AMIT P. MEHTA, District Judge.
Plaintiffs Houshang Momenian, Vida Momenian, and the Houshang Momenian Revocable Trust are seeking to recover against the Momenians' former lawyer, Defendant Michael Davidson, for legal malpractice and breach of fiduciary duty. Plaintiffs allege that Defendant negligently represented the Momenians in connection with a D.C. Superior Court case they filed in August 2009 and dismissed with prejudice in October 2010. The D.C. Circuit reversed this court's dismissal of Plaintiffs' claims as time-barred, holding that Plaintiffs' complaint plausibly alleged facts (taken as true at the motion to dismiss stage) suggesting that the claims may have been timely. The parties have now taken discovery on this issue, and the record evidence conclusively shows that Plaintiffs filed this action well after the statute of limitations had run. The court therefore grants Defendant's motion for summary judgment.
In 1990, the Momenians purchased three adjacent properties, located in Southeast Washington, D.C. from Paul and Amelia Interdonato. See Def.'s Mem. of P. & A. in Supp. of Mot. for Summ. J., ECF No. 47 [hereinafter Def.'s Mot.], Ex. A., Def.'s Statement of Material Facts Not in Genuine Dispute [hereinafter Def.'s SOMF], ¶ 1 (undisputed). In connection with the transaction, the Momenians executed a promissory note payable to Paul Interdonato (the "Promissory Note"), which was secured by a Deed of Trust. Id. ¶¶ 2-3 (undisputed). In 2009, the Momenians filed a lawsuit in D.C. Superior Court against the Interdonatos (the "Interdonato Lawsuit"), claiming that the Interdonatos had failed to credit proceeds from four separate transactions against the outstanding balance of the Promissory Note. Id. ¶ 48; see also Pls.' Mem. in Opp'n to Def.'s Mot., ECF No. 50 [hereinafter Pls.' Opp'n], Pls.' Statement of Material Facts Which Are in Genuine Dispute, ECF No. 50-1 [hereinafter Pls.' SOMF], ¶ 48. The Momenians' lawyer in the Interdonato Lawsuit was Defendant Michael Davidson. Def.'s SOMF ¶ 48; Pls.' SOMF ¶ 48.
On October 12, 2010, based on Defendant's advice, the Momenians settled the Interdonato Lawsuit for a credit of $15,000 against their outstanding debt on the Promissory Note. Def.'s SOMF ¶ 55 (undisputed); id. ¶ 56; Pls.' SOMF ¶ 56. The Praecipe filed by the parties stated that "[t]he Clerk of said Court will dismiss with prejudice this action." Def.'s SOMF ¶ 55 (undisputed); see also Def.'s Mot., Ex. 35, ECF No. 47-35. As part of the settlement, the Momenians continued to make payments of $1,300 per month toward the Promissory Note. Def.'s SOMF ¶ 62 (undisputed); Def.'s Mot., Ex. 36, ECF No. 47-36.
On some date before May 7, 2012, the Momenians conveyed their title to a portion of the property at issue to the Houshang Momenian Revocable Trust ("Momenian Trust"). Def.'s SOMF ¶ 71 (undisputed); see also Am. Compl., ECF No. 13 [hereinafter Am. Compl.], ¶ 3 (identifying the full name of the trust). Then, on May 7, 2012, Paul Interdonato issued a Notice of Foreclosure against the Momenian Trust, asserting that the Momenians owed approximately $240,000 on the Promissory Note. Def.'s SOMF ¶ 71 (undisputed); see also Def.'s Mot., Ex. 40, ECF No. 47-40. With the assistance of a new lawyer, Mr. Momenian and the Momenian Trust thereafter filed a lawsuit against Mr. Interdonato. Def.'s SOMF ¶ 72 (undisputed); Def.'s Mot., Ex. 41, ECF No. 47-41. The parties settled the matter on November 2, 2012. Def.'s SOMF ¶ 73 (undisputed); see also Def.'s Mot., Ex. 42, ECF No. 47-42.
On May 6, 2015, nearly three years after Paul Interdonato issued the Notice of Foreclosure, the Momenians filed suit in D.C. Superior Court against Defendant, asserting claims of legal malpractice and breach of fiduciary duty. See generally Compl., ECF No. 1-1. The court dismissed Plaintiffs' original complaint on statute of limitations grounds, but allowed the Momenians an opportunity to amend. See Momenian v. Davidson, No. 1:15-CV-00828 (APM), 2016 WL 259641 (D.D.C. Jan. 21, 2016).
The Momenians amended their complaint in February 2016, joining the Momenian Trust as an additional plaintiff. See generally Am. Compl. Count 1 of the Amended Complaint alleged that Defendant committed legal malpractice by: (1) failing to adequately investigate the Momenians' claims, prior to settlement, in order to accurately calculate the amounts that should have been credited to the Promissory Note; (2) failing to hire an accountant to perform an accounting to determine how much was due and owing under the Promissory Note; (3) advising the Momenians to settle the Interdonato Lawsuit without having first performed the aforementioned accounting; (4) failing to explain to the Momenians that the October 12, 2010 Praecipe constituted a full and final settlement of all of their claims against the Interdonatos regarding the Promissory Note; and (5) failing to explain what "dismiss with prejudice" meant, or the legal consequences of such a dismissal. Id. ¶ 41(a)-(e). Count II characterized the same alleged acts as breaches of fiduciary duty.
The Amended Complaint also included several allegations aimed at curing the statute-of-limitations problems with the original complaint. Plaintiffs claimed that "Defendant continued to represent Plaintiffs with regard to the Interdonato matter subsequent to October 12, 2010, as evidenced by an invoice from Defendant to [Mr. Momenian] for the period December 1, 2010[,] to May 15, 2011." Id. ¶ 32. Plaintiffs also alleged that "[d]uring 2011 and early 2012," Mr. Momenian called Defendant "approximately every three months" regarding the Interdonato matter, asking Defendant "when he would have an opportunity to go before a judge." Id. ¶ 33. Defendant's response, according to Plaintiffs, was that "he was working on it." Id. Finally, Plaintiffs added an allegation that Mr. Momenian had a conversation with Defendant on January 31, 2013, during which Defendant told Mr. Momenian that "[y]ou did not forfeit any of your rights on [the Interdonato matter]." Id. ¶ 38. The court again dismissed Plaintiffs' Amended Complaint as untimely. See Momenian v. Davidson, 209 F.Supp.3d 288 (D.D.C. 2016).
The D.C. Circuit reversed. Applying the discovery rule to evaluate the timeliness of Plaintiffs' claims, the court focused on "whether it is plausible that [Mr. Momenian's] calls to Defendant every three months for a year and a half constituted reasonable diligence under the circumstances, where those circumstances included the parties' attorney-client relationship and Defendant's repeated assurances that he was `working on' the 2009 Litigation." Momenian v. Davidson, 878 F.3d 381, 390 (D.C. Cir. 2017). "[A]ssuming [the] facts pleaded in the complaint to be true," the Circuit was "not persuaded that calling one's lawyer every three months to check in on a case, and relying on the lawyer's assurances that he was `working on it,' is insufficient to fulfill a plaintiff's duty to investigate her affairs." Id. The court therefore concluded that "[i]t is plausible that a reasonable person would rely on an attorney's regular assurances that he was working on a case and feel no need to investigate further," and thus remanded the case for further consideration.
Now before the court is Defendant's Motion for Summary Judgment. Defendant contends, among other things, that the record evidence developed by the parties during discovery conclusively shows that the Plaintiffs' claims are time-barred, warranting summary judgment in his favor. See Def.'s Mot. at 4.
In ruling on a motion for summary judgment, the court views the evidence in the light most favorable to the nonmoving party and draws all reasonable inferences in that party's favor. Talavera v. Shah, 638 F.3d 303, 308 (D.C. Cir. 2011). Summary judgment is warranted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a).
The moving party bears the initial burden of "identifying those portions" of the record that "demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A party asserting that a material fact is or cannot be genuinely disputed must support that assertion by:
Fed. R. Civ. P. 56(c)(1). "An opposition to such a motion shall be accompanied by a separate concise statement of genuine issues setting forth all material facts as to which it is contended there exists a genuine issue necessary to be litigated, which shall include references to the parts of the record relied on to support the statement." LCvR 7(h). In reviewing the motion, "[t]he court need consider only the cited materials," though it may, at its discretion, "consider other materials in the record." Fed. R. Civ. P. 56(c)(3).
The crux of this dispute is whether Plaintiffs' present suit was filed within the limitations period prescribed by District of Columbia law. The limitations period for Plaintiffs' claims is three years from the date the claims accrued. D.C. Code § 12-301(8); see Momenian, 878 F.3d at 388. Plaintiffs filed the instant suit on May 6, 2015, meaning that their claims are untimely if they accrued before May 6, 2012. Legal malpractice claims in the District of Columbia generally accrue the moment a plaintiff suffers injury, Momenian, 878 F.3d at 388, and Plaintiffs do not dispute that they were injured by Defendant's conduct before May 6, 2012. The only question, then, is whether any rule of accrual tolled the limitations period until at least May 6, 2012. As will be seen, none did.
If an injury is not readily apparent, District of Columbia courts will apply the "discovery rule," under which "a cause of action accrues when a plaintiff knew or should have known through the exercise of reasonable diligence of: (1) the existence of the injury, (2) its cause in fact, and (3) some evidence of wrongdoing." Id. at 388 (internal quotation marks and citation omitted). Thus, a claim accrues only when a plaintiff acquires actual or inquiry notice of a cause of action. Id. (citing Diamond v. Davis, 680 A.2d 364, 372 (D.C. 1996)). A plaintiff is deemed to be on inquiry notice if, through the exercise of reasonable diligence in the circumstances, she would have discovered the cause of action. Id. The critical question is "whether the plaintiff exercised reasonable diligence under the circumstances in acting or failing to act on whatever information was available to him." Id. (quoting Ray v. Queen, 747 A.2d 1137, 1141-42 (D.C. 2000)). While the attorney-client relationship is an "important aspect[] of the relevant circumstances a court assesses to determine whether a plaintiff exercised reasonable diligence investigating claims against her fiduciary," the mere fact that a plaintiff was in such a relationship with the defendant does not excuse her of the duty to investigate her affairs with reasonable diligence. Id.
Thus, as applicable here, under the discovery rule, Plaintiffs' claims are "untimely if they knew, or with reasonable diligence would have known, of the alleged overpayment of the [Promissory] Note, some evidence of Defendant's alleged malpractice, and its causal relationship to their injury before May 6, 2012." Id. at 390. The record developed during discovery— particularly a May 2011 letter from Defendant advising Mr. Momenian that the lawsuit was settled in full, and the complete absence of any evidence supporting Plaintiffs' allegations regarding the frequency and substance of telephone calls with Defendant—demonstrates that Plaintiffs had, at a minimum, inquiry notice of their claims well before May 6, 2012.
Plaintiffs were placed on notice of their claims in May 2011—a full year before the earliest date their claims could have accrued and still have been timely filed—when Mr. Momenian received a letter dated May 17, 2011, from Defendant discussing the Interdonato Lawsuit. Def.'s SOMF ¶ 63; see also Def.'s Mot., Ex. 37, ECF No. 47-37 [hereinafter May 2011 Letter]. The letter unquestionably put Plaintiffs on notice that the lawsuit had been settled in full, informing Mr. Momenian that "the lawsuit was settled during mediation," and advising him that "if you desire for me to perform additional services, it will be necessary for us to enter into a new agreement which sets forth the terms and scope of the anticipated representation." May 2011 Letter at 1-2 (emphasis added). Thus, the letter should have corrected any misapprehension that "the other aspects of [Plaintiffs'] claim" against the Interdonatos were still ongoing. See Am. Compl. ¶ 29. Had Plaintiffs been reasonably diligent in the circumstances, they would have investigated the matter and realized that they had no ongoing claims against the Interdonatos pertaining to the Interdonato Lawsuit, that they had consequently overpaid the Interdonatos, and that this injury was caused by Defendant's alleged malpractice.
Plaintiffs object that the letter was "[in]sufficient to alert Mr. Momenian to the fact that Plaintiffs' claims against the Interdonatos had been completely snuffed out," because, they say, the letter also referenced several activities that occurred after the 2010 settlement. Pls.' Opp'n at 6. For instance, Plaintiffs note that "[t]he letter speaks of Mr. Davidson working with Mr. Momenian's accountant `by supplying additional documents.'" Id. (quoting May 2011 Letter at 1). Plaintiffs suggest that this implies that future litigation against the Interdonatos was possible, but they take the statement out of context. In full, this paragraph of the letter reads:
May 2011 Letter at 1. It is clear from the context that Defendant is referencing the monthly payments on the Promissory Note, which Plaintiffs committed to pay in connection with the 2010 settlement. See Def.'s Mot., Ex. 36, ECF No. 47-36. This passage in no way contradicts the letter's unambiguous statements that the lawsuit was settled in full, and that Defendant was terminating his representation of the Momenians in the matter. Plaintiffs therefore were placed at least on inquiry notice, if not actual notice, of their claims against Defendant upon receipt of the letter.
Trying another tack, Plaintiffs contend that "there is a genuine issue as to whether [Mr. Momenian] received the letter at all." Pls.' Opp'n at 7; see also Pls.' SOMF ¶ 63. Not so. Under the common law mailbox rule, "proof of the mailing of a letter, properly addressed and stamped," creates a rebuttable presumption that the letter "was received by the addressee." Toomey v. D.C., 315 A.2d 565, 567 (D.C. 1974) (quoting Columbia Fin. Co. v. Worthy, 141 A.2d 185, 186 (D.C. 1958)). The opponent of the mailbox rule may rebut the presumption, creating a triable issue of fact for the jury to resolve, by supplying sworn testimony that she did not receive the letter. E.g., Foster v. D.C., 497 A.2d 100, 102 (D.C. 1985); Toomey, 315 A.2d at 567; McQuater v. Aetna Ins. Co., 287 A.2d 821, 823 (D.C. 1972).
Plaintiffs conceded during oral argument that Defendant is entitled to the mailbox rule presumption based on the record evidence, see Tr. of Status Conf. (Feb. 14, 2020) [hereinafter Summ. J. Tr.], at 8-9, 30, but they maintain that they have adduced facts sufficient to rebut the presumption. In particular, Plaintiffs point to Mr. Momenian's testimony that he does not recall receiving the letter, that he had not read the letter prior to his deposition, and that certain statements in the letter were "a lie." Pls.' SOMF ¶ 63. None of these contentions, even if accepted as true, is sufficient to create a genuine issue of material fact as to Mr. Momenian's receipt of the letter. The common law is clear that a party's unadorned assertion that he does not remember receiving a letter mailed to his address is insufficient to rebut the presumption. See, e.g., Am. Family Mut. Ins. Co. v. Golke, 768 N.W.2d 729, 739 (Wis. 2009) ("Mere non-remembrance of receipt is not enough; the presumption of receipt cannot be overcome without denial."); Shur-Value Stamps, Inc. v. Phillips Petroleum Co., 50 F.3d 592, 595-96 (8th Cir. 1995) (holding, under Texas law, that the mere assertion that a letter was not in the sendee's files and no one could remember receiving it was not enough to rebut the presumption).
Any possible doubt that Mr. Momenian received the May 2011 Letter is erased by the undisputed fact that Plaintiffs themselves were in possession of an enclosure that accompanied the letter. The May 2011 letter on its face indicates that Defendant enclosed a "Statement of Account" detailing charges for services rendered from December 2010 to May 2011, including follow-up work on the Interdonato Lawsuit. See May 2011 Letter. Defendant confirmed in an uncontested sworn declaration that he provided Plaintiffs with the Statement of Account only once—as an enclosure within the May 2011 Letter—and then not again until discovery in this matter. See Def.'s Reply Br. in Supp. of Def.'s Mot., Ex. 45, Decl. of Michael M. Davidson, ECF No. 52. Yet, Plaintiffs disclosed their possession of the very same
Accordingly, based on both the unrebutted presumption of receipt and Plaintiffs' possession of the Statement of Account, the court finds that there is no genuine dispute that Mr. Momenian received the May 2011 Letter in or around late May 2011. Though the receipt of the letter does not automatically mean that Mr. Momenian read the letter, see Def.'s Mot., Momenian Dep. Tr., ECF No. 47-7 [hereinafter Momenian Tr.], at 196:10-11 (responding "No" to the question: "Have you read this document before?"), an ordinary person exercising reasonable diligence in the circumstances would have done so. The court therefore concludes that the May 2011 Letter put Plaintiffs on notice of their claims four years before they filed the instant lawsuit, making their suit untimely by a full year.
Recall that Plaintiffs alleged in their Amended Complaint that Mr. Momenian called Defendant "approximately every three months" during 2011 and 2012, asking Defendant "when he would have an opportunity to go before a judge," and that Defendant purportedly responded that "he was working on it." See Am. Compl. ¶ 33. The D.C. Circuit held that, if these allegations were true, Plaintiffs might have fulfilled their duty under the discovery rule to investigate their affairs. See Momenian, 878 F.3d at 389 (noting that "courts have given heightened protection to a client's reliance upon her lawyer's advice and representations when evaluating a plaintiff's reasonable diligence investigating malpractice claims"). Defendant disputes these fact assertions, however, see Def.'s SOMF ¶¶ 67-69, and, at the summary judgment stage, the party opposing summary judgment "cannot rest on mere allegations but must set forth by affidavit or other evidence specific facts." R.J. Reynolds Tobacco Co. v. U.S. Food & Drug Admin., 810 F.3d 827, 829 (D.C. Cir. 2016) (internal quotation marks and citations omitted); see also Celotex Corp., 477 U.S. at 324 (explaining that "Rule 56(e) . . . requires the nonmoving party to go beyond the pleadings and by her own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial" (internal quotation marks omitted)).
Plaintiffs have not done so. They have identified no factual support for their allegations regarding the frequency and substance of the telephone calls between Mr. Momenian and Defendant. For one, Plaintiffs have not pointed to any facts to support the allegations that Mr. Momenian spoke with his counsel every three months after the settlement and that his calls to Defendant continued through "early 2012." Am. Compl. ¶ 33. Plaintiff testified at his deposition that he spoke to Defendant after the settlement, seemingly on more than one occasion, but neither in his deposition nor by affidavit did he specify how often those calls occurred or until when they continued. Momenian Tr. at 202-12. Even if the calls did continue through this time, there is no indication that Mr. Momenian ever inquired about the opportunity to continue litigating the Interdonato matter, or that Defendant ever indicated that the Momenians' claims were still viable, let alone affirmatively said that "he was working on" getting before the judge. See Am. Compl. ¶ 33. Mr. Momenian was repeatedly asked about his conversations with Defendant during his deposition, and his responses, excerpted below, are telling in what they do not say.
Momenian Tr. at 205:7-206:10. Viewing the facts in the light most favorable to Plaintiffs, Mr. Momenian appears to have had conversations with Defendant after October 2010 that he found promising. But Mr. Momenian was never able to say with any specificity what these conversations entailed. Consider the following exchange:
Id. at 207-208 (emphasis added). These nebulous statements lack any semblance of factual specificity that would support Plaintiffs' allegations that Mr. Momenian asked Defendant every three months "when he would have an opportunity to go before a judge" in the Interdonato Lawsuit, or that Defendant ever responded that "he was working on it." Am. Compl. ¶ 33.
Accordingly, there is no genuine dispute that, after May 17, 2011, Mr. Davidson "performed no work on the Interdonato [Lawsuit]," Def.'s SOMF ¶ 69, and he never told Mr. Momenian "that he would take any specific action regarding the Interdonato [Lawsuit]," id. ¶ 68. Plaintiffs therefore failed to act with reasonable diligence to discover their claims against Defendant after receiving the May 2011 Letter, rendering their claims untimely by one year.
There are two rules of accrual that Plaintiffs hint at in their opposition to Defendant's motion: the doctrines of lulling and continuous representation. However, Plaintiffs have forfeited these arguments by failing to even remotely develop them in their briefing. See Gov't of Manitoba v. Bernhardt, 923 F.3d 173, 179 (D.C. Cir. 2019) ("A party forfeits an argument by mentioning it only `in the most skeletal way, leaving the court to do counsel's work, create the ossature for the argument, and put flesh on its bones.'" (quoting Schneider v. Kissinger, 412 F.3d 190, 200 n.1 (D.C. Cir. 2005))). For instance, the entirety of Plaintiffs' continuous representation argument consists of one conclusory statement that Mr. Momenian's testimony "is sufficient to support a finding that Mr. Davidson continued to represent Plaintiffs with regard to the Interdonato matter." Pls.' Opp'n at 8. Plaintiffs' lulling argument is even less developed. See id. To call these arguments "skeletal" would be an overstatement.
Even if not forfeited, these arguments are unavailing. The doctrine of lulling, for instance, requires a plaintiff to demonstrate that the "defendant [did] something that amounted to an affirmative inducement to plaintiff[] to delay bringing action." Bailey v. Greenberg, 516 A.2d 934, 937 (D.C. 1986) (internal quotation marks and citation omitted). As discussed, Defendant did exactly the opposite, clearly communicating to Plaintiffs in May 2011 that the Interdonato Lawsuit was settled in full, and that Defendant's representation of the Momenians in the matter had terminated. Mr. Momenian's testimony that his conversations with Defendant made him "happy," e.g., Momenian Tr. at 208, is a far cry from the required showing of affirmative inducement, see Tiger Steel Eng'g, LLC v. Symbion Power, LLC, 195 A.3d 793, 802 (D.C. 2018) ("To establish lulling, the plaintiff must show that the defendant engaged in affirmative misconduct; mere silence or failure to disclose is generally not enough." (internal quotation marks and citation omitted)).
The continuous representation doctrine, "under which a malpractice claim will not accrue until the representation is terminated," Hillbroom v. PricewaterhouseCoopers LLP, 17 A.3d 566, 573 (D.C. 2011) (internal quotation marks and citation omitted), is inapposite for similar reasons. The May 2011 Letter unequivocally terminated Defendant's representation of the Momenians regarding the Interdonato Lawsuit, see May 2011 Letter at 2,
Accordingly, no rule of accrual tolled the statute of limitations, which ran a full year before Plaintiffs filed this action. Plaintiffs' claims are therefore time-barred. See D.C. Code § 12-301(8).
For the foregoing reasons, the court grants Defendant's Motion for Summary Judgment, ECF No. 47. The court denies as moot Defendant's Motion to Strike, ECF No. 48; Defendant's Motion in Limine, ECF No. 55; and Defendant's Motion to Continue Trial, ECF No. 56. A final Order accompanies this Memorandum Opinion.
