Fornaro v. Gannon et al.

• Court: District Court, D. New Hampshire
• Decided: November 14, 2000
• Docket: CV-00-189-B
• Status: Published

Opinion

Fornaro v. Gannon et al. CV-00-189-B 11/14/00

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Rex Fornaro

v. Civil No. 00-189-B Opinion No. 2000DNH240 William S. Gannon, et al.

MEMORANDUM AND ORDER

Rex Fornaro brings this pro se legal malpractice action

against William S . Gannon, Esq., Robert E . Murphy, Esq., and the

law firm of Wadleigh, Starr & Peters, P.L.L.C. (the “Wadleigh

firm”). Murphy has moved for judgment on the pleadings.

I. BACKGROUND

Fornaro worked as a flight dispatcher for Business

Express, Inc. (“BEX”). On January 2 9 , 1994, he reported safety-

related violations at BEX to the Federal Aviation

Administration’s Aviation Safety Hotline. BEX fired Fornaro

shortly thereafter. Fornaro filed a retaliatory discharge complaint against BEX

in Connecticut Superior Court on October 9, 1995. BEX

subsequently filed for bankruptcy protection in the United States

Bankruptcy Court for the District of New Hampshire. On February

1 3 , 1996, Fornaro’s Connecticut counsel filed a $199,856.62 proof

of claim on his behalf in the bankruptcy court proceeding. He

subsequently advised Fornaro to obtain New Hampshire counsel to

represent him in that court.

Fornaro retained the Wadleigh firm in May 1996 and provided

Gannon with a copy of both the state court complaint and the

proof of claim. On February 2 4 , 1997, the Wadleigh firm filed a

new complaint on Fornaro’s behalf in this court against various

BEX employees. The court dismissed the complaint on December 1 6 ,

1997. The court of appeals later rejected Fornaro’s appeal

because it concluded that Fornaro had failed to state a legally

cognizable claim against any of the defendants. See Fornaro v .

McManus, 187 F.3d 621, N o . 98-1077, 1998 WL 1085814 *1 (1st Cir.

July 1 0 , 1998) (per curiam) (table, text available in Westlaw).

-2- On June 2 3 , 1997, Gannon filed a motion to amend Fornaro’s

proof of claim to increase his claim against BEX. The bankruptcy

court denied the motion because it determined that it was

untimely. The court ultimately rejected the entire claim on

February 1 1 , 2000.

Fornaro asserts that Gannon, Murphy, and the Wadleigh firm

committed legal malpractice in both the district court action and

the bankruptcy court proceeding. He argues that the defendants

bungled the district court action because they failed to draft a

legally sufficient complaint against BEX’s shareholders and

employees. He claims that the defendants mishandled the

bankruptcy court proceeding because they negligently failed t o :

(1) timely amend the proof of claim; (2) retain experts to

quantify Fornaro’s damages; (3) retain an expert to rebut alleged

falsifications in Fornaro’s personnel file; (4) take depositions

and retain experts to rebut allegedly false testimony; (5)

respond to allegedly material false representations made by

opposing counsel; (6) call any witnesses to demonstrate that

-3- Fornaro was fired in an act of retaliation; and (7) present

sufficient evidence of retaliation.

II. STANDARD OF REVIEW

Murphy moves for judgment on the pleadings pursuant to

Federal Rule of Civil Procedure 12(c). The standard for

reviewing a 12(c) motion is essentially the same as the standard

for reviewing a 12(b)(6) motion to dismiss for failure to state a

claim upon which relief can be granted. See Collier v . City of

Chicopee, 158 F.3d 601, 602 (1st Cir. 1998); Cooper v . Thomson

Newspapers, Inc., 6 F. Supp. 2d 109, 112 (D.N.H. 1998).

Accordingly, in reviewing such a motion I must accept all of the

nonmoving party’s well-pleaded factual averments as true and draw

all reasonable inferences in his favor. United States v . U.S.

Currency, $81,000.00, 189 F.3d 2 8 , 33 (1st Cir. 1999) (citing

Int’l Paper C o . v . Town of Jay, 928 F.2d 480, 482 (1st Cir.

1991)); Feliciano v . State of Rhode Island, 160 F.3d 780, 788

(1st Cir. 1998) (citations omitted). Moreover, pro se pleadings

-4- are held to a less stringent standard than those drafted by

lawyers and are to be liberally construed in favor of the pro se

party. See Estelle v . Gamble, 429 U.S. 9 7 , 106 (1976) (quoting

Haines v . Kerner, 404 U.S. 519, 520-21 (1972) (per curiam));

Ahmed v . Rosenblatt, 118 F.3d 886, 890 (1st Cir. 1997).

“Judgment on the pleadings under Rule 12(c) may not be entered

unless it appears beyond a doubt that the nonmoving party can

prove no set of facts in support of her claim which would entitle

her to relief.” Feliciano, 160 F.3d at 788; Int’l Paper Co., 928

F.2d at 482-83 (quoting Conley v . Gibson, 355 U.S. 4 1 , 45-46

(1957)).

I apply this standard in reviewing Murphy’s motion.

III. DISCUSSION

A. The Claims Against BEX’s Employees

Fornaro claims that Murphy committed legal malpractice in

the district court action because he “fail[ed] to state a legally

cognizable claim in the negligent supervision and retaliation

-5- complaint against the individual directors and officers of BEX

responsible for Fornaro’s termination . . . .” Compl. (Doc. N o .

1 ) at 8 . I reject this argument because Fornaro has not alleged

any additional facts to support his conclusory assertion. The

mere fact that the court ruled against Fornaro on this claim does

not establish that Murphy committed malpractice. See Meyer v .

Wagner, 709 N.E. 2d 7 8 4 , 791 (Mass. 1999) (An attorney is not a

“guarantor of a favorable result” but will be protected from

liability for pursuing reasonable strategies that ultimately fail

if he exercised the requisite skill and care.). Accordingly, I

grant Murphy’s motion for judgment on the pleadings with respect

to this count.

B. The Claims Against BEX

Murphy contends that he is entitled to judgment on the

pleadings with respect to Fornaro’s claims that defendants

committed malpractice in the bankruptcy court proceeding because

Fornaro has not alleged that Murphy performed any legal services

in that proceeding. I disagree. While the complaint is far from

-6- ideal, it alleges that “the defendants” committed several acts of

malpractice in the bankruptcy court proceeding. The complaint

also plainly identifies Murphy as one of the defendants who

engaged in the alleged acts of malpractice. These allegations

are sufficiently detailed, given Fornaro’s pro se status, to

state a claim for relief against Murphy. C f . Morgan v .

Ellerthorpe, 785 F. Supp. 295, 299 (D.R.I. 1992) (construing pro

se complaint, which did not specify whether the defendants were

being sued in their official or private capacity, as asserting

claims against defendants in both capacities).1

IV. CONCLUSION

For the foregoing reasons, I grant Murphy’s motion for

judgment on the pleadings (Doc. N o . 7 ) in part and deny it in

part. Murphy is entitled to judgment on the pleadings with

regard to the final count in the complaint addressing his alleged

1 Murphy may renew his argument in a motion for summary judgment if the evidence does not support Fornaro’s assertions.

-7- failure to draft a complaint stating a cognizable claim against

the employees and shareholders of BEX. In all other respects,

the motion is denied.

SO ORDERED.

Paul Barbadoro Chief Judge

November 1 4 , 2000

cc: Rex Fornaro, pro se Michael Lonergan, Esq.

-8-