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Sizemore v. Burnette

United States District Court, S.D. West Virginia, Beckley Division

March 7, 2018




         The Court has reviewed the Defendants' Motion to Dismiss Plaintiff's Second Amended Complaint (Document 22) and Memorandum of Law in Support (Document 23), the Plaintiff's Response in Opposition to Defendants' Second Motion to Dismiss (Document 25), the Defendants' Reply (Document 26), and all attached exhibits. For the reasons stated herein, the Court finds that the motion should be granted.


         The Plaintiff, Alexander Sizemore, initiated this action by filing a complaint in the Circuit Court of Greenbrier County, West Virginia, on March 21, 2017.[1] The Defendants removed the action to this Court on April 16, 2017, citing diversity jurisdiction. The Plaintiff filed a motion for leave to amend his complaint on May 22, 2017, and the Court granted that motion in its June 23, 2017 Memorandum Opinion and Order (Document 19). On that same day, the Plaintiff filed his second Amended Complaint (Document 20).

         In his second Amended Complaint, Mr. Sizemore alleges that he hired the Defendant, Mr. Burnette, and his law firm, Burnette & Burnette, PLLC, to represent him in a criminal action in the Circuit Court of Greenbrier County, West Virginia. (Pl.'s Complaint at ¶ 4.) Mr. Sizemore had been indicted on charges of sexual assault, and alleges that Mr. Burnette “inappropriately disclosed confidential attorney work product information to the Prosecuting Attorney” by advising said prosecuting attorney that Mr. Sizemore “had allegedly confessed to his ex-girlfriend . . . concerning the criminal charge about which he was being tried.” (Id. at ¶ 8.) On July 11, 2002, after nearly three days of trial, a jury returned a verdict finding Mr. Sizemore guilty of first degree sexual assault. (Id. at ¶ 10.) On March 24, 2003, Mr. Sizemore was sentenced “to not less than 15 years nor more than 35 years in the state penitentiary.” (Id. at ¶ 11.) After filing both state and federal habeas corpus petitions, on May 27, 2016, the Circuit Court of Greenbrier County, West Virginia, entered an order granting Mr. Sizemore habeas relief and releasing him from prison “based on the inappropriate disclosure by the Defendants.[2]” (Id. at ¶ 12.) Both the civil habeas case and the original criminal indictment were dismissed with prejudice on August 17, 2016, and the Plaintiff filed the instant action in March 2018, alleging negligence and legal malpractice in Count I, breach of fiduciary duty in Count II, and breach of contract and the implied covenant of good faith and fair dealing in Count III. The motion to dismiss has been fully briefed and is therefore ripe for review by the Court.


         A motion to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of a complaint. Francis v. Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009); Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008). “[T]he legal sufficiency of a complaint is measured by whether it meets the standard stated in Rule 8 [of the Federal Rules of Civil Procedure] (providing general rules of pleading) . . . and Rule 12(b)(6) (requiring that a complaint state a claim upon which relief can be granted.)” Id. Federal Rule of Civil Procedure 8(a)(2) requires that a pleading must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2).

         In reviewing a motion to dismiss under Rule 12(b)(6) for failure to state a claim, the Court must “accept as true all of the factual allegations contained in the complaint.” Erikson v. Pardus, 551 U.S. 89, 93 (2007). The Court must also “draw[ ] all reasonable factual inferences from those facts in the plaintiff's favor.” Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999). However, statements of bare legal conclusions “are not entitled to the assumption of truth” and are insufficient to state a claim. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). Furthermore, the Court need not “accept as true unwarranted inferences, unreasonable conclusions, or arguments.” E. Shore Mkts., v. J.D. Assocs. Ltd. P'ship, 213 F.3d 175, 180 (4th Cir. 2000). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice… [because courts] ‘are not bound to accept as true a legal conclusion couched as a factual allegation.'” Iqbal, 556 U.S. at 678 (quoting Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

         To survive a motion to dismiss, “a complaint must contain sufficient factual matter, accepted as true, ‘to state a claim to relief that is plausible on its face.'” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570.) In other words, this “plausibility standard requires a plaintiff to demonstrate more than ‘a sheer possibility that a defendant has acted unlawfully.'” Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (quoting Twombly, 550 U.S. at 570.) In the complaint, a plaintiff must “articulate facts, when accepted as true, that ‘show' that the plaintiff has stated a claim entitling him to relief.” Francis, 588 F.3d at 193 (quoting Twombly, 550 U.S. at 557.) “Determining whether a complaint states [on its face] a plausible claim for relief [which can survive a motion to dismiss] will ... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679.


         The Defendants assert several grounds on which the Plaintiff's complaint should be dismissed in its entirety. Mr. Burnette argues that the statute of limitations has expired on all of the Plaintiff's claims, that Burnette & Burnette is no longer a legal entity and therefore cannot be sued, that Mr. Burnette cannot be sued personally for breach of contract, that the Plaintiff has not properly alleged a breach of contract action, and that Mr. Burnette's alleged conduct was not the proximate cause of the Plaintiff's conviction and subsequent sentence. The Plaintiff counters that the statute of limitations has not expired on any of his claims based on the discovery rule, because he did not learn of Mr. Burnette's actions until less than two years before the filing of this action. He further contends that Mr. Burnette's actions were the proximate cause of his conviction, the entity of Burnette & Burnette remains liable even though it has been dissolved, that Mr. Burnette can be sued individually based on his rendering of a professional service to the Plaintiff, and finally, that his claim of breach of contract is sufficiently pled such that the motion to dismiss should not be granted.

         The Court finds that the statute of limitations bars all of the Plaintiff's claims in the second Amended Complaint. Because this case is an action within the Court's diversity jurisdiction, the Court applies the West Virginia statute of limitations and any West Virginia law construing it. Wade v. Danek Med., Inc., 182 F.3d 281, 289 (4th Cir. 1999); Rahmi v. Jackson Kelly Attorneys at Law, No. 3:13-CV-132, 2014 WL 1233740, at *5 (N.D. W.Va. Mar. 25, 2014). When considering whether the statute of limitations bars a cause of action, the Supreme Court of Appeals of West Virginia has prescribed a five-step analysis:

First, the court should identify the applicable statute of limitation for each cause of action. Second, the court (or, if material questions of fact exist, the jury) should identify when the requisite elements of the cause of action occurred. Third, the discovery rule should be applied to determine when the statute of limitation began to run by determining when the plaintiff knew, or by the exercise of reasonable diligence should have known, of the elements of a possible cause of action, as set forth in Syllabus Point 4 of Gaither v. City Hosp., Inc., supra. Fourth, if the plaintiff is not entitled to the benefit of the discovery rule, then determine whether the defendant fraudulently concealed facts that prevented the plaintiff from discovering or pursuing the cause of action. Whenever a plaintiff is able to show that the defendant fraudulently concealed facts which prevented the plaintiff from discovering or pursuing the potential cause of action, the statute of limitation is tolled. And fifth, the court or the jury should determine if the statute of limitation period was arrested by some other tolling doctrine.

Dunn v. Rockwell, 689 S.E.2d 255, 265 (W.Va. 2009); Robinson v. Quicken Loans, Inc., 988 F.Supp.2d 615, 625 (S.D. W.Va. ...

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