The opinion
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
EL DORADO DIVISION
BRIAN SKENDER PLAINTIFF
v. Case No. 1:17-cv-1025
C. MARSHALL FRIEDMAN, P.C.;
C. MARSHALL FRIEDMAN; and
KENNETH E. RUDD, jointly
and severally DEFENDANTS
ORDER
Before the Court is Defendants’ Motion to Dismiss. (ECF No. 16). Plaintiff has filed a
response. (ECF No. 21). Defendants have filed a reply. (ECF No. 24). The Court finds this
matter ripe for consideration.
BACKGROUND
This is an action for legal malpractice and fraud. Plaintiff was injured in a slip and fall
accident on July 11, 2012, while employed by Union Pacific Railroad. In October of 2013,
Plaintiff approached his personal attorney, Sandra C. Bradshaw, about bringing a Federal
Employers Liability Act (“FELA”) action against Union Pacific. Bradshaw represented Plaintiff
in the incipient stages of litigation and eventually referred Plaintiff to Defendants—a St. Louis,
Missouri, based law firm—because they are experienced in FELA litigation.
On October 19, 2015, Plaintiff’s FELA action was dismissed with prejudice for insufficient
process and insufficient service of process. More specifically, the FELA claim was dismissed
because Defendants prepared a deficient summons. Defendants appealed the ruling, arguing that
the dismissal should have been without prejudice. Defendants were successful on appeal and filed
another FELA action on Plaintiff’s behalf. This second FELA action was later dismissed with
prejudice.
On March 31, 2017, Plaintiff commenced this action, alleging that Defendants committed
legal malpractice and fraud when they failed to communicate to him that his case had been on
appeal and that it was later dismissed with prejudice. On February 11, 2018, Defendants filed the
instant Motion to Dismiss, arguing that this action should be dismissed because the statute of
limitations period ran before Plaintiff commenced this action. Plaintiff opposes the motion,
arguing that this action is timely and that in the alternative, that the statute of limitations was tolled
due to Defendants’ fraudulent concealment.
LEGAL STANDARD
To survive a motion to dismiss under Rule 12(b)(6), a pleading must provide “a short and
plain statement of the claim that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The
Court must accept as true all factual allegations set forth in the complaint, drawing all reasonable
inferences in the plaintiff’s favor. See Ashley Cnty., Ark. v. Pfizer, Inc., 552 F.3d 659, 665 (8th
Cir. 2009). However, 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)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility
when the plaintiff pleads factual content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Id.
“The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more
than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that
are ‘merely consistent with’ a defendant’s liability, it ‘stops short of the line between possibility
and plausibility of entitlement to relief.’” Id. (quoting Twombly, 550 U.S. at 557). “Determining
whether a complaint states a plausible claim for relief will . . . be a context-specific task that
requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679. In
considering a motion to dismiss under Rule 12(b)(6), “the complaint should be read as a whole,
not parsed piece by piece to determine whether each allegation, in isolation, is plausible.” Braden
v. Wal-Mart Stores, Inc., 588 F.3d 585, 594 (8th Cir. 2009).
“A pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements
of a cause of action will not do.’ Nor does a complaint suffice if it tenders ‘naked assertions’
devoid of ‘further factual enhancement.’” Id. (internal citations and alterations omitted) (quoting
Twombly, 550 U.S. at 555, 557). In other words, “the pleading standard Rule 8 announces does
not require ‘detailed factual allegations,’ but it demands more than an unadorned, the-defendant-
unlawfully-harmed-me accusation.” Id. (quoting Twombly, 550 U.S. at 555).1
DISCUSSION
Defendants argue that this action should be dismissed because it was commenced after the
applicable statute of limitations expired. In response, Plaintiff argues that he timely commenced
this action because Defendants’ alleged conduct amounts to an ongoing occurrence of malpractice.
Alternatively, Plaintiff argues that the statute of limitations period was tolled because Defendants
fraudulently concealed their alleged negligent conduct.
First, the Court must determine if this action is timely. If the Court determines that the
limitations period expired before Plaintiff brought this action, the Court will then determine
whether the statute of limitations was tolled due to fraudulent concealment.
1 Because the pleadings in this case are closed, the Court construes Defendants’ motion as being filed pursuant to
Federal Rule of Civil 12(c). The standard for Rule 12(c) motions is the same as for motions made under Rule 12(b)(6).
Ashley Cnty., Ark., 552 F.3d at 665.
I. Statute of Limitations
The statute of limitations for legal malpractice in Arkansas is three years. ARK. CODE ANN.
§ 16-56-105(3). Arkansas follows the “occurrence rule” with respect to the commencement of
the statute of limitations in legal malpractice cases. Moix-McNutt v. Brown, 348 Ark. 518, 521,
74 S.W.3d 612, 613 (2002). This rule provides that the statute of limitations applicable to a
malpractice action begins to run, in the absence of concealment of the wrong, when the negligence
occurs, and not when it is discovered. Ragar v. Brown, 332 Ark. 214, 964 S.W.2d 372 (1998).
“This rule applies even when there is an interval between the allegedly tortious act and the damage
suffered by the plaintiff.” Rice v. Ragsdale, 104 Ark. App. 364, 368, 292 S.W.3d 856, 860-61
(2009).
This action was commenced on March 6, 2017. Defendants argue that the alleged negligent
conduct—preparing a deficient summons—occurred on October 23, 2013, and that any
malpractice action should have been filed on or before October 23, 2016. In response, Plaintiff
argues that Defendants engaged in an ongoing pattern of malpractice over the course of the
representation. Plaintiff contends that this pattern concluded on September 17, 2015, when the
second FELA action was dismissed, and therefore this action is timely.
Upon consideration, the Court agrees with Defendants. Plaintiff alleges that Defendants
filed the first FELA action on October 23, 2013. Plaintiff further alleges that Union Pacific
answered affirmatively pleading deficient process and deficient service of process on November
25, 2013. Any negligence predicated on a defective summons prepared during this period is well
outside the applicable three-year limitations period. By citing to the ongoing pattern of alleged
malpractice, Plaintiff essentially asks the Court to adopt the “continuing-representation doctrine”
or “termination of employment rule” of calculating whether an action is timely. Ragar, 332 Ark.
at 222, 964 S.W.2d at 376. The Arkansas Supreme Court has expressly rejected both of these
approaches in legal malpractice cases. Id. Therefore, the Court finds that this action is time-barred
unless fraudulent concealment is present, thereby tolling the limitations period.
II. Fraud and Fraudulent Concealment
Because the Court has found that the limitations period expired before Plaintiff commenced
this action, the Court now addresses Plaintiff’s fraudulent concealment argument.
Under Rule 9(b)’s heightened pleading standard, “allegations of fraud, including fraudulent
concealment for tolling purposes, [must] be pleaded with particularity.” Summerhill v. Terminix,
Inc., 637 F.3d 877, 880 (8th Cir. 2011) (citing Great Plains Trust Co. v. Union Pac. R.R. Co., 492
F.3d 986, 995 (8th Cir. 2007)). Under Rule 9(b), a plaintiff must plead “such matters as the time,
place, and contents of false representations, as well as the identity of the person making the
misrepresentation and what was obtained or given up thereby.” Abels v. Farmers Commodities
Corp., 259 F.3d 910, 920 (8th Cir. 2001) (internal citation and quotation omitted). In other words,
the party must specify the “who, what, where, when, and how” of the alleged fraud. United States
ex rel. Costner v. URS Consultants, Inc., 317 F.3d 883, 888 (8th Cir. 2003). In order to toll a
limitation period on the basis of fraudulent concealment, there must be: “(1) a positive act of fraud
(2) that is actively concealed, and (3) is not discoverable by reasonable diligence.” Summerhill,
637 F.3d at 880. “Conclusory allegations that a defendant’s conduct was fraudulent and deceptive
are not sufficient to satisfy the rule.” Commercial Prop. Invs. Inc. v. Quality Inns Int’l Inc., 61
F.3d 639, 644 (8th Cir. 1995).
Upon consideration, the Court finds that Plaintiff has failed to meet the pleading standard
set out in Rule 9(b). The Court has reviewed Plaintiff’s Complaint in its entirety and can find no
allegations that Defendants actively tried to conceal the status of Plaintiff’s case or that Defendants
committed some other positive act of fraud. Moreover, Plaintiff’s only allegations which could be
construed as fraudulent concealment are contained in a single sentence which states: “That
Defendants never told Plaintiff that the case was dismissed at any point of the representation either
in 2015 or 2016 which is in violation of the ethics rules for Arkansas Lawyers.” (ECF No. 3, p.
2). At most, Plaintiff alleges a continuation of a prior nondisclosure. However, this is insufficient
to suspend the running of the statute of limitations. Meadors v. Still, 344 Ark. 307, 315, 40 S.W.3d
294, 301 (2001) (citation omitted). Therefore, the Court finds that Plaintiff has failed to
demonstrate that the statute of limitations was tolled due to fraudulent concealment.2
CONCLUSION
For the foregoing reasons, the Court finds that Defendants’ Motion to Dismiss (ECF No.
16) should be and hereby is GRANTED. Accordingly, Plaintiff’s Complaint is DISMISSED
WITHOUT PREDJUDICE.3
IT IS SO ORDERED, this 12th day of April, 2019.
/s/ Susan O. Hickey
Susan O. Hickey
Chief United States District Judge
2 Plaintiff also alleges a claim for fraud. (ECF No. 1). The pleading standard for fraud and fraudulent concealment
for tolling purposes is the same. Summerhill, 637 F.3d at 880. Therefore, in light of the above ruling, the Court finds
that Plaintiff has also failed to plead fraud with the particularity required by Rule 9(b).
3 Plaintiff has filed a Motion to Supplement his response to Defendants Motion to Dismiss. (ECF No. 27). The motion
contains no argument or evidence to warrant a departure from the above ruling. Therefore, Plaintiff’s Motion to
Supplement (ECF No. 27) is DENIED AS MOOT.