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Anderson v. Pistotnik Law

United States District Court, D. Kansas

December 14, 2018

MARIE A. ANDERSON, Plaintiff,
v.
PISTOTNIK LAW, BRIAN R. COLLIGNON, HENRY & MATHEWSON, ELIZABETH L. HENRY, and DARYANNE NICOLE OTT, Defendants.

          MEMORANDUM AND ORDER

          ERIC F. MELGREN UNITED STATES DISTRICT JUDGE.

         This case arises out of a car accident that occurred on February 12, 2016. Plaintiff seeks damages from the other driver, Defendant Daryanne Nicole Ott, who allegedly ran a red light and hit Plaintiff's vehicle. Plaintiff also pursues various claims against the lawyers that represented her in conjunction with her personal injury claim against Ott, as well as those lawyers' respective law firms.[1] This Order addresses four motions: (1) Motion to Dismiss by Defendants Pistotnik Law and Brian Collignon (Doc. 16), (2) Defendants Henry & Mathewson, P.A.'s and Elizabeth L. Henry's Motion to Dismiss (Doc. 27), (3) Motion to Dismiss by Defendant Ott (Doc. 44), and (4) Plaintiff's Motion to Amend (Doc. 49). For the reasons explained below, the Court grants Defendants' motions and denies Plaintiff's motion. Plaintiff's claims are dismissed without prejudice.

         I. Factual and Procedural Background[2]

         On February 12, 2016, Defendant Ott drove her vehicle through a red light in Wichita, Kansas. Ott's vehicle struck Plaintiff's vehicle, causing Plaintiff's 1999 Chevy Suburban to flip, trapping Plaintiff inside the vehicle. Plaintiff was taken to the hospital and treated for multiple injuries, primarily to her neck, back, and head.

         Shortly after the accident, Plaintiff retained Defendant Elizabeth Henry, a partner with Henry & Mathewson, to represent her in connection with her personal injury claim. Henry also represented Plaintiff in connection with a Protection from Stalking (“PFS”) matter filed by Plaintiff's mother, who had custody of Plaintiff's son. On June 20, 2017, Henry sent Plaintiff and her husband, Daniel Moore, a letter terminating Henry's representation of Plaintiff and her husband in connection with the PFS matter, as well as Henry's representation of Plaintiff in her personal injury claim. It stated, in part:

Yesterday I received an e-mail from the Shank's attorney stating that you believed the Judge's ruling in the PFS permits you to see [child's name] and that they cannot prevent that interaction. I don't know whether you believe this or have said it but it has brought home to me that I simply can no longer represent you either regarding contact with [child's name] or your car accident of February 1, 2016.
I have repeatedly tried to tell you that you have no legal right to contact with [child's name] and you are unable or unwilling to accept my legal conclusion. In view of the fact that this is the primary focus of your current life, this breakdown in communication renders me unable to continue to represent you on your personal injury case as well. . . .

         Henry allowed approximately one and a half years to go by after the accident without sending an initial demand letter. Plaintiff alleges that this delay deprived her of her right to due process of law and constitutes a breach of fiduciary duty. She also asserts that Henry acted negligently in not speaking with Plaintiff before terminating Henry's representation.

         In August 2017, Plaintiff retained Defendant Brian Collignon, with Pistotnik Law, to represent her in her personal injury matter. Collignon sent a demand letter to Key Insurance on September 27, 2017, assuring Plaintiff that the insurance company would send an answer within a couple of weeks. Plaintiff did not get in touch with Collignon again until late October 2017, when Collignon informed Plaintiff of a settlement offer from the insurance company. Plaintiff and her husband only received a couple of phone calls from Collignon over the course of the next few months. Collignon offered no course of action that he felt would benefit Plaintiff and her husband, and he took actions against Plaintiff's wishes. This caused Plaintiff to suffer emotional distress. Plaintiff alleges that Collignon violated 18 U.S.C. § 242 and asserts claims under 42 U.S.C. § 1983.

         Defendants filed three motions to dismiss-one by Collignon and Pistotnik Law, one by Henry and Henry & Mathewson, and one by Ott. Plaintiff filed responses to the attorney Defendants' motions, but did not file a response to Ott's motion. Plaintiff also filed a motion for leave to amend her Amended Complaint.

         II. Legal Standard

         A. Motion to dismiss for failure to state a claim

         Under Federal Rule of Civil Procedure 12(b)(6), a party may move for dismissal of “a claim for relief in any pleading” that fails to state a claim upon which relief can be granted.[3] Upon such motion, the Court must decide “whether the complaint contains ‘enough facts to state a claim to relief that is plausible on its face.' ”[4] The plausibility standard reflects the requirement in Rule 8 that pleadings provide defendants with fair notice of the nature of the claims as well as the grounds on which the claim rests.[5] A claim is facially plausible if the plaintiff pleads facts sufficient for the Court to reasonably infer that the defendant is liable for the alleged misconduct.[6]In determining whether a claim is facially plausible, the Court must draw on its judicial experience and common sense.[7] The Court assumes all well-pleaded facts to be true and construes them in the light most favorable to the non-moving party.[8] The Court does not “weigh potential evidence that the parties might present at trial, ” but assesses whether the complaint “alone is legally sufficient to state a claim for which relief may be granted.”[9] Because Plaintiff appears pro se, the Court must liberally construe her pleadings.[10] Liberal construction, however, “does not relieve the plaintiff of the burden of alleging sufficient facts on which a recognized legal claim could be based.”[11]

         B. Motion for leave to amend

         Federal Rule of Civil Procedure 15 governs amended and supplemental pleadings. “A party may amend its pleading once as a matter of course within: (A) 21 days after serving it, or (B) if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.”[12] If a plaintiff may not amend as a matter of right under Rule 15(a)(1), it “may amend its pleading only with the opposing party's written consent or the court's leave.”[13] Leave to amend shall be freely given “when justice so requires.”[14] The Court, however, may “deny leave to amend based on undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party . . . or futility of amendment.”[15]

         III. Analysis

         A. Plaintiff's federal claims fail to state a claim upon which relief can be granted.

         Plaintiff's Amended Complaint may be read to assert two causes of action based on federal law-violations of his due process rights and violations of 18 U.S.C. § 242. Both claims fail.

         “The Due Process Clause of the Fourteenth Amendment . . . protects against governmental deprivations of life, liberty, or property ‘without due process of law.' ”[16] To pursue a procedural due process violation, (1) Plaintiff must have been deprived of a constitutionally protected right without due ...


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