UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

BEACH TV PROPERTIES, INC., et al., : : Plaintiffs, : Civil Action No.: 15-1823 (RC) : v. : Re Document No.: 86, 92, 94 : HENRY R. SOLOMON, et al., : : Defendants. :

MEMORANDUM OPINION

GRANTING IN PART AND DENYING IN PART THE GARVEY DEFENDANTS’ MOTION TO DISMISS; GRANTING THE PARTIES’ MOTIONS FOR LEAVE TO FILE SUR-REPLY AND REBUTTAL TO SUR- REPLY

I. INTRODUCTION

This case stems from the submission of an incomplete form in 1999. Plaintiff the Atlanta

Channel, Inc. (“ACI”) sued the attorney who submitted the incomplete form, Defendant Henry

Solomon, in 2015 for legal malpractice. Mr. Solomon has argued that ACI’s suit is time-barred,

but the Court determined, following summary judgment briefing as to his liability, that questions

of fact persist as to whether the “continuous representation doctrine” keeps ACI’s claim against

him timely. Two years after filing this suit, ACI added to its complaint a legal malpractice claim

against Defendant Melodie Virtue, who in 2012 took over ACI’s attempt to remedy the effects of

the incomplete submission, as well as her law firm Garvey, Schubert & Barer (“Garvey Firm”)

under the doctrine of respondeat superior. ACI’s claim against Ms. Virtue, that she failed to

fulfill several “obligations” she had to ACI, is conditional on a finding that ACI’s claim against

Mr. Solomon is time-barred. Ms. Virtue and the Garvey Firm have now moved to dismiss the claims against them,

arguing that the Court acknowledged as undisputed in its memorandum opinion denying ACI’s

and Mr. Solomon’s prior motions for partial summary judgment several pertinent facts that

directly contradict the facts alleged in ACI’s Second Amended Complaint. They further argue

that ACI has failed to state a claim for legal malpractice and has failed to plead proximate

causation. Finally, they ask the Court to dismiss claims that ACI erroneously included in its

Second Amended Complaint after the Court denied ACI’s motion for leave to file those

particular claims. For the reasons explained below, the Court denies the Garvey Defendants’

motion to dismiss as to Count Three and the portions of Count Four that pertain to Count Three,

but grants their motion as to Count Two and the portions of Count Four that pertain to Count

Two.

II. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff ACI filed this suit to recover damages resulting from the erroneous filing of an

incomplete form with the Federal Communications Commission (“FCC”) on December 29,

1999. See 2d Am. Compl. ¶¶ 26–27, ECF No. 69. ACI alleges that because the form, a Statement

of Eligibility for a Class A license for an LPTV station, was submitted with several questions left

blank, the form was dismissed by the FCC’s Mass Media Bureau on June 9, 2000. Id. ¶¶ 28, 32.

Without a Statement of Eligibility, ACI was unable to obtain a Class A license for its station, id.

¶ 33, which ACI argues eventually led to the station being valued for at least $25,000,000 less

than it would have been if it had obtained the license, id. ¶ 70.

ACI alleges that Defendant Henry Solomon was responsible for the filing of the

incomplete Statement of Eligibility. Id. ¶ 29. Once he learned of the error, Mr. Solomon

immediately sought a reversal of the Mass Media Bureau’s dismissal of the Statement. See id. ¶¶

2 36–39. While ACI’s Statement of Eligibility was pending before the Mass Media Bureau, Mr.

Solomon joined Defendant law firm Garvey, Schubert & Barer, where he remained until he

“ceased working full time in 2010.” Id. ¶ 11. In order to obtain a reversal of the dismissal, Mr.

Solomon filed an Application for Review with the FCC on December 29, 2000, but the

Application remained pending until the Mass Media Bureau’s dismissal was affirmed by the

FCC on November 9, 2012. Id. ¶ 37. At that point, Mr. Solomon had ceased working full-time at

the Garvey Firm for several years. See id. ¶ 11.

Defendant Melodie Virtue worked with Mr. Solomon at the Garvey Firm, “advising ACI

and its affiliates on FCC law matters.” Id. ¶ 8. When Mr. Solomon ceased working full-time as

an attorney in 2010, Ms. Virtue continued to represent ACI and its affiliates. Id. ¶ 53. Beginning

in 2012, this included representing ACI on the pending Application for Review and subsequent

attempts to reverse the FCC’s decision and obtain a Class A license for ACI. Id. ¶¶ 53–56.

ACI takes issue with certain aspects of Ms. Virtue’s representation. ACI contends that

“[p]rior to assuming responsibility for or participating in [the matter], Ms. Virtue had an

obligation to tell ACI that:” (1) “Mr. Solomon committed malpractice by preparing and filing the

defective ACI Statement”; (2) “Mr. Solomon’s withdrawal from the full-time practice of law

could affect the running of the statute of limitations on ACI’s malpractice claims against Mr.

Solomon”; (3) “ACI and Mr. Solomon were potential adversaries in a legal malpractice action”;

(4) “Ms. Virtue had a conflict of interest between her representation of ACI and her professional

and personal relationship with Mr. Solomon”; (5) “[t]he Garvey Firm had a conflict of interest

between its representation of ACI and its relationship with Mr. Solomon”; and (6) “ACI should

immediately retain separate and independent counsel to advise ACI about:” (a) “Mr. Solomon’s

preparation and filing the defective ACI Statement”; (b) “Mr. Solomon’s withdrawal from the

3 full time practice of law”; (c) “[t]he FCC Proceeding.” Id. ¶ 59. 1 ACI refers to the above-listed

assertions as the “Virtue Obligations,” and alleges that “Ms. Virtue failed to perform the Virtue

Obligations.” Id. ¶¶ 60–61. Therefore, it argues, she “failed to obtain ACI’s fully informed

consent to her assumption of responsibility for and working on the FCC Proceeding and

Appeal.” Id. ¶ 62.

ACI’s attempts to obtain a Class A license for its station ceased in September 2015 when

the D.C. Circuit denied its appeal of the FCC’s decisions. See Beach TV Props., Inc. v. FCC,

(D.C. Cir. 2015). On October 26, 2015, Beach TV and ACI sued Mr. Solomon, the

Garvey Firm, and Haley Bader & Potts, the firm where Mr. Solomon had worked when he filed

the incomplete Statement of Eligibility, for legal malpractice. See generally Compl., ECF No. 1;

see also Am. Compl., ECF No. 21. A year later, the Court granted the Garvey and Haley Firms’

motions to dismiss ACI and Beach TV’s first amended complaint, granted in part and denied in

part Mr. Solomon’s motion to dismiss the first amended complaint, and dismissed all claims

brought by Beach TV in the first amended complaint for lack of standing. See Beach TV, Props.,

Inc. v. Solomon (“Beach TV I”), No. 15-1823,

(D.D.C. Oct. 14, 2016). After

the issuance of this memorandum opinion, the only claim remaining in the case was ACI’s

malpractice claim against Mr. Solomon for filing the incomplete Statement of Eligibility.

1 ACI also alleges that Ms. Virtue was obliged to tell ACI that “Mr. Solomon committed malpractice by recommending and filing the License Assignment,” when ACI assigned the license relevant to this case to Beach TV Properties, Inc., another company owned by ACI owners Jud Colley and Toni Davis. Id. ¶¶ 59(b), 40. However, as explained below, this factual allegation, as well as all other factual allegations supporting Count Two, was included in ACI’s Second Amended Complaint in error because the Court never granted ACI leave to include this count in its Second Amended Complaint. See Beach TV Props., Inc. v. Solomon (“Beach TV II”),

, 125–130 (D.D.C. 2017).

4 ACI subsequently moved to amend its complaint. See Pls.’ Mot. Leave Amend, ECF No.

59. ACI’s proposed amended complaint contained four distinct claims for malpractice and

sought to add two defendants: Melodie Virtue, who up until that point had not been named as a

defendant in the case, and the Garvey Firm. See Pls.’ Proposed 2d Am. Compl. ¶¶ 51–62; 73–87,

ECF No. 59-3. The first claim in the proposed complaint remained the claim against Mr.

Solomon for filing the incomplete Statement of Eligibility. See Pls.’ Proposed 2d Am. Compl. ¶¶

73–75. The second proposed claim alleged that Mr. Solomon did not adequately counsel ACI

when it assigned its license to Beach TV and that this negligence “compromise[d] ACI’s ability

to recover damages based on its ownership of” the license. Pls.’ Mot. Am. Compl. ¶ 15; Pls.’

Proposed 2d Am. Compl. ¶¶ 76–79.

The third proposed count alleged legal malpractice by Ms. Virtue for not fulfilling the

“Virtue Obligations.” Pls.’ Proposed 2d Am. Compl. ¶¶ 59–61, 81. ACI and Beach TV clarified

that this claim was contingent upon a finding that Counts One and Two are time-barred. See

Proposed 2d Am. Compl. ¶ 83 (“ACI was damaged as a direct and proximate result of Ms.

Virtue’s malpractice if and to the extent ACI’s malpractice claims against Mr. Solomon stated in

Counts One or Two are barred by the statute of limitations.”) Finally, the proposed fourth count

alleged that the Garvey Firm is liable for “the malpractice and negligence of Mr. Solomon

pursuant to Count Two by operation of the doctrine of respondeat superior” and for “the

malpractice and negligence of Ms. Virtue pursuant to Count Three by operation of the doctrine

of respondeat superior.”

¶¶ 86–87. As such, part of Count Four is also contingent upon a

finding that Count One is time-barred.

Mr. Solomon and the Garvey firm opposed ACI’s motion on the ground that amending

the complaint would be futile because Counts Two and Three failed to state cognizable claims.

5 See Garvey’s Mem. P. & A. Opp’n Pl.’s Mot. Leave Amend Compl. at 14, ECF No. 62; Def.

Solomon’s Opp’n Pl.’s Mot. Leave Amend Compl. at 4, ECF No. 63. The Court agreed with

Defendants as to Count Two, finding that ACI and Beach TV had not adequately pleaded

causation, Beach TV II, 254 F. Supp. 3d at 128–30, but found that ACI had adequately pleaded

Count Three,

at 130–34. In particular, the Court found that ACI’s inclusion of the factual

allegation that Ms. Virtue “lulled ACI into inaction in filing its malpractice claims,” 2d Am.

Compl. ¶ 57, was a “preemptive response to the affirmative defense of statute of limitations,”

rather than an attempt to assert a cause of action for “lulling,” which is not an actionable tort

under D.C. law. Beach TV II, 254 F. Supp. 3d at 133–34.

Following the filing of ACI’s Second Amended Complaint, which inadvertently included

Count Two, see Pl.’s Opp’n at 15, ACI and Mr. Solomon filed cross-motions for partial

summary judgment as to Mr. Solomon’s liability for Count One of the Second Amended

Complaint. See Pl.’s Mot. Partial Summ. J., ECF No. 71; Def.’s Mot. Partial Summ. J., ECF No.

74. In his motion, Mr. Solomon claimed that Count One was time-barred, that ACI was

contributorily negligent when it forwarded the incomplete Statement of Eligibility to him for his

review, and that ACI could not demonstrate, as a matter of law, that Mr. Solomon’s actions

caused the full extent of the damages ACI alleged it suffered. See Beach TV Props., Inc. v.

Solomon (“Beach TV III”),

(D.D.C. 2018). Reviewing the evidence that

the parties had provided with their motions, the Court found that questions of fact remained as to

whether ACI reasonably believed that Mr. Solomon continued to represent it until at least

October 26, 2012, three years before the filing of this case. 2 See Beach TV III,

D.C. Code provides that legal malpractice claims in the District of Columbia “may not be brought” more than three years “from the time the right to maintain the action accrues.” D.C. Code § 12–301(8).

6 89. While the Court was able to determine from the record that the date of the injury resulting

from Mr. Solomon’s alleged malpractice was June 9, 2000, see id. at 84, and that the evidence

presented did not support the tolling of the statute of limitations on the basis of lulling or

fraudulent concealment, see id. at 89–91, the Court did find that significant disputes of fact

precluded the Court from determining whether the continuous representation doctrine supported

such tolling, see id. at 89. The Court also found that factual disputes as to what duty of care Mr.

Solomon owed to ACI remained, as did a factual dispute regarding the extent of the damage Mr.

Solomon’s alleged negligence proximately caused. See id. at 95–97. Therefore, the Court denied

both ACI’s and Mr. Solomon’s motions for partial summary judgment.

With the motions for partial summary judgment resolved, the Court’s attention now turns

to Ms. Virtue and the Garvey Firm (“the Garvey Defendants” or “Defendants”), who have

moved to dismiss the claims against them contained in ACI’s Second Amended Complaint. See

Defs.’ Mot. Dismiss, ECF No. 86. 3 While discovery as to Mr. Solomon’s liability for Count One

has already been completed, see Scheduling Order, ECF No. 58, discovery as to the other counts

has been delayed pending the resolution of this motion, see Minute Order (Apr. 27, 2018). The

Garvey Defendants’ motion to dismiss, ACI’s motion for leave to file a sur-reply, and the

Garvey Defendants’ motion to file a rebuttal to ACI’s proposed sur-reply, are now ripe for

decision.

3 The Garvey Firm has also filed a motion for sanctions against ACI’s attorney, James Mac Naughton. See Mot. Sanctions, ECF No. 87. The parties have agreed to delay the remaining briefing and resolution of the motion until after the resolution of the Garvey Defendants’ motion to dismiss. See Pl.’s Consent Mot. Extend Time, ECF 88; Minute Order (May 25, 2018).

7 III. ANALYSIS

The parties have asserted a slew of arguments in support of and in opposition to the

Garvey Defendants’ motion to dismiss, which the Court will summarize briefly here. The Garvey

Defendants have moved to dismiss Count Three and the portion of Count Four predicated on

Count Three on several grounds. First, Defendants argue that the factual record in this case, and

specifically the facts noted in the Court’s memorandum opinion denying Mr. Solomon’s and

ACI’s cross-motions for partial summary judgment, is the “law of the case.” These facts, they

believe, demonstrate that Ms. Virtue performed several of the alleged Virtue Obligations.

Therefore, claims predicated on those obligations should be dismissed. Second, Defendants urge

the Court to reconsider its prior determination that Count Three is not a claim for the tort of

lulling. Third, Defendants argue that the facts pleaded in support of Count Three fail to allege

proximate cause or compensable damages.

ACI first responds that the Court’s determination that Count Three states a claim is the

law of the case and should not be reconsidered. Second, ACI argues that Defendants’ motion to

dismiss is in fact a premature motion for summary judgment based on an incomplete factual

record. However, ACI further claims that the factual record presented to the Court in support of

the parties’ motions for partial summary judgment support a finding of liability as to Count

Three. Third, ACI argues that the Second Amended Complaint clearly lays out ACI’s allegations

of what Ms. Virtue’s standard of care should have been while working on ACI’s case. Fourth,

ACI argues that Ms. Virtue needed to fulfill the Virtue Obligations before October 26, 2012—the

beginning of the limitations period for this suit—and that her email sent in November 2012 did

8 not fulfill that obligation. 4 Fifth, they argue that the Garvey Defendants forfeited their ability to

challenge the sufficiency of ACI’s pleadings regarding proximate causation when they did not

challenge ACI’s pleadings as to proximate causation when they opposed ACI’s motion for leave

to amend. However, they further argue that they have sufficiently pleaded proximate causation as

to Count Three.

The Court first determines that the Garvey Defendants’ motion is a motion to dismiss, as

Defendants insist, and not a motion for summary judgment. However, the Court disagrees with

Defendants’ contention that all of the facts observed in the Court’s ruling on the parties’ motions

for partial summary judgment are now the law of the case. Therefore, the Court will not consider

the facts Defendants have highlighted that are not contained in the Second Amended Complaint.

Next, the Court determines that the Court’s finding in its grant of ACI’s motion for leave to

amend regarding the nature of its lulling allegation is the law of the case and declines

Defendants’ invitation to reconsider that ruling. The Court further finds that ACI has included

sufficient facts in its complaint to allege proximate causation. Finally, the Court grants ACI’s

motion for leave to file a sur-reply, ECF No. 92, to which Defendants have consented as long as

they are permitted to file a rebuttal, and also grants Defendants’ motion for leave to file a rebuttal

to ACI’s sur-reply, ECF No. 94.

A. The Nature of the Garvey Defendants’ Motion

The Garvey Defendants insist both that their motion is a motion to dismiss and that the

Court may take into consideration undisputed facts observed in the Court’s ruling on ACI’s and

Mr. Solomon’s cross-motions for partial summary judgment because those facts are the “law-of-

4 This email was not mentioned in ACI’s Second Amended Complaint but was acknowledged in the Court’s prior memorandum opinion denying Mr. Solomon and ACI partial summary judgment. See Beach TV III,

.

9 the-case.” ACI responds that the motion is in fact an improper summary judgment motion based

on an incomplete record. As explained below, the Court holds that, due in part to Defendants’

insistence, this motion will be evaluated as a motion to dismiss and will not be converted to a

motion for summary judgment. Because this motion will be evaluated as a motion to dismiss, the

Court will not take into consideration the facts observed in dicta in the Court’s prior

memorandum opinions and will instead review the Second Amended Complaint based on its

facial sufficiency.

“Unlike motions to dismiss [for lack of subject matter jurisdiction] under Rule 12(b)(1),

factual challenges are not permitted under 12(b)(6), and the Court may only consider the facts

alleged in the complaint, any documents attached as exhibits thereto, and matters subject to

judicial notice in weighing the merits of the motion.” Kursar v. Transp. Sec. Admin.,

(D.D.C. 2008), aff’d,

(D.C. Cir. 2011). Because courts “may

not draw upon facts from outside the pleadings,” “a vague and conclusory complaint may

survive a 12(b)(6) motion where more detail would disclose fatal weaknesses; defendants’

remedy ‘is not to move [for] dismissal but to serve contention interrogatories . . . or to proceed to

summary judgment.’” Taylor v. FDIC,

(D.C. Cir. 1997) (quoting Orthmann v.

Apple River Campground, Inc.,

(7th Cir. 1985)).

Under Rule 12(d), “[i]f, on a motion under Rule 12(b)(6) or 12(c), matters outside the

pleadings are presented to and not excluded by the court, the motion must be treated as one for

summary judgment under Rule 56.” Fed. R. Civ. P. 12(d). “The decision to convert a motion to

dismiss into a motion for summary judgment . . . is committed to the sound discretion of the trial

court.” Bowe–Connor v. Shinseki,

(D.D.C. 2012) (quoting Flynn v.

Tiede–Zoeller, Inc.,

(D.D.C. 2006)). “A motion may be treated as one for

10 summary judgment even if the parties have not been provided with notice or an opportunity for

discovery if they have had a reasonable opportunity to contest the matters outside of the

pleadings such that they are not taken by surprise.”

.

Of course, a great deal of discovery has already been taken in this case regarding Mr.

Solomon’s liability, revealing facts that may have bearing on Ms. Virtue’s liability as well. See,

e.g., Virtue Deps., ECF No. 72-6, 76-20. However, Defendants have not moved for summary

judgment and have not asked the Court to take judicial notice of facts outside the pleadings.

Instead, Defendants ask the Court to find that these facts are the “law of the case.”

“‘Law-of-the-case doctrine’ refers to a family of rules embodying the general concept

that a court involved in later phases of a lawsuit should not re-open questions decided (i.e.,

established as the law of the case) by that court or a higher one in earlier phases.” Crocker v.

Piedmont Aviation, Inc.,

(D.C. Cir. 1995). “The doctrine of law of the case

comes into play only with respect to issues previously determined,” Quern v. Jordan,

, 347 n.18 (1979), and “questions that merely could have been decided do not become law of

the case.” Women’s Equity Action League v. Cavazos,

, 751 n.14 (D.C. Cir. 1990)

(quoting Bouchet v. Nat’l Urban League,

(D.C. Cir. 1984)). “[D]icta is not

part of the law of the case.” United States v. Singleton,

(D.C. Cir. 1985)

(citing Nat’l Souvenir Ctr., Inc. v. Historic Figures, Inc.,

, 511 (D.C. Cir.), cert.

denied,

(1984)). However, “[t]he doctrine encompasses a court’s explicit decisions,

as well as those issues decided by necessary implication.” Williamsburg Wax Museum, Inc. v.

Historic Figures, Inc.,

(D.C. Cir. 1987). “[A]dherence to the doctrine is not

mandatory,” but rather left to the district court’s sound discretion. Moore v. Hartman,

, 256 n.6 (D.D.C. 2004).

11 Defendants ask the Court to find that the following three facts are the law of the case:

(1) Plaintiff was aware of a potential malpractice claim by June of 2000, more than a decade before Ms. Virtue was first asked about it by Plaintiff; (2) Ms. Virtue sent the principals of ACI and Beach TV a detailed email on November 21, 2012 that addressed the potential conflict of interest issue and advised them to seek independent legal counsel on that issue; and (3) pursuant to Ms. Virtue’s advice, Plaintiff did indeed obtain independent legal advice from a lawyer in another firm, and made its decision to proceed with Garvey as counsel in its FCC appeal only after receiving and considering that independent advice.

Defs.’ Mot. at 5–6. Defendants believe that these facts have a bearing on ACI’s allegation that

Ms. Virtue breached the standard of care by not telling ACI that (1) “Mr. Solomon committed

malpractice by preparing and filing the defective ACI Statement,” (2) “Ms. Virtue [and the

Garvey Firm] had a conflict of interest between [their] representation of ACI and [their]

professional and personal relationship with Mr. Solomon,” and (3) “ACI should immediately

retain separate and independent counsel to advise ACI about . . . Mr. Solomon’s preparation and

filing the defective ACI Statement” and “the FCC Proceeding.” See Defs.’ Mot. at 20, 23 (citing

2d Am. Compl. ¶¶ 59(a), (e), (f), (g)). Defendants point to no cases in which a court dismissed a

claim in an amended complaint because evidence rebutting the allegations supporting the claim

had been presented and observed in a prior summary judgment opinion involving a different

party and was therefore the “law of the case.” See generally, Defs.’ Mot.; Defs.’ Reply; Defs.’

Rebuttal.

However, even if the law of the case could be used for this type of situation, the

undisputed facts Defendants highlight were not integral to the Court’s reasoning in its prior

memorandum opinion and were therefore merely noted in dicta. While the Court did indeed

observe that Mr. Solomon informed ACI of the dismissal of the Statement of Eligibility soon

after June 9, 2000, and that Ms. Virtue informed ACI that she and the Garvey Firm might have a

12 conflict of interest with ACI and that it should therefore consider retaining independent counsel

to evaluate that conflict and assist it in determining whether the Garvey Firm should continue to

represent it on the matter, those facts did not contribute to the Court’s conclusions that factual

disputes still existed as to the statute of limitations and proximate causation. Because these

factual observations were dicta, they do not constitute the law of the case. See Singleton,

.

In sum, because Defendants did not move for summary judgment, and indeed appear to

oppose the characterization of their motion as a motion for summary judgment, did not move for

the exhibits supporting their factual allegations to be judicially noticed for purposes of this

motion, and because the facts they believe demonstrate that ACI’s factual allegation are

erroneous do not constitute the law of the case, the Court cannot dismiss portions of ACI’s

Second Amended Complaint based on its prior memorandum opinion.

B. Lulling

The Garvey Defendants also ask the Court to reconsider its prior finding that ACI’s

inclusion of the allegation that “Ms. Virtue’s work on the FCC Proceeding and Appeal lulled

ACI into inaction in filing its malpractice claims against her or Mr. Solomon” was not an attempt

to state a claim for the tort of lulling, but rather a proactive rebuttal to a statute of limitations

defense that it expected Ms. Virtue to raise. See Defs.’ Mot. at 16 (referring to Beach TV II, 254

F. Supp. 3d. at 133–34). ACI does not address Defendants’ arguments directly, but instead

argues that it is premature for the Court to determine whether the lulling doctrine tolls the statute

of limitations as to Count Three because Ms. Virtue has yet to file her answer to the Second

Amended Complaint. See Pl.’s Opp’n at 10. It further argues that the law of the case should

apply to the Court’s finding when it granted leave to amend the complaint to add Count Three

13 because it stated a claim and thus was not futile. Id. at 2. Defendants reply that the law of the

case should not apply to this ruling because the “June 1, 2017 decision was not based on the

contentions of either party and so the Garvey Defendants had no opportunity to be heard on the

point.” Defs.’ Reply at 6. They further complain that ACI has “refused” to clarify its intentions

as to lulling. Id. at 8. As explained below, the Court finds that, ACI’s vagueness notwithstanding,

the Court’s ruling that ACI’s mention of lulling did not turn its malpractice claim against Ms.

Virtue into a claim for lulling is the law of the case. The Court declines to reverse that ruling at

this stage in the proceedings.

As mentioned above, “[t]he doctrine of law of the case comes into play only with respect

to issues previously determined,” Quern,

n.18, and “adherence to the doctrine is

not mandatory,” but rather left to the district court’s sound discretion. Moore,

n.6. In its opposition to ACI’s motion for leave to amend, the Garvey Firm argued that the

Court should interpret Count Three of ACI’s Second Amended Complaint as a claim for lulling.

See Garvey’s Opp’n Pls. Mot. Leave Amend at 22–24, ECF No. 62. However, even though ACI

did not respond to the Garvey Firm’s argument, the Court determined that “Plaintiff’s lulling

claim is a preemptive response to the affirmative defense that the statute of limitations bars

recovery, not a freestanding claim in the complaint.” Beach TV II,

. This

ruling came in the context of the Court’s analysis of the purported futility of ACI’s amendments

to the complaint, in which “the Court applie[d] the same standard it applies in resolving a motion

to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6).”

. Under this

framework, the Court found that ACI had sufficiently stated a claim for negligence against Ms.

Virtue and that that claim for negligence was not simply a lulling claim in disguise.

.

14 This motion presents nearly identical circumstances to those at play when the Court

granted ACI leave to amend its complaint. Defendants continue to characterize the inclusion of

the term lulling as an attempt to state a claim for the tort of lulling, which has never been

recognized in D.C. Compare Defs.’ Mot. at 14–17 with Garvey’s Opp’n Pls. Mot. Leave Amend

at 22–24. ACI has again failed to directly respond to this argument. Instead, in its opposition to

Defendants’ motion to dismiss, it argues that it is too early in these proceedings to determine

whether lulling tolled any statute of limitations defense Ms. Virtue might present (implying that

it meant for its mention of lulling to be a rebuttal to a potential affirmative defense). It further

explains that Ms. Virtue’s actions (or lack thereof) proximately caused it to, if the continuous

representation doctrine does not apply, file its malpractice claim against Mr. Solomon late. See

Pl.’s Opp’n at 10–12. While the possibility that ACI is sneakily trying to state a claim for lulling

rather than negligence remains, the Court’s analysis, that based on the face of ACI’s Second

Amended Complaint ACI seeks to state a claim for negligence and is simply attempting to

preemptively cover all of its bases by rebutting an imminent affirmative defense in its mention of

lulling, remains unchanged. Therefore, the Court declines to revisit what is clearly the law of this

case and does not grant Defendants’ motion on this ground.

C. Proximate Causation

Defendants also argue that the Second Amended Complaint fails to sufficiently allege

proximate causation between Ms. Virtue’s actions and ACI’s possible injury because

(1) Plaintiff’s consultation with the law firm of Balch & Bingham ended any causal link resulting from any acts or omissions by Ms. Virtue, and there was therefore no causation in fact; (2) the allegation is conditional on hypothetical scenarios that are purely conjectural and inherently incapable of ever being ascertained; and (3) the allegation of a causal link to the outcome of the dispute with Solomon as to the statute of limitations, renders Count Three a claim of lulling.

15 Defs.’ Mot. at 25. ACI responds that “[t]aken together,” the facts in the Second Amended

Complaint combine to allege that “ACI would have timely sued Mr. Solomon for malpractice

and collected the full damages sought in Count One but for Ms. Virtue’s malpractice in failing to

fulfill the Virtue Obligations in March 2012 when she began working on the FCC Proceeding.”

Pl.’s Opp’n at 12. Plaintiffs also argue that Defendants forfeited the argument that Count Three’s

proximate causation allegations are insufficient because Defendants failed to raise this argument

in their opposition to ACI’s motion for leave to amend. Id. at 11. As explained below, although

Defendants did not forfeit their ability to challenge ACI’s proximate causation pleadings by not

including the challenge in their opposition to ACI’s motion for leave to amend, Defendants’

arguments fail nonetheless. The Court denies Defendants’ motion to dismiss on this ground

because: (1) the Court is not taking evidence outside the pleadings into account in deciding this

motion, (2) the question of proximate causation is one normally left for the finder of fact, and (3)

the Court has already found that Count Three states a claim for negligence rather than lulling.

ACI’s assertions to the contrary, Defendants have not forfeited their ability to raise the

proximate causation argument by not raising it in their opposition to ACI’s motion for leave to

amend. To support its assertion, ACI relies solely on Solomon v. Vilsack,

(D.C.

Cir. 2014), in which the D.C. Circuit found that because a defendant had not raised a contention

during two prior rounds of summary judgment briefing, the defendant could not raise the

argument for the first time on appeal. Conversely, here ACI argues that because Defendants did

not raise a particular argument before ACI’s Second Amended Complaint was even filed, they

have waived their ability to raise it in their motion to dismiss that complaint. But Defendants’

motion to dismiss is their first responsive pleading to this complaint. What is more, lack of

proximate causation is not one of the many affirmative defenses that must be raised in a

16 defendant’s first responsive pleading, see Fed. R. Civ. P. 8(c)(1), nor is it one of the defenses

listed in Rule 12(b)(2)–(5) that can be forfeited by failing to raise it in a Rule 12 motion or a

responsive pleading, see Fed. R. Civ. P. 12(h)(1). Instead, failure to state a claim may be raised

as late as an answer filed pursuant to Rule 7(a) or in a motion for judgment on the pleadings

pursuant to Rule 12(c). See Fed. R. Civ. P. 12(h)(2). As such, Defendants have not forfeited their

ability to claim that ACI has failed to sufficiently plead proximate causation.

However, the Court is unpersuaded by Defendants’ arguments that Count Three should

be dismissed for failure to sufficiently plead proximate causation. First, as explained above,

because the Court is declining to take into account any evidence outside of the pleadings, it may

not consider the fact that ACI may have consulted with outside counsel at the direction of Ms.

Virtue at the end of 2012, a fact not alleged in the Second Amended Complaint. Second, the

Court has already determined that Count Three states a claim for negligence rather than lulling.

Finally, although Defendants contend that “the conditional and hypothetical nature of the

allegations of proximate cause in Paragraph 83 lack the degree of clarity and certainty sufficient

to satisfy this element of a tort claim,” Defs.’ Mem. at 26, for now, the Court finds the

allegations sufficient to survive a motion to dismiss.

ACI has pleaded that (1) Ms. Virtue failed to perform the “Virtue Obligations” it has

listed, 2d Am. Compl. ¶ 61; (2) that her failure to perform the “Virtue Obligations” “lulled ACI

into inaction in filing its malpractice claims against . . . Mr. Solomon,” id. ¶ 57; and (3) if ACI’s

claim against Mr. Solomon for malpractice is found to have been untimely filed, that injury will

have been a direct and proximate result of Ms. Virtue’s failure to perform the “Virtue

Obligations,” id. ¶ 83. From these pleadings, the Court is able to ascertain both what actions

ACI believes Ms. Virtue should have taken when representing it and the damage it believes her

17 failure to act caused it—the late filing of a meritorious claim against Mr. Solomon. Whether Ms.

Virtue’s actions, if ACI’s claim against Mr. Solomon is time-barred, proximately caused the

injury ACI alleges is a matter that is better addressed later, at the summary judgment stage, or

perhaps after, with the benefit of a full record from discovery, including expert opinions. See In

re Fort Totten Metrorail Cases Arising Out of Events of June 22, 2009,

(D.D.C. 2012) (“[P]roximate causation is ordinarily a question of fact for the jury . . . [and] it is

only the exceptional case in which questions of proximate cause pass from the realm of fact to

one of law.”). At this time, these allegations are sufficiently pleaded, and therefore, Count Three

and the portion of Count Four that pertains to Count Three will not be dismissed.

D. Count Two

The Garvey Defendants have also moved to dismiss, or in the alternative, to strike, Count

Two and the portion of Count Four that pertains to Count Two on the ground that the Court

never granted ACI leave to file those counts when it granted ACI leave to file its Second

Amended Complaint. See Defs.’ Mot. at 11–12; see also Beach TV II, 254 F. Supp. 3d at 125–

130. ACI concedes that it filed Count Two inadvertently after the Court’s grant of leave to

amend and states that it has no objection to the striking Count Two and its related paragraphs.

Because those claims were inadvertently filed, and for the reasons set forth in the Court’s prior

memorandum opinion denying ACI leave to file those claims, the Court grants the Garvey

Defendants’ motion to dismiss Count Two and the related portion of Count Four. See Beach TV

II, 254 F. Supp. 3d at 125–130. As such, Paragraphs 76–79, 59(b), 59(g)(ii), 82, 86, and the

words “or Two” in Paragraph 83 are dismissed from ACI’s Second Amended Complaint.

18 IV. CONCLUSION

For the foregoing reasons, the Garvey Defendants’ Motion to Dismiss Count Three and

Portions of Count Four (ECF No. 86) is GRANTED IN PART AND DENIED IN PART;

ACI’s Motion for Leave to File a Sur-reply (ECF No. 92) is GRANTED; and the Garvey

Defendants’ Motion for Leave to File a Rebuttal (ECF No. 94) is GRANTED. An order

consistent with this Memorandum Opinion is separately and contemporaneously issued.

Dated: August 29, 2018 RUDOLPH CONTRERAS United States District Judge

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