United States District Court, W.D. Pennsylvania, Pittsburgh.
R.S., A MINOR, BY HIS PARENTS AND NATURAL GUARDIANS, M.S AND A.S.; M.S., A.S., INDIVIDUALLY; Plaintiffs,
NOAH FARDO, ESQUIRE; AND FLAHERTY FARDO, LLC, Defendants,
MEMORANDUM OPINION 
CYNTHIA REED EDDY, UNITED STATES MAGISTRATE JUDGE
before the court is Defendants Noah Fardo, Esquire and
Flaherty Fardo, LLC's motion to dismiss Count II of
Plaintiffs' complaint [ECF No. 14]. For the reasons that
follow, Defendants' motion is granted.
R.S., a minor, and his parents M.S. and A.S.
(“parents”) brought the instant legal malpractice
action against Attorney Noah Fardo, Esquire and Flahery
Fardo, LLC for allegedly missing a statute of limitations on
an underlying medical malpractice action filed in Virginia.
sustained an injury to his left elbow while playing football
in Virginia on September 18, 2014. R.S. was originally
examined at the Spotsylvania Regional Medical Center in
Fredericksburg, Virginia. The attending radiologist allegedly
negligently interpreted R.S.'s injury as a sprain, and
R.S. was later diagnosed as having a separated elbow.
Plaintiffs allege that the delay in diagnosing R.S.'s
separated elbow caused him irreparable harm. Plaintiffs
engaged the legal services of Defendants to
“investigate and pursue, if merited, a medical
malpractice claim” with respect to the delayed
diagnosis of R.S.'s separated elbow. First Am. Compl.
(“FAC”) [ECF No. 10] at ¶ 10. According to
Plaintiffs, the Defendants negligently failed to file the
Plaintiffs' medical malpractice lawsuit within the
applicable time frame and Plaintiffs were barred to file the
case, thereby sustaining damages of not being able to recover
for the alleged medical malpractice. Id. at ¶
filed the instant action against the Defendants alleging
legal malpractice on August 30, 2017. Defendants thereafter
filed the present motion to dismiss.
STANDARD OF REVIEW
applicable inquiry under Federal Rule of Civil Procedure
12(b)(6) is well-settled. Under Federal Rule of Civil
Procedure 8, a complaint 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). Rule
12(b)(6) provides that a complaint may be dismissed for
“failure to state a claim upon which relief can be
granted.” Fed.R.Civ.P. 12(b)(6). “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.'”
Ashcroft, 556 U.S. at 678 (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A complaint
that merely alleges entitlement to relief, without alleging
facts that show entitlement, must be dismissed. See
Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir.
2009). This “‘does not impose a probability
requirement at the pleading stage, ' but instead
‘simply calls for enough facts to raise a reasonable
expectation that discovery will reveal evidence of' the
necessary elements.” Phillips v. Cnty. of
Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting
Twombly, 550 U.S. at 556). Nevertheless, the court
need not accept as true “unsupported conclusions and
unwarranted inferences, ” Doug Grant, Inc. v. Great
Bay Casino Corp., 232 F.3d 173, 183-84 (3d Cir. 2000),
or the plaintiff's “bald assertions” or
“legal conclusions.” Morse v. Lower Merion
Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997).
a complaint does not need detailed factual allegations to
survive a Rule 12(b)(6) motion, a complaint must provide more
than labels and conclusions. Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007). A “formulaic
recitation of the elements of a cause of action will not
do.” Id. (citing Papasan v. Allain,
478 U.S. 265, 286 (1986)). “Factual allegations must be
enough to raise a right to relief above the speculative
level” and “sufficient to state a claim for
relief that is plausible on its face.”
Twombly, 550 U.S. at 555. Facial plausibility exists
“when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant
is liable for the misconduct alleged.”
Ashcroft, 556 U.S. at 678 (citing Twombly,
550 U.S. at 556).
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 556)
(internal citations omitted).
considering a Rule 12(b)(6) motion, the court's role is
limited to determining whether a plaintiff is entitled to
offer evidence in support of his claims. See Scheuer v.
Rhodes, 416 U.S. 232, 236 (1974). The court does not
consider whether a plaintiff will ultimately prevail.
Id. A defendant bears the burden of establishing
that a plaintiff's complaint fails to state a claim.
Gould Elecs. v. United States, 220 F.3d 169, 178 (3d
Cir. 2000). The parties agree that Virginia state law
applies. See Chamberlain v. Giampapa, 210 F.3d 154, 158 (3d
Cir. 2000). This court has jurisdiction pursuant to 28 U.S.C.
move to dismiss the parents' claim to recover medical
expenses (Count II), and argue that the claim for such
expenses is not time barred and thus Defendants cannot be
said to have missed the statute of limitations for the
parents' claim for medical expenses. Defendants also
move to dismiss R.S.'s claim for medical expenses, a
theory of recovery which Plaintiffs have advanced in the
alternative, and argue that any loss that would be sustained
by the ...