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Branch v. O'Brien

United States District Court, S.D. Georgia Savannah Division

December 29, 2014

KAREN BRANCH, Individually and as Administratrix of the ESTATE of RAYMOND DAVID STEPHENS, Plaintiff,


B. AVANT EDENFIELD, District Judge.


Before the Court is Defendants' Motion to Dismiss Count V of Plaintiff's Amended Complaint. ECF No. 28. In Count V of her Amended Complaint, Karen Branch ("Plaintiff') seeks punitive damages from Timothy M. O'Brien and Levin, Papantonio, Thomas, Mitchell, Rafferty & Proctor, P.A. (collectively "Defendants") for their alleged malpractice and breach of fiduciary duty. See ECF No. 26 at 4-5. Plaintiff has withdrawn her response in opposition to Defendants' motion to dismiss, ECF Nos. 31; 29. Thus, Defendants' motion is unopposed and is ripe for adjudication. See ECF No. 32 (Notice of Unopposed Motion).


On June 12, 2014, Plaintiff filed a complaint for legal malpractice, breach of contract, breach of fiduciary duty, and bad faith against Defendants in state court. ECF No. 1-2. On July 9, 2014, Defendants removed the case to federal court on the basis of diversity of citizenship, 28 U.S.C. ยง 1332. ECF No. 1. Plaintiff then moved the Court to allow leave to file an amended complaint to add a claim for punitive damages to her original complaint. ECF No. 19. On September 30, 2014, the Magistrate Judge granted Plaintiffs motion for leave to amend her complaint, ECF No. 24, and on October 9, 2014, Plaintiff filed her Amended Complaint, adding a claim for punitive damages. ECF No. 26 at 5.

In response, Defendants moved to dismiss the punitive damage count. Count V, of Plaintiff's Amended Complaint ECF No. 28. Defendants' motion now lies unopposed and the Court must determine whether dismissal of Count V of Plaintiff's Amended Complaint is proper.

For the reasons set forth below, Defendants' unopposed Motion to Dismiss is DENIED.


In considering a Federal Rule of Civil Procedure 12(b)(6) motion, all facts in the plaintiff's complaint "are to be accepted as true and the court limits its consideration to the pleadings and exhibits attached thereto." GSW, Inc. v. Long Cnty., 999 F.2d 1508, 1510 (11th Cir. 1993). The Court, however, is not limited to the four corners of the pleadings, rather a proper review of a motion to dismiss "requires the reviewing court to draw on its judicial experience and common sense." See Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).

A complaint will not be dismissed so long as it contains factual allegations sufficient "to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); see Iqbal, 556 U.S. at 678 (claim must have "facial plausibility"); Edwards v. Prime, Inc., 602 F.3d 1276, 1291 (11th Cir. 2010). Yet, "a plaintiff's obligation to provide grounds' of his entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555 (alteration in original).

In Iqbal, the Court further explained the required level of specificity:

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. 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.

556 U.S. at 678 (internal citation and quotation omitted).

In order to assess the plausibility of a complaint, a court must be mindful of two principles. "First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Id. "Second, only a complaint that states a plausible claim for relief survives a motion to dismiss." Id. at 679. Thus, Iqbal suggests a "two-pronged approach" to assessing a defendant's Rule 12(b)(6) motion: "1) eliminate any allegations in the complaint that are merely legal conclusions; and 2) where there are well-pleaded factual allegations, assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.'" Am. Dental Ass'n v. Cigna Corp., 605 F.3d 1283, 1290 (11th Cir. 2010) (quoting Iqbal, 556 U.S. at 679)). Importantly, however, the "plausibility standard is not akin to a probability requirement' at the pleading stage." Id. at 1289" Instead, it "simply calls for ...

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