Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Kip Konigsberg, Kathy Konigsberg, Aaron David Konigsberg, Jessica C. Herum v. Mullikin

October 16, 2011

KIP KONIGSBERG, KATHY KONIGSBERG, AARON DAVID KONIGSBERG, JESSICA C. HERUM,
KIP KONIGSBERG AS GUARDIAN FOR BENJAMIN ACE KONIGSBERG AND
KIP KONIGSBERG AS GUARDIAN FOR MATTHEW ALAN KONIGSBERG, PLAINTIFFS,
v.
MULLIKIN, LARSON & SWIFT LLC, A WYOMING LIMITED LIABILITY COMPANY AND CLAY D. GEITTMAN,
DEFENDANTS.



ORDER GRANTING DEFENDANTS' MOTION TO DISMISS

THIS MATTER comes before the Court on Defendant's Motion to Dismiss [Doc. 6]. The Court has considered the motion, Defendants' memorandum of law in support, and Plaintiffs' response in opposition. Considering itself fully advised in the premises, the Court hereby FINDS and ORDERS as follows:

INTRODUCTION

Plaintiffs bring this legal malpractice action against Defendants Mullikin, Larson & Swift LLC ("MLS") and attorney Clay Geittman based on legal advice Plaintiffs claim they received from Defendants relating to the legal requirements for subdividing real property. Plaintiffs Kip Konigsberg, Kathy Konigsberg, Benjamin Konigsberg, and Matthew Konigsberg are all citizens of the state of New York, and Plaintiff Jessica C. Herum is a citizen of the state of Texas. (Plaintiffs' Complaint at ¶¶4-7.) MLS is a limited liability company formed under the laws of the state of Wyoming and is a citizen of Wyoming. (Id. at ¶8.) Clay Geittmann is an attorney employed by MLS and is a resident of the state of Wyoming. (Id. at ¶9.) Accordingly, this Court has jurisdiction pursuant to 28 U.S.C. § 1332(a)(1) based upon diversity of citizenship.

Now pending before the Court is Defendants' motion to dismiss under Fed. R. Civ. P. 12(b)(6) upon the service provisions of Wyo. R. Civ. P. 3(b) and the applicable statute of limitations, Wyo. Stat. § 1-3-107.

FACTUAL BACKGROUND

Sometime between January 19 and March 17 of 2006, Plaintiffs retained Defendants' legal services in connection with their acquisition of a 32.06-acre parcel of land located in Wilson, Wyoming. (Id. at ¶14.) Plaintiffs Kip Konigsberg and Kathy Konigsberg intended to purchase the property to divide into additional lots for their children's future housing needs. (Id. at ¶14.) On January 19, 2006, Plaintiffs, through a company wholly-owned by Plaintiff Kip Konigsberg, signed a contract to purchase a 32.06-acre parcel of land located in Wilson, Wyoming.

On January 19, 2006, Plaintiffs, through a company wholly-owned by Plaintiff Kip Konigsberg, signed a contract to purchase a 32.06-acre parcel of land located in Wilson, Wyoming. (Id. at ¶16.) Because Plaintiffs Kip Konigsberg and Kathy Konigsberg wanted to purchase a property that could be divided into additional lots for the children's future housing needs, the contract contained a clause that stated that the purchaser's obligation to acquire the property was contingent upon the ability to divide the property into at least two (2) lots. (Id.) Sometime between January 19 and March 17 of 2006, Plaintiffs retained Defendants' legal services to ensure that the property could be divided into four (4) lots in full compliance with the Family Lot Split Exemption set forth in Wyo. Stat. § 18-5-303(a) (2006) and all other applicable laws and regulations. (Id. at ¶¶ 1, 20, 26, 27.) Plaintiffs allegedly informed Defendants that if the division of the parcel was not possible, they did not want to purchase the property. (Id. at ¶21.) Defendants allegedly assured Plaintiffs that the parcel could be divided, and Plaintiffs proceeded to purchase the property. (Id. at ¶26.) More specifically, Defendants allegedly advised Plaintiffs that compliance with Section 6031 of the Teton County Land Development Regulations was not a requirement of Wyo. Stat. § 18-5-303(a), and therefore Plaintiffs did not need to file a Section 6031 application. (Id. at ¶23.) Contemporaneously with Plaintiffs' purchase of the property, and based on the alleged advice of Defendants in connection therewith, Plaintiffs had the parcel surveyed and divided into four parcels. Plaintiffs filed the survey and division with the Teton County Clerk's office on March 20, 2006. (Id. at ¶23.)

On January 13, 2009, in connection with a minor boundary line adjustment application, Plaintiffs were advised by the Teton County Planning Director that the property appeared to violate Wyo. Stat. 18-5-303(a) and was not divided in compliance with Section 6031 of the Teton County Land Development Regulations. (Id. at ¶¶ 2, 56-57.) As a result, Plaintiffs' purported division of the 32.06-acre parcel was purportedly invalid. (Id. at ¶2.)

Plaintiffs allege that Defendants breached their duty of care and committed malpractice sometime between January 2006 and April 2006. (Id. at ¶87.) Plaintiffs discovered Defendants malpractice on January 13, 2009. (Id. at ¶57.) Plaintiffs filed their pro se Complaint on January 10, 2011. Defendants were served with the summons and a copy of the Complaint eighty-six days later, on April 7, 2011. (Docs. 2 and 3.)

STANDARD OF REVIEW

Under Fed. R. Civ. P. 12(b)(6), dismissal of a complaint is appropriate where plaintiff fails to state a claim upon which relief can be granted. In considering whether a complaint states a plausible claim for relief, this court "must accept all the well-pleaded allegations in the complaint as true and must construe them in the light most favorable to the plaintiff." Alvarado v. KOB-TV, LLC, 493 F.3d 1210, 1215 (10th Cir. 2007). "Although the statute of limitations is an affirmative defense, it may be resolved on a Rule 12(b)(6) motion to dismiss "when the dates given in the complaint make clear that the right sued upon has been extinguished . . . ." Aldrich v. McColloch Props., Inc., 627 F.2d 1036, 1041 n.4 (10th Cir. 1980). If it is apparent from the complaint that plaintiff's claims are time barred, the plaintiff "has the burden of establishing a factual basis for tolling the statute" in order to avoid dismissal. Id.

DISCUSSION

"A federal court sitting in diversity applies state law for statute of limitations purposes." Burnham v. Humphrey Hospitality Reit Trust, Inc., 403 F.3d 709, 7123 (10th Cir. 2005) (citing Guaranty Trust Co. of New York v. York, 326 U.S. 99, 109-110, 65 S.Ct. 1464, 89 L.Ed. 2079 (1945)). "Moreover, state law determines when an action is commenced for statute of limitations purposes." Id. (citing Walker v. Armco Steel Corp., 446 U.S. 740, 751, 100 S.Ct. 1978, 64 L.Ed.2d 659 (1980)); see also U.S. ex rel. Conner v. Salina Regional Health Center, Inc., 543 F.3d 1211, 1225 (10th Cir. 2008). In addressing Defendants' motion to dismiss Plaintiffs' diversity action, this Court must examine the interplay between Wyoming's statute of limitations, the discovery rule for triggering the running of that statute, and Wyoming's substantive rule regarding the commencement of a civil action under Wyo. R. Civ. P. 3(b). The Court addresses each of these concepts in turn. The Wyoming Statute of Limitations and The Discovery Rule Under Wyoming law, a cause of action alleging professional malpractice is governed by a two-year statute of limitations. See Wyo. Stat. ยง 1-3-107; Murphy v. Housel & Housel, 955 P.2d 880, 884 (Wyo. 1998). Wyoming is a "discovery" ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.