United States District Court, S.D. New York
March 31, 2004.
BATYAH LEVI AGRON, Plaintiff, -against -, DOUGLAS W. DUNHAM, ESQ. & ASSOCIATES, Defendant
The opinion of the court was delivered by: LORETTA PRESKA, District Judge
Memorandum Opinion and Order
This case arises out of Douglas W. Dunham, Esq.'s ("Mr. Dunham" or
"Defendant") pro bono representation of Plaintiff Batyah Levi
Agron ("Ms. Agron" or "Plaintiff") in her action against the Trustees of
Columbia University. Ms. Agron filed her action against Columbia in 1988
pro se in the Southern District of New York (the "Original
Action"). She asserted discrimination claims under section 504 of the
Rehabilitation Act of 1973, 29 U.S.C. § sc § 794, based upon
Columbia's rejection of her application for readmission to its School of
General Studies. Mr. Dunham became her pro bono attorney in
1992. The Original Action came to trial in August 1999 before the
Honorable Thomas P. Griesa, lasting approximately one week. The jury
found that Ms. Agron was a handicapped person within the meaning of the
Rehabilitation Act, but that she was not "otherwise qualified" for
readmission to Columbia. (Declaration
of Douglas W. Dunham ("Dunham Decl."), sworn to July 3, 2003, Ex. 3
at 1.) Shortly after Judge Griesa, in September 1999, denied the motion
for JNOV that Mr. Dunham filed on behalf of Ms. Agron (Dunham Decl. Ex.
3), Mr. Dunham withdrew from his representation of her because he
determination that there was no meritorious ground for appeal. Ms. Agron
pursued an appeal pro se before the Second Circuit, which
denied her motion for appointment of counsel and found that her appeal
lacked merit and therefore dismissed it. See Agron v. Trustees of
Columbia University, No. 99-9407 (2d Cir. Sept. 1, 2000). Ms. Agron
subsequently filed a petition for certiorari to the United States Supreme
Court, which was also denied. See Agron v. Trustees of Columbia
University, 534 U.S. 932 (2001).
Ms. Agron then brought this suit pro se against Mr. Dunham in
August 2002. Her first complaint (which was never served on Mr. Dunham)
was dismissed sua sponte by the Honorable Michael Mukasey on
the grounds that she had not properly alleged an amount in controversy in
excess of $75,000 and that she had not properly pled a claim for legal
malpractice. See Agron v. Dunham, No. 02 Civ. 10071, Order at
2-4 (S.D.N.Y. Dec. 19, 2002). Plaintiff has now filed an Amended
Complaint against Mr. Dunham, dated February 19, 2003. The Amended
Complaint ("Complaint") appears to assert claims for violation of civil
rights, legal malpractice and civil conspiracy.
By notice of motion dated July 3, 2003, Defendant moved to dismiss the
Complaint in its entirety pursuant to Federal Rule of Civil Procedure
I. Proceeding Pro Se
In addressing the Defendant's motion, the Court is mindful that the
Plaintiff is proceeding pro se and that her submissions should
be judged by a more lenient standard than that accorded to "`formal
pleadings drafted by lawyers.'" Hughes v. Rowe, 449 U.S. 5, 9
(1980) (per curiam) (quoting Haines v. Kerner, 404 U.S. 519,
520 (1972)); see also Burgos v. Hopkins, 14 F.3d 787, 790 (2d
Cir. 1994) ("We read [the pro se party's] supporting papers liberally,
and will interpret them to raise the strongest arguments they suggest.");
Hanlin v. Mitchelson, 794 F.2d 834, 838-39 (2d Cir. 1986)
(citing Haines, 404 U.S. 519, to support the principle that pro
se pleadings are given a liberal construction). Nevertheless, proceeding
pro se does not altogether relieve Ms. Agron from the usual
pleadings requirements. See Kadosh v. TRW, Inc., No. 91 Civ.
5080, 1994 U.S. Dist. LEXIS 17390, at *16 (S.D.N.Y. Dec. 5, 1994) ("The
work product of pro se litigants should be generously and liberally
construed, but [the pro se's] failure to allege either specific facts or
particular laws that have been violated
renders his attempt to oppose defendants' motion ineffectual.").
II. Rule 12(b)(6) Standard
In deciding a motion to dismiss, I must view the Complaint in the light
most favorable to the Plaintiff. Scheuer v. Rhodes,
416 U.S. 232, 237 (1974); Yoder v. Orthomolecular Nutrition Inst., Inc.,
751 F.2d 555, 562 (2d Cir. 1985). I must accept as true the well-pleaded
factual allegations stated in the Complaint, Zinermon v. Burch,
494 U.S. 113, 118 (1990), and draw all reasonable inferences in favor of
the Plaintiff. Scheuer, 416 U.S. at 236; Hertz Corp. v.
City of New York, 1 F.3d 121, 125 (2d Cir. 1993). Dismissal is
proper only when "it appears beyond doubt that the plaintiff can prove no
set of facts in support of his claim which would entitle him to relief."
Conley v. Gibson, 355 U.S. 41, 45-46 (1957); accord Cohen
v. Koenig, 25 F.3d 1168, 1172 (2d Cir. 1994). In order to avoid
dismissal, plaintiff must do more than plead mere "`conclusory
allegations or legal conclusions masquerading as factual conclusions.'"
Gebhardt v. Allspect, Inc., 96 F. Supp.2d 331, 333 (S.D.N.Y.
2000) (quoting 2 James Wm. Moore, Moore's Federal Practice P12.34[l] [b]
(3d ed. 1997)). In construing the Complaint, documents attached to or
referenced in the complaint may be considered on a motion to dismiss
without converting the motion to dismiss into one for summary judgment.
See Taylor v. Vermont Dep't of Educ., 313 F.3d 768, 776 (2d
Cir. 2002) (court
may look to "facts as presented within the four corners of the
complaint, to documents attachments to the complaint, or to document
incorporated within the complaint by reference"); Hayden v. County
of Nassau, 180 F.3d 42, 54 (2d Cir. 1999) (same). Additionally,
matters as to which judicial notice may be taken, such as pleadings in
other lawsuits and other public records may also be considered on a
motion to dismiss. See, e.g., Rothman v. Gregor,
220 F.3d 81, 92 (2d Cir. 2000) (taking judicial notice of pleading in another
lawsuit); Clarry v. United States, 891 F. Supp. 105, 109
(E.D.N.Y. 1995) (on motion to dismiss, court "permitted to take judicial
notice of matters of public record"), aff'd, 85 F.3d 1041 (2d
Although Plaintiff's Complaint is not entirely clear, Plaintiff appears
to assert three causes of action civil rights violations, legal
malpractice, and civil conspiracy. Defendant moves to dismiss all three
claims for failure to state a legally cognizable claim against him.
A. Civil Rights
Plaintiff makes numerous references regarding alleged violations of her
civil rights. Plaintiff alleges that Defendant "interfere[d] with her
Civil Rights" (Compl. at 2), "den[ied] her equal rights" (Compl. at 3),
and violated "her equal protection under the Constitution" (Compl. at 4).
Plaintiff also purports to involve 42 U.S.C. § 1983
(Compl. at 1).
The Court of Appeals has held that "[b]ecause the United States
Constitution regulates only the Government, not private parties, a
litigant claiming that his constitutional rights [have been violated]
must first establish that the challenged conduct constitutes `state
action.'" Ciambriello v. County of Nassau, 292 F.3d 307, 323
(2d Cir. 2002) (citations omitted). Similarly, the Court of Appeals has
stated that "[a] plaintiff pressing a claim of violation of his
constitution rights under § 1983 is . . . required to
show state action." Tancredi v. Metropolitan Life Ins. Co.,
316 F.3d 308, 312 (2d Cir.), cert. denied, 2003 U.S. LEXIS 4837
(U.S. June 23, 2003).
It is well-established that as a matter of law a private attorney is
not a state actor. See, e.g., Rodriguez v. Weprin, 116 F.3d 62,
65-66 (2d Cir. 1997) (private attorney does not act under color of state
law by virtue of his appointment by the court to represent a defendant in
a state criminal proceeding); Fine v. City of New York,
529 F.2d 70, 74 (2d Cir. 1975) (private attorney not a state actor);
Cunningham v. Fisch, 01 Civ. 1123, 2001 U.S. Dist. LEXIS 17483,
at *11 (S.D.N.Y. Oct. 26, 2001) ("`[A] lawyer representing a client is
not, by virtue of being an officer of the court, a state actor `under
color of state law' within the meaning of § 1983'") (quoting
v. Davidson, 454 U.S. 312 (1981)). The Complaint alleges
that Mr. Dunham was assigned to Ms. Agron as "a Pro Bono attorney," and
thus, was a private attorney and not a state actor. (Compl. at 7.)
Plaintiff appears to contend that Mr. Dunham is not a private attorney
because he is employed by a law firm. (Pl's Opp. at 4.) This is a
misunderstanding of the law, as noted above. Accordingly, Plaintiff's
claims relating to violations of her civil rights and to § 1983 do
not, as a matter of law, state a cognizable claim against Mr. Dunham and
must be dismissed.
B. Legal Malpractice
A legal malpractice claim in the State of New York requires the
Plaintiff to demonstrate three elements: the negligence of the attorney,
that the negligence was the proximate cause of the damages sustained, and
proof of actual damages. See Mendoza v. Schlossman, 87 A.D.2d 606,
606-07 (2d Dep't 1982). " [A] plaintiff must not only prove lack of
reasonable care; plaintiff must also establish that he would have been
successful in the underlying action, if his attorney had exercised due
care." Parksville Mobile Modular, Inc. v. Fabricant, 73 A.D.2d 595,
599 (2d Dep't 1979). In other words, Plaintiff must establish that
"but for" Defendant's negligence, Plaintiff would have won her case.
See Strook & Strook & Lavan v. Beltramini,
157 A.2d 590, 591, (1st Dep't 1990) (to state a
viable legal malpractice claim, plaintiff must show how she "would
have prevailed in the underlying action buy for her attorney's
malpractice"); Parker, Chapin, Flattau & Klimpl v. Daelen
Corp., 59 A.D.2d 375, 378-79 (1st Dep't 1977) ("The party must show
that but for the negligence, the particular result sought by the client
would or could have been achieved.").
Plaintiff makes a variety of allegations with respect to this claim.
Insofar as I am able to interpret them, none establishes the essential
elements of a claim for malpractice because none allege that Ms. Agron
would have ultimately prevailed with regard to her claim "but for" Mr.
Dunham's alleged negligence.
First, Plaintiff complains about the amended complaint drafted and
filed by Mr. Dunham in Plaintiff's Original Action. (Comp. at 2-3.) The
Complaint lists a variety of matters that Ms. Agron believes Mr. Dunham
"was negligent" in failing to include in the amended complaint filed in
the Original Action. These matters included that Mr. Dunham omitted Ms.
Agron's Supplemental Security Income Division Report that listed Ms.
Agron "with Blindness," that Ms. Agron "was reported as a crime victim,
on campus of Columbia University," and that Ms. Agron "displayed advanced
courses work" at another accredited educational institution. However, a
complaint must only set forth "a short and plain statement of the claim,"
with Federal Rule of Civil Procedure 8(a)(2). Under Rule 8(a)(2),
it was not necessary for Mr. Dunham to include in the amended complaint
in the Original Action the allegations listed by Ms. Agron. See
Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002) (under
Rule 8(a)(2), "a complaint must include only `a short and plain statement of
the claim'"). Moreover, as a matter of law, the fact that the amended
complaint filed in the Original Action did not list the specific matters
cited by Ms. Agron had no effect on the outcome of the trial in her case
in the Original Action in August 1999, which was held after document
productions, depositions and pretrial motions.
Second, Plaintiff complains of statements made by Mr. Dunham in a
memorandum of law in opposition to Defendant Columbia University's motion
for summary judgment on the grounds of the statute of limitations.
(Compl. at 3.) However, Plaintiff fails to allege any connection between
these statements and how she would have prevailed with regard to her
contract claim if Mr. Dunham had argued the statute of limitations issues
for that claim differently or that Plaintiff would have ultimately
prevailed at trial on her contract claim if Mr. Dunham had won a ruling
that the claim was not time-barred. The fact that the trial court did not
find merit in Mr. Dunham's arguments that Plaintiff's contract claim was
not time-barred does not provide a basis for a malpractice claim.
Third, Plaintiff alleges that Mr. Dunham inappropriately provided in
discovery a medical report, dated June 1994, to Columbia's lawyer,
without her consent. That report (Dunham Decl. Ex. 14) was an expert
report by a psychiatrist regarding Plaintiff's mental and emotional
disabilities and was provided to Columbia as such, with Ms. Agron's
knowledge and consent. See Dunham Decl. Ex. 15 (Interrogatory
answers describing Dr. Deutsch's report and accompanying certification
bearing Ms. Agron's notarized signature). Regardless, as a document
attached by Plaintiff to her Complaint in this case indicates, "neither
Dr. Deutsch nor his expert report were presented to the jury at the
trial." (Dunham Decl. Ex. 16.) Therefore, plaintiff has failed to
demonstrate any connection between the purported inappropriate disclosure
and her failure to prevail at trial in the Original Action. Plaintiff's
contentions with respect to Dr. Deutsch's opinion and report also fail
because he never testified at trial, and his report was not used by
Columbia at trial. Therefore, the report cannot be said to have
influenced the trial in any way.
Fourth, the Plaintiff complains that Mr. Dunham reduced the amount of
damages claimed from $40 million to in excess of $100,000. (Compl. at 3.)
The amended complaint in the Original Action alleged that plaintiff
"ha[d] been damaged
in an amount to be determined but presently believed to be in
excess of $100,000" and that Plaintiff sought a judgment against Columbia
"in an amount presently believed to be in excess of $100,000 to be
determined by the proof at trial." (Dunham Decl. Ex. 2 at 6.) On its
face, such language, which is commonly used in complaints in this
Circuit, in no way limits the amount of damages that a plaintiff may
obtain at trial. In any case, it is not alleged that the amount of
damages asserted in Plaintiff's amended complaint had any effect on the
outcome of the trial of Plaintiff's claims against Columbia.
Fifth, Plaintiff complains about various documents that she alleges
were not presented at trial. (Compl. § para § 3-4.) However,
Plaintiff does not allege that the presentation of these documents would
have somehow altered the outcome of the underlying trial, nor does
Plaintiff give any indication what she believes that these letters would
have established had they been presented to the jury during the trial of
her case against Columbia.
Sixth, Plaintiff alleges that Mr. Dunham Mid nothing to defend [her]
with zeal." (Compl. at 4.) However, Plaintiff does nothing more than make
this allegation in a conclusory fashion. Furthermore, after the jury
rendered its verdict in the Original Action, Judge Griesa thanked the
lawyers and made the following statements on the record: "And I would
address the plaintiff's lawyers. You did all you could with this
case, all that could possibly be done." (Dunham Decl. Ex. 4 at 33.)*fn1
Furthermore, in Plaintiff's own submission to the Second Circuit,
Plaintiff stated of Mr. Dunham that he Mid the best he could, under the
most trying circumstances, from the Defendant, etc." (Dunham Decl. Ex. 6
at 6.) Thus, not only do Plaintiff's own record admissions contradict her
contention but Plaintiff utterly fails to allege with any particularity
how Mr. Dunham failed to represent her with zeal.
Seventh, Plaintiff claims that Mr. Dunham failed to oppose Columbia's
introduction of a "time-barred Columbia Past Prejudice Record dated
January 9, 1978." (Compl. at 4.) However, the introduction of other
materials similar to the one of which Plaintiff complains were admitted
by the trial court over Mr. Dunham's objections. See Dunham
Decl. Ex. 25. Plaintiff demonstrates no basis on which Mr. Dunham might
have prevailed to prevent Columbia's introduction of the evidence, nor
does Plaintiff allege a sufficient causal relationship between the
introduction of that evidence and the outcome of the trial.
Eighth, Ms. Agron complains that Mr. Dunham's associate took away her
Hebrew Prayer book and "hid" it. As the
Complaint explains, however, Columbia's lawyer had requested (and
obtained) a ruling from the trial court that Ms. Agron's prayer book not
be kept open in front of her at counsel table, within sight of the jury.
In any case, it bears no relationship to any outcome in the Original
Action. The same applies to Ms. Agron's claims that the trial was not
limited to 4 hours a day, Plaintiff did not receive hearing devices, and
that she was not given notes or a transcript of the proceedings. These
bear no relationship to the outcome of the Original Action or the appeal
Ninth, Ms. Agron asserts that Mr. Dunham mishandled the way in which
her discrimination claim should have been tried. Ms. Agron appears to
contend that Mr. Dunham should have tried her discrimination claims
against Columbia's claims of discrimination based upon her physical
disabilities rather than based upon mental or emotional disabilities.
(See Pl's Opp. at 11-13, 18.) However, even taken as true,
these allegations fail to establish that Plaintiff could have prevailed
on claims of discrimination because the jury found that Ms. Agron was not
"otherwise qualified" to be a student at Columbia and therefore the jury
never reached the question of whether Ms. Agron had been discriminated
against. Therefore, the jury never even reached the question of whether
Ms. Agron had been discriminated against.
Tenth, Ms. Agron complains that her academic record at Bar Ilan
University and Hunter College demonstrates that she was qualified. (Pl's
Opp. at 17-18.) However, this is an argument that was presented to the
jury in the Original Action and not a basis for a malpractice claim
against her attorney. In any case, none of the purported evidence claimed
by Plaintiff can be deemed in any way likely to have changed the jury's
determination that Plaintiff was not otherwise qualified.
Finally, Ms. Agron contends that Mr. Dunham violated various
disciplinary rules in the course of his representation of Ms. Agron.
However, an alleged violation of a disciplinary rule "does not, without
more, generate a cause of action." Schwartz v. Olshan Grundman Frome
& Rosezweig, 302 A.D.2d 193, 199, 753 N.Y.S.2d 482, 487 (App.
Div. 2003). Here, none of the alleged violations is relevant to
Plaintiff's claims of malpractice and Plaintiff's burden of pleading
facts that she would have prevailed on her claims against Columbia were
it not for Mr. Dunham's alleged negligence. Therefore, because none of
the allegations supports the existence of a causal relationship between
the alleged violations and the outcome of the trial of her claims, the
allegations are insufficient to state a claim for malpractice as a matter
Under New York law, a civil conspiracy claim must be based upon a
viable intentional tort claim. See, e.g., Alexander &
Alexander of N.Y., Inc. v. Fritzen, 68 N.Y.2d 968, 969,
503 N.E.2d 102, 103, 510 N.Y.S.2d 546, 547 (1986). As discussed, supra,
Plaintiff's allegations are insufficient as a matter of law to establish
that Mr. Dunham committed any intentional tort against her. Thus,
Plaintiff fails to state a claim for civil conspiracy because no
underlying tort has been properly pled. Moreover, Plaintiff's conspiracy
claim fails for the additional reason that her allegations of conspiracy
are entirely conclusory and do not provide a "factual basis indicating
the existence of a civil conspiracy." See Grennwaldt v.
Coughlin, No. 93 Civ. 6551, 1995 U.S. Dist. LEXIS 5144, at *16
(S.D.N.Y. Apr. 19, 1995). Accordingly, insofar as Plaintiff attempts
to assert a claim for civil conspiracy, that claim is dismissed.
For the reasons stated above, Defendant's motion to dismiss is granted,
and Plaintiff's Complaint is dismissed in its entirety with prejudice.
The Clerk of the Court shall mark this action closed and all pending
motions denied as moot.