Ettinger & Associates, LLC v. Hartford/Twin City Fire Insurance

22 F. Supp. 3d 447, 2014 U.S. Dist. LEXIS 70265, 2014 WL 2134599
CourtDistrict Court, E.D. Pennsylvania
DecidedMay 22, 2014
DocketCivil Action No. 12-3274
StatusPublished
Cited by3 cases

This text of 22 F. Supp. 3d 447 (Ettinger & Associates, LLC v. Hartford/Twin City Fire Insurance) is published on Counsel Stack Legal Research, covering District Court, E.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ettinger & Associates, LLC v. Hartford/Twin City Fire Insurance, 22 F. Supp. 3d 447, 2014 U.S. Dist. LEXIS 70265, 2014 WL 2134599 (E.D. Pa. 2014).

Opinion

MEMORANDUM

STENGEL, District Judge.

Plaintiffs Ettinger & Associates, LLC and Neil D. Ettinger, Esquire (collectively “the law firm”) brought this case (“the Coverage Action”) in the' Court of Common Pleas of Northampton County seeking a declaratory judgment that it was entitled to coverage under a professional liability policy issued by Defendant The Hartford/Twin City Fire Insurance Company (“Twin City”). Twin City removed the case to this court, filed an Answer, and has now filed a Motion for judgment on the pleadings. For the following reasons, the Motion is granted and judgment is entered on behalf of Twin City.

I. STANDARD OF REVIEW

“Pursuant to Federal Rule of Civil Procedure 12(c), judgment on the pleadings will be granted only if ‘the mov-ant clearly establishes there are no material issues of fact, an d he is entitled to judgment as a matter of law.’ ” Atiyeh v. Nat’l Fire Ins. Co. of Hartford, 742 F.Supp.2d 591, 595 (E.D.Pa.2010) (quoting Sikirica v. Nationwide Ins. Co., 416 F.3d 214, 220 (3d Cir.2005)). “A party may move for judgment on the pleadings ‘[a]f-ter the pleadings are closed — but early enough not to delay trial.’ ” Id. (quoting Fed.R.Civ.P. 12(c)). In deciding a motion for judgment on the pleadings, the court considers the pleadings and exhibits attached thereto, matters of public record, and “undisputedly authentic documents attached to the motion for judgment on the pleadings if plaintiffs’ claims are based on the documents.” Id. Rule 12(c) motions are reviewed under the same standard that applies to motions to dismiss for failure to state a claim pursuant to Rule 12(b)(6). See Turbe v. Gov’t of Virgin Islands, 938 F.2d 427, 428 (3d Cir.1991) (citations omitted). Accordingly, a motion for judgment on the pleadings will be granted if a plaintiff has not articulated enough facts “to raise a right to relief above the speculative level.” See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). It is not enough for plaintiffs to allege mere “labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. Plaintiffs must plead “factual content that allows the court to draw the reasonable inference that the defendant is liable for misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 663, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). The Court “may disregard any legal conclusions.” Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir.2009); see also Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 [450]*450(“Threadbare recitals of the elements of a cause of action, supported by mere conclu-sory statements, do not suffice.”).

When a court considers matters outside the pleadings, a motion under Rule 12 ordinarily must be converted to a summary judgment motion because plaintiff has not had an adequate opportunity to respond to the extraneous evidence. Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir.1993). However, where the authenticity of documents appended to the moving papers are not disputed and the plaintiffs complaint relies upon them, a plaintiff is presumably on notice of their contents and had the opportunity to refute the evidence. In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir.1997); Pension Ben. Guar. Corp., 998 F.2d at 1196-97. This exception to the general rule prevents a plaintiff with a legally deficient claim from surviving a Rule 12 motion simply by failing to attach to the complaint a disposi-tive document upon which his claim relies. Pension Ben. Guar. Corp., 998 F.2d at 1196. Because the materials appended to Twin City’s Motion1 are not disputed by the plaintiffs and the complaint relies upon them, they will be considered part of the pleadings.

II. FACTS

The events leading to the underlying malpractice action began in 2005 when Bradley and Teri Miller (collectively “the Millers”) hired the law firm to represent them in a dispute with their realtors, Norman H. Gundrum and Martin J. Hacker d/b/a ReMax Unlimited Real Estate (“Re-Max”), over the plaintiffs’ purchase of a lot in Lehigh Township, Northampton County, Pennsylvania. Def. Ex. I at 1-3. Gund-rum had allegedly represented to the Millers that a lot adjacent to the lot that they wished to purchase could not be subdivided. Id. at 27. Several months prior to closing, however, the Millers learned that the owners of the adjacent lot had applied for and received a zoning variance to subdivide it. Def. Ex. II at 146; Def. Ex. I at 4-5. The Millers nevertheless proceeded to closing, purchased their lot for $55,000 and, less than two months later, successfully resold it for $82,000. Id. Although they earned $27,000 profit from their purchase and sale, the Millers consulted with Ettinger to determine whether they had viable claims against ReMax over the alleged misrepresentation about the adjacent lot. Def. Ex. I at 27. Ettinger advised them that they had a claim, and commenced a lawsuit against ReMax on June 8, 2005, on behalf of the Millers in the Court of Common Pleas of Northampton County (the “Realtor Action”). Id. The Millers alleged claims of (1) fraudulent misrepresentation, (2) negligent misrepresentation, (3) breach of contract, (4) promissory estoppel, and (5) violation of the Pennsylvania Unfair Trade Practices Act and Consumer Protection , Law (“UTPCPL”). Id. The ReMax defendants repeatedly asserted that the lawsuit was frivolous and warned Ettinger that they would sue his clients for “fraud, abuse of process and malicious prosecution,” if the lawsuit was not withdrawn. Id. Ignoring these warnings, the Millers followed Et-tinger’s advice and pursued the lawsuit to its conclusion. Id.

[451]*451The Court of Common Pleas rejected the Millers’ claims in two separate summary judgment orders. Id. In the first order, the court dismissed the Millers’ breach of contract and promissory estop-pel claims because they had incurred no damages. Def. Ex. II at 117-18. In the second order, issued one year later after further discovery, the court dismissed the Millers’ remaining claims because they had produced no evidence that Gundrum had misrepresented anything to the Millers. Id. at 155-59. The court found that the Millers admitted Gundrum’s statements were true at the time that they were made. Id. at 156.

ReMax then filed a lawsuit against the Millers, Ettinger, and the law firm in August 2009, alleging wrongful abuse of civil proceedings pursuant to the Dragonetti Act, 42 Pa.

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22 F. Supp. 3d 447, 2014 U.S. Dist. LEXIS 70265, 2014 WL 2134599, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ettinger-associates-llc-v-hartfordtwin-city-fire-insurance-paed-2014.