UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

ARAYA HENOK, )
)
Plaintiff, )
)
v. ) Civil Case No. 14-00l54 (RJL)
)
WENDY H. SCHWARTZ, et al., )
)
Defendants. ) F I l- E D
t JuL - 3 2014
MEMORANDUM OPINION
. . ` ` t
<July _7»2@14) [Dkt. ##s, 8, 151 éf,'§§‘§; ¥’.,?th“;'i}!;ifi§`t?,?%“§.‘l?.i%la

Plaintiff Araya Henok ("plaintiff" or "Henok") brought this action on January 31,
2014 against Wendy H. Schwartz, Esq. and Wendy H. Schwartz and Associates, PLLC
(together "defendants"), seeking damages for defendants’ alleged legal malpractice. See
Complaint ("Compl.") [Dkt. #1].1 Now before the Court are defendants’ Motion to
Dismiss and Plaintiff’ s Motion for Summary Judgment. See Defendants’ Motion to
Dismiss ("Defs.’ Mot.") [Dkt. #5]; Plaintiff`s Motion for Summary Judgment [Dkt. #8].
Upon consideration of the parties’ pleadings, relevant law, and the entire record in this

case, the defendants’ Motion to Dismiss is GRANTED and the plaintiff’s Motion for

‘ Plaintiff filed an Amended Complaint on May 23, 2014. See Amended Complaint [Dkt. #14].
Rule 15 of the Federal Rules of Civil Procedure states that a plaintiff may only amend a pleading
as a matter of course once_within 21 days of filing the original pleading or within 21 days after
service of a motion under Rule 12(b)(6), whichever is earlier. See Fed. R. Civ. P. 15(a)(1).
Defendants filed a Motion to Strike the Amended Complaint on June 1l, 2014. See Motion to
Strike Amended Complaint [Dkt. #15]. Because plaintiff filed his amended complaint more than
21 days after service of defendants’ Motion to Dismiss, he was required to obtain either
defendants’ consent or leave of the Court. See Fed. R. Civ. P. 15(21)(2). Unfortunately for the
plaintiff, however, he obtained neither. Accordingly, defendants’ Motion to Strike the Amended
Complaint is GRANTED and plaintiffs original Complaint remains the operative pleading.

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Summary Judgment is DENIED as moot.
BACKGROUND

This malpractice case concerns defendants’ allegedly negligent legal
representation of the plaintiff during his divorce, including child-custody and division-of-
assets proceedings in D.C. Superior Court. See Compl. at 111 5-9. The divorce
proceedings were predominated by consideration of two major issues: (l) the awarding
of custody of the couple’s children, see Compl. at 1[ 22, and (2) the resolution of the
ownership of two adjacent properties-connected by a 4 ft. by 8 ft. opening-located at
1800 New Jersey Avenue, NW and 435 S Street, NW in Washington, D.C. See Compl. at
1[ 12.

During the course of the trial, plaintiff alleges that it became clear that both his
wife and the presiding judge_Ju'dge John H. Bayly, Jr._were practicing Catholics. See
Compl. at 1]16. Plaintiff-a non-Catholic_wanted defendants to file a motion requesting
that Judge Bayly recuse himself on the basis of his shared religion with plaintiffs ex-
wife. See Compl. at 1[1[ 17, l9. Defendants advised plaintiff against filing such a motion
as it might do more harm than good, and thus, no motion to recuse was filed. See Compl.
at 1111 l7, 21. Plaintiff also wished to file a motion seeking to "board off and partition" the
opening between the two properties. See Compl. at 11 l3. Defendants again advised the
plaintiff against filing such a motion. See Compl. at 11 l4.

The Superior Court also considered several incidents of domestic violence in
crafting its divorce decree. See Compl. at 11 22. Plaintiff alleges that defendants

negligently failed to file motions in limine seeking to exclude the incidents of domestic

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violence, which resulted in an unnecessarily long trial and an adverse outcome for the
plaintiff. See Compl. at 1111 23-31. Following a 14-daytrial, the Superior Court_in its
divorce decree-awarded primary custody of the children and both properties to the
plaintiff’s eX-wife. See Compl. at 1111 l5, 22, 28.

STANDARD OF REVIEW

The court may dismiss a complaint or any portion of it for failure to state a claim
upon which relief may be granted. Fed. R. Civ. P. l2(b)(6). In considering a motion to
dismiss, however, the court may only consider "the facts alleged in the complaint, any
documents either attached to or incorporated in the complaint and matters of which [the
court] may take judicial notice." E.E.O.C. v. St. Francz`s Xavz`er Parochial Sch., ll7 F.3d
62l, 624 (D.C. Cir. 1997). To survive a motion to dismiss, a plaintiff must plead "factual
content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged." Ashcro# v. Iqbal, 556 U.S. 662, 678 (2009).

In considering a Rule l2(b)(6) motion, the court must construe the complaint "in
favor of the plaintiff, who must be granted the benefit of all inferences that can be
derived from the facts alleged." Schuler v. Um'tea’ States, 617 F.Zd 605, 608 (.D.C. Cir.
1979) (internal citation and quotation marks omitted). However, factual allegations, even
though assumed to be true, must still "be enough to raise a right to relief above the
speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Moreover, the
court need not "accept legal conclusions cast in the form of factual allegations," nor
"inferences drawn by plaintiffs if such inferences are unsupported by the facts set out in

the complaint." Kowal v. MCI Commc'ns Corp., 16 F.3d l27l, 1276 (D.C. Cir. 1994).

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ANALYSIS
Plaintiff alleges that defendants committed legal malpractice by negligently failing
to meet the required standard of care for attorneys. See Compl. at 1111 5-9. For plaintiffs
claim to succeed, he must produce sufficient evidence to establish (l) the applicable
standard of care in this situation; (2) that there was a breach of this standard of care; and
(3) that this breach caused him to suffer some injury. See Athria’ge v. Aetna Cas. & Sur.
C0., 351 F.3d 1166, 1174 (D.C. Cir. 2003) (citing Mills v. Cooter, 647 A.2d 1118, 1123
(D.C. 1994)). Plaintiff’s injury must be legally cognizable for him to recover on a theory
of legal malpractice. See Mount v. Baron, 154 F. Supp. 2d 3, 8 (D.D.C. 2001). Indeed,
the plaintiff must demonstrate that absent the defendants’ alleged negligence, he would
have prevailed on an otherwise meritorious claim. See Macktal v. Garde, 111 F. Supp.
2d 18, 21 (D.D.C. 2001) (citing Niosi v. Aiello, 69 A.Zd 57, 59-60 (D.C. 1949)).
In order to determine whether plaintiff had an otherwise meritorious claim, the

court is required to "evaluate the so-called ‘case within the case."’ Ia’. Indeed, the
plaintiff must "demonstrate that his underlying case would have succeeded absent the

alleged malpractice." Ia'. If, however, it is shown that plaintiff’s claim still would have

failed absent the alleged negligence, plaintiffs claim of legal malpractice cannot succeed.

See ia’. at 21-22. Unfortunately for the plaintiff here, he can offer no evidence to support
his contention that, absent the defendants’ alleged negligence, the divorce decree would
have been favorable to him, and thus, his malpractice claim must fail. How so?

The plaintiff alleges that the adverse rulings in his divorce and child custody

proceedings were caused by the defendants’ negligence. Indeed, he argues that if

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defendants had filed certain motions-a motion seeking recusal of Judge Bayly, a motion
to close the opening between the two houses, and various motions in limine-that the
trial would have resulted in a more favorable outcome. See Compl. at 1[1] 21, 23-30. lt is
therefore left to this Court to determine whether those motions were legally viable claims,
and whether their filing would have resulted in a different outcome for the plaintiff. See
Macktal, lll F. Supp. 2d at 2l. The need for an in-depth analysis of whether the filing of
plaintiffs desired motions would have resulted in a different outcome at trial is, however,
largely obviated by the D.C. Court of Appeals’ opinion considering and ruling on the
very issues raised by plaintiff in this lawsuit. See Araya v. Keleta, 65 A.3d 40 (D.C.
2013).

Regarding plaintiffs claims of Judge Bayly’s religious bias, the D.C. Court of
Appeals found "no evidence of bias and no appearance of bias" in the trial record. Id. at
44 n.3. In fact, Judge Bayly actually admonished plaintiffs wife ’s counsel for raising the
issue of religion, as it was "immaterial" to the proceedings. See id. Indeed, the D.C.
Court of Appeals stated that it "reject[ed] the husband’s claims that the [trial] court was
biased in favor of the wife because she is Catholic and against the husband because he
does not attend church." Ia’. To say the least, it strains credulity for plaintiff to now
argue_following the ruling by the D.C. Court of Appeals on this very point-that the
filing of a motion requesting Judge Bayly’s recusal would have resulted in a favorable
divorce decree.

Plaintiffs arguments regarding defendants’ alleged negligence for not filing

motions in limine are equally unpersuasive. Regarding the Superior Court’s

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consideration of the incidents of domestic violence, the D.C. Court of Appeals noted that
"a court need not have jurisdiction to have tried an offense in order to credit testimony
about it or to take judicial notice of a conviction," nor is it "precluded from taking notice
of intrafamily offenses as to which the statute of limitations might have barred a criminal
complaint." See id. at 45 n.5. The plaintiff argues that defendants negligently failed to
file motions in limine seeking to exclude incidents of domestic violence that did not
result in a conviction. See Compl. at 11 23. Plaintiff further contends that these motions
would have been granted, thereby excluding incidents of domestic violence for which
there was no conviction, resulting in a divorce decree more favorable to the plaintiff. See
ia’. Unfortunately for the plaintiff, however, the D.C. Court of Appeals clearly rejected
that position, stating that the "ultimate disposition [of the domestic violence complaints] `
in no way made it inappropriate for the court to consider the 2002 assault." See Araya,
65 A.3d at 44 n.4, 45 n.5. I can imagine no situation where the consideration of domestic
violence-wherever it may have occurred-is more appropriate than proceedings
determining the custody of children. Accordingly, plaintiff has failed to show that but for
the defendants’ alleged negligent failure to file motions in limine, the evidence of
domestic violence would have been excluded and he would have received a more
favorable divorce decree.

Finally, plaintiff argues~again unsuccessfully-that defendants negligently failed
to file a motion seeking to close off the opening between the New Jersey Avenue and S
Street properties, resulting in the Superior Court awarding both properties to his ex-wife.

See Compl. at. 1111 12-15. Under D.C. law, upon the entry of a divorce, each party is

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solely entitled to any property acquired prior to the marriage, while any property acquired
during the marriage is to be distributed between the two parties. See D.C. Code § 16-910
(2001). Here, it is undisputed that the plaintiff acquired the New Jersey Avenue property
prior to the marriage, and that the S Street property was acquired by the plaintiff and his
ex-wife after the two were wed. See Compl. at 1111 l2-l3. Nevertheless, there are
circumstances under which "property may be changed or transformed such that it loses its
character as property acquired prior to the marriage." Araya, 65 A.3d at 53 (citing
Darling v. Darling, 444 A.Zd 20, 24 (D.C. l982) (internal quotation marks omitted). 2
That is exactly what occurred here, and the D.C. Court of Appeals held as such. 3
Based on the above, I find plaintiff’s argument-that defendants’ failure to file a

motion seeking partition of the two properties directly resulted in the Superior Court

2 Here, the D.C. Court of Appeals concluded that

[W]here a spouse’s separate property has been combined or blended with marital
property in such a way that (l) the two items of property came to be used as one
property and (2) one or both properties would be destroyed or damaged or left
with a gaping deficiency or defect if the properties were separated, the Darling
rule permits the trial court to treat the separate property as "transformed" and the
combined or blended property as marital property that is subject to equitable
distribution under § l6-9l O(b).

Araya, 65 A.3d at 56.

3 The New Jersey Avenue property-once connected to the S Street property by the opening
between the properties_ceased to be the plaintiff s pre-marital property and was transformed
into marital property subject to equitable division under D.C. Code § l6-9l0(b). This
transformation occurred before the plaintiff filed for divorce, and any subsequent attempt to
partition the two properties by simply closing off the passageway would have done nothing to
revert the character of the property back to pre-marital property belonging solely to the plaintiff.
See Araya, 65 A.3d at 56. Indeed, the Court of Appeals specifically noted that the single blended
property could not be returned to use as individual units because the S Street property had been
rebuilt without a kitchen. See id.

awarding both properties to his eX-wife_to be completely without merit.
CONCLUSION
Accordingly, for all the foregoing reasons, the Court GRANTS defendants’
Motion to Strike the Amended Complaint, GRANTS defendants’ Motion to Dismiss, and
DENIES plaintiff s Motion for Sumrnary Judgment as moot. An Order consistent with

this decision accompanies this Memorandum Opinion.

   

United States lslrict Judge

