19-226-cv
Judd Burstein, P.C. v. Raymond A. Long

                                  UNITED STATES COURT OF APPEALS
                                     FOR THE SECOND CIRCUIT

                                         SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to a summary order filed
on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate
Procedure 32.1 and this Court’s Local Rule 32.1.1. When citing a summary order in a
document filed with this Court, a party must cite either the Federal Appendix or an
electronic database (with the notation “summary order”). A party citing a summary order
must serve a copy of it on any party not represented by counsel.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 20th day of December, two thousand nineteen.

PRESENT:           JOSÉ A. CABRANES,
                   GERARD E. LYNCH,
                   CHRISTOPHER F. DRONEY,
                                Circuit Judges.


JUDD BURSTEIN, P.C., AND JUDD BURSTEIN, individually,

                             Plaintiff-Counter-Defendant-Appellee,                     19-226-cv

                             v.

RAYMOND A. LONG,

                             Defendant-Counter-Claimant-Counter-Defendant-Appellant.


FOR PLAINTIFF-COUNTER-DEFENDANT APPELLEE:
                                   BRETT A. SCHER (Adam M. Marshall, on
                                   the brief), Kaufman Dolowich & Voluck
                                   LLP, Woodbury, NY.

FOR DEFENDANT-COUNTER-CLAIMANT-COUNTER-DEFENDANT-
                                  APPELLANT:
                                  MAX FOLKENFLIK, Folkenflik &
                                  McGerity, New York, NY.



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     Appeal from a judgment of the United States District Court for the Southern District of
New York (Katherine Polk Failla, Judge).

        UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the January 4, 2019 judgment of the District Court be and
hereby is AFFIRMED.

         Counter-Claimant-Appellant Raymond A. Long (“Long”) appeals from a judgment of the
District Court dismissing with prejudice certain counterclaims against Counter-Defendant-Appellees
Judd Burstein, P.C., and its principal, Judd Burstein (collectively, “Burstein”). Specifically, Long
objects to the dismissal of his counterclaims for: (1) breach of contract; (2) professional malpractice
relating to Burstein’s handling of an unsuccessful suit filed in the U.S. District Court for the District
of Vermont (the “Parry Action”)1 and of a potential qui tam suit against Northwestern Medical
Center for allegedly violating the False Claims Act (the “Qui Tam Action”); and (3) breach of
fiduciary duty relating to the Parry Action. Long also objects to the District Court’s denial of leave to
amend his pleadings with respect to his counterclaim for legal malpractice during the Qui Tam
Action. We assume the parties’ familiarity with the underlying facts, the procedural history of the
case, and the issues on appeal.2

          We review de novo a grant of a motion to dismiss pursuant to Federal Rule of Civil Procedure
12(b)(6). See Elias v. Rolling Stone LLC, 872 F.3d 97, 104 (2d Cir. 2017). Accordingly, we must
determine whether Long’s well-pleaded allegations, accepted as true, state a claim to relief that is
plausible on its face. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Furthermore, “[w]e review a
district court’s denial of leave to amend for abuse of discretion, unless the denial was based on
futility, in which case we review that legal conclusion de novo.” City of Pontiac Policemen’s & Firemen’s
Ret. Sys. v. UBS AG, 752 F.3d 173, 188 (2d Cir. 2014).

        I. Breach of Contract

        As to Long’s breach of contract counterclaims, Long seeks to recover only the legal fees
incurred to complete the work that Burstein was retained to perform. The District Court held that
such legal fees are consequential damages that were not contemplated by the parties because, under




1
 See Long v. Parry, No. 2:12-cv-81 (WKS), 2016 WL 814861, at *1 (D. Vt. Feb. 29, 2016) (dismissing
case after granting Parry’s motion for summary judgment and denying Long’s cross-motion), aff’d,
679 F. App’x 60 (2d Cir. 2017), cert. denied, 138 S. Ct. 471 (2017).
2
 The parties agree that New York law governs this action pursuant to a choice-of-law provision in
the Retainer Agreement between Long and Burstein.

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the Retainer Agreement, Long’s entitlement to relief is limited to the refund of some or all of the
retainer fee paid to Burstein. We agree.

         As an initial matter, we find that the District Court did not err in interpreting the contract in
addressing a motion to dismiss, because the Retainer Agreement unambiguously establishes the
parties’ intentions with respect to the exact scenario presented here: Burstein’s withdrawal pursuant
to a court order. Joint App. (“JA”) at 127-28. The Retainer Agreement makes clear that in the event
of a court-sanctioned withdrawal, “a fair and reasonable fee,” which in the case of the Parry Action
“may include the return of some or all of the flat fee, would be determined in accordance with
legally accepted standards.” Id.; see also id. at 130.

         Under New York law, it is well established that where “[a]ttorney’s services” are “the
substance of the action alleging a breach of the retainer agreement,” such as here, “the costs of
obtaining substituted services [are] . . . consequential damages.” Hinman, Straub, Pigors & Manning,
P.C. v. Broder, 456 N.Y.S.2d 834, 836 (3d Dep’t 1982); accord Affiliated Credit Adjustors, Inc. v. Carlucci &
Legum, 527 N.Y.S.2d 426, 428 (2d Dep’t 1988) (stating, in the context of an action for legal
malpractice, that legal fees “allegedly incurred in retaining alternate counsel to perform the services
for which the defendants were originally retained . . . [are] not merely an incident of litigation but,
instead, constitute[] consequential damages which may be recoverable”). Such damages “may include
litigation expenses incurred in an attempt to avoid, minimize, or reduce the damage caused by the
attorney’s wrongful conduct.” Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 N.Y.3d 438, 443
(2007) (internal quotation marks and citations omitted). Because the Retainer Agreement clearly
details the parties’ intentions in the event of Burstein’s court-sanctioned withdrawal and does not
contemplate the payment of consequential damages, the District Court did not err in treating the
Retainer Agreement as unambiguous on this point. See Greenfield v. Philles Records, Inc., 98 N.Y.2d 562,
573 (2002) (noting the “established precedent that silence does not equate to contractual
ambiguity”); see also CNH Indus. N.V. v. Reese, 138 S. Ct. 761, 766 (2018) (per curiam).

         We further affirm the District Court’s finding that Long did not adequately plead his claim
for consequential damages. Long alleges that the parties knew that Long would have to pay another
attorney to continue the litigation if Burstein withdrew. JA at 612 ¶96. Critically, however, Long fails
to allege that Burstein agreed to cover that cost or that such an obligation would have been
reasonably within Burstein’s contemplation. Long thus fails plausibly to allege that such
consequential damages were “within the contemplation of the parties at the time the contract was
made.” Am. List Corp. v. U.S. News & World Report, Inc., 75 N.Y.2d 38, 43 (1989); see also Globecon
Grp., LLC v. Hartford Fire Ins. Co., 434 F.3d 165, 176 (2d Cir. 2006). The District Court thus properly
dismissed Long’s breach of contract counterclaim.




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        II. Legal Malpractice

       With respect to Long’s legal malpractice counterclaims, we conclude that the District Court
properly granted Burstein’s motion to dismiss, for substantially the same reasons stated in its
September 20, 2018 Opinion and Order.

        The legal malpractice counterclaim pertaining to the Parry Action was properly dismissed
because, assuming without deciding that Long has adequately alleged that Burstein’s conduct was
negligent, he has not plausibly alleged that any such negligence proximately caused Long to sustain
the damages sought. Specifically, Long’s scant allegations concerning the lost value of a “wished-for
settlement award” are wholly speculative and do not give rise to a reasonable inference that any
damages exist. JA at 554; see Bua v. Purcell & Ingrao, P.C., 952 N.Y.S.2d 592, 598 (2d Dep’t 2012)
(“Conclusory allegations of damages or injuries predicated on speculation cannot suffice for a
malpractice action . . . and dismissal is warranted where the allegations in the complaint are merely
conclusory and speculative.” (internal citations omitted)).

         The counterclaim pertaining to the non-filing of the Qui Tam Action also was properly
dismissed because Long does not plausibly allege that he could have prevailed had Burstein filed and
litigated the potential claim under the False Claims Act. Long does not “adduce specific facts
supporting a strong inference of fraud,” as required by the heightened pleading standard set forth in
Federal Rule of Civil Procedure 9(b). United States ex rel. Chorches for Bankr. Estate of Fabula v. Am.
Med. Response, Inc., 865 F.3d 71, 82 (2d Cir. 2017) (emphasis added) (internal citation and quotation
marks omitted).

        III. Breach of Fiduciary Duty

        We also affirm, for the reasons laid out by the District Court, see JA 564-65, the dismissal of
Long’s counterclaim for successor legal fees and the value of a hypothetical lost settlement award in
the Parry Action, based on an alleged breach of fiduciary duty. Long does not plausibly allege that
Burstein failed to act in the Parry Action while the parties awaited resolution of a motion to transfer
venue. Nor does he plausibly allege that Burstein’s withdrawal, with court approval, was a knowing
breach of fiduciary duty. See Johnson v. Nextel Comm’s, Inc., 660 F.3d 131, 141 (2d Cir. 2011). The facts
alleged in support of Long’s assertion that Burstein’s claims of a breakdown in the attorney-client
relationship were pretextual, which mirror arguments he unsuccessfully presented in opposing
Burstein’s motion for leave to withdraw, are insufficient to raise a plausible inference of pretext.

        IV. Leave to Amend

        Long also argues that the District Court abused its discretion when it denied Long leave to
amend his pleadings with respect to his counterclaim for legal malpractice during the Qui Tam
Action. However, Long had two previous opportunities to amend and the District Court had


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warned Long that no further opportunities to amend would be granted. See City of Pontiac, 752 F.3d
at 188 (affirming denial of leave to amend where plaintiffs had one previous opportunity to amend).
That the District Court had not previously identified the shortcomings in Long’s pleadings with
respect to the scienter element does not excuse Long’s responsibility to adequately plead the
elements of his claim. See Iqbal, 556 U.S. at 678. We thus conclude that the District Court did not
abuse its discretion in denying Long’s motion for leave to amend.

                                         CONCLUSION

       We have reviewed all of the arguments raised by the parties on appeal. We decline to
consider arguments that were not addressed by the District Court in the first instance and find
Long’s remaining arguments to be without merit.

       For the foregoing reasons, we AFFIRM the January 4, 2019 judgment of the District Court.
Each party shall bear its own costs and expenses in connection with this appeal.


                                                      FOR THE COURT:
                                                      Catherine O’Hagan Wolfe, Clerk of Court




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