United States District Court, W.D. Arkansas, El Dorado Division
O. HICKEY CHIEF UNITED STATES DISTRICT JUDGE.
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
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
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.
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'
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.
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).
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
accusation.” Id. (quoting Twombly,
550 U.S. at 555).
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.
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