Wednesday, February 15, 2017

Sample Answer--Essay II

West Bend Insurance Company’s (“West Bend”) complaint is factually sufficient and satisfies the pleading requirements of FRCP 8(a). The motion to dismiss for failure to state a claim is denied.

A motion to dismiss for failure to state a claim tests the legal and factual sufficiency of a pleading stating a claim for relief. FRCP 12(b)(6). The pleading must comport with FRCP 8(a)(2), requiring a “short and plain statement of the claim showing that the pleader is entitled to relief.” A complaint must provide the defendant with “fair notice of the claim and the grounds upon which it rests.” Twombly; Conley. In deciding a motion to dismiss, the court reviews the four corners of the complaint, including any written instruments attached to the complaint and made a part of t, pursuant to FRCP 10(c).

For fifty years, Conley established that a claimant need not set out facts in detail, but that a complaint should not be dismissed “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.”

But in Twombly, the Supreme Court “retired” that language, noting that it had been “questioned, criticized, and explained away” for 50 years. Instead, the Court established that a complaint must contain sufficient factual allegations to raise a right to relief above the “speculative” level. It must plead enough facts, taken as true, to plausibly suggest an entitlement to relief. Labels, conclusions, and formulaic or threadbare recitations of the elements of a claim are insufficient.

Two years later in Iqbal, the Court stated that a “claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” This does not mean that recovery is probable, only that it is more than “sheer possibility.” The Court turned this into a two-step analysis. First, the court identifies “bald” legal conclusions—“threadbare recitations of elements”--that are not entitled to presumption of truth. Second, the court examines the remaining, well-pleaded, non-conclusory facts, taken as true, and determines whether they state a plausible claim for relief. This is a “context-specific task that requires the reviewing court to draw on its judicial experience and common sense” to decide that the plaintiff has plausibly alleged an entitlement to recovery. Iqbal recognizes that a case can be sufficiently pled not only through direct factual allegations, but through factual allegations permitting reasonable inferences of liability. The court must draw all reasonable inferences in favor of the pleading party.

The Court did not impose heightened pleading or extend FRCP 9(b)’s requirement of pleading with particularity beyond fraud and mistake, a point it made explicit in Twombly. Instead, a plaintiff should state “simply, concisely, and directly” (FRCP 8(d)(1)) events that entitle them to damages from the defendant. Having informed the defendant of the factual basis for their complaint, a plaintiff is “required to do no more to stave off threshold dismissal for want of an adequate statement of their claim.” Johnson.

In alleging legal malpractice, the plaintiff must plead: (1) the existence of an attorneyclient relationship that establishes a duty on the part of the attorney, (2) a negligent act or omission constituting a breach of that duty, (3) proximate cause of injury, and (4) actual damages. The latter two elements require the plaintiff to plead that it had a meritorious claim or defense in some underlying litigation that was lost because of the attorney’s negligence. This requires the “case-within-a-case” analysis, in which the court analyzes the validity of the party’s position in the underlying legal dispute.

West Bend’s complaint contains sufficient facts to show a plausible claim for recovery for legal malpractice.

The pleading states in non-conclusory terms that West Bend retained RLGZ as counsel on a workers’ compensation claim and that Schumacher was lead counsel for that claim; we can infer that this carried with it a duty to represent West Bend at a level meeting some minimum professional standard. (¶¶ 6-9). The pleading also offers facts detailing the ways in which Schumacher failed to represent West Bend’s interests. These include failing to prepare for the hearing; failing to prepare an expert witness to rebut the testimony of the claimant’s physician; revealing West Bend’s defense theory; and conceding liability for the worker’s claim, all while underselling West Bend’s legal position. (¶¶ 11-14, 16, 18-24).

To allege the third and fourth elements of causation and damages, West Bend must plead facts from which it can be plausibly inferred that its defense might have succeeded in the underlying workers’ compensation action. West Bend has done this.

In paragraphs 15 and 17, it presents the following non-conclusory, well-pleaded facts: The claimant completed work on the day of his alleged injury and continued to work for two more weeks, stopping only when he was laid off. The claimant’s physician had determined prior to the injury that the claimant needed a knee replacement and that the workplace injury did not produce a change in the condition of the knee. And the claimant did not report the workplace injury when it happened or until well after he had been laid off. These facts plausibly describe a valid defense that defendants ignored—there was no workplace injury. Or, if there was, it did not cause the surgery because the claimant needed surgery before that injury. From these factual allegations, a trier of fact in the underlying action could have found there was no compensable workplace injury. That makes plausible the conclusion that defendant’s lawyering mistakes caused West Bend to incur liability in the underlying action.

Whether West Bend can prove these allegations to a factfinder is beside the point. From these allegations, a judge can draw on her experience and common sense to conclude that it is plausible that Schumacher and RLGZ breached their professional duty and injured West Bend.