D'Ambly v. Exoo

Not For Publication

OPINION

JOHN MICHAEL VAZQUEZ, U.S.D.J.

Presently before the Court is Defendant Cohen, Weiss, and Simon LLP's (“Defendant” or “CWS”) motion to dismiss pursuant to Federal Rule of Civil Procedure 12(c). Defendant seeks to dismiss Count XIII of the Amended Complaint, which asserts a legal malpractice claim. D.E. 74. Plaintiff Daniel D'Ambly (“Plaintiff” or “D'Ambly”) filed a brief in opposition, D.E. 81, to which Defendant replied, D.E. 82.^[1] The Court reviewed the parties' submissions and decided the motion without oral argument pursuant to Fed.R.Civ.P. 78(b) and L. Civ. R. 78.1(b). For the reasons set forth below, Defendant's motion is GRANTED.

I. FACTUAL AND PROCEDURAL BACKGROUND

In this matter, Plaintiffs assert numerous claims against Defendant Christian Exoo and his alleged associates because Exoo instructed associates to “dox” Plaintiffs after identifying them as

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fascists or white supremacists.^[2] Doxing refers to “publicly disclos[ing] a person's identity, employer, school, home address, etc., for the purpose of causing harm to that person.” Am. Compl., Statement of the Case. The instant motion involves Plaintiff D'Ambly's stand-alone malpractice claim against CWS. Thus, the Court only discusses facts pertinent to that claim.

Briefly, D'Ambly alleges that Exoo identified D'Ambly as a white supremacist and fascist in January 2018, and beginning in October 2018, D'Ambly was doxed. Id. ¶¶ 39, 44. D'Ambly is a member of the New Jersey European Heritage Association (“EHA”), “a non-violent, prodomestic policy organization.” Id. ¶ 1. In tweets, Exoo instructed his Twitter followers to send harassing and threatening tweets and phone calls to D'Ambly's employer, the New York Daily News (“Daily News”), to get D'Ambly fired. Id. ¶ 45. Between October 29, 2018, and January 11, 2019, “the Exoo Enterprise directed no less than fifty-four (54) threatening Tweets to @DailyNews plus an unknown number of threatening phone calls.” Id. Exoo doxed Plaintiff for a second time on January 11, 2019, again via Twitter. Id. ¶ 51. The same day, callers left threatening phone messages for the Daily News. Id. ¶ 52. In January 2019, D'Ambly attended two meetings with the representatives of his union, Local One-L, and the Daily News and its parent company about the doxing and D'Ambly's political associations, including with the EHA. Id. ¶¶ 50, 56. On January 14, 2019, the Daily News told D'Ambly not to report to work until informed otherwise. Id. ¶ 62. D'Ambly was terminated on January 16, 2019, during a phone call with

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D'Ambly, two employees of the Daily News' parent company, and a representative of Local One-L. Id. ¶ 63.

On January 23, 2019, the president of Local One-L “informed the Daily News that they were appealing D'Ambly's termination pursuant to terms of the Contract.”^[3] Id. ¶ 64. Local One-L filed a grievance on D'Ambly's behalf, id. ¶ 68, and the Union retained . . . Cohen, Weiss, and Simon, LLP . . . to represent D'Ambly[, ]” id. Thereafter, Plaintiff had phone conferences with two attorneys from CWS, who both separately expressed their disdain for D'Ambly's beliefs. Id. ¶¶ 69-70. In addition, both attorneys dismissed D'Ambly's desire to have his employment reinstated. Id. On January 15, 2019, D'Ambly executed a separation agreement (presumably with the Daily News) that CWS negotiated on D'Ambly's behalf. Through the separation agreement, D'Ambly received a lump sum payment and the Union agreed to withdraw the pending arbitration case with prejudice. Id. ¶ 73. Plaintiff alleges that the CWS attorneys' bias against his political views impacted their representation and that they failed to adequately investigate the conduct that led to Plaintiff's termination. Id. ¶¶ 71-72.

D'Ambly filed suit on September 21, 2020. His thirteen-count Complaint largely addresses Defendants' alleged doxing campaign. Count XIII, however, is asserted solely by D'Ambly, and is a claim for legal malpractice against CWS. Count XIII is related to D'Ambly's termination from the Daily News and CWS's involvement in the resulting grievance. See Compl, ¶¶ 154-61. D'Ambly does not allege that CWS was involved in any of the doxing efforts, and the other twelve counts are not asserted against CWS. CWS subsequently filed its Answer. D.E. 12.

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On March 25, 2021, Plaintiffs filed the Amended Complaint, which includes allegations about additional Plaintiffs, but the allegations and claim asserted against CWS are unchanged. D.E. 66. CWS did not file an amended Answer. Instead, Defendant filed the instant motion, pursuant to Federal Rule of Civil Procedure 12(c), on April 22, 2021. D.E. 74. Defendants Christian Exoo, St. Lawrence University, Vijaya Gadde, and Twitter, Inc. filed motions to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(2) and 12(b)(6). D.E. 75, 78, 79. Those motions will be addressed in a separate opinion or opinions.

II. STANDARD OF REVIEW

Defendant brings its motion to dismiss pursuant to Rule 12(c). Rule 12(c) provides that “[after the pleadings are closed-but early enough not to delay trial-a party may move for judgment on the pleadings.” Fed.R.Civ.P. 12(c). Pleadings are “closed” after the complaint and answer are filed. Horizon Healthcare Servs., Inc. v. Allied Nat'l Inc., No. 03-4098, 2007 WL 1101435, at *3 (D.N.J. Apr. 10, 2007). In a multiparty case, “pleadings are not considered closed until every defendant has answered the complaint.” Newton v. Greenwich Township, No. 12-238, 2012 WL 3715947, at *1 n.1 (D.N.J. Aug. 27, 2012). Here, the other Defendants in this matter have not answered the Amended Complaint. In addition, although CWS answered the original complaint, it did not file an answer to the Amended Complaint. An amended pleading supersedes all prior pleadings. See Sunset Fin. Res., Inc. v. Redevelopment Grp. V, LLC, 417 F.Supp.2d 632, 642 n.15 (D.N.J. 2006). As a result, Defendant should have answered the Amended Complaint before filing the instant motion. But more importantly, because no Defendant has answered the Amended Complaint, the pleadings are not closed. Thus, Defendant's motion is procedurally improper. But because Defendant could simply re-file the instant motion as a Rule 12(b)(6) motion and because a Rule 12(c) motion is reviewed under the same standard as a Rule 12(b)(6) motion,

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the Court will construe Defendant's motion as having been filed pursuant to Rule 12(b)(6). See, e.g., Rivera v. Camden Bd. of Educ., 634 F.Supp.2d 486, 488 (D.N.J. 2009) (construing motion to dismiss filed after answer as a Rule 12(c) motion).

For a complaint to survive dismissal under Rule 12(b)(6), it must contain sufficient factual matter to state a claim that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. Further, a plaintiff must “allege sufficient facts to raise a reasonable expectation that discovery will uncover proof of her claims.” Connelly v. Lane Const. Corp., 809 F.3d 780, 789 (3d Cir. 2016). In evaluating the sufficiency of a complaint, district courts must separate the factual and legal elements. Fowler v. UPMC Shadyside, 578 F.3d 203, 210-211 (3d Cir. 2009). Restatements of the elements of a claim are legal conclusions, and therefore, not entitled to a presumption of truth. Burtch v. Milberg Factors, Inc., 662 F.3d 212, 224 (3d Cir. 2011). The Court, however, “must accept all of the complaint's well-pleaded facts as true.” Fowler, 578 F.3d at 210.

III. ANALYSIS

Defendant argues that Count XIII should be dismissed because there was not an attorneyclient relationship between Plaintiff and Defendant. Specifically, Defendant contends that under the Labor Management Relations Act (“LMRA”), the union was its client, not Plaintiff. Defendant continues that because the union was its client, Plaintiff's claims are barred by the LMRA. Def. Br. at 8-12. Legal malpractice is negligence relating to an attorney's representation of a client. McGrogan v. Till, 771 A.2d 1187, 1193 (N.J. 2001). To state a claim for attorney malpractice, a plaintiff must demonstrate “(1) the existence of an attorney-client relationship creating a duty of

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care by the defendant attorney, (2) the breach of that duty by the defendant, and (3) proximate causation of the damages claimed by the plaintiff.” Id. “The existence of an attorney-client relationship is, of course, essential to the assertion of a cause of action for legal malpractice.” Froom v. Perel, 872 A.2d 1067, 1074 (N.J. App. Div. 2005).

Carino v. Stefan, 376 F.3d 156 (3d Cir. 2004) is directly on point. In Carino, the Third Circuit broadly construed Section 301(b) of the LMRA, ^[4] “holding that § 301 of the LMRA immunizes attorneys employed by or hired by unions to perform services related to a collective bargaining agreement from suit for malpractice.” Id. at 162. Consequently, the Circuit affirmed the district court's order dismissing state law claims, including a claim for malpractice, against an attorney and law firm that the union retained to file “a grievance on [Plaintiff's] behalf, contesting her termination.” Id. at 158, 162. The Circuit explained that “the protection of § 301(b) only applies where a union agent's liability grows out of activities performed in relation to a collective bargaining agreement.” Id. at 162. The Circuit concluded that the attorney's alleged improper conduct grew out of the union's retention of the attorney to represent the plaintiff during arbitration of the grievance and convincing the...