Casey Luczak v. David J. Farnham, et al

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 19-14754
Non-Argument Calendar
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D.C. Docket No. 1:19-cv-04273-MHC
CASEY LUCZAK,
Plaintiff-Appellant,
versus
DAVID J. FARNHAM,
THE FARNHAM LAW FIRM,
Defendants-Appellees.
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Appeal from the United States District Court
for the Northern District of Georgia
________________________
(January 8, 2021)
Before MARTIN, JORDAN and JILL PRYOR, Circuit Judges.
PER CURIAM:
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Casey Luczak, proceeding pro se, appeals the sua sponte dismissal under 28
U.S.C. § 1915(e)(2)(B) of his legal malpractice complaint against David J.
Farnham, Esq., and his law firm, The Farnham Law Firm (collectively,
“Farnham”). On appeal, Luczak argues that the district court erred in dismissing
his amended complaint as barred by the statute of limitations and determining that
the statutory period was not tolled by fraud under O.C.G.A. § 9-3-96. After careful
review, we affirm.
I. BACKGROUND
In 2008, Luczak was charged in federal court in Nevada with committing
wire fraud, in violation of 18 U.S.C. § 1343, and making a false statement, in
violation of 18 U.S.C. § 1001. Luczak retained David J. Farnham, a Georgia
attorney, and paid Farnham $200,000 to represent him in the federal criminal
action. Luczak ultimately pled guilty to the charges against him. In 2010, he was
sentenced to 121 months’ imprisonment.
Since his conviction, Luczak has sued Farnham several times based on his
legal representation. While incarcerated, Luczak filed two suits against
Farnham—a Bivens action in the Northern District of West Virginia and a § 1983
action in the Northern District of Georgia. The suit filed in the Northern District of
West Virginia was transferred to the District of Nevada, where it was dismissed in
2014 for failure to state a claim. The Northern District of Georgia suit was
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dismissed in 2013 because it was duplicative of the suit filed in the Northern
District of West Virginia.
After Luczak was released from prison in 2019, he filed this diversity action
against Farnham, alleging legal malpractice and seeking $3,230,000 in
compensatory and punitive damages. In his complaint, Luczak alleged that
Farnham had a conflict of interest and failed to represent Luczak zealously because
David Farnham himself was engaged in wire fraud, the same crime for which
Luczak was convicted, while representing Luczak. According to Luczak, Farnham
also failed to identify a defect in the indictment related to the false statement
charge. Luczak further alleged that Farnham stole $80,000 Luczak had entrusted
to him and additional money from Luczak’s relatives by instructing them to wire
funds to a bank account held in a deceased person’s name.
After granting Luczak permission to proceed in forma pauperis, the district
court sua sponte reviewed the complaint to determine whether it stated a claim for
relief as required by 28 U.S.C. § 1915(e)(2). The court found that the statute of
limitations for the claim began to run in 2010, when Luczak pled guilty and started
serving his sentence. Because this action was filed nine years later in 2019, the
court concluded it was barred by Georgia’s four-year statute of limitations.
Accordingly, the district court dismissed Luczak’s complaint for failure to state a
claim.
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This is Luczak’s appeal.
II. STANDARD OF REVIEW
We review de novo a district court’s sua sponte dismissal for failure to state
a claim under § 1915(e)(2)(B)(ii), viewing the allegations in the complaint as true.
Bilal v. Driver, 251 F.3d 1346, 1348–49 (11th Cir. 2001). We review a district
court’s application of the statute of limitations de novo as well. NE 32nd St., LLC
v. United States, 896 F.3d 1240, 1243 (11th Cir. 2018). We hold pro se pleadings
to a less stringent pleading standard than pleadings drafted by counsel. Erickson v.
Pardus, 551 U.S. 89, 94 (2007).
III. DISCUSSION
In reviewing the district court’s dismissal, we begin by discussing when the
statute of limitations for Luczak’s malpractice action against Farnham accrued and
when it expired. We then address whether this action relates back to Luczak’s
previous suits against Farnham, such that this suit should be allowed to proceed.
Finally, we review whether the limitations period for Luczak’s claim against
Farnham was tolled considering Luczak’s allegation of continuing harm.
A. The Statute of Limitations for Luczak’s Claim Has Expired.
We agree with the district court that Luczak’s claim for legal malpractice
accrued in 2010 and the statute of limitations expired years before he filed this
action in 2019. Under Georgia law, an action for litigation-related malpractice
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accrues at the time of the “attorney’s breach of duty, that is, from the date of the
alleged negligent or unskillful act.” Cuffie v. Armstrong, 843 S.E.2d 599, 603 (Ga.
Ct. App. 2020) (internal quotation marks omitted).1 The statute of limitations for
legal malpractice actions in Georgia is four years.2 Plumlee v. Davis, 473 S.E.2d
510, 513 (Ga. Ct. App. 1996). Because the statute of limitations bar is an
affirmative defense, dismissal for failure to state a claim on statute of limitations
grounds is appropriate only if it is apparent from the face of the complaint that the
claim is time barred. La Grasta v. First Union Sec., Inc., 358 F.3d 840, 845 (11th
Cir. 2004).
The complaint shows on its face that Luczak’s claim is barred by the statute
of limitations. Farnham’s representation of Luczak ended when Luczak pled guilty
in 2010. Luczak’s malpractice claim therefore accrued at that time and expired
four years later in 2014. Although Luczak maintains that his claim did not accrue
until he left prison, we disagree. Nothing in the record indicates that Farnham
committed any wrong after 2010; thus, Luczak’s malpractice claim could not have
1 “Except in matters governed by the federal Constitution or by acts of Congress, federal
courts in diversity cases must apply the law of the forum state, including its statute of
limitations.” Reisman v. Gen. Motors Corp., 845 F.2d 289, 291 (11th Cir. 1988). Georgia state
law governs the statute of limitations in this case.
2 Under Georgia law, a claim for legal malpractice may sound in tort or in contract.
Cuffie, 843 S.E.2d at 603 (Ga. Ct. App. 2020). A malpractice action sounding in contract has a
statute of limitations of four years; an action sounding in tort has a statute of limitations of two
years. Plumlee v. Davis, 473 S.E.2d 510, 513 (Ga. Ct. App. 1996). The district court determined
that the four-year statute of limitations governed Luczak’s claim. For the purposes of this
appeal, we will make the same assumption.
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accrued any later than 2010. The district court’s dismissal for failure to state a
claim because the statute of limitations had expired was proper.
B. Luczak’s Previous Suits Against Farnham Did Not Toll the Limitations
Period for His Present Claim.
Luczak contends that the statute of limitations does not bar his claim
because he filed two earlier suits against Farnham, thus tolling the statute of
limitations. Luczak is correct as a general matter that filing a lawsuit tolls the
statute of limitations on the claim asserted. See Brown v. State Farm Mut. Auto.
Ins. Co., 529 S.E.2d 439, 440 (Ga. Ct. App. 2000). However, this tolling lasts only
as long as the lawsuit remains pending. See Chinn v. Maxwell, 316 S.E.2d 546,
547 (Ga. Ct. App. 1984). We accept that the limitations period on Luczak’s claim
was tolled while his earlier actions filed in the Northern District of Georgia and the
District of West Virginia were pending, but the limitations period began to run
again once these actions were dismissed in 2013 and 2014, respectively. Even
assuming there was tolling while these actions were pending, the four-year
limitations period nevertheless elapsed several years ago. Luczak’s previous
lawsuits thus do not allow this case to proceed.
C. Luczak’s Allegations of Ongoing Harm Did Not Toll the Statute of
Limitations.
Luczak also argues that the statute of limitations was tolled because
Farnham’s actions “continued well past the original 4-year statute of limitation.”
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Appellant’s Br. at 7. Liberally construed, we understand Luczak’s argument to be
that the statute of limitations should be tolled because Farnham engaged in fraud,
which prevented him from discovering the wrong earlier.3
The statute of limitations in legal malpractice actions may be tolled by fraud.
Shores v. Troglin, 580 S.E.2d 659, 660–61 (Ga. Ct. App. 2003). Where, as here,
the plaintiff alleges that the fraudulent act “debarred or deterred” him from
bringing the action earlier, the period of limitation runs from the plaintiff’s
discovery of the fraud. O.C.G.A. § 9-3-96. Whether and to what extent the
limitations period is tolled depends on whether the gravamen of the underlying
claim is fraud. See Hunter, Maclean, Exley, & Dunn, P.C., v. Frame, 507 S.E.2d
411, 413 (Ga. 1998). Where the underlying claim is fraud, the limitations period is
tolled until the fraud is discovered or should have been discovered by a plaintiff
exercising ordinary care and diligence. Id. But, when the gravamen of the
underlying claim is not fraud, the limitations period may be tolled only upon a
showing of a “separate independent actual fraud involving moral turpitude” that
deterred the plaintiff from filing suit, and the plaintiff must show the defendant
3 There is no continuing harm or continuing relationship exception that tolls the statute of
limitations for legal malpractice claims under Georgia law. Duke Galish, LLC v. Arnall Golden
Gregory, LLP, 653 S.E.2d 791, 793 (Ga. Ct. App. 2007). Therefore, if this was what Luczak
meant to argue, the argument fails.
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acted intentionally to conceal information. Id. (internal quotation marks omitted);
see also Shores, 580 S.E.2d at 661.
Here, the gravamen of Luczak’s complaint is that Farnham committed
malpractice. As a result, to obtain tolling, Luczak must have alleged that a
separate actual fraud involving moral turpitude deterred him from filing this
malpractice action and that Farnham acted intentionally to conceal the separate
fraud. Luczak has made no such allegation. His complaint focuses on Farnham’s
alleged malpractice during its representation of him from 2008 to 2010, and he
does not allege that Farnham committed another fraud that deterred him from filing
this malpractice action. Without a separate act of fraud, the statute of limitations
on Luczak’s claim was not tolled, and the district court’s dismissal on statute of
limitations grounds remains proper.
IV. CONCLUSION
The district court did not err in determining that Luczak’s legal malpractice
complaint was time barred and that Georgia’s tolling statute did not apply. Luczak
filed his 2019 complaint beyond the statute of limitations for his legal malpractice
claims arising out of conduct in 2010 and has not alleged sufficient facts to show
that his claim was tolled by fraud.
AFFIRMED.
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