgment on the statute of limitations question. First, there is a dispute among the parties as to what Mr. Solomon said to Mr. Colley when he retired. Second, there is a dispute as to whether Mr. Colley understood Mr. Solomon to be scaling back his practice, as opposed to retiring. Third, there is a dispute as to whether Mr. Colley truly believed that Mr. Solomon was his lawyer on the Class A license matter. And fourth, there is a dispute as to whether, if Mr. Colley did believe that Mr. Solomon continued to represent ACI, that belief was reasonable under the circumstances. As such, the Court cannot grant summary judgment on the continuous representation doctrine question, and must leave the determination of when Mr. Colley should have reasonably understood that Mr. Solomon was no longer his lawyer to the trier of fact.
ACI has invoked two other common law doctrines to argue that the statute of limitations was tolled past October 26, 2012: lulling and fraudulent concealment. The Court will next determine whether it can determine on a motion for summary judgment that either of these doctrines render ACI's suit timely.
2. Lulling and Fraudulent Concealment
ACI argues that even if Mr. Solomon had ceased to represent it in its attempt to obtain a Class A license for its LPTV station before October 26, 2012, its claim is not time barred because Mr. Solomon lulled ACI into thinking that he still represented it, and fraudulently concealed that he was no longer representing it. See Pl.'s Mem. at 19-23. Mr. Solomon responds that neither doctrine applies to this case because he did not take any affirmative steps to trick ACI into believing that he still represented it after his retirement. See Def.'s Opp'n at 18-26. Mr. Solomon is correct.
Tolling "is frequently applied where the conduct of a fiduciary is alleged to have lulled the plaintiff into failure to protect his interests within the statutory limitations period." Ray v. Queen ,
"[F]raudulent concealment of the existence of a cause of action" also "tolls the running of a conventional statute of limitations ... [a]nd in the legal malpractice field, there is widespread agreement that the statute will not run where the existence of a cause of action for legal malpractice has been fraudulently concealed by affirmative misrepresentations."
*90Weisberg v. Williams, Connolly & Califano ,
In order for the doctrine to apply, the "party injured by another's fraudulent conduct" must "remain[ ] in ignorance ... without any fault or want of diligence or care on his part until the fraud is discovered." Craig v. Lew ,
As a preliminary matter, ACI has pointed to no cases in which a court has found that fraudulent concealment applied when a defendant concealed not a cause of action or underlying injury, of which the plaintiff was well aware, but rather an ancillary fact such as when the statute of limitations began to run. Rather, courts in this district have found that so long as plaintiff was on notice of the alleged malpractice, fraudulent concealment cannot apply. See e.g., Gallucci v. Schaffer ,
Even assuming that fraudulent concealment could apply to ancillary matters such as when the statute of limitations on a claim began to run (or, in this context, stopped being tolled), as opposed to the existence of the actual cause of action, ACI has not alleged sufficient affirmative actions on Mr. Solomon's part to demonstrate that he fraudulently concealed that the statute of limitations on their claim had begun to run, or lulled them into inaction. There is indeed a definitive dispute as to whether Mr. Solomon clearly indicated to ACI that he was retiring from the practice of law in 2009 and 2010, and whether ACI understood that he was retiring, rather than simply taking a step back from his practice. See supra , Section IV.A.1. However, Mr. Solomon's alleged lack *91of clarity does not amount to an "affirmative inducement to plaintiff[ ] to delay bringing action." Bailey ,
B. Liability
Next the Court must determine whether there is a question of material fact, apart from timing, as to Mr. Solomon's liability to ACI for legal malpractice. ACI argues that it has presented sufficient undisputed evidence for the Court to determine that Mr. Solomon is liable to ACI for malpractice due to the submission of the incomplete Statement of Eligibility, and therefore should be granted summary judgment on liability. Mr. Solomon has in turn moved for a finding that he is not liable for any damages to ACI caused by the passage of the Spectrum Act of 2012. For the reasons set forth below, the Court finds that neither party has met its burden for a grant of summary judgment on these questions.
1. Choice of Law
"Because jurisdiction over [ACI's] legal malpractice claims is founded on diversity of citizenship, the Court must first determine which state law to apply." Marbury Law Group, PLLC v. Carl , No. 9-1402,
"A federal court sitting in diversity must apply the choice-of-law rules of the forum state-here, the District of Columbia." In re APA Assessment Fee Litig. ,
As the parties have suggested through their disagreement, both states have a potential interest in this case. Virginia has a potential interest because the events leading to ACI's injuries occurred at a law firm in Virginia. D.C. has an interest because this case involves an attorney barred in D.C. (as well as Virginia), domiciled in D.C., who was representing plaintiff-client before an agency located in D.C that issues decisions appealable to the D.C. Circuit.
Because more than one state has an interest in its laws being applied to this case, next the Court must determine whether there is a true conflict or a false conflict between the states' laws. Virginia and D.C. maintain very similar standards for proving a claim of legal malpractice. In Virginia
a cause of action for legal malpractice requires the existence of an attorney-client relationship which gave rise to a duty, breach of that duty by the defendant attorney, and that the damages claimed by the plaintiff client must have been proximately caused by the defendant attorney's breach .... To establish an attorney's breach of duty, a client must show that the attorney failed to exercise a reasonable degree of care, skill, and dispatch in rendering the services for which the attorney was employed .... This generally is a question of fact to be decided by a fact finder, after considering testimony of expert witnesses, but must be reserved for determination *93by a court and cannot be the subject of expert testimony if the issue of a breach is a matter of law.
Smith v. McLaughlin ,
D.C. and Virginia law contain the same rules for when expert testimony is or is not required. As explained in Smith , Virginia allows for the finding of liability on a breach of the standard of care as a matter of law in some circumstances, negating the need for expert testimony. Smith ,
*942. ACI's Motion
ACI has moved for summary judgment on Mr. Solomon's liability for legal malpractice. See Pl.'s Mem. at 12. To support its motion, it has provided a short expert report by George W. Conk, Esq., which concludes that Mr. Solomon's failure to complete ACI's Statement of Eligibility before submitting it "was a breach of Solomon's duty to his client of competence and diligence." Ex. D at 2, Pl.'s Mot., ECF No. 71-6. The majority of this report, however, focuses on the duties of care and rules of professional responsibility that Mr. Solomon breached upon his retirement. Mr. Solomon strikes back by pointing out that Mr. Conk's "report does not address the standard of care of an attorney in the District of Columbia or Virginia and Mr. Conk is not qualified to do so," because "Mr. Conk is not licensed to practice in Virginia or in the District of Columbia and does not profess to know the standard of care of attorneys practicing in Virginia, the District of Columbia, or before the FCC." Def.'s Response to Pl.'s SMF ¶ 41, ECF No. 78-1. In his rebuttal report, Mr. Solomon's expert, Thomas B. Mason, Esq., offers three opinions: that no conflict of interest existed between Mr. Solomon and ACI from December 29, 1999 to June 9, 2000; that no conflict of interest existed between Mr. Solomon and ACI from June 9, 2000 to June 30, 2010; and that Mr. Solomon's retirement from the Garvey firm on June 30, 2010 terminated his attorney-client relationship with ACI. See generally Mason Report, ECF No. 76-26. However, Mr. Mason does not address whether Mr. Solomon's conduct in submitting the partially incomplete Statement of Eligibility amounted to a breach of his duty of care to ACI.
In D.C., the standard of care of attorneys is "that which a reasonably prudent person would have exercised under the same or similar circumstances." Waldman v. Levine ,
ACI has presented no argumentation that Mr. Solomon's actions amounted to negligence as a matter of law, though perhaps it could have. See O'Neil ,
3. The Spectrum Act and Proximate Causation5
Mr. Solomon has moved for summary judgment as to damages stemming from the passage of the Spectrum Act of 2012 for lack of proximate causation, claiming that the Court should find as a matter of law that he did not proximately cause any damage to ACI relating to the passage of the Spectrum Act because "[t]he Spectrum Act of 2012 was unprecedented and a complete surprise to the communications industry and to ACI." Def.'s Brief at 26-27. He also claims that the damages ACI alleges in its first and second amended complaints "rest[ ] on sheer conjecture and speculation," because first, ACI's LPTV station has not yet been displaced, and second, because comparable stations have not yet been auctioned on the market, and therefore, ACI's value on the reverse auction market, had it been eligible, is speculative. Id. at 28-29. ACI responds that "Mr. Solomon's argument is irrelevant and premature at this stage of the case" because "[t]he full economic consequences for ACI's displacement are not yet determined." Pl.'s Opp'n at 18. ACI is correct.
In Dalo v. Kivitz , the D.C. Court of Appeals provided the proximate causation standard for legal malpractice claims:
As with any tort action, legal malpractice liability is predicated on a finding that the injury was proximately caused by the breach of duty. Proximate cause exists when there is a "substantial and direct causal link" between the attorney's breach and the injury sustained by the client. A defendant "will be held responsible for the damages which result despite the entry of another act in the chain of causation" if that subsequent act reasonably could have "been *96anticipated and protected against." By contrast, an intervening act not reasonably foreseeable (sometimes referred to as a "superseding cause") breaks the chain of causation and relieves the wrongdoer of liability.
ACI and Mr. Solomon dispute the foreseeability of the harm ACI now alleges it suffered, harm in part precipitated by the passage of the Spectrum Act. Mr. Solomon claims that "[t]he Spectrum Act of 2012 was unprecedented and a complete surprise to the communications industry and to ACI." Def.'s Brief at 27. He points to the fact that during Mr. Colley's Rule 30(b)(6) deposition on ACI's behalf, Mr. Colley admitted that he was surprised to learn of the Spectrum Act and the "potential for huge dollars to be paid for TV licenses."
"[P]roximate causation is ordinarily a question of fact for the jury ... [and] it is only the exceptional case in which questions of proximate cause pass from the realm of fact to one of law." In re Fort Totten Metrorail Cases Arising Out of Events of June 22, 2009 ,
The Court cannot find as a matter of law that the damage ACI alleges it suffered (failure to procure a Class A license, leading to a risk of displacement and a decrease in the LPTV license's value) were not foreseeable when Mr. Solomon submitted the incomplete Statement of Eligibility. Additionally, while the Court has a general idea of the damages ACI will seek should liability be established, see 2d Am. Compl. ¶¶ 70-72, the Court has very little indication at this point of the monetary effects of Mr. Solomon's alleged negligence for one very simple reason: damages discovery has not occurred yet. See Pl.'s Opp'n at 3 n.6; see also Scheduling Order, ECF No. 58 (setting schedule for discovery on liability, but not damages). As such, ACI has not been given an opportunity to procure and present expert evidence regarding *97the extent of damages it has suffered, as well as the ascertainability of those damages, in order to rebut Mr. Solomon's assertion that any damage it suffered as a result of the passage of the Spectrum Act was unforeseen in 1999 and also incalculable. But as is required under Comier , ACI has established that it has suffered some damage: the loss of the opportunity to receive a Class A license. Therefore, the Court will allow the question of the extent of the damage Mr. Solomon's alleged negligence proximately caused to proceed to the trier of fact, and denies his motion for summary judgment.
V. CONCLUSION
For the foregoing reasons, Plaintiff's Motion for Partial Summary Judgment (ECF No. 71) is DENIED , and Defendant's Motion for Summary Judgment (ECF No. 74) is DENIED . An order consistent with this Memorandum Opinion is separately and contemporaneously issued.
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306 F. Supp. 3d 70, Counsel Stack Legal Research, https://law.counselstack.com/opinion/beach-tv-props-inc-v-solomon-cadc-2018.