Beach TV Properties, Inc. v. Solomon

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

BEACH TV PROPERTIES, INC., :
:
Plaintiff, : Civil Action No.: 15-1823 (RC)
:
v. : Re Document No.: 59
:
HENRY A. SOLOMON, :
:
Defendant. :

MEMORANDUM OPINION

GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION TO AMEND ITS COMPLAINT

I. INTRODUCTION

Plaintiff the Atlanta Channel, Inc. (“ACI”), seeks leave to amend its complaint for a

second time. The proposed second amended complaint includes two new defendants, three new

grounds for recovery, and new factual allegations. The only active defendant prior to this motion

was ACI’s former attorney, Henry Solomon. The only active claim was that he failed to

complete one page of routine paperwork at the FCC. Now, Plaintiff alleges that Mr. Solomon,

his colleague Melodie Virtue, and their law firm, Garvey Schubert Barer (“Garvey”), were all

negligent when they advised ACI to assign its television license to former-plaintiff Beach TV

Properties, Inc. (“Beach TV”). Without explicitly pleading facts supporting it, Plaintiff alleges

that the assignment somehow diminished ACI’s malpractice claim against Mr. Solomon.

Plaintiff also alleges that Ms. Virtue and Mr. Solomon “lulled” ACI into not filing this suit

earlier.

Garvey opposes Plaintiff’s motion on the grounds that amendment of the complaint

would be futile, because it would not withstand a motion to dismiss. In support of its opposition,

Garvey argues that the added count against Mr. Solomon does not adequately allege the elements
of legal malpractice. It makes this same argument with respect to the “duty” element for the new

count against Ms. Virtue. In addition, Garvey argues that the new claim against Ms. Virtue is

not yet ripe, that adding her as a defendant would be disruptive, and that the complaint does not

support an argument that Ms. Virtue “lulled” ACI into inaction.

The Court agrees with Garvey that adding the new count against Mr. Solomon would be

futile. Plaintiff’s proposed second amended complaint in no way describes how the assignment

of ACI’s television license could have caused its malpractice suit to lose value. Its negligence

claim thus does not contain a plausible theory of causation. However, the Court finds that ACI

adequately alleged the other elements of the new claims, including the duty element of the claim

against Ms. Virtue. The Court also finds that the claim against Ms. Virtue, though contingent

upon certain legal rulings that have not yet occurred, is ripe. Moreover, adding such a claim

would not be so disruptive as to justify denying Plaintiff a forum to raise its claims. Finally,

Defendant’s arguments pertaining to “lulling” are not applicable here—Plaintiff’s lulling claim is

a preemptive response to the affirmative defense that the statute of limitations bars recovery, not

a freestanding claim in the complaint. Because adding the new count against Ms. Virtue would

not be futile and Garvey is allegedly liable under the doctrine of respondeat superior, the Court

grants Plaintiff’s motion in part and denies it in part.

II. FACTUAL BACKGROUND

The Court already provided a detailed factual background in its memorandum opinion

addressing Defendants’ motions to dismiss. See Beach TV Props., Inc. v. Solomon, No. 15-1823,

2016 WL 6068806, at *3 (D.D.C. Oct. 14, 2016). Assuming familiarity with the prior opinion,

the Court outlines only the most relevant facts to the resolution of Plaintiff’s motion to amend.

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 This legal malpractice case arises out of attorney Henry Solomon’s alleged failure to

adequately complete an FCC Statement of Eligibility, which would have entitled ACI to an FCC

Low-Power Television class A license. Id. at *1. Key omissions on routine FCC paperwork

completed by Mr. Solomon allegedly caused ACI to forfeit its statutory right to a class A license,

resulting in a claimed loss of hundreds of millions of dollars. Id. Mr. Solomon represented ACI

from the time of filing the license application in 2000 until at least 2012. See id.; see also Pl.’s

Proposed Second Am. Compl. ¶ 39, ECF No. 59-3. In 2009, Mr. Solomon allegedly advised

ACI to assign its TV license to Beach TV, but “failed to advise ACI on the effect the assignment

would have on ACI’s malpractice claim against him.” Pl.’s Proposed Second Am. Compl. ¶ 45.

During the administrative appeals of the FCC’s rejection, Mr. Solomon moved from the

law firm Haley Bader to Garvey. Beach TV Props., 2016 WL 6068806, at *3. The Court

dismissed Plaintiff’s claims against Haley Bader for lack of personal jurisdiction and against

Garvey for failure to state cognizable claims. Id. at *1. It also dismissed claims made by Beach

TV for lack of standing, because ACI’s attempted assignment of the malpractice claims was

invalid under Virginia law. Id. at *1, *17.

Plaintiff’s proposed amended complaint makes four distinct claims and seeks to add two

defendants. See Pl.’s Proposed Second Am. Compl. ¶¶ 51–62; 73–87. The first count is largely

the same as it was in Plaintiff’s original complaint, and alleges that Mr. Solomon committed

malpractice by failing to complete the FCC Statement of Eligibility. Compare Pl.’s Proposed

Second Am. Compl. ¶¶ 73–75 with Am. Compl. ¶¶ 122–23, ECF No. 21.

Plaintiff seeks to add a second count—“Count Two”—alleging that Mr. Solomon’s

failure to adequately counsel ACI with respect to the license that ACI assigned to Beach TV was

negligent and “compromise[d] ACI’s ability to recover damages based on its ownership of

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WTHC-LD.” Pl.’s Mot. Am. Compl. ¶ 15; Pl.’s Proposed Second Am. Compl. ¶¶ 76–79.

Plaintiff alleges that Mr. Solomon negligently advised ACI that the assignment of the television

license WTHC-LD would shield that license from potential ACI creditors, and prepared and filed

documents for the assignment. Pl.’s Proposed Second Am. Compl. ¶¶ 42–43. Mr. Solomon was

negligent, ACI argues, because “Mr. Solomon failed to advise ACI that the License Assignment

could adversely affect ACI’s legal malpractice claim against him.” Pl.’s Proposed Second Am.

Compl. ¶ 45. ACI’s proposed amended complaint does not detail why or how the assignment of

the license could adversely affect the malpractice claim, but its motion suggests that ownership

of the WTHC-LD license is a prerequisite to recovering for malpractice, and that assigning the

license without the malpractice claim undermined the holder of the malpractice claim’s ability to

recover damages. Pl.’s Mot. Am. Compl. ¶ 15; see generally Pl.’s Proposed Second Am. Compl.

After the Court ruled that the assignment of the malpractice claim against Mr. Solomon was

invalid because D.C. law did not apply, Beach TV assigned the WTHC-LD license back to ACI,

so ACI now holds both the malpractice claim and the license. Pl.’s Proposed Second Am.

Compl. ¶¶ 47–50. Thus, to the extent that Beach TV’s ownership of the license for seven years

does not affect ACI’s ability to recover damages on the malpractice claim in Count One or the

amount of such damages, Plaintiff concedes Count Two is moot. Pl.’s Reply Def.’s Opp’n to

Pl.’s Mot. Amend Compl. at 5, ECF No. 64.

Notably, moving to add Count Two is somewhat inconsistent with ACI’s prior argument

at the motion-to-dismiss stage. In its opposition to Haley Bader’s motion to dismiss, ACI

previously argued that the assignment from ACI to Beach TV was “governed by District of

Columbia law, which permits” the assignment of both TV licenses and malpractice claims. Pl.’s

Opp’n Haley Bader Mot. Dismiss at 16, ECF No. 36. Thus, Plaintiff argued, the malpractice

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claim did not lose any value when it was assigned from ACI to Beach TV along with the WTHC-

LD license. Pl.’s Opp’n Haley Bader Mot. Dismiss at 18. But now, after the Court held that

D.C. law does not apply, meaning that the assignment of the malpractice claim was invalid, see

Beach TV Properties, Inc., 2016 WL 6068806, at *16, ACI accuses Mr. Solomon of malpractice

for failing to recognize that assignment of the malpractice claim was invalid.

The third count—and first new proposed defendant—arises out of the alleged negligence

of attorney Melodie Virtue. According to the complaint, Ms. Virtue worked with Mr. Solomon

and then, after Mr. Solomon stopped working as a full-time attorney, took over as lead counsel to

ACI. Pl.’s Proposed Second Am. Compl. ¶¶ 51–56. Plaintiff alleges that Ms. Virtue was

negligent in failing to inform ACI that Mr. Solomon had committed malpractice, that his

withdrawal from the case could affect the statute of limitations of malpractice claims, that she

had a conflict of interest in light of her professional relationship with Mr. Solomon, and that ACI

should retain separate counsel. Pl.’s Proposed Second Am. Compl. ¶¶ 59, 80–84. The proposed

amended complaint also alleges that both Mr. Solomon and Ms. Virtue “lull[ed] ACI into

inaction in filing its malpractice claims against” them by continuing to work on their case. Pl.’s

Proposed Second Am. Compl. ¶¶ 57–58.

The final count of the proposed amended complaint seeks to add Garvey as a defendant

for the malpractice of Mr. Solomon and Ms. Virtue through the doctrine of respondeat superior.

Pl.’s Proposed Second Am. Compl. ¶ 85–87. Thus, the facts alleged for ACI’s second and third

counts are also relevant to its fourth count.

III. ANALYSIS

Defendant Solomon and his former law firm, Garvey, oppose Plaintiff’s motion on the

grounds that amendment of the complaint would be futile. See Garvey’s Mem. P. & A. Opp’n

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Pl.’s Mot. Leave Amend Compl. (“Garvey’s Opp’n”) at 14, ECF No. 62; Def. Solomon’s Opp’n

Pl.’s Mot. Leave Amend Compl. (“Def.’s Opp’n”) at 4, ECF No. 63. They specifically argue

that Counts Two and Three—and, effectually, Count Four—do not state cognizable claims, and

therefore allowing Plaintiff to amend its complaint to include them would be futile. See

Garvey’s Opp’n at 16–27. They also assert that Plaintiff’s claims against Ms. Virtue are not ripe,

and that adding them would be unduly disruptive to the case. Garvey’s Opp’n at 25–27.

Garvey is partially correct. Although Plaintiff is not precluded from making its argument

in light of its position at the motion-to-dismiss stage and adequately pleads the elements of duty

and breach, Plaintiff does not adequately plead causation, because it never explains how the

assignment of a television license could adversely affect the value of its malpractice claim

against Mr. Solomon. With that said, adding the claim against Ms. Virtue would not be futile.

Plaintiff adequately states the legal duty that she owed ACI and does not seek recovery on the

independent ground of “lulling,” as Garvey seems to suggest. And, despite ACI’s failure to

respond to Garvey’s arguments with respect to disruption and ripeness, the Court recognizes that

amendment would not be unduly disruptive, and that the claim against Ms. Virtue is ripe.

A. Legal Standard

In general, “[t]he court should freely give leave [to amend] when justice so requires.”

Fed. R. Civ. P. 15(a)(2). Although the standard is generous, leave should be denied in cases

involving “undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to

cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by

virtue of allowance of the amendment, [and] futility of amendment.” Foman v. Davis, 371 U.S.

178, 182 (1962). “Courts may deny a motion to amend a complaint as futile . . . if the proposed

claim would not survive a motion to dismiss.” James Madison Ltd. v. Ludwig, 82 F.3d 1085,

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1099 (D.C. Cir. 1996) (citing Foman, 371 U.S. at 181–82). Accordingly, in determining the

futility of amendment, the Court applies the same standard it applies in resolving a motion to

dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). Id.

As noted in the Court’s previous opinion, to survive a motion to dismiss for failure to

state a claim under Federal Rule of Civil Procedure 12(b)(6), a complaint must contain sufficient

factual allegations that, if accepted as true, would state a plausible claim to relief. Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009). “Threadbare recitals of the elements of a cause of action,

supported by mere conclusory statements, do not suffice.” Id. Instead, plaintiffs must “nudge[]

their claims across the line from conceivable to plausible.” Bell Atl. Corp. v. Twombly, 550 U.S.

544, 570 (2007).

B. Count Two

As noted above, ACI seeks to add a count—“Count Two”—to the complaint. Count Two

alleges that Mr. Solomon negligently recommended that ACI should assign its WTHC-LD

license to Beach TV without counseling ACI that such an assignment could adversely affect its

malpractice claim against Mr. Solomon. Pl.’s Proposed Second Am. Compl. ¶¶ 78–79; Pl.’s

Mot. Am. Compl. ¶ 15.

Garvey makes three arguments in support of its claim that the proposed addition of Count

Two is futile. First, it argues that the count fails because it is predicated upon ACI’s previous,

faulty assumption that D.C. law applies. Garvey’s Opp’n at 16–18. Second, Garvey argues that

the claims proposed in Count Two fail because they do not adequately plead the duty or breach

elements of malpractice. Garvey’s Opp’n at 18–20. Third, Garvey argues that the claims in

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Count Two fail because they do not adequately allege proximate causation and damages. See

Garvey’s Opp’n at 21–22.1 The Court addresses each of these arguments in turn.

1. ACI is Not Estopped from Alleging that Mr. Solomon Should
Have Advised His Client that the Assignment Could be Held Invalid,
Despite Previously Arguing that D.C. Law Applies

In its opposition to Haley Bader’s motion to dismiss its original complaint, ACI asserted

that the assignment from ACI to Beach TV was “governed by District of Columbia law, which

permits” the assignment of both licenses and malpractice claims in certain circumstances. Pl.’s

Opp’n Haley Bader Mot. Dismiss at 16. Thus, ACI argued at that time that the malpractice claim

did not lose any value when it was assigned from ACI to Beach TV. Pl.’s Opp’n Haley Bader

Mot. Dismiss at 18. In its previous memorandum opinion, the Court disagreed with ACI’s

position, instead holding that Virginia law applies instead of D.C. law, meaning that the

assignment of the malpractice claim was invalid, leaving ACI with the malpractice claim but

Beach TV with the WTHC-LD license. See Beach TV Properties, Inc., 2016 WL 6068806, at

*16. Now ACI moves to add a new count alleging that Mr. Solomon committed an additional

act of negligence because he should have known that the assignment of the malpractice claim

was invalid, and failed to advise ACI that assigning the WTHC-LD license could jeopardize

ACI’s earlier malpractice claim against him.

Garvey argues that amending the complaint to include this new claim is futile. It argues

that, because ACI itself previously asserted that D.C. law applied to the assignment to Beach TV

of both the WTHC-LD license and the malpractice claim, Mr. Solomon could not have been

negligent in advising ACI to convey the license to Beach TV under the same D.C. law that ACI

1
Defendant Solomon similarly argues that Count Two does not contain sufficient factual
material to constitute a plausible claim. See Def.’s Opp’n at 4–5. His argument is largely
duplicative of Garvey’s second two arguments.

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previously argued applied to the assignment. Garvey’s Opp’n at 16–18. Garvey does not cite to

any cases suggesting that advancing a legal argument in opposition to a motion to dismiss estops

a party from advancing an inconsistent argument later in the case. Garvey’s Opp’n at 16–18.

The Court concludes that ACI is not estopped from advancing this argument.

“Where a party assumes a certain position in a legal proceeding, and succeeds in

maintaining that position, he may not thereafter, simply because his interests have changed,

assume a contrary position, especially if it be to the prejudice of the party who has acquiesced in

the position formerly taken by him.” Zedner v. United States, 547 U.S. 489, 504 (2006) (quoting

Davis v. Wakelee, 156 U.S. 680, 689 (1895)) (internal quotations and alterations omitted).

Although “the circumstances under which judicial estoppel may appropriately be invoked are

probably not reducible to any general formulation of principle,” three factors generally guide

courts’ analyses. New Hampshire v. Maine, 532 U.S. 742, 750 (2001) (internal citations

omitted). First, the party’s later position usually must be “clearly inconsistent” with its earlier

position. Id. (internal quotation marks and citation omitted). Second, a party generally must

have succeeded in its earlier position to be estopped from advancing its later position. Id. at

750–51 (reasoning that judicial estoppel of inconsistent positions generally does not apply

“absent success in a prior proceeding,” because “a party’s later inconsistent position introduces

no ‘risk of inconsistent court determinations’” (quoting United States v. C.I.T. Constr. Inc., 944

F.2d 253, 259 (5th Cir. 1991)); see also 18 C. Wright, A. Miller, & E. Cooper, Federal Practice

and Procedure § 4477 (2d ed. 2002). Third, courts consider whether the party seeking to assert

an inconsistent position would derive an unfair advantage if it is not estopped. New Hampshire

v. Maine, 532 U.S. at 751.

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 In light of the three factors outlined above, ACI’s addition of Count Two would not be

futile. Because ACI now relies on the application of Virginia law to establish that Mr. Solomon

was negligent when it previously argued that D.C. law applied to the assignment, its positions are

clearly inconsistent, and the first factor weighs in favor of estoppel. But the second and third

factors weigh heavily against estoppel. ACI did not prevail in its argument that District of

Columbia law applied to the assignment of the malpractice claim. See Beach TV Properties,

Inc., 2016 WL 6068806, at *16. Not only does the lack of success weigh against judicial

estoppel, but it generally serves as a prerequisite to its application. New Hampshire v. Maine,

532 U.S. at 750–51 (reasoning that judicial estoppel of inconsistent positions generally does not

apply “absent success in a prior proceeding,” because “a party’s later inconsistent position

introduces no ‘risk of inconsistent court determinations’” (quoting C.I.T. Constr., 944 F.2d at

259); see also Wright, Miller & Cooper, supra, § 4477 (discussing the “demand that the party to

be estopped have benefited from the prior inconsistent statement” (emphasis added)).

The third factor further weighs against estoppel. It may have been in ACI’s best interest

to advance a difficult, but potentially advantageous choice-of-law position when it opposed the

motion to dismiss. But ACI does not unfairly benefit from now being able to assert that Mr.

Solomon should have anticipated the difficulty of that argument. ACI now simply alleges that,

in light of the applicability of Virginia law, Mr. Solomon was negligent in advising ACI to

assign the WTHC-LD license, because such assignment “could adversely affect ACI’s legal

malpractice claim against him arising out of his preparation, review[,] and filing of the defective

ACI Statement.” Pl.’s Proposed Second Am. Compl. ¶¶ 44–45. Because ACI failed in

advancing its first position and advancing a contrary position now does not unfairly advantage

ACI, the Court finds that ACI’s previous argument that D.C. law applied does not estop it from

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asserting malpractice against Mr. Solomon for failing to anticipate that the assignment could be

held invalid based on the applicability of Virginia law.

2. ACI Plausibly Alleges Duty and Breach in Connection with Count Two

Garvey argues that allowing ACI to amend its complaint to add Count Two—which

alleges that Mr. Solomon negligently failed to advise ACI on the effect assigning the television

license could have on its malpractice claim against him—would be futile because ACI never

“articulat[ed] . . . what exactly the standard of care purportedly required Mr. Solomon to do—or

not do”—with respect to assignment of the license. Garvey’s Opp’n at 19. Garvey also contends

that the proposed amended complaint never articulates how Mr. Solomon breached such a duty.

Garvey’s Opp’n at 19. Garvey then sets out several bullet points of questions that the proposed

amended complaint supposedly leaves unanswered. Among them are the following: (1) “[w]hy

Beach TV’s transfer of the TV license back to ACI . . . has not remedied their concerns;” (2)

whether Plaintiff believes Beach TV should also proceed as a plaintiff; (3) the basis for

Plaintiff’s ostensible contention that the license should not have been assigned; (4) what risks

ACI and Beach TV were exposed to through the assignment; and (5) what advice an independent

lawyer would have given about the assignment of either the license or the malpractice claim.

Garvey’s Opp’n at 19–20. Because these questions need not be answered at this stage of the

proceedings, Plaintiff adequately pled the elements of duty and breach in Count Two.

The elements of a legal malpractice claim “are the same as those of an ordinary

negligence action.” Chase v. Gilbert, 499 A.2d 1203, 1211 (D.C. 1985) (quoting O’Neil v.

Bergan, 452 A.2d 337, 341 (D.C. 1982)). However, as part of the duty that one owes under the

circumstances, “those with special training and experience adhere to a standard of conduct

commensurate with such attributes.” O’Neil, 452 A.2d at 341 (quoting Morrison v. MacNamara,

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407 A.2d 555, 560 (D.C. 1979)). Stated in terms tailored to the actions of a legal expert, to state

a claim for legal malpractice, a plaintiff must allege plausible facts showing that (1) an attorney–

client relationship existed; (2) the attorney breached a duty of reasonable care; (3) causation; and

(4) damages. Mawalla v. Hoffman, 569 F. Supp. 2d 253, 256 (D.D.C. 2008) (citing Chase, 499

A.2d at 1211–12). Establishing the applicable standard of care often requires the testimony of

expert witnesses. See Burke v. Scaggs, 867 A.2d 213, 219 (D.C. 2005) (citing Ray v. American

Nat’l Red Cross, 696 A.2d 399, 404 (D.C. 1997)).

Federal Rule of Civil Procedure 8(a) provides that “a claim for relief must contain . . . a

short and plain statement of the claim showing that the pleader is entitled to relief.” Because a

uniform standard of care applies in actions for negligence in the District of Columbia, plaintiffs

need not engage in a formal recitation of the elements for negligence to properly plead a

plausible claim for relief. See Sherrod v. McHugh, No. 16-0816, 2017 WL 627377, at *6

(D.D.C. Feb. 15, 2017); see also Smith v. Carnival Corp., 584 F. Supp. 2d 1343, 1352 (S.D. Fla.

2008) (“conclud[ing] that under . . . Federal Rule of Civil Procedure 8, [p]laintiffs are not

required to allege the applicable standard of care in their complaint,” and that because the

“[d]efendant . . . is on notice of the general nature of [p]laintiffs’ negligence claim, [the

defendant’s] request to dismiss that claim is” insufficient). Under Rule 8(d), a party may set out

a claim in the alternative, in which case “the pleading is sufficient if any one of them is

sufficient.” Fed. R. Civ. P. 8(d)(2).

Garvey’s conclusory assertions that ACI did not set forth the applicable standard of care

or allege breach are not suited for this stage of the proceedings. Although Plaintiff’s negligence

claim related to the assignment of the WTHC-LD license from ACI to Beach TV is not a

paragon of clarity, it suffices to survive a motion to dismiss, because a plaintiff need not predict

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and answer every possible objection when pleading the elements of negligence. Succinctly

stated, Plaintiff claims, in the alternative, that Mr. Solomon failed to behave as a reasonable and

prudent attorney would have when he did not “advise ACI that the License Assignment could

adversely affect ACI’s legal malpractice claim against him.” Pl.’s Proposed Second Am. Compl.

¶¶ 44–45. The alleged advice regarding assignment of the license took place in the context of an

attorney–client relationship. See Pl.’s Proposed Second Am. Compl. ¶¶ 27, 42–43. Thus, a duty

is established. Mawalla, 569 F. Supp. 2d at 256. And, with respect to breach of that duty,

whether a reasonable and prudent attorney would have given such advice is a question of fact

that may require the consultation of expert witnesses. See Burke, 867 A.2d at 219. Given that

ACI need not spell out the standard of care in any greater detail at this time, it has established a

duty and a breach. See Chase, 499 A.2d 1211–12; Mawalla, 569 F. Supp. 2d at 256.

The questions that Garvey raises are either answered by the proposed amended complaint

or irrelevant at this stage. At this stage of the proceedings, ACI is not required to show that the

assignment of the license from Beach TV to ACI did not fully restore the value of ACI’s

malpractice claim. ACI makes its claim in the alternative: if the license assignment did not

affect the value of the malpractice claim, Count Two will be moot. Pl.’s Reply Def.’s Opp’n to

Pl.’s Mot. Am. Compl. at 5. But if the value of the malpractice action is diminished by the

assignment, Mr. Solomon was negligent in the advice he gave ACI regarding the assignment.

Moreover, whether ACI believes Beach TV should proceed as an additional plaintiff in

this case is irrelevant to ACI’s malpractice claim. And, although Garvey is correct that ACI

provided little explanation as to the basis for its contention that the license should not have been

assigned from ACI to Beach TV, the plausible negligence claim outlined above was sufficient to

put Mr. Solomon and Garvey on notice of that claim. The same can be said for the risks that

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ACI and Beach TV were each exposed to by the assignment—which, as the Court discusses

below, are not described in any detail in the proposed amended complaint. To advance its claim,

however, ACI need not plead the specific risks and benefits that a negligent lawyer failed to

consider. It suffices that Mr. Solomon unreasonably “failed to advise ACI on the risks or merits

of assigning [the] malpractice claim,” see Pl.’s Proposed Second Am. Compl. ¶ 46. Finally, ACI

did, in effect, answer Garvey’s question about what an independent lawyer would have advised

in ACI’s situation. According to ACI, an independent and reasonable lawyer would have

advised ACI that the value of its malpractice claim could decrease as a result of the assignment.

See Pl.’s Proposed Second Am. Compl. ¶¶ 44–45. Although this claim seems suspect in light of

Plaintiff’s previous argument that D.C. law applies, see Beach TV Properties, Inc., 2016 WL

6068806, at *16, it suffices to survive a motion to dismiss.

3. ACI Does Not Allege a Plausible Theory of Causation

The Court next addresses Garvey’s argument that the addition of Count Two is futile

because ACI fails to adequately allege causation and damages. See Garvey’s Opp’n at 21.

Garvey contends that Plaintiff does not explain “how ACI’s ability to recover . . . might be

diminished by the assignment of either the license or the malpractice claim,” and that it is not

“obvious or self-evident what concerns Plaintiff[] ha[s] in mind.” Garvey’s Opp’n at 21.

Simply, Garvey’s issue is that Plaintiff fails to present a coherent story of how the assignment of

the WTHC-LD license could have led to the damages Plaintiff alleges.

To survive a motion to dismiss under the standards of Iqbal and Twombly, a “plaintiff

must give enough details about the subject-matter of the case to present a story that holds

together.” Swanson v. Citibank, NA, 614 F.3d 400, 404 (7th Cir. 2010); accord Poola v. Howard

Univ., 147 A.3d 267, 280–81 (D.C. 2016). In the context of causation in a legal malpractice

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case, a plaintiff must “set forth a plausible statement not only that a breach of duty occurred but

that the breach caused the plaintiff to lose a valid claim or defense in the underlying action and

that, absent that loss, the underlying claim “would have been successful.” W. Bend Mut. Ins. Co.

v. Schumacher, 844 F.3d 670, 676 (7th Cir. 2016) (internal citations omitted). This effectively

requires a plaintiff to “present two cases, one showing that [its] attorney performed negligently,

and a second or predicate ‘case within a case’ showing that [it] had a meritorious claim that [it]

lost due to [its] attorney’s negligence.” Jacobsen v. Oliver, 451 F. Supp. 2d 181, 187 (D.D.C.

2006) (quoting Mihailovich v. Laatsch, 359 F.3d 892, 904–05 (7th Cir. 2004)). “Only by making

out both cases can a plaintiff demonstrate a ‘causal relationship, or proximate cause . . . .’” Id.

(quoting Smith v. Haden, 872 F. Supp. 1040, 1053 (D.D.C. 1994)).

In Schumacher, an employer sued its attorney for negligently handling the defense of a

workers’ compensation claim against it. 844 F.3d at 673. Although the employer described its

lawyer’s alleged conduct in detail, he described the underlying workers’ compensation claim “in

rather summary fashion,” alleging only that “there existed certain factual defenses and a medical

causation defense” that were not asserted against the employee. See id. at 677 (emphasis

omitted). This, the complaint alleged, “forced [the plaintiff] to accept a disadvantageous

position which greatly compromised its ability to defend the claim.” Id. (emphasis omitted).

Because these allegations were conclusory and did not “set forth a plausible description of a lost

defense that, absent [the attorney’s] alleged neglect, would have assured [the plaintiff] success

on the underlying claim,” the trial court was left to speculate about the underlying claim. See id.

at 677–79. The Seventh Circuit thus found that the employer did not state a plausible claim with

respect to causation. See id. at 678.

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 As noted above, ACI never explains why or how the assignment of the license could have

adversely affected the malpractice claim.2 Instead, it simply asserts that Mr. Solomon failed to

exercise reasonable care when it advised ACI to assign the license to Beach TV, and that “ACI

was damaged as a direct and proximate result of Mr. Solomon’s [negligence] if and to the extent

the [assignment] adversely affected ACI’s malpractice claims . . . in Count One.” Pl.’s Proposed

Second Am. Compl. ¶¶ 44–48, 78. Just as in Schumacher, this Court is left to speculate about

what effect, if any, the underlying assignment of the WTHC-LD license from ACI to Beach TV,

and then back to ACI had on ACI’s malpractice claim. This pleading gap between Mr.

Solomon’s alleged malpractice and the damages that ACI alleges shows that amendment of

Plaintiff’s complaint, as proposed, would be futile. As Garvey simply and correctly states it,

ACI “fail[s] to explain how ACI’s ability to recover under Count One might be diminished by

the assignment of either the license or the malpractice claim. Nor, by any means, is it obvious or

self-evident what concerns Plaintiff[] ha[s] in mind.” Garvey’s Opp’n at 21. Although there has

been, lurking in the background of this case, some vague sense that the assignment of the license

or legal malpractice claim could have adversely affected either ACI or Beach TV, Plaintiff never

sufficiently connects the dots to state a plausible claim. Plaintiff does not even go so far as to

state that it has been, like the plaintiff in Schumacher, “forced to accept a disadvantageous

position which greatly compromised its ability to defend the claim.” 844 F.3d at 673 (emphasis

omitted). Instead, it vaguely suggests that its malpractice claim may have been harmed by the

license assignment. Without explaining how the assignment might have, in the alternative from

2
The Court notes the possibility that this analysis could apply equally to Count Three of
the proposed amended complaint. However, because no defendant or potential defendant has
raised the issue at this point, see Garvey’s Opp’n; Def.’s Opp’n, the Court need not address it
here.

16
Count One, harmed ACI’s interest, the Court cannot even begin to analyze the “case within the

case” to determine whether there was a meritorious malpractice claim that was harmed by

assignment of the television license to Beach TV. Thus, ACI’s proposed amended complaint

fails to allege a plausible theory of causation in Count Two, making such amendment futile.

Consequently, the Court will deny ACI leave to amend its complaint to include it.

C. Count Three

ACI seeks to add Count Three to its complaint, alleging that, after Ms. Virtue took over

the representation of ACI from Mr. Solomon, she failed to advise ACI that it had a malpractice

claim against him, that the statute of limitations could make that malpractice claim time-

sensitive, and that she could not appropriately provide advice because she had a conflict of

interest given her relationship to Mr. Solomon. See Pl.’s Proposed Second Am. Compl. ¶¶ 59–

61, 80–84.

Garvey argues that adding Count Three to the amended complaint would be futile in four

ways. See Garvey’s Opp’n at 22–27. First, it argues that ACI’s claim against Ms. Virtue fails

because “lulling” is not a discrete cause of action under either D.C. or Virginia law. Garvey’s

Opp’n at 22–24. Second, in summary terms, Garvey contends that ACI has not adequately

alleged the standard of care that Ms. Virtue breached. Garvey’s Opp’n at 24–25. Garvey’s third

contention is that adding Ms. Virtue to this case would be disruptive and unnecessary. Garvey’s

Opp’n at 25–26. Finally, Garvey argues that any claims for injuries allegedly caused by Ms.

Virtue’s alleged malpractice are not yet ripe. Garvey’s Opp’n at 26–27. ACI responds only to

the first two arguments, essentially ignoring the final two. See Pl.’s Reply Def.’s Opp’n to Pl.’s

Mot. Am. Compl.; see also id. at 1 (incorrectly asserting that Garvey and Mr. Solomon “oppose

the amendment of the complaint solely on the grounds [that] Counts Two and Three fail to state

17
claims for relief”). The Court will first address Garvey’s ripeness argument, then proceed to

Garvey’s argument pertaining to the alleged disruption of joining Ms. Virtue, then conclude with

the arguments about whether ACI stated a plausible claim of lulling against Ms. Virtue.3

1. Garvey’s “Ripeness” Argument is Inapplicable;
ACI is Entitled to Plead in the Alternative

Garvey argues that because Plaintiff only seeks recovery “if and to the extent” that it was

damaged by the license assignment or Ms. Virtue’s actions somehow jeopardized its claims

under the statute of limitations, the cause of action is not yet ripe. See Garvey’s Opp’n at 26–27.

The alleged injury, Garvey argues, would ripen only if the Court rules that Plaintiff’s malpractice

claim lost value as a result of Ms. Virtue’s negligence and, even if it does, that date is well into

the future. See Garvey’s Opp’n at 26. Because that date is well into the future and may never

come, Garvey argues that the claim is not ripe. As noted above, ACI does not address this

argument but does, in the context of other arguments, justify its language by noting that Counts

Two and Three are made in the alternative to Count One. See Pl.’s Reply Def.’s Opp’n to Pl.’s

Mot. Am. Compl. at 2–7. That is, if the statute of limitations has not run on Plaintiff’s claim

against Mr. Solomon, the claim against Ms. Virtue is moot because her alleged negligence would

not have caused ACI any damages. See Pl.’s Reply Def.’s Opp’n to Pl.’s Mot. Am. Compl. at 5–

6.

3
Although courts have discretion to treat unanswered arguments as conceded, doing so is
not a requirement. See, e.g., Mason v. Geithner, 811 F. Supp. 2d 128, 178 (D.D.C. 2011), aff’d,
492 F. App’x 122 (D.C. Cir. 2012); U.S. ex rel. Rockefeller v. Westinghouse Elec. Co., 274 F.
Supp. 2d 10, 13 (D.D.C. 2003), aff’d sub nom. Rockefeller ex rel. U.S. v. Washington TRU Sols.
LLC, No. 03-7120, 2004 WL 180264 (D.C. Cir. Jan. 21, 2004). Because ACI’s other arguments
shed light on its likely responses to the unresponded to arguments, the issue of ripeness is
relatively straightforward, and the issue of ripeness is uniquely important to a court’s exercise of
jurisdiction, see Nat’l Park Hosp. Ass’n v. Dep’t of Interior, 538 U.S. 803, 808 (2003), the Court
will not treat Garvey’s ripeness argument as conceded. Cf. id. (noting that courts may consider
ripeness sua sponte).

18
 Unlike the other claims addressed herein, a motion to dismiss for ripeness is governed by

Federal Rule of Evidence 12(b)(1) because questions of ripeness go to the Court’s subject-matter

jurisdiction. Exxon Mobil Corp. v. FERC, 501 F.3d 204, 207 (D.C. Cir. 2007); Venetian Casino

Resort, LLC v. EEOC, 409 F.3d 359, 366 (D.C. Cir. 2005). The plaintiff has the burden of

proving ripeness, and its allegations are not entitled to presumptive truthfulness. See Renne v.

Geary, 501 U.S. 312, 316 (1991). Indeed, the Court must give Plaintiff’s allegations “closer

scrutiny when resolving a Rule 12(b)(1) motion than would be required for a Rule 12(b)(6)

motion for failure to state a claim.” Ludvigson v. United States, 525 F. Supp. 2d 55, 57 (D.D.C.

2007). In doing so, the Court may consider evidence outside of the pleadings. See Herbert v.

Nat’l Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992); Al-Owhali v. Ashcroft, 279 F. Supp. 2d

13, 21 (D.D.C. 2003).

“Ripeness is a justiciability doctrine designed ‘to prevent the courts, through avoidance

of premature adjudication, from entangling themselves in abstract disagreements . . . .’” Nat’l

Park Hosp. Ass’n v. Dep’t of Interior, 538 U.S. 803, 807–08 (2003) (quoting Abbott Labs. v.

Gardner, 387 U.S. 136, 148 (1967)). Determining ripeness requires the Court to evaluate “[(1)]

the fitness of the issues for judicial decision and [(2)] the hardship to the parties of withholding

court consideration.” Id. at 808 (citing Abbott Labs., 387 U.S. at 148–49). Malpractice claims

can ripen even before the underlying claim subject to the negligent representation has been fully

resolved. See Wolcott v. Ginsburg, 746 F. Supp. 1113, 1117 (D.D.C. 1990). Decreased

settlement value and increased litigation costs associated with recovering on the underlying

claim constitute concrete injury in malpractice actions. See id.; Lorenzetti v. Jolles, 120 F. Supp.

2d 181, 190 (D. Conn. 2000) (citing Winter v. Brown, 365 A.2d 381, 386 (D.C. 1976)).

19
 “Simply because the outcome of one claim is contingent upon the outcome of another

claim in the case does not mean that the first claim cannot be alleged or that the first claim is not

ripe.” Dimensional Music Publ’g, LLC v. Kersey ex rel. Estate of Kersey, 448 F. Supp. 2d 643,

653 (E.D. Pa. 2006). In Dimensional Music Publishing, the defendant law firm claimed that the

malpractice claim against it was not ripe because it was contingent upon the court ruling that the

plaintiff did not have rights that the law firm was hired to secure. 448 F. Supp. 2d at 645–46,

653. The court found that the case was indeed ripe despite the contingency, because a claim in

the alternative can be sufficiently concrete for subject-matter jurisdiction despite the uncertain

nature of damages. Id. at 653.

This case is similar to Dimensional Music Publishing. Although, as noted above, ACI’s

proposed amended complaint could have been clearer, it states Count Three in the alternative.

Stated differently, ACI seeks recovery from Ms. Virtue only if its claim against Mr. Solomon

was devalued either by the assignment of the WTHC-LD license to Beach TV or lost entirely due

to the passage of time as a result of the applicable statute of limitations. See Pl.’s Reply Def.’s

Opp’n to Pl.’s Mot. Am. Compl. at 5. Notwithstanding the uncertain nature of the source of

ACI’s alleged damages, ACI has pleaded sufficiently concrete alternative theories for recovery.

See Dimensional Music Publ’g, LLC, 448 F. Supp. 2d at 653. Under one alternative, Ms. Virtue

was not negligent because she did not cause ACI’s malpractice claim to lose any value. Under

the other, Ms. Virtue’s malpractice adversely affected ACI’s rights with respect to its

malpractice claim against Mr. Solomon. See id. Assuming, just as the court did in Dimensional

Music Publishing, that this latter theory turns out to be correct, ACI alleges a ripe claim against

Ms. Virtue. ACI claims that her negligence—specifically, her failure to inform ACI that Mr.

Solomon had committed malpractice, that his withdrawal from the case could affect the statute of

20
limitations of malpractice claims, that she had a conflict of interest in light of her professional

relationship with Mr. Solomon, and that ACI should retain separate counsel—devalued its case

against Mr. Solomon. Thus Count Three, though stated in the alternative, is sufficiently concrete

to survive dismissal. See Wolcott v. Ginsburg, 746 F. Supp. at 1117.

2. The Disruption Associated with Adding Ms. Virtue as a Party
Does Not Justify Preventing Plaintiff from Doing So

The Court next addresses Garvey’s contention that the Court should not exercise its

discretion to allow Plaintiff to add Ms. Virtue as a defendant in this case, because to do so would

be disruptive to discovery. See Garvey’s Opp’n at 25–26. Although ACI did not directly

address this point, the Court declines to deny amendment of the complaint to add Ms. Virtue as a

defendant on the basis of the potential disruption to discovery her addition might cause.

In general, courts should freely allow parties to amend pleadings to include new parties

“when justice so requires.” Garnes-El v. District of Columbia, 841 F. Supp. 2d 116, 124 (D.D.C.

2012). However, Garvey cites to Garnes-El for the proposition that leave should not be given

when the moving party had no excuse for failing to include the party in its previous complaint,

already had chances to amend the complaint, and adding the new party would cause unfair delay.

In Garnes-El, the plaintiff provided no excuse for his failure to move to amend earlier in the

proceedings, despite the fact that he had already amended his complaint twice before. Id. at 124.

Moreover, the plaintiff moved to add the new party almost three years after the deadline to

amend in the court’s scheduling order, and did so only in his opposition to the defendant’s

motion for summary judgment after discovery had closed. See Garnes-El, 841 F. Supp. 2d 116,

No. 08-cv-2233, ECF Nos. 27, 28, 59, 2/11/2011 Minute Order. The court found that allowing

amendment of the new party would be prejudicial to the new party the plaintiff sought to join as

21
well as the existing defendant, who had already moved for summary judgment. See Garnes-El,

841 F. Supp. 2d at 124.

But Garnes-El is inapposite for three reasons. First, as Garvey concedes, in contrast to

the plaintiff in Garnes-El who moved to amend three years after the deadline to amend had

passed, here ACI met the Court’s deadline for filing a motion to add new claims or parties to the

complaint. See Garvey’s Opp’n at 25; compare Scheduling Order, ECF No. 58 with Pl.’s Mot.

Am. Compl. at 6. Although justice may not “require” that the Court allow the addition of

appropriate parties before the scheduling order deadline, justice favors allowing ACI to do so

here. Second, in Garnes-El, the court took issue with the large amount of discovery that had

already taken place (indeed, discovery had closed) and that the new party would have missed.

See 841 F. Supp. 2d at 124. That sort of unfair prejudice does not exist here, because ACI

sought to amend the complaint a mere two months after the Court ordered the start of discovery.

Compare Scheduling Order, ECF No. 58 with Pl.’s Mot. Am. Compl. at 6. Third, in Garnes-El,

the plaintiff had already amended his complaint twice, and sought to do so again only in

opposition to summary judgment after the close of discovery without excuse for not having acted

sooner, which the court found unfair to the defendant. 841 F. Supp. 2d at 124. Here, ACI has

not yet amended its complaint and does not do so only to avoid a defendant’s motion for

summary judgment. Taken together, the holding in Garnes-El is inapposite and the Court

concludes that justice requires permitting ACI to amend its complaint to include Ms. Virtue as a

defendant.

3. ACI’s Mention of “Lulling” Does Not Render Amendment Futile

Plaintiff seeks to add the factual allegation that Ms. Virtue “lulled ACI into inaction in

filing its malpractice claims.” Pl.’s Proposed Second Am. Compl. ¶¶ 57–58. The addition of

22
this allegation seems to be a preemptive response to the affirmative defense of statute of

limitations. See Pl.’s Mot. Am. Compl. ¶ 12. Garvey opposes amendment, arguing that “lulling”

is not an independent cause of action. See Garvey’s Opp’n at 22–23. Although Garvey may be

correct, that conclusion does not render the addition of Count Three futile.

“Lulling” is not an element of malpractice in the District of Columbia. See Chase, 499

A.2d at 1211 (quoting O’Neil, 452 A.2d at 341) (outlining the elements of a malpractice claim).

As shown by the cases that Garvey cites, lulling is instead an exception to the affirmative

defense of statute of limitations. See Barry v. Donnelly, 781 F.2d 1040, 1042 (4th Cir. 1986);

Bailey v. Greenberg, 516 A.2d 934, 937 (D.C. 1986). In general, a plaintiff need not plead facts

in its complaint that might be responsive to potential affirmative defenses that an opponent may

raise. Goodman v. Praxair, Inc., 494 F.3d 458, 466 (4th Cir. 2007). The only potential

exception to this rule would be for “the unusual case where a claim is filed clearly beyond the

applicable limitations period and the plaintiff seeks to forestall its dismissal by alleging the facts

of discovery.” Id.

Count Three does not assert a cause of action for “lulling,” but rather it alleges

malpractice by Ms. Virtue. See Pl.’s Proposed Second Am. Compl. ¶¶ 80–84. The “lulling”

allegation in the complaint is alleged separate from Count Three, see Pl.’s Proposed Second Am.

Compl. ¶ 57, ostensibly to preemptively address a looming statute of limitations affirmative

defense. The addition of this paragraph does not render Count Three futile. Garvey does not

move to strike the portions of the complaint discussing lulling as superfluous to the malpractice

23
claims.4 Accordingly, Garvey’s argument that “lulling” is not an independent cause of action is

inapposite at this stage of the proceedings.

4. ACI Adequately Alleges Ms. Virtue’s Standard of Care

Finally, the Court addresses whether ACI has adequately alleged the appropriate standard

of care to which Ms. Virtue is to be held. Garvey’s argument is cursory and primarily relies

upon its arguments against adding Count Two. See Garvey’s Opp’n at 24–25. In total, Garvey

argues that ACI’s assertions are “vague and conclusory” and “to the extent understandable” are

“implausible, raising questions such as” whether a reasonable and prudent attorney would have

been familiar with the doctrine of “continuing representation” and “[w]hat specific conduct . . .

was required by the standard of care and the basis for such a contention.” Garvey’s Opp’n at 24.

As noted above, a party need not engage in a formal recitation of the elements of

negligence to state a claim for relief. A uniform standard of reasonable care applies to all actions

for negligence in the District of Columbia. See Sherrod, 2017 WL 627377 at *6. Determining

what a reasonable attorney would have done in a given situation often requires expert testimony,

see Burke, 867 A.2d at 219.

ACI alleges that Ms. Virtue had an obligation—consistent with what a reasonable and

prudent attorney would have done under the circumstances—to inform ACI of certain

information, including that it had a cause of action for malpractice against Mr. Solomon and that

it should retain separate counsel to assess it because she had a conflict given her relationship to

him. See Pl.’s Proposed Second Am. Compl. ¶ 59. Whether a reasonable attorney would have

been aware of the doctrine of continuing representation and “[w]hat specific conduct . . . was

4
Neither party argues that this is the unusual case where the plaintiff’s claims are clearly
beyond the applicable limitations period and the preemptive response to a statute-of-limitations
defense is required to be added. See Garvey’s Opp’n at 22–23.

24
required by the standard of care and the basis for such a contention,” see Garvey’s Opp’n at 24,

are questions of fact that may be resolved with the aid of expert testimony. See Burke, 867 A.2d

at 219. For now, ACI has alleged enough to survive a motion to dismiss. Accordingly, for the

same reasons that ACI stated a plausible standard of care in Count Two, it also did so in Count

Three.

D. Count Four

Garvey’s sole argument that adding Count Four would be futile is that, because Plaintiff

seeks to hold Garvey liable only under the doctrine of respondeat superior, “if the claims in

Count Two and Three are dismissed, then the claims in Count Four” must be dismissed as well.

See Garvey’s Opp’n at 27. Because the Court does not dismiss Count Three, Count Four

remains insofar as it seeks recovery for Ms. Virtue’s alleged malpractice.

IV. CONCLUSION

For the foregoing reasons, Plaintiff’s Motion for Leave to Amend its Complaint is

GRANTED IN PART and DENIED IN PART. An order consistent with this Memorandum

Opinion is separately and contemporaneously issued.

Dated: June 1, 2017 RUDOLPH CONTRERAS
United States District Judge

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