United States District Court, S.D. New York
OPINION AND ORDER
W. SWEET U.S.D.J.
Law Offices of B. Alan Seidler, PC and B. Alan Seidler, Esq.
(the "Seidler Defendants") and Defendant Raymond S.
Sussman ("Sussman" and, collectively,
the "Defendants") have moved pursuant to Federal
Rule of Civil Procedure 12(b) (6) to dismiss the Complaint of
Plaintiff Emmanuel Roy ("Roy" or the
"Plaintiff") . Based on the reasons set forth
below, Plaintiff s Complaint is dismissed without prejudice
and Plaintiff shall have 30 days to move to vacate this
dismissal for good cause shown.
filed his Complaint on July 25, 2017. Dkt. No. 1 (the
"Complaint"). The Seidler Defendants and Sussman
moved to dismiss on September 19 and November 10, 2017,
respectively. Dkt. Nos. 8, 20. At his request, Plaintiff was
granted an extension until November 20, 2017, to serve papers
in opposition to the Seidler Defendants' motion, Dkt.
Nos. 12, 17, and instructed to serve papers in opposition to
Sussman's motion by December 6, 2017, Dkt. No. 18. No
papers were received in opposition to either motion.
motions were taken on submission and marked fully submitted
on December 20, 2017.
Complaint alleges two claims, each arising from his 2013
criminal trial, at which Plaintiff was convicted of convicted
of counts of wire fraud and conspiracy to commit wire and
bank fraud and sentenced to 87 months incarceration, and his
subsequent appeal, where his conviction was affirmed.
See generally Roy v. United States, No. 16
Civ. 1295 (CM), 2017 WL 5126138, at *l-4 (S.D.N.Y. Oct. 20,
2017) (detailing the procedural history of Roy's criminal
Plaintiff alleges legal malpractice arising from his trial
representation, at which he was represented by Sussman, and
from his appeal, at which he was represented by the Seidler
Defendants. See Compl. ¶¶ 13, 29-35.
Plaintiff's legal malpractice claim is based on: Sussman
entering into certain evidentiary stipulations with the
Government; the Seidler Defendants' failure to present on
appeal an argument that mortgage brokers are not federally
insured financial institutions; and Defendants' general
lack of legal knowledge, lack of energy and preparedness, and
competent legal representation. Id.
Plaintiff alleges breaches of contract with respect to each
Defendants based on similar issues of "competency"
as his legal malpractice claim, inter alia: that
Plaintiff's attorneys entered into particular allegedly
harmful stipulations, failed to know the law, failed to
perform proper legal research, and failed to present
particular arguments at trial and on appeal. See
Compl. ¶¶ 36-43.
deciding a motion to dismiss under Rule 12(b)(6) for failure
to state a claim for which relief can be granted, the Court
accepts all factual allegations in the Complaint as true and
draws all reasonable inferences in favor of the Plaintiff, as
the nonmoving party. See In re Elevator Antitrust
Litig., 502 F.3d 47, 50 (2d Cir. 2007). A court must
determine whether a Complaint contains "sufficient
factual matter, accepted as true, to state a claim to relief
that is plausible on its face." Ashcroft v.
Iqbal, 556 U.S. 662, 663 (2009) (quotation omitted). The
issue "is not whether a plaintiff will ultimately
prevail, but whether the claimant is entitled to offer
evidence to support the claims." Todd v. Exxon
Corp., 257 F.3d 191, 198 (2d Cir. 2001) (quoting
Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).
Court is mindful of the fact that Plaintiff is a pro
se litigant. As such, a court must liberally construe
submissions on "the understanding that MiJmplicit in the
right to self-representation is an obligation on the part of
the court to make reasonable allowances to protect pro
se litigants from inadvertent forfeiture of important
rights because of their lack of legal training.'"
Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007)
(quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir.
1983)). Moreover, a plaintiff's failure to oppose a
12(b)(6) motion does not alone merit dismissal of a complaint
because "the sufficiency of a complaint is a matter of
law that the court is capable of determining based on its own
reading of the pleading and knowledge of the law."
McCall v. Pataki, 232 F.3d 321, 322 (2d Cir. 2000);
see Maggette v. Dalsheim, 709 F.2d 800, 802 (2d Cir.
1983). However, pro se status does not "exempt
a party from compliance with relevant rules of procedural and
substantive law." Triestman v. Fed. Bureau of
Prisons, 470 F.3d 471, 477 (2d Cir. 2006) (quoting
Traguth, 710 F.2d at 95).
Motions to Dismiss are Granted without
legal malpractice claim must be dismissed. As the Second
Circuit has repeatedly held, "under New York law, a
plaintiff cannot state a malpractice claim against his
criminal defense attorney if his conviction 'remains
undisturbed.'" Hoffenberg v. Meyers, 73
Fed.Appx. 515, 516 (2d Cir. 2003) (quoting Britt v. Legal
Aid Soc, Inc., 95 N.Y.2d 443, 446, 718 N.Y.S.2d 264
(2000)); see also Abuhouran v. Lans, 269 Fed.Appx.
134, 135 (2d Cir. ...