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R.S. v. Fardo

United States District Court, W.D. Pennsylvania, Pittsburgh.

May 4, 2018





         Presently 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.


         Plaintiffs, 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.

         R.S. 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 ¶ 16.

         Plaintiffs filed the instant action against the Defendants alleging legal malpractice on August 30, 2017. Defendants thereafter filed the present motion to dismiss.


         The 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).

         Although 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).

         The 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).

         When 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. § 1332.


         Defendants 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.[2] 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 ...

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