Myers v. Mcnamee, Hosea, Jernigan, Kim, Greenan, & Lynch, P.A.

GREGORY B. MYERS, Plaintiff, v. McNAMEE, HOSEA, JERNIGAN, KIM, GREENAN, & LYNCH, P.A., et al. Defendants.

Civil Action No. 8:18-cv-03460-PX

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

February 13, 2020

MEMORANDUM OPINION

Pending before the Court in this breach of contract and legal malpractice case is Defendant McNamee, Hosea, Jernigan, Kim, Grennan & Lynch, P.A.'s ("McNamee's") motion to dismiss or in the alternative for summary judgment, ECF No. 6, and Trustee Roger Schlossberg's ("the Trustee's") motion to dismiss for lack of jurisdiction and for insufficient process, ECF No. 9. Also pending is the Trustee's motion to strike Myers' suggestion of Bankruptcy. ECF No. 22. Although the Court ordered Myers to respond to the outstanding motions to dismiss, ECF No. 14, he has failed to do so and time for responding has long since passed. See Loc. R. 105.2. The motion to strike is fully briefed. The Court finds that no hearing is necessary. See Loc. R. 105.6. For the reasons that follow, the Court grants the Trustee's motion to strike and both motions to dismiss.

I. Background¹

This case represents one matter in a litany of litigation stemming from Myers'bankruptcy petition filed over four years ago. In November of 2015, Myers originally filed a voluntary Chapter 11 petition in the United States Bankruptcy Court for the District of Maryland. See In re Myers, No. 15-26033 WIL, ECF No. 1 (Bankr. D. Md. Nov. 18, 2015) [hereinafter Bankruptcy Case]. Myers retained McNamee to represent him for the Bankruptcy Case. Id., ECF Nos. 18, 23.

On October 18, 2016, the Trustee moved to convert Myers' Chapter 11 petition to a Chapter 7 proceeding. Id., ECF No. 167. The Trustee's conversion motion asserted that, despite Myers' monthly income of $30,000, Myers had failed to pay mortgages on his several multi-million-dollar homes. When secured creditors foreclosed on the properties, Myers appealed all adverse judgments and then, in order to "thwart his secured lenders from continuing their various foreclosure proceedings," filed for bankruptcy. Id. at 4-5.

McNamee represented Myers in opposing the Chapter 7 conversion. See id., ECF Nos. 194, 313. On February 22, 2017, the Bankruptcy Court granted the Trustee's motion and converted Myers' petition to a Chapter 7 bankruptcy. ECF No. 1 ¶ 10; Bankruptcy Case, ECF No. 316. Notably, the Bankruptcy Court converted the case at least in part because Myers had failed to disclose assets that would have been relevant to the payment of Myers' creditors. See ECF No. 6-3 at 9-10. Following the conversation, McNamee's attorneys moved to withdraw as counsel due to "irreconcilable differences." On May 2, 2017, the Bankruptcy Court granted the withdrawal motion. Bankruptcy Case, ECF Nos. 397, 432.

Effective February 22, 2017, the Bankruptcy Court appointed Schlossberg as Trustee of the bankruptcy estate. Id., ECF No. 316. As in any Chapter 7 bankruptcy liquidation, Schlossberg took control of the bankruptcy estate to include any claims accruing before the date of conversion.

On October 25, 2017, Myers filed a pro se adversary proceeding against McNamee in the Bankruptcy Court. See Myers v. McNamee, Hosea, Jernigan, Kim, Greenan & Lynch, P.A., No. 17-00400, ECF No. 1 [hereinafter Adversary Proceeding]. In the Adversary Proceeding, Myers brought nine claims against McNamee, to include breach of contract, legal malpractice, and fraud, and generally alleged that McNamee was deficient and dishonest when representing him in the pre-conversion bankruptcy proceedings. See id. ¶¶ 50-200. The Adversary Proceeding Complaint, some 200 paragraphs total, primarily concerned the parties' allegedly coercive "contribution agreement" in which Myers agreed to pay to McNamee one-third of any funds released by the Bankruptcy Court to pay Myers' legal bills. Id. ¶¶ 30, 31-32, 34, 44.

McNamee moved to dismiss the Adversary Proceeding, arguing that, among other things, Myers lacked standing to bring the claims because the Trustee now controlled the estate which included Myers' pre-conversion claims. Id., ECF No. 27 at 3-5. Instead of responding to McNamee's motion, Myers moved to amend his complaint in the Adversary Proceeding to add causes of action that accrued after the date of conversion. Id., ECF No. 30 ¶ 15. The new claims included McNamee's supposed failure to file an opening brief in an unrelated case pending before the Maryland Court of Special Appeals. Id. ¶¶ 13-14. Myers further alleged while McNamee still represented him, it simultaneously undertook to represent the Trustee in another bankruptcy matter and also negotiated with the Trustee a settlement regarding McNamee's own claims against Myers' estate. Id. ¶¶ 10-12. The amended claims thus included breach of fiduciary duty, "legal negligence," fraud and constructive fraud, and negligent infliction of emotional distress. Id. ¶¶ 16-56.

On May 9, 2018 McNamee filed a renewed motion to dismiss, or in the alternative for summary judgment in the Adversary Proceeding. Id., ECF No. 44. Following a hearing onNovember 13, 2018, the Bankruptcy Court granted McNamee's motion, dismissing the breach of fiduciary duty and emotional distress counts without leave to refile, and entering summary judgment in McNamee's favor on the legal negligence and fraud counts. Id., ECF No. 57 at 1-2.

Myers appealed the Bankruptcy Court's ruling. However, because Myers failed to designate the record properly and then failed to respond to this Court's show cause Order, this Court dismissed the appeal on October 7, 2019. See Myers v. McNamee, Hosea, Jernigan, Kim, Greenan & Lynch, P.A., 8:19-cv-00636-PX, ECF Nos. 1, 6-7.²

In the meantime, Myers sought in the Bankruptcy Court permission to litigate his pre-conversion claims against McNamee. Specifically, on May 31, 2018, Myers moved to compel the Trustee to abandon the estate's claims against McNamee. Bankruptcy Case, ECF No. 714. The Bankruptcy Court denied this motion on June 26, 2018. Id., ECF No. 720.

On November 8, 2018, Myers filed this case in which he resurrects the same claims he pursued in the Adversary Proceeding: that McNamee's failed to file the Court of Special Appeals brief, ECF No. 1 ¶¶ 17, 24; that it simultaneously represented Myers and the Trustee, id. ¶ 69, and that it negotiated with the Trustee regarding its claim against Myers' estate, id. ¶¶ 35, 59, 61, 69-70. Myers similarly echoes his prior claims regarding the supposedly coercive contribution agreement. Id. ¶¶ 9, 18, 25, 34. Myers also asserts that McNamee was deficient in representing both Myers and Myers' wife, Barbara Ann Kelly, id. ¶ 26, and that it conspired with the Trustee to wrongfully settle McNamee's claims against the estate, id. ¶¶ 61, 70. Ultimately, Myers brings claims of breach of contract (Count I), "professional negligence" (Count II), "breach of obligations of good faith and fair dealing" (Counts III and VII), negligent infliction ofemotional distress (Count IV), and "Conspiracy" (Count VIII) against McNamee. Id. ¶¶ 14-41, 54-78. Although it is difficult to discern when each wrongful act supposedly accrued, the Complaint is clear that it asserts both pre-conversion and post-conversion claims. Id. ¶¶ 43, 45, 48-50, 52, 56-57.

As to the Trustee, Myers brings claims of breach of contract (Count V), promissory estoppel (Count VI), "breach of obligations of good faith and fair dealing" (Count VII), and "conspiracy" (Count VIII). Id. ¶¶ 42-78. Myers avers that the Trustee breached an agreement wherein Myers was permitted to prosecute his claims against McNamee. According to Myers, he and the Trustee formed this agreement in open court when counsel for the Trustee stated that the Trustee would not be pursing Myers' legal malpractice claims on behalf of the estate. Id. ¶¶ 13, 43, 48-50, 56.

To add to the legal quagmire of Myers' own making, he has undoubtedly used (and abused) the judicial process to prolong proceedings in the bankruptcy matter and thus delay liquidation and distribution of Myers' assets. Specifically, Myers has filed no fewer than fifteen appeals and several other collateral actions related to 2015 singular bankruptcy, the lion's share of which have been dismissed or denied on procedural grounds. Indeed, when viewed collectively, Myers' overall objective appears largely to defer rather than reach meaningful resolution on the merits.³

Myers' latest tactic of choice concerns manipulation of the bankruptcy code's automatic stay provision, 11 U.S.C. § 362. On multiple occasions, Myers has filed new Chapter 13 petitions in the Bankruptcy Court that trigger an automatic stay in the case before this Court.⁴ Myers in turn has argued to the Bankruptcy Court on his Chapter 7 case that his claims before this Court must be resolved before the Chapter 7 petition is to proceed. For instance, Myers recently sought to delay the Bankruptcy Court's approval of a settlement of the estate's claims against McNamee on the grounds such claims must be adjudicated in this court, Bankruptcy Case, ECF No. 831—an assertion that the Bankruptcy Court easily brushed aside, pointing to its earlier ruling "that the Trustee never abandoned any potential pre-conversion claims against McNamee," see id., ECF No. 833

Myers also repeatedly has failed to prosecute his various suits, and only appropriately designates records, files briefs, and responds to motions (if at all) when the Court threatens dismissal. The result is that Myers' various lawsuits and appeals have proceeded in fits and starts. Meanwhile, none of Myers' twenty cases thus far have proved to be meritorious.

This case presents its own microcosm of Myers' dilatory tactics. On May 6, 2019, McNamee moved to dismiss the Complaint, and on May 16, the Trustee followed suit. ECF Nos. 6, 9. Instead of responding to the outstanding motions, Myers filed a suggestion of bankruptcy on June 4, 2019, informing the Court that he had filed a Chapter 13 bankruptcy petition in case No. 19-17428 in the United...