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Opsitnick v. Crumpler

United States District Court, E.D. North Carolina, Western Division

April 28, 2014

ROBERT OPSITNICK., JR. and ANNA M. OPSITNICK., Plaintiffs,
v.
JUNIUS ALLEN CRUMPLER, III, Defendant.

ORDER

JAMES C. DEVER, III, Chief District Judge.

On December 4, 2013, Robert Opsitnick, Jr., and Anna M. Opsitnick ("plaintiffs" or "Opsitnicks") filed a civil action against Junius Allen Crumpler, III ("defendant" or "Crumpler"), alleging breach of contract and legal malpractice. See Compl. [D.E. 1]. Robert Opsitnick, Jr. is a member of the Massachusetts Bar, but he and his wife Anna Opsitnick (both Massachusetts citizens) filed suit prose against Crumpler. Crumpler is a North Carolina citizen and a member of the North Carolina Bar. Jurisdiction is based on diversity. See 28 U.S.C. ยง 1332(a). On January 23, 2014, Crumpler filed a motion to dismiss for failure to state a claim upon which relief can be granted. See [D.E. 10]. On February 20, 2014, the Opsitnicks responded in opposition [D.E. 15]. As explained below, Crumpler's motion to dismiss is granted in part and denied in part.

I.

In October 2009, the Opsitnicks retained J. Allen Crumpler, ill, Attorney at Law, PLLC to represent them in a civil suit in Wake County Superior Court. See [D.E. 1-2]. In that civil suit, the Opsitnicks' adult daughter was suing them concerning her trust fund. The Opsitnicks paid Crumpler's law firm $10, 000, and Crumpler's law firm agreed to represent the Opsitnicks in

all pre-trial work for Superior/District Court matters relating to civil case #: 09 CVS 2069. Representation may include arguing summary judgment and all dispositive motions at the trial court level. Representation does not include trial work which will, if necessary, be covered under a separate fee agreement... [or] any appeals... relating to this case.

[D.E. 1-2] 2 (emphasis omitted).

According to the Opsitnicks, complaint, Crumpler failed to advise the Opsitnicks of pending discovery requests and deposition notices, responded to some discovery requests without consulting the Opsitnicks, failed to file a motion to dismiss, and failed to file a timely motion for summary judgment. See [D.E. 1] 2-3. Moreover, according to the complaint, Crumpler's failures culminated in the Wake County Superior Court sanctioning Crumpler on December 7, 2010. See [D.E. 1-8].

At the sanctions hearing, the Opsitnicks advised the Superior Court that they wished to discharge Crumpler, and the Superior Court permitted Crumpler to withdraw. See [D.E. 1-7] 29-30. The Superior Court then removed the case from the trial calendar and ordered

that [the Opsitnicks] have 60 days to employ new counsel and notify the Trial Court Administrator of Wake County of the name of their new counsel, and said counsel shall have 60 days thereafter to complete all discovery. Thereafter, the matter shall be reset on the trial calendar or motion calendar by the Trial Court Administrator of Wake County.

Id. 30.

Although the Opsitnicks, complaint does not mention what happened after the Superior Court permitted Crumpler to withdraw, Crumpler contends that the Opsitnicks then decided to proceed pro se in the underlying litigation. See [D.E. 11] 2. According to Crumpler, about six months after the sanctions hearing and Crumpler's withdrawal, the Opsitnicks went to trial and "were found to have, in concert, breached a position of trust and confidence in the management of their daughter's trust fund and Judgment was entered against the Opsitnicks for $51, 243.23 in compensatory damages [and] $285, 000 in punitive damages." Id . 3.

According to the Opsitnicks' complaint in this case:

27. The Defendant had a Duty of Care to Plaintiffs, his Clients, under North Carolina Revised Rules of Professional Conduct, to communicate and keep them ...

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