Fitzpatrick v. Harrison

854 F. Supp. 2d 1334, 2010 WL 8567737, 2010 U.S. Dist. LEXIS 144486
CourtDistrict Court, S.D. Georgia
DecidedNovember 22, 2010
DocketNo. CV210-062
StatusPublished

This text of 854 F. Supp. 2d 1334 (Fitzpatrick v. Harrison) is published on Counsel Stack Legal Research, covering District Court, S.D. Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fitzpatrick v. Harrison, 854 F. Supp. 2d 1334, 2010 WL 8567737, 2010 U.S. Dist. LEXIS 144486 (S.D. Ga. 2010).

Opinion

ORDER

LISA GODBEY WOOD, Chief Judge.

Presently before the Court is Defendant Anthony L. Harrison’s Motion to Dismiss. For the reasons stated below, Defendant’s Motion is GRANTED.

BACKGROUND

As is appropriate in ruling on a motion to dismiss, the Court accepts all factual allegations in Plaintiffs Complaint as true. See Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949-50, 173 L.Ed.2d 868 (2009).

Plaintiff Richard C. Fitzpatrick, who was having domestic difficulties, met with Defendant Anthony L. Harrison on March 16, 2006 at Defendant’s office. They met behind closed doors for approximately one hour. During that time, Plaintiff discussed his domestic situation with his wife at the time, Anne McWhorter Allen (“Allen”). Plaintiff alleges that he disclosed to Defendant “many confidential facts including his personal habits, those of Allen, financial information including assets of both Plaintiff and Allen, background information regarding both parties, all of which were intended to be and were received by Defendant as confidential information.” Compl. ¶ 7, ECF No. 1. Included in these disclosures was information “that Plaintiffs wife, Allen, had been widowed when her husband and son were killed in the explosion of TWA Flight 800 and she had been compensated with a structured settlement which yielded her approximately $272,000.00 per year until 2011.” Id. at ¶ 7.

Defendant “gave advice to Plaintiff including advising him that it would be best to file suit in Cobb County ... due to the nature of the juries in Glynn County as opposed to Cobb County.” Id. at ¶ 8. At the end of the parties’ conference, Plaintiff offered to pay Defendant. Defendant declined payment. Defendant advised Plaintiff of Defendant’s retainer should Plaintiff choose to proceed with a divorce. Plaintiff told Defendant that he would likely return the following day with a check. Id. at If 9. Plaintiff does not allege ever returning with payment.

Thereafter, Defendant undertook representation of Allen in a divorce action in the Superior Court of Glynn County, Georgia, and Plaintiff was served with a summons and complaint in that matter. On or about August 8, 2006, Plaintiff was also “served with a domestic violence warrant, charging him with domestic violence and placing a freeze on all of Plaintiffs assets.” Id. at ¶ 10. Defendant secured this warrant as part of his legal representation of Allen.

In Count I of his Complaint, Plaintiff sues Defendant for legal malpractice. Plaintiff alleges that by undertaking representation of Allen after having received confidential information from Plaintiff, Defendant “clearly entered into a situation of conflict of interest and violated various Bar Rules of Professional Conduct.” Id. at ¶ 12. Plaintiff further alleges that “[a]s a direct and proximate result of’ Defendant’s representing Allen after having “obtained confidential information from Plaintiff ... disclosed to Defendant in anticipation of an attorney-client relationship and with the expectation of confidentiality,” Plaintiff “suffer[ed] loss of large sums of assets and [was] subject to extreme pain, suffering and mental anguish.” Id. at ¶ 13.

[1336]*1336In Count II of his Complaint, Plaintiff raises a claim for intentional infliction of emotional distress. Plaintiff alleges that “Defendant intentionally sought to humiliate and to embarrass the Plaintiff by having him served with the domestic violence warrant and Summons and Complaint of the divorce action at his place of employment, in front of his employer and coworkers.” Id. at ¶ 17. Plaintiff alleges that “[a]s a direct and proximate result of [Defendant’s] actions, Plaintiff was terminated from his employment and sole source of income,” and because “he had no funds to continue to retain counsel and contest the divorce, he was forced to settle for far less that [sic] he would have been entitled to had he been able to contest the divorce.” Id. at ¶¶ 16-17.

LEGAL STANDARD

A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency of a plaintiffs complaint. See Fed.R.Civ.P. 12(b)(6) (providing defense of “failure to state a claim upon which relief can be granted”). When ruling on a 12(b)(6) motion, a court must accept the factual allegations in the complaint as true, but is not bound to accept as true any “legal conclusion couched as a factual allegation.” Iqbal, 129 S.Ct. at 1949-50 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)) (internal quotation marks omitted). The court must also limit its consideration to the pleadings and any attached exhibits. GSW, Inc. v. Long Cnty., 999 F.2d 1508, 1510 (11th Cir.1993) (citing Fed.R.Civ.P. 10(c)). In order to state a claim for relief, the pleadings must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ.P. 8(a)(2). This statement is intended to “give the defendant ‘fair notice of what the plaintiffs claim is and the grounds upon which it rests.’ ” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 319, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007) (quoting Dura Pharm. Inc. v. Broudo, 544 U.S. 336, 346, 125 S.Ct. 1627, 161 L.Ed.2d 577 (2005)). This is a liberal pleading standard that “do[es] not require that a plaintiff specifically plead every element of a cause of action.” Roe v. Aware Woman Ctr. for Choice, Inc., 253 F.3d 678, 683 (11th Cir.2001). Rather, a Rule 12(b)(6) motion to dismiss should only be granted if the plaintiff is unable to articulate enough facts “to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 545, 127 S.Ct. 1955.

DISCUSSION1

I. Legal Malpractice (Count I)

Defendant moves to dismiss Plaintiffs claim for legal malpractice for failure to state a claim upon which relief can be granted. “In a legal malpractice action, the plaintiff must establish three elements: (1) employment of the defendant attorney, (2) failure of the attorney to exercise ordinary care, skill and diligence, and (3) that such negligence was the proximate cause of damage to the plaintiff.” Cornwell v. Kirwan, 270 Ga.App. 147, 606 S.E.2d 1, 3 (2004). Plaintiff need not “specifically plead every element of a cause of action,” Aware Woman Ctr. for Choice, Inc.,

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Roe v. Aware Woman Center for Choice, Inc.
253 F.3d 678 (Eleventh Circuit, 2001)
Dura Pharmaceuticals, Inc. v. Broudo
544 U.S. 336 (Supreme Court, 2005)
Tellabs, Inc. v. Makor Issues & Rights, Ltd.
551 U.S. 308 (Supreme Court, 2007)
Bell Atlantic Corp. v. Twombly
550 U.S. 544 (Supreme Court, 2007)
Ashcroft v. Iqbal
556 U.S. 662 (Supreme Court, 2009)
Cleveland Campers, Inc. v. R. Thad McCormack, P.C.
635 S.E.2d 274 (Court of Appeals of Georgia, 2006)
Fox v. Ravinia Club, Inc.
414 S.E.2d 243 (Court of Appeals of Georgia, 1991)
Valades v. Uslu
689 S.E.2d 338 (Court of Appeals of Georgia, 2009)
Cornwell v. Kirwan
606 S.E.2d 1 (Court of Appeals of Georgia, 2004)
Board of Regents v. Oglesby
591 S.E.2d 417 (Court of Appeals of Georgia, 2003)

Cite This Page — Counsel Stack

Bluebook (online)
854 F. Supp. 2d 1334, 2010 WL 8567737, 2010 U.S. Dist. LEXIS 144486, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fitzpatrick-v-harrison-gasd-2010.