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LEVINE v. KLING

April 23, 1996

ROBERT M. LEVINE, Plaintiff,
v.
RICHARD KLING, Defendant.



The opinion of the court was delivered by: ALESIA

 Before the court is defendant Richard Kling's ("Kling") motion to dismiss plaintiff Robert M. Levine's ("Levine") complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons that follow, the court grants Kling's motion to dismiss.

 I. BACKGROUND1

 As the Seventh Circuit so aptly described the criminal case against Robert Levine:

 
Not too long after the Seventh Day, two brothers, Cain and Abel, were in a field. Cain attacked Abel -- and killed him. Although life today is different than it was a generation removed from Eden, some things remain the same. In this case, Robert Levine hired an assassin to kill his brother, Donald Levine, and to kill Donald's family. The assassin killed Donald and his wife Marsha, and tried to kill Donald's son Mark. Robert Levine was convicted of one count of conspiring to use interstate commerce to effect murder for hire and of four counts of using interstate commerce to effect murder for hire. 18 U.S.C. ยงยง 371, 1958. Levine appeals his conviction and sentence.

 Levine, 5 F.3d at 1102. The court of appeals then rejected Levine's arguments on appeal and affirmed his conviction and sentence. Now Levine, himself a law school graduate, is suing Kling, his appellate counsel, for legal malpractice. Levine's state law action is before this court on the basis of diversity of citizenship. *fn2"

 Levine asks for at least $ 3,350,000 in damages because of Kling's allegedly negligent representation of Levine. Levine alleges that Kling failed to abide by Levine's decisions regarding his representation; failed to attend or was late for meetings with Levine; raised an ineffective assistance of counsel claim on appeal, despite Levine's concern about raising that issue; made errors during oral argument before the court of appeals; failed to file a motion for rehearing or rehearing en banc after the court of appeals issued its decision, and to notify Levine that Kling would not be filing such a motion; caused Levine to file his petition for writ of certiorari pro se by failing to notify Levine of his right to request review by the Supreme Court and to render any assistance to Levine; and terminated representation of Levine prior to completing his required duties and responsibilities.

 Levine asks for compensatory damages of at least $ 2,350,000 for the following: $ 400,000 per year for loss of earnings, based on Levine's pre-imprisonment earnings; $ 250,000 for the fine imposed by the district court, plus $ 35,000 in interest and any additional interest that may accrue; $ 15,000 for the restitution ordered by the district court, plus any interest that may accrue; and at least $ 750,000 for mental anguish and suffering caused by loss of reputation, loss of family ties, loss of consortium, and enhanced embarrassment suffered by Levine's family as a result of Kling's malpractice. Levine asks for punitive damages of $ 1,000,000.

 Kling moves to dismiss Levine's complaint on the grounds that Levine's complaint is based on violations of the American Bar Association Model Rules of Professional Conduct, which cannot form the basis of an independent tort, and that Levine has failed to allege any facts showing that Kling's alleged malpractice caused the damages Levine now seeks to recover.

 II. DISCUSSION

 A. Standard for motion to dismiss

 When deciding a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the court must accept all factual allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff. Cromley v. Board of Educ. of Lockport, 699 F. Supp. 1283, 1285 (N.D. Ill. 1988). If, when viewed in the light most favorable to the plaintiff, the complaint fails to state a claim upon which relief can be granted, the court must dismiss the case. See FED. R. CIV. P. 12(b)(6); Gomez v. Illinois State Board of Educ., 811 F.2d 1030, 1039 (7th Cir. 1987). However, the court may dismiss the complaint only if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claims that would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 102, 2 L. Ed. 2d 80 (1957).

 Furthermore, the court liberally construes allegations in a pro se complaint, and applies less stringent standards than those applied to professionally drafted complaints. Kincaid v. Vail, 969 F.2d 594, 598 (7th Cir. 1992), cert. denied, Sceifers v. Vail, 506 U.S. 1062, 113 S. Ct. 1002, 122 L. Ed. 2d ...


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