13-1463-cv
Henkel v. Wagner
                        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 10th day of February, two thousand fourteen.

PRESENT: PIERRE N. LEVAL,
         GUIDO CALABRESI,
         GERARD E. LYNCH,
                         Circuit Judges.

———————————————————————

ELENI HENKEL,
                                    Plaintiff-Appellant,
                      v.                                               No.    13-1463-cv


STEPHEN WAGNER, COHEN TAUBER
SPIEVACK & WAGNER, P.C.
                        Defendants-Appellees.

———————————————————————

APPEARING FOR APPELLANT:                   JAY EDMOND RUSS, Russ & Russ, P.C.,
                                           Massapequa, New York.

APPEARING FOR APPELLEES:                   MARK K. ANESH & ANTHONY J. PROSCIA,
                                           Lewis Brisbois Bisgaard & Smith, LLP, New
                                           York New York.

         Appeal from the United States District Court for the Southern District of New

York (Alison J. Nathan, Judge).
       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the March 18, 2013 judgment of the district court is AFFIRMED.

       Plaintiff-appellant Eleni Henkel appeals from the judgment of the district court

entered March 18, 2013, dismissing her complaint in this legal malpractice action against

her former attorneys, defendants-appellees Stephen Wagner and the law firm of Cohen

Tauber Spievack & Wagner, P.C. (“Defendants”). Henkel alleges that as the result of the

Defendants’ malpractice, she is forever barred from bringing certain causes of action

based on alleged partnership agreements.

       Pursuant to Federal Rule of Civil Procedure 12(b)(6), the district court dismissed

the complaint for failure to state a claim, concluding, inter alia, that plaintiff had not

sufficiently pled causation. We review the dismissal de novo, considering the “legal

sufficiency of the complaint, taking its factual allegations to be true and drawing all

reasonable inferences in the plaintiff’s favor.” Harris v. Mills, 572 F.3d 66, 71 (2d Cir.

2009). To survive a motion to dismiss, the complaint must contain sufficient factual

matter, accepted as true, “to state a claim to relief that is plausible on its face.” Ashcroft

v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted). “A claim has

facial plausibility when the pleaded factual content allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.” Id. We

presume the parties’ familiarity with the facts and record of prior proceedings, to which

we refer only as necessary to explain our decision.




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       To prevail on a legal malpractice claim in New York, a plaintiff must demonstrate

“that the attorney was negligent, that the negligence was the proximate cause of the injury

and that she suffered actual and ascertainable damages.” Rubens v. Mason, 527 F.3d 252,

254-55 (2d Cir. 2008) (internal quotation marks omitted). To establish causation, the

plaintiff “must demonstrate that a reasonable fact-finder could conclude that a reasonable

fact-finder in the underlying suit would have arrived a different result but for the

attorney’s negligence.” Id. at 255 (emphasis added) (internal quotation marks omitted).

       The district court correctly concluded that Henkel failed to allege that she would

have prevailed on her partnership claims but for her attorneys’ negligent conduct because

the state court found that those claims were not meritorious and Henkel’s malpractice

complaint did not allege any additional facts or set forth any new theories of relief for

those claims that were not asserted in the underlying complaint. To the extent that

Henkel now argues on appeal that her attorneys were negligent in failing to amend her

complaint to add “claims for damages based on a breach of partnership agreement which

was oral in nature and unequivocally referable to the parties’ conduct,” Appellant Br. 19,

those arguments do not render her causation allegations plausible. The state court noted

that “[a]lthough the complaint makes various allegations that are supposedly indicia of an

oral partnership agreement already in progress, these allegations do not urge the

conclusion that the parties were acting as partners; they are consistent with the parties’

anticipating that Henkel would be made a partner while actively negotiation the terms of a

written partnership agreement.” J.A. 67. Whether or not that ruling collaterally estops


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Henkel from further litigating the merits of her partnership claims, in the absence of any

plausible allegation that amendment of the underlying complaint would have overcome

the defects identified by the state court, that court’s decision renders Henkel’s causation

allegations insufficiently plausible to survive a motion to dismiss.

       The district court also dismissed Henkel’s claims that Defendants’ malpractice

further precluded her from pursuing alternative claims based on an alleged employment

contract, without prejudice to their refiling depending on the outcome of state court

litigation in which those claims remain sub judice. Henkel does not question that ruling,

so we have no occasion to address it.

       We have considered all of Henkel’s remaining arguments and find them to be

without merit. For the foregoing reasons the judgment of the district court is

AFFIRMED.


                                   FOR THE COURT:
                                   CATHERINE O’HAGAN WOLFE, Clerk of Court




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