Marchetti v. Atwood, et al. (Lawyers Weekly No. 09-041-17)
1 COMMONWEALTH OF MASSACHUSETTS PLYMOUTH, ss. SUPERIOR COURT CIVIL ACTION NO. 17-00749 CARL MARCHETTI vs. JACK M. ATWOOD AND JACK M. ATWOOD, P.C. MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS’ MOTION TO DISMISS Plaintiff Carl Marchetti contends that defendant, attorney Jack M. Atwood and his professional corporation, Jack M. Atwood, P.C. (collectively, “Atwood”), committed legal malpractice in connection with Atwood’s representation of Marchetti in a criminal case. As a result of the alleged malpractice, Marchetti claims that he served jail time for several offenses after he was found guilty at trial rather than receiving a sentence of home detention following a guilty plea. Marchetti thus brings claims for legal malpractice (Counts One and Two) and breach of contract (Counts Three and Four) against Atwood and his firm. In addition, Marchetti seeks relief pursuant to Chapter 93A against both defendants (Counts Five and Six). Before the Court is Atwood’s motion to dismiss under Mass. R. Civ. P. Rule 12(b)(6). In consideration of the parties’ helpful memoranda of law and illuminating oral arguments,1 and for the reasons that follow, Atwood’s motion to dismiss is ALLOWED. 1 The parties’ written and oral advocacy in this case was exemplary. 2 FACTS Because it is evaluating the legal sufficiency of a complaint pursuant to Mass. R. Civ. P. 12(b)(6), the Court will accept as true all factual allegations in the complaint and draw all reasonable inferences in the plaintiff’s favor. See, e.g., Berish v. Bornstein, 437 Mass. 252, 267 (2002); Nader v. Citron, 372 Mass. 96, 98 (1977). Atwood submits public records to support his motion. The Court may properly consider these materials without converting the motion into one for summary judgment. See, e.g., Reliance Ins. Co. v. City of Boston, 71 Mass. App. Ct. 550, 555 (2008) (“while the allegations of the complaint generally control in evaluating a motion under rule 12(b)(6), matters of public record, orders, items appearing in the record of the case, and exhibits attached to the complaint, also may be taken into account. Properly considered public records include the records of other courts in related proceedings, of which the judge may take judicial notice in any event”) (citations, internal punctuation omitted). Marchetti was a pawn shop owner. On July 16, 2010, he was indicted in Commonwealth v. Marchetti, Barnstable Superior Court C.A. No. 1072-CR-00112 (the “Criminal Action”), on six counts of knowingly receiving stolen property in excess of two hundred and fifty dollars. Sometime in July 2010, Marchetti engaged Atwood to defend him in the Criminal Action. Marchetti agreed to pay Atwood a flat fee of $ 20,000 for his legal services. Atwood did not provide Marchetti a written engagement letter or other contract, and thereafter did not provide Marchetti […]