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.: 102 : HENRY A. SOLOMON, et al., : : Defendants. : MEMORANDUM OPINION

GRANTING IN PART AND DENYING IN PART DEFENDANT HENRY A. SOLOMON’S MOTION TO DISMISS CROSSCLAIM

I. INTRODUCTION

In 1999, Defendant Henry Solomon submitted an incomplete form to the Federal

Communications Commission (“FCC”) on behalf of his then-client, Plaintiff the Atlanta

Channel, Inc. (“ACI”). The incomplete form resulted in ACI being denied a valuable license for

one of its TV channels, a decision that was upheld on review and on reconsideration by the FCC

over a decade later. ACI filed suit against Solomon for legal malpractice in 2015. In 2017, ACI

added to its complaint malpractice claims against Defendants Melodie Virtue and her law firm

Garvey, Schubert & Barer. P.C. (together, the “Garvey Defendants”), who took over the FCC

licensing dispute from Solomon when he retired in 2010 and who ACI alleges failed to disclose

that Solomon’s retirement could start the limitations clock on any malpractice claims against

him. In their answer to ACI’s complaint, the Garvey Defendants brought a crossclaim against

Solomon for equitable indemnification or contribution. Solomon now moves to dismiss that

crossclaim, arguing that it is barred under D.C. law. The Court grants the motion to dismiss the

crossclaim for contribution but denies the motion as to indemnification. II. FACTUAL BACKGROUND 1

This Court has already discussed the factual background for this case in detail in prior

opinions. See, e.g., Beach TV Props., Inc. v. Solomon,

, 118–21 (D.D.C.

2018); Beach TV Props., Inc. v. Solomon,

, 76–81 (D.D.C. 2018). The Court

assumes familiarity with its prior opinions and confines its discussion to the facts most relevant

to the present motion.

ACI is a broadcast television company that operates the low power television station

WTHC-LD in Atlanta. Second Am. Compl. ¶ 15, ECF No. 69. Following the passage of the

Community Broadcasters Protection Act of 1999,

Stat. 1501, 1501A–

594 , ACI determined that it would need to obtain a Class A license in order to keep WTHC-LD

on the air. Second Am. Compl. ¶¶ 17–23. ACI sought the services of Solomon, an attorney

specializing in FCC law and procedure,

, to submit a statement of eligibility for a Class A

license for WTHC-LD with the FCC,

. Solomon filed the statement of eligibility on

December 29, 1999.

. However, the statement was defective and the FCC denied ACI

the license.

. Through Solomon, ACI applied for review of the denial on December

29, 2000.

¶¶ 36–37. The FCC affirmed its denial of the license in 2012, and denied

reconsideration of that decision in 2014.

.

In 2000, Solomon joined the law firm of Garvey Schubert Barer, P.C. Garvey Defs.’

Answer 2, ECF No. 99. Melodie Virtue, a lawyer at the firm, worked with Solomon on ACI

1 On a motion to dismiss for failure to state a claim, the Court accepts as true the factual allegations in the complaint and construes them liberally in the Plaintiff’s favor. See, e.g., United States v. Philip Morris, Inc.,

(D.D.C. 2000). Here, the Court accordingly accepts as true the factual allegations in the Crossclaim, including the allegations supporting ACI’s first claim against Solomon, which the Garvey Defendants incorporate by reference in the Crossclaim, Garvey Defs.’ Answer 12, ECF No. 99.

2 matters while he was employed at Garvey Schubert Barer.

at 2–3. After Solomon left the

firm in 2010, Virtue took over the ACI licensing matter, reviewing the pending FCC application

for review starting in early 2012 and representing ACI in its petition for reconsideration after the

FCC’s affirmance of the denial.

at 6–7. ACI contends that Virtue failed to make a number

of required disclosures to ACI upon assuming responsibility for the FCC proceedings relating to

the license, including warning ACI about Solomon’s malpractice and the resulting conflict of

interests between Solomon and the Garvey Defendants, and advising ACI to retain independent

counsel. Second Am. Compl. ¶¶ 59–61. According to ACI, Virtue’s work on the FCC

proceedings “lulled [it] into inaction in filing its malpractice claim against . . . Solomon.” Id. ¶

57.

ACI initially filed suit on October 26, 2015. See Compl., ECF No. 1. After extensive

litigation and the dismissal of most of the claims in ACI’s first amended complaint, see Beach

TV, Props., Inc. v. Solomon, No. 15-1823,

(D.D.C. Oct. 14, 2016), ACI filed

its Second Amended Complaint on June 1, 2017. See Second Am. Compl. Count one of the

Second Amended Complaint is a legal malpractice claim against Solomon for $25,000,000,

which ACI alleges is the loss in value to WTHC-LD resulting from the denial of the Class A

license.

, 73–75. 2 In the alternative, counts three and four are legal malpractice claims

for the same amount against Virtue and, under respondeat superior, Garvey Schubert Barer.

¶¶ 80–87. In these two claims, which are conditioned on ACI’s malpractice claim against

Solomon being barred by the statute of limitations,

, ACI alleges that Virtue’s failure to

2 The Second Amended Complaint erroneously includes a second claim against Solomon, a proposed amendment that ACI acknowledges the Court rejected in a prior opinion. See Beach TV Props.,

(citing Garvey Schubert Barer Mem. Opp’n Pl.’s Mot. Amend 15, ECF No. 62).

3 make the required disclosures “adversely affected ACI’s malpractice claims against . . .

Solomon,” id. ¶ 82.

After the Court denied their motion to dismiss counts three and four, the Garvey

Defendants filed an Answer and Crossclaim against Solomon on September 21, 2018, Garvey

Defs.’ Answer 1. In the Crossclaim, the Garvey Defendants allege that they are entitled to

“equitable indemnification, restitution, reimbursement and/or contribution in whole or in part”

from Solomon because he would be unjustly enriched if the Garvey Defendants were the only

ones to pay for damages substantially resulting from his malpractice. Id. at 15. Solomon filed a

motion to dismiss the Crossclaim on October 12, 2018. Solomon Mot. Dismiss Crossclaim, ECF

No. 102. The Garvey Defendants filed their opposition on October 25, 2018, Garvey Defs.’

Mem. Opp’n, ECF No. 103, and Solomon filed his reply on November 1, 2018, Solomon Reply,

ECF No. 104. The motion is now ripe for review.

III. LEGAL STANDARD

To prevail on a motion to dismiss under Fed. R. Civ. P. 12(b)(6), a plaintiff need only

provide a “short and plain statement of the claim,” Fed. R. Civ. P. 8(a)(2), that “give[s] the

defendant fair notice of what the . . . claim is and the grounds upon which it rests,” Erickson v.

Pardus,

(2007) (per curiam) (omission in original) (quoting Bell Atl. Corp. v.

Twombly,

(2007)). A motion to dismiss under Rule 12(b)(6) does not test a

plaintiff’s ultimate likelihood of success on the merits; rather, it tests whether a plaintiff has

properly stated a claim. See Scheuer v. Rhodes,

(1974). A court considering

such a motion presumes that the complaint’s factual allegations are true and construes them

liberally in the plaintiff’s favor. See, e.g., United States v. Philip Morris, Inc.,

(D.D.C. 2000).

4 Nevertheless, “[t]o 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

v. Iqbal,

(2009) (quoting Twombly,

). This means that a

plaintiff’s factual allegations “must be enough to raise a right to relief above the speculative

level, on the assumption that all the allegations in the complaint are true (even if doubtful in

fact).” Twombly, 550 U.S. at 555–56 (citations omitted). “Threadbare recitals of the elements of

a cause of action, supported by mere conclusory statements,” are therefore insufficient to

withstand a motion to dismiss. Iqbal,

. A court need not accept a plaintiff’s legal

conclusions as true, see

nor must a court presume the veracity of legal conclusions that are

couched as factual allegations. See Twombly,

.

IV. ANALYSIS

Solomon moves to dismiss the Garvey Defendants’ crossclaim in its entirety, arguing that

the Crossclaim only raises claims for contribution and indemnification, both of which are

unavailable as a matter of law in this case. Solomon Mem. Supp. Mot. Dismiss 4–6, ECF No.

102-1. The Garvey Defendants retort that both claims are well-supported under D.C. law and

that the motion to dismiss is premature. 3 Garvey Defs’ Mem. Opp’n 4–10. The Court addresses

each claim in turn. The Court grants the motion to dismiss the crossclaim for contribution

because—assuming the Garvey Defendants are liable on counts three and four of ACI’s second

amended complaint—Solomon and the Garvey Defendants were not joint tortfeasors. However,

3 In their opposition, the Garvey Defendants summarily state that they “seek indemnification, contribution and/or other relief,” Garvey Defs.’ Mem. Opp’n 1, but they do not otherwise challenge Solomon’s assertion that the claims for “restitution” and “reimbursement” are synonyms for indemnification. The Court agrees with Solomon that, given that equitable indemnification is a form of restitution that provides for the full “reimbursement” the Garvey Defendants otherwise seek, the claims are synonymous. The Court accordingly treats the indemnification, restitution, and reimbursement claims as one below.

5 because the validity of the Garvey Defendants’ equitable indemnification claim does not depend

on whether they were actively negligent, the Court denies the motion to dismiss as to that claim.

A. Contribution

First, Solomon moves to dismiss the Garvey Defendants’ contribution crossclaim because

he and the Garvey Defendants were not joint tortfeasors. Solomon asserts that, assuming both

parties were negligent, his alleged negligence occurred thirteen years before the Garvey

Defendants’ and was an independent act resulting in a separate injury to ACI. Solomon Mem.

Supp. Mot. Dismiss 4–6, ECF No. 102-1. In response, the Garvey Defendants contend that,

should they be found liable for malpractice in failing to make the required disclosures to ACI,

they and Solomon would in fact be joint tortfeasors because the Garvey Defendants’ malpractice

would stem from Solomon’s and ACI seeks the same judgment for the same amount of damages

against the Garvey Defendants as it does against Solomon. Garvey Defs.’ Mem. Opp’n 9–10.

The Court is unconvinced.

The D.C. Court of Appeals has consistently held that a defendant can only obtain

contribution from a codefendant if they are joint tortfeasors. “An essential prerequisite for

entitlement to contribution is that the parties be joint tortfeasors in the sense that their negligence

concurred in causing the harm to the injured party.” District of Columbia v. Washington Hosp.

Ctr.,

(D.C. 1998). If “each tortfeasor causes a separate and distinct injury to

the victim, there is no basis for” contribution.

. As a result, the D.C. Court of Appeals

has also noted that contribution is not available for injuries involving successive, independent

tortfeasors. See

And while the D.C. Court of Appeals has not squarely addressed the issue, “other

jurisdictions consistently have held that attorneys sued for legal malpractice have no valid claims

6 for contribution against the alleged original wrongdoer.” Threlkeld v. Haskins Law Firm,

(5th Cir. 1991) (listing cases). This is because plaintiffs in these types of cases

“allegedly suffer[] two distinct injuries” and “the attorneys sued for legal malpractice and the

original tortfeasors are not liable for the same thing.” Id.; see also, e.g., Cherry Hill Manor

Assocs. v. Faugno,

(N.J. 2004) (finding that lawyer who committed

malpractice by failing to bring claim against original tortfeasors could not obtain contribution

against original tortfeasors because they caused “separate torts at disparate times”); Jakobleff v.

Cerrato, Sweeney & Cohn,

(App. Div. 1983) (affirming dismissal of

contribution claim when both the lawyers accused of committing malpractice and the original

tortfeasors “allegedly violated duties to the plaintiff” but they “did not share in responsibility for

the same injury”); Vesely, Otto, Miller & Keefe v. Blake,

, 5–6 (Minn. 1981)

(“Appellants and [the original tortfeasor] committed separate and distinct torts, and committed

them at different times; they were not jointly liable for either tort at any point in time.”).

Here, ACI alleges that Solomon and the Garvey Defendants caused it separate, distinct

injuries. The Garvey Defendants focus on the identical money judgment sought by ACI against

both sets of defendants and on the uncontested link between the injury allegedly caused by

Solomon and the injury they allegedly caused. Garvey Defs.’ Mem. Opp’n 9–10. But just

because one alleged injury could not have occurred without the other does not mean that the

injuries were caused concurrently, or that they are not independent. On one hand, ACI alleges

that Solomon’s malpractice resulted in the denial of a Class A license for WTHC-LD almost

twenty years ago. See Second Am. Compl. ¶¶ 73–75. As a result, ACI lost out on the

$25,000,000 value the Class A license would have given WTHC-LD. See

On the other hand,

assuming Solomon was negligent but a malpractice claim against him is time-barred and the

7 Garvey Defendants are also found to have been negligent, their negligence will have caused ACI

to lose out on a $25,000,000 legal malpractice claim against Solomon. See

¶¶ 80–87. While

the amount of the alleged loss may be the same, the negligent conduct involved occurred at

different times and created different types of injuries to ACI. Because ACI does not allege that

Solomon and the Garvey Defendants caused it to suffer a single, indivisible $25,000,000 injury,

but rather that it “allegedly suffered two distinct injuries” in the same amount, Threlkeld,

, the Court cannot allow Solomon or the Garvey Defendants to receive contribution

from one another. The Court therefore grants the motion to dismiss the Garvey Defendants’

contribution claim.

B. Indemnification

Next, Solomon moves to dismiss the Garvey Defendants’ crossclaim for equitable

indemnification, asserting that the Garvey Defendants were “actively negligent” in their legal

malpractice and therefore cannot be indemnified. Solomon Mem. Supp. 4. The Garvey

Defendants retort that active negligence does not prevent indemnification because the D.C. Court

of Appeals has treated claims for indemnification on a case-by-case basis, taking into account the

parties’ relationship and their relative culpability as factors to consider in deciding such claims.

Garvey Defs.’ Mem. Opp’n 4–5. Without taking a position as to the ultimate validity of the

indemnification claim, the Court agrees that the Garvey Defendants’ active negligence would

not, in itself, defeat their claim. The Court accordingly denies the motion to dismiss the Garvey

Defendants’ crossclaim for indemnification.

In his motion to dismiss, Solomon argues that “if the Garvey Defendants have any

liability at all, it would arise from their own active negligence,” Solomon Mem. Supp. 4, and

that under D.C. law “[w]here joint tort-feasors are guilty of active negligence and their

8 negligence concurs in causing the injury, none is entitled to indemnity,”

(alteration in

original) (quoting Early Settlers Ins. Co. v. Schweid,

(D.C. 1966)). Solomon

concludes that “[o]ne liable for active negligence cannot seek equitable indemnification from a

co-defendant.”

The Court disagrees. The cases Solomon relies on in his motion do not

simply involve an actively negligent defendant seeking equitable indemnification from a co-

defendant, but rather joint tortfeasors who negligently and concurrently caused a single injury.

See Washington Hosp. Ctr., 722 A.2d at 340–41 (noting the continuing rule that “a joint

tortfeasor whose active negligence concurs in causing an injury may be entitled to contribution,

but indemnity is not available” (citing Early Settlers,

, and R. & G. Orthopedic

Appliances & Prosthetics, Inc. v. Curtin,

(D.C. 1991))). Here, as discussed in

Part IV.A., Solomon and the Garvey Defendants were not joint tortfeasors, but rather successive

tortfeasors. The principle barring indemnification for joint tortfeasors mentioned in Early

Settlers and re-iterated in R. & G. and Washington Hospital Center is therefore not at play.

As the Garvey Defendants point out, the D.C. Court of Appeals has in fact applied

equitable indemnification in a number of situations involving successive, “actively” negligent

tortfeasors. Under the principle that equitable indemnity can be “implied out of a relationship

between the parties to prevent a result which is unjust,” Caglioti v. Dist. Hosp. Partners, Lp,

(D.C. 2007) (quoting Howard Univ. v. Good Food Servs., Inc.,

(D.C. 1992)), the Court of Appeals has allowed equitable indemnification claims in situations

involving successive medical tortfeasors, e.g.

(citing R. & G. Orthopedic Appliances, 596

A.2d at 546–48). In Caglioti, the plaintiff was first injured by a malfunction in an electric

wheelchair and taken to the hospital, where he sustained significant additional injuries as a result

of medical malpractice. Id. at 804. As part of a settlement with the wheelchair manufacturer, the

9 plaintiff agreed to release all claims against the medical providers that had allegedly aggravated

his injuries. Id. Despite the “active” negligence of both the wheelchair manufacturer and the

medical providers, the D.C. Court of Appeals recognized that the wheelchair manufacturer could

pursue an indemnification claim against the medical providers. Id. at 807.

In his reply, Solomon changes course and argues that the Garvey Defendants’ claim must

fail because their opposition distinguishes between their “passive” negligence and his “active”

negligence, a distinction the D.C. Court of Appeals has found without merit in recent

indemnification cases. The Court is unconvinced. To be sure, the Court of Appeals has rejected

the active/passive theory of indemnification. In East Penn Manufacturing. Co. v. Pineda,

(D.C. 1990), the D.C. Court of Appeals explained that “[b]ecause the terms ‘active’

and ‘passive’ and ‘primary’ and ‘secondary’ are indefinite, their utility as meaningful guideposts

to when indemnity should be awarded has been criticized by the courts.”

at 1127 n.20 (citing

Am. Motorcycle Ass’n v. Sup. Ct.,

(Cal. 1978)). The court warned in the same

case that elevating “such notions as ‘active/passive’ negligence . . . to rules of general application

may simply obfuscate what ultimately is a principle of equity.”

And a year later, the Court

of Appeals specifically indicated that it “ha[d] rejected the ‘active/passive’ theory of implied

indemnity.” Nat’l Health Labs. v. Ahmadi,

(D.C. 1991).

Arguably, portions of the Garvey Defendants’ opposition appear to be alluding to this

rejected theory. E.g. Garvey Defs.’ Opp’n 8 (“[A]t a minimum[,] . . . Mr. Solomon’s alleged

duties of disclosure and alleged breaches thereof were primary and direct, while those alleged

against Ms. Virtue were, at most, conditional and secondary.”). But Solomon fails to address the

Garvey Defendants’ remaining arguments, that their relationship with him and the relative

degrees of culpability of each party in causing a loss to ACI warrants indemnification. See

10 Garvey Defs.’ Mem. Opp’n 4–5. And in any event, the only ground advanced for dismissal in

Solomon’s motion was that the “Garvey Defendants’ active negligence bars their claim[].”

Solomon Mem. Supp. 4. While the Court is unsure whether an indemnification claim can

ultimately succeed, 4 Solomon’s arguments do not support dismissal. See generally United States

v. Real Prop. Identified as: Parcel 03179-005R,

(D.D.C. 2003) (“It is not

this ‘[C]ourt’s role . . . to act as an advocate for [the parties] and construct legal arguments on

[their] behalf . . . .’” (alterations and first omission in original) (quoting Stephenson v. Cox,

(D.D.C. 2002)). The Court denies the motion to dismiss as to equitable

indemnification.

V. CONCLUSION

For the foregoing reasons, Defendant Henry A. Solomon’s motion to dismiss the

crossclaim of Defendants Melodie A. Virtue and Garvey Schubert Barer, P.C. (ECF No. 102) is

GRANTED IN PART AND DENIED IN PART. The motion to dismiss is granted as to the

crossclaim for contribution but denied as to the crossclaim for indemnification. An order

consistent with this Memorandum Opinion is separately and contemporaneously issued.

Dated: April 22, 2019 RUDOLPH CONTRERAS United States District Judge

4 The Court notes that the Restatement of Torts, which the D.C. Court of Appeals has consistently relied on to establish the boundaries of indemnification, e.g. East Penn,

; Caglioti,

, requires that “two persons” be “liable . . . for the same harm and one of them discharges the liability” of the other, Restatement (Second) of Torts § 886B; see also Restatement (Third) of Torts: Apportionment of Liability § 22 (providing for indemnity when “two or more persons are or may be liable for the same harm and one of them discharges the liability of another”). Here, it is entirely unclear to the Court that the successive injuries allegedly caused by Solomon and the Garvey Defendants can be combined into a single harm for which indemnification can be obtained. And it is equally difficult to see a circumstance where the Garvey Defendants could discharge Solomon’s liability, when a claim against the Garvey Defendants would be premised on the claim against Solomon being time-barred.

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