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Skender v. C. Marshall Friedman, P.C.

United States District Court, W.D. Arkansas, El Dorado Division

April 12, 2019

BRIAN SKENDER PLAINTIFF
v.
C. MARSHALL FRIEDMAN, P.C.; C. MARSHALL FRIEDMAN; and KENNETH E. RUDD, jointly and severally DEFENDANTS

          ORDER

          SUSAN O. HICKEY CHIEF UNITED STATES DISTRICT JUDGE.

         Before the Court is Defendants' Motion to Dismiss. (ECF No. 16). Plaintiff has filed a response. (ECF No. 21). Defendants have filed a reply. (ECF No. 24). The Court finds this matter ripe for consideration.

         BACKGROUND

         This is an action for legal malpractice and fraud. Plaintiff was injured in a slip and fall accident on July 11, 2012, while employed by Union Pacific Railroad. In October of 2013, Plaintiff approached his personal attorney, Sandra C. Bradshaw, about bringing a Federal Employers Liability Act (“FELA”) action against Union Pacific. Bradshaw represented Plaintiff in the incipient stages of litigation and eventually referred Plaintiff to Defendants-a St. Louis, Missouri, based law firm-because they are experienced in FELA litigation.

         On October 19, 2015, Plaintiff's FELA action was dismissed with prejudice for insufficient process and insufficient service of process. More specifically, the FELA claim was dismissed because Defendants prepared a deficient summons. Defendants appealed the ruling, arguing that the dismissal should have been without prejudice. Defendants were successful on appeal and filed another FELA action on Plaintiff's behalf. This second FELA action was later dismissed with prejudice.

         On March 31, 2017, Plaintiff commenced this action, alleging that Defendants committed legal malpractice and fraud when they failed to communicate to him that his case had been on appeal and that it was later dismissed with prejudice. On February 11, 2018, Defendants filed the instant Motion to Dismiss, arguing that this action should be dismissed because the statute of limitations period ran before Plaintiff commenced this action. Plaintiff opposes the motion, arguing that this action is timely and that in the alternative, that the statute of limitations was tolled due to Defendants' fraudulent concealment.

         LEGAL STANDARD

         To survive a motion to dismiss under Rule 12(b)(6), a pleading must provide “a short and plain statement of the claim that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). The Court must accept as true all factual allegations set forth in the complaint, drawing all reasonable inferences in the plaintiff's favor. See Ashley Cnty., Ark. v. Pfizer, Inc., 552 F.3d 659, 665 (8th Cir. 2009). However, the complaint “must contain 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, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “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.” Id.

         “The plausibility standard is not akin to a ‘probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are ‘merely consistent with' a defendant's liability, it ‘stops short of the line between possibility and plausibility of entitlement to relief.'” Id. (quoting Twombly, 550 U.S. at 557). “Determining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679. In considering a motion to dismiss under Rule 12(b)(6), “the complaint should be read as a whole, not parsed piece by piece to determine whether each allegation, in isolation, is plausible.” Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 594 (8th Cir. 2009).

         “A pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do.' Nor does a complaint suffice if it tenders ‘naked assertions' devoid of ‘further factual enhancement.'” Id. (internal citations and alterations omitted) (quoting Twombly, 550 U.S. at 555, 557). In other words, “the pleading standard Rule 8 announces does not require ‘detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. (quoting Twombly, 550 U.S. at 555).[1]

         DISCUSSION

         Defendants argue that this action should be dismissed because it was commenced after the applicable statute of limitations expired. In response, Plaintiff argues that he timely commenced this action because Defendants' alleged conduct amounts to an ongoing occurrence of malpractice. Alternatively, Plaintiff argues that the statute of limitations period was tolled because Defendants fraudulently concealed their alleged negligent conduct.

         First, the Court must determine if this action is timely. If the Court determines that the limitations period expired before Plaintiff brought this action, the Court will then determine whether the statute of limitations was tolled due to fraudulent concealment.

         I. Statute ...


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