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Juday v. Sadaka

United States District Court, E.D. Pennsylvania

August 30, 2019

MARK T. SADAKA, et al.


          BARTLE, J.

         Plaintiffs Chris Juday and Pat Juday (“the Judays”) have sued their attorneys who represented them in the case of Juday, et al., v. Merck & Co., Inc., et al., Civil Action No. 16-1547 in this court. The defendants are Mark T. Sadaka and Sadaka Associates LLC (collectively “the Sadaka defendants”); Michael S. Katz, Andrew W. Knox, and Lopez McHugh LLP (collectively “the Lopez McHugh defendants”); and Joseph Capelli, Thomas J. Joyce, and Marc J. Bern & Partners LLP (collectively “the Bern defendants”).[1] Count I of the complaint alleges Legal Malpractice (Tort), Count II alleges Legal Malpractice (Contract), and Count III alleges Unjust Enrichment.

         Before the court are the motions of the Bern defendants and the Lopez McHugh defendants to dismiss all or part of the complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure. The Bern defendants have moved to dismiss the complaint in its entirety, while the Lopez McHugh defendants have moved to dismiss Counts II and III.[2]


         When considering a motion to dismiss for failure to state a claim under Rule 12(b)(6), the court must accept as true all factual allegations in the complaint and draw all reasonable inferences in the light most favorable to the plaintiff. See Phillips v. Cty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008); Umland v. PLANCO Fin. Servs., Inc., 542 F.3d 59, 64 (3d Cir. 2008). We must then determine whether the pleading at issue “contain[s] sufficient factual matter, accepted as true, to ‘state a claim for relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim must do more than raise a “mere possibility of misconduct.” Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009) (quoting Iqbal, 556 U.S. at 679). Under this standard, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678.

         On a motion to dismiss under Rule 12(b)(6), the court may consider “allegations contained in the complaint, exhibits attached to the complaint, and matters of public record.” Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993) (citing 5A Charles Allen Wright & Arthur R. Miller, Federal Practice and Procedure § 1357 (2d ed. 1990)). The court may also consider “matters incorporated by reference or integral to the claim, items subject to judicial notice, matters of public record, orders, [and] items appearing in the record of the case.” Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir. 2006) (citing 5B Charles Allen Wright & Arthur R. Miller, Federal Practice and Procedure § 1357 (3d ed. 2004)).


         For present purposes, we accept as true the allegations set forth in the complaint. Chris Juday received Zostavax on March 2, 2014 in Indiana. Within a week, he became ill and was diagnosed with severe chickenpox on March 12, 2014. He became so sick that he is now no longer able to work.

         The Judays worked with attorneys in Indiana to make a claim before the United States Court of Federal Claims under the National Vaccine Injury Compensation Program. That Court dismissed their action because Zostavax is not included in the program. Through this process, the Judays learned that a two-year statute of limitations would apply if they wanted to bring a lawsuit in a federal or state court.

         On or about September 17, 2015, the Judays contacted attorney Mark Sadaka about filing such a suit on their behalf.[3]Sadaka, who held himself out on the internet as an expert in handing cases involving Zostavax injures, agreed to represent them. In either their initial phone conversation or follow-up discussions soon after, the Judays gave Sadaka information about their case and informed him that they believed the statute of limitations would run on March 12, 2016. This representation began in September 2015, although the Sadaka firm and the Judays did not execute an engagement letter until a year later, on September 6, 2016.

         Some time in Fall 2015, Sadaka told the Judays that their lawsuit would be filed in the United States District Court for the Eastern District of Pennsylvania. At the time, Sadaka was licensed only in New Jersey but advised the Judays that he was in the process of obtaining a license to practice in Pennsylvania. He promised the Judays that if he was not licensed to practice in Pennsylvania in time to file a complaint in the Eastern District of Pennsylvania, he would work with another lawyer who had the ability to do so. Sadaka assured the Judays that he would be the attorney working on their case, including the drafting of the complaint.

         On April 5, 2016, it was the Lopez McHugh defendants, not the Sadaka firm, who signed and filed the complaint in the underlying litigation against Merck & Co., Inc. and Merck Sharp & Dohme Corp. (collectively “Merck”) in this court. A paralegal from the Sadaka firm provided the Judays with a copy of the complaint in June 2016. Sadaka did not advise the Judays that he had not personally filed the action. According to the Judays, they did not notice that the Lopez McHugh defendants were the ones who had signed the complaint on their behalf. The Judays had no direct contact with these defendants at any time.

         On July 7, 2016, Capelli, one of the Bern defendants, entered an appearance for the Judays in the underlying litigation, while Katz and Knox of Lopez McHugh withdrew their appearances a few days later, on July 11, 2016 and July 12, 2016, respectively. Although the Judays do not know to what extent the Lopez McHugh defendants remained involved in their case, they believe that they remained informed as to the status of their case because those attorneys were copied on correspondence dated May 2, 2017 between Capelli, of the Bern firm, and the Judays.

         The court held a status conference in chambers on July 12, 2016 and thereafter entered its First Scheduling Order providing dates for discovery, motions, and trial. Capelli attended the status conference on behalf of the Judays. The Bern firm, including Joyce, “apparently” continued to represent the Judays during the discovery period, although Joyce did not enter his appearance until December 5, 2016.

         The Judays did not become aware that the Bern defendants were involved in their case until they were contacted by an associate at the Bern firm in September 2016. Sadaka then confirmed with the Judays that he was working with the Bern defendants but never told the Judays about the Lopez McHugh defendants, who had filed the complaint.

         Defendant Merck took discovery, including depositions of the Judays, between August 18, 2016 and February 6, 2017. During this time, however, attorneys for the Judays did not notice any depositions or propound any interrogatories or discovery requests. Merck filed a motion for summary judgment on February 6, 2017 on the ground that the statute of limitations had expired before the complaint was filed. The Bern defendants filed a response in opposition on behalf of the Judays.

         The court held argument on Merck's motion for summary judgment on March 23, 2017 and then ordered supplemental briefing on the issue of the statute of limitations. The Bern defendants still represented the Judays at this time.

         The court entered summary judgment in favor of Merck on April 17, 2017. The court held that the statute of limitation began to run on March 13, 2014 because Chris Juday not only had an “‘unrebutted suspicion' that he had suffered an injury from the Zostavax vaccine administered to him on March 2, 2014 but also had information that there was a ‘reasonable possibility' at that time that there was a causal connection between the vaccine and his symptoms.” Juday v. Merck & Co., Inc., No. 16-1547, 2017 WL 1374527, at *5 (E.D. Pa. Apr. 17, 2017). A timely lawsuit should therefore have been filed on or before March 13, 2016. As noted above, the Lopez McHugh defendants did not file the complaint until April 5, 2016.

         For the first time at oral argument, Joyce of the Bern firm asserted that Merck had engaged in fraudulent concealment, thereby tolling the statute of limitations and making the complaint timely. He pointed to Pat Juday's deposition testimony that her husband's doctor had reported that Merck ...

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