PHILADELPHIA – A federal judge has ruled that a Florida plaintiff couple – one of whom is an attorney who represented Avco Corporation in aircraft crash litigation and later alleged law firm Blank Rome pursued an injunction she said would have ruined her career – have pled proper claims under the Dragonetti Act.
Veronica Turner and Kevin Turner of Dunnellon, Fla. first filed suit in the U.S. District Court for the Eastern District of Pennsylvania on Feb. 19 versus Avco Corporation of Greenwich, Conn., Textron, Inc. of Providence, R.I., Blank Rome, LLP, James T. Smith, Esq., Rebecca Ward, Esq. and Heidi G. Crikelair, Esq., all of Philadelphia.
The plaintiffs accused the defendants of wrongfully accusing Ms. Turner of ethical breaches and other improper conduct. They claimed that the defendants falsely asserted that Ms. Turner had used information allegedly gleaned in her representation of Avco Corporation in later representing plaintiffs against it.
The defendants are accused of initiating and continuing a meritless action against Ms. Turner with the intent to destroy her career and subjecting her to unnecessary discovery and fact-finding processes intended to cause significant expense, embarrassment and humiliation.
The plaintiffs further alleged that the defendants sought an injunction based solely on a single assignment carried out by Ms. Turner, on a case in which Avco Corporation was not even a party.
They claimed that this was part of an attempt to financially ruin Ms. Turner and destroy her reputation.
Avco Corporation and Textron, Inc. filed a motion for judgment on the pleadings on April 19, seeking for the Court to end the matter.
“Ms. Turner advances a claim under the Dragonetti Act, which was enacted to protect citizens of the Commonwealth from maliciously brought lawsuits. Ms. Turner, by her own admission, was not a citizen of Pennsylvania when the underlying litigation was commenced, nor at any time since. Even so, the Dragonetti Act is not violated if the plaintiff in the underlying suit had probable cause to bring one or more of its claims. Here, the orders and decisions of the District Court and the Third Circuit demonstrate that Avco had probable cause for the underlying litigation as a matter of law,” the motion stated.
“Those courts denied Ms. Turner’s multiple motions to dismiss Avco’s complaint and appeals, determined that Avco’s damages arguments were made in good faith; and found that Ms. Turner had represented clients that were materially adverse to Avco. Ms. Turner’s Dragonetti Act claim also fails because she has not pled any facts that would plausibly demonstrate that Avco lacked probable cause for the underlying litigation.”
The corporate defendants continued that the plaintiffs’ civil conspiracy claim likewise did not pass muster.
“Ms. Turner’s claim for civil conspiracy fails because it does not state facts that could plausibly demonstrate a violation of any underlying crime or tort (Dragonetti Act or otherwise), nor does it allege the requisite agreement for a civil conspiracy. In any event, the intra-corporate conspiracy doctrine bars Ms. Turner’s claims as pled. Ms. Turner’s husband, Kevin Turner, also a citizen of Florida, alleges a claim for loss of consortium. That claim is derivative of Ms. Turner’s Dragonetti Act claim and it fails for the same reasons,” the motion added.
“For all of these reasons, judgment on the pleadings should enter in Avco/Textron’s favor on Ms. Turner’s Dragonetti Act claim. As an additional and independent basis for dismissal, Avco/Textron adopts the arguments advanced by the individual defendants in their motion to dismiss under Rule 41(a)(1)(b)’s two dismissal rule. An adjudication on the merits that Blank Rome did not violate the Dragonetti Act, by virtue of the two dismissal rule, is dispositive of plaintiffs’ claims against Avco/Textron. As Avco/Textron has asserted an advice-of-counsel defense and could only act in the underlying litigation through its attorneys, with whom they were in privity, plaintiffs’ claims against Avco/Textron are barred by res judicata.”
UPDATE
On May 28, the aforementioned motion for judgment on the pleadings was denied, leading to the filing of a second amended complaint and the defendants to move for dismissal, arguing that it fails to state a claim under the Dragonetti Act, because “Turner did not plead facts showing that Avco lacked probable cause to bring the action against her.”
However, U.S. District Court for the Eastern District of Pennsylvania Judge Timothy E. Savage ruled on July 9 that the plaintiffs had indeed pled a proper claim under the Dragonetti Act.
“To show that the defendants lacked probable cause, Turner alleges the following. She represented Avco from 2005 until she terminated the relationship in November of 2017. She completed work on a remaining case seven months later. In March of 2020, she was engaged by a plaintiff’s law firm to handle Daubert motions in an Arizona state court action, Torres v. Honeywell, Et.Al. Although Avco had been originally named as a defendant in that case, it had been dismissed when she accepted the Torres assignment. The work she performed was limited to drafting Daubert motions, responding to Daubert motions filed by defendants (not Avco), and examining the experts at an evidentiary hearing. That was it,” Savage said.
“Turner further alleges that the defendants knew she did not have any confidential information that she used in the Torres action. Yet, they insisted in the underlying action that she did. She claims that Avco could not identify any case she had worked on for Avco that was related to any issues in the Torres action.”
Savage continued that an “attorney’s good faith belief is only as good as the information they have...the client may have the intent to harass or injure the plaintiff, or the attorney may be misled by the client as to the facts and the client’s withholding facts from an expert used to provide a reasonable basis for the action…so, if the client’s information is not accurate or complete, the advice is not reliable and rests on a faulty foundation.”
“That the client was not honest about the real motivation for the lawsuit and misrepresented the facts does not relieve the attorney from conducting a due diligence assessment. Certainly, if the lack of factual support for the litigation is apparent or could have reasonably been discovered, the good faith defense would not shield the attorney from liability. What information Avco gave the Blank Rome attorneys is not known. Was it complete? Was it accurate? One does not know whether there was full disclosure of all relevant facts. Nor does one know what due diligence the attorney defendants performed. Turner is not yet aware of that information. In any event, reliance upon advice of counsel is a defense. It may ultimately be successful. It cannot be decided at the motion to dismiss stage. Only after discovery can the defense be considered,” Savage said.
“In their motion to dismiss, the defendants cite reports and declarations of a legal ethics expert who opined that Turner acted improperly. Undoubtedly, this opinion will provide evidence that supports a finding that Avco reasonably relied on advice of counsel and the attorney defendants had a good faith belief that Avco did not intend to harass or maliciously injure Turner. But, at this stage, we look only to what Turner alleges, not what facts the defendants assert in moving to dismiss. Accepting the alleged facts as true and drawing all reasonable inferences from them in Turner’s favor, we find she has alleged sufficient facts to support her Dragonetti cause of action.”
However, Savage did grant the motions to dismiss Count II for civil conspiracy, as barred by the intra-corporate conspiracy doctrine
For counts of wrongful use of civil proceedings and loss of consortium, the plaintiffs are seeking compensatory and punitive damages in an amount exceeding $75,000, as well as any other relief the Court deems just and proper.
The plaintiffs are represented by Wayne A. Ely in Richboro.
The defendants are represented by Jeffrey N. Rosenthal and Brian S. Paszamant of Blank Rome in Philadelphia, Joseph E. O’Neil and Katherine A. Wang of Campbell Conroy & O’Neil in Berwyn, plus Daniel J. Procaccini, John A. Tarantino and Nicole J. Benjamin of Adler Pollock & Sheehan, P.C. in Providence, R.I.
U.S. District Court for the Eastern District of Pennsylvania case 2:24-cv-00715
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com