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Bissonnette v. Podlaski

United States District Court, N.D. Indiana, Fort Wayne Division

August 21, 2017

KEVIN PODLASKI, et al., Defendants.


          Susan Collins United States Magistrate Judge

         Before the Court is a motion to dismiss and a supporting memorandum, together with several exhibits, filed by Defendants Kevin Podlaski (“Podlaski”) and Carson Boxberger, LLP (“Carson Boxberger”) (together, “Defendants”), seeking to dismiss Plaintiff Matthew Bissonnette's second amended complaint (DE 14) pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(c).[1] (DE 43 to DE 45). Bissonnette timely filed a response brief, also submitting several exhibits. (DE 53; DE 54). The motion is now fully briefed, including the filing of a sur-response and a sur-reply (DE 58; DE 63-1; DE 71), and is ripe for adjudication.[2]For the reasons set forth below, Defendants' motion to dismiss will be DENIED.


         For purposes of a motion to dismiss under both Rules 12(b)(1) and 12(c), the court accepts all well-pleaded allegations in the complaint as true and draws all reasonable inferences in the plaintiff's favor. Scanlan v. Eisenberg, 669 F.3d 838, 841 (7th Cir. 2012); McReynolds v. Merrill Lynch & Co., 694 F.3d 873, 879 (7th Cir. 2012). A motion to dismiss pursuant to Rule 12(b)(1) tests the jurisdictional sufficiency of the complaint. Ctr. for Dermatology & Skin Cancer, Ltd. v. Burwell, 770 F.3d 586, 588 (7th Cir. 2014). That is, the plaintiff bears the burden of establishing that the court has subject matter jurisdiction over its claims. Id.; see Sumner v. Town of Converse, Ind., No. 3:07-CV-1 RM, 2007 WL 1435535, at *1 (N.D. Ind. May 11, 2007) (“A motion to dismiss under Rule 12(b)(1) challenges the court's subject matter jurisdiction and should be granted if the court lacks the statutory or constitutional power to adjudicate the case.”). “The district court may properly look beyond the jurisdictional allegations of the complaint and view whatever evidence has been submitted on the issue to determine whether in fact subject matter jurisdiction exists.” Ezekiel v. Michel, 66 F.3d 894, 897 (7th Cir. 1995) (citations omitted).

         A motion for judgment on the pleadings under Rule 12(c) is subject to the same standard as a motion to dismiss under Rule 12(b)(6). Buchanan-Moore v. Cty. of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009). A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of the complaint and not the merits of the suit. McReynolds, 694 F.3d at 878. “To survive a motion to dismiss [under Rule 12(b)(6)], a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1974 (2007)); see also Ray v. City of Chicago, 629 F.3d 660, 662-63 (7th Cir. 2011) (“While the federal pleading standard is quite forgiving, . . . the complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” (citation and internal quotation marks omitted)). A plaintiff is required to include allegations in the complaint that “plausibly suggest that the plaintiff has a right to relief, raising that possibility above a ‘speculative level'; if they do not, the plaintiff pleads [himself] out of court.” EEOC v. Concentra Health Servs., Inc., 496 F.3d 773, 776 (7th Cir. 2007) (quoting Twombly, 550 U.S. at 554). Thus, “a plaintiff must do better than putting a few words on paper that, in the hands of an imaginative reader, might suggest that something has happened to [him] that might be redressed by the law.” Swanson v. Citibank, N.A., 614 F.3d 400, 403 (7th Cir. 2010) (citation omitted).


         A. Facts Alleged in the Second Amended Complaint

         The following is a summary of Bissonnette's allegations in his second amended complaint: Bissonnette is a retired Navy SEAL who participated in the mission entitled Operation Neptune Spear that resulted in the death of Osama Bin Laden in 2011. (DE 14 ¶ 11; DE 71 at 2). Bissonnette (using the pseudonym Mark Owen) wrote a book about the mission, which he entitled, No Easy Day: The Firsthand Account of the Mission That Killed Osama Bin Laden (the “Book”). (DE 14 ¶¶ 12, 13; DE 53 at 6). To assist him in that process, Bissonnette retained a literary agent, Elyse Cheney, and a publisher, Dutton, a division of Penguin Group (USA) Inc. (“Dutton”). (DE 14 ¶ 14).

         Bissonnette, Cheney, and Dutton knew that Bissonnette had acquired sensitive information during his naval career and that he had “a personal commitment and contractual obligations” not to disclose that information. (DE 14 ¶ 14). Cheney learned that Podlaski, an attorney, had worked with another military author and had special expertise in dealing with military confidentiality, military law, and special operations issues. (DE 14 ¶ 15). Podlaski claimed to possess a high level of security clearance; stated that he had vetted other books for retired military personnel; and represented that he could advise Bissonnette on legal issues relating to the Book, including compliance with confidentiality obligations. (DE 14 ¶ 16).

         Bissonnette retained Podlaski and his law firm, Carson Boxberger, to represent Bissonnette with respect to the Book and his contract with Dutton. (DE 14 ¶ 17, Ex. 1). Defendants' engagement letter stated, among other things, that Defendants would review Bissonnette's manuscript to “ensure [his] compliance with [his] obligations under any agreements [he] may have signed with the U.S. Government not to release classified or classifiable information or otherwise compromise the national security interests of the United States . . . .” (DE 14 ¶ 19). Bissonnette's contract with Dutton required that he ensure that his manuscript contained no classified or otherwise sensitive information that might compromise the defense of the United States. (DE 14 ¶ 18).

         Podlaski advised Bissonnette that he had no obligation to-and in fact, should not-submit the Book to the Government for prepublication review. (DE 14 ¶ 23). Podlaski represented that he had the knowledge, skill, and security clearance necessary to review the manuscript and screen it for classified or otherwise sensitive information. (DE 14 ¶ 24). Because he advised Bissonnette not to undergo the prepublication review process, Podlaski did not incorporate provisions in the Dutton contract that may have protected Bissonnette with respect to the prepublication review process. (DE 14 ¶ 18).

         Podlaski reviewed the manuscript, made nominal edits, and added citations and a proposed forward. (DE 14 ¶ 26). Podlaski then forwarded the revised manuscript to Cheney, assuring her that it contained no classified or otherwise sensitive information; that it would not breach Bissonnette's personal, contractual, or fiduciary obligations; and that it would not result in civil or criminal exposure. (DE 14 ¶ 26).

         One business day before the Book's scheduled release-after tens of thousands of copies of the Book had already been printed and distributed across the country in anticipation of the release date-Bissonnette received a letter (addressed to his pseudonym Mark Owen in care of Dutton) from Jeh Johnson, the general counsel for the Department of Defense (“DoD”). (DE 14 ¶ 29). In the letter, Johnson stated that the Book violated Bissonnette's obligations because he had not submitted the Book for prepublication review and because it contained sensitive information. (DE 14 ¶ 29). Cheney forwarded the letter to Podlaski, who dismissed the letter and said not to worry, adding that the accusations may increase the Book's sales. (DE 14 ¶ 30). Therefore, the Book was released as scheduled. (DE 14 ¶ 31).

         After the Book's release, the Government claimed that Bissonnette violated his obligations to submit his manuscript for a classification prepublication review and to preserve certain information as confidential. (DE 14 ¶ 32). The DoD threatened Bissonnette with a civil lawsuit seeking forfeiture of all his income from the Book. (DE 14 ¶ 32). Additionally, the Department of Justice (“DoJ”) began an investigation to determine whether Bissonnette violated any criminal laws by publishing the Book. (DE 14 ¶ 32).

         Bissonnette retained new counsel to represent him concerning the Government's threats of civil and criminal liability. (DE 14 ¶ 33). Defendants encouraged new counsel to defend Podlaski's view that prepublication review of the Book was not required. (DE 14 ¶ 33). New counsel, however, advised Bissonnette to admit that he unintentionally breached his contractual obligations to the Government by failing to submit the Book for prepublication review, and to enter into negotiations with the DoD to resolve the threatened civil forfeiture lawsuit. (DE 14 ¶ 35).

         Upon advice of his new counsel, Bissonnette waived his attorney-client privilege with Defendants and promised the DoJ that he would produce his entire file with Defendants to show that Podlaski advised him not to submit the manuscript for prepublication review. (DE 14 ¶ 36). Bissonnette sent Defendants a request for his entire file, but Defendants failed to produce the file for months, preventing Bissonnette from producing it to the DoJ. (DE 14 ¶ 36). Eventually, Defendants produced to Bissonnette what they claimed was his entire file; in turn, Bissonnette produced the file to the Government, representing that it was his entire file. (DE 14 ¶ 37). Podlaski, however, later produced additional documents to the Government that he had not produced to Bissonnette, which further damaged Bissonnette's relationship with Government officials. (DE 14 ¶ 38).

         B. Procedural Background of This Case

         On November 5, 2014, Bissonnette filed suit against Defendants in the United States District Court for the Southern District of New York. (DE 14 ¶ 53). That suit, however, was dismissed on October 9, 2015, for lack of personal jurisdiction. (DE 14 ¶ 53).

         On November 9, 2015, Bissonnette filed the instant suit against Defendants, advancing claims of legal malpractice associated with their advice not to tender the Book for prepublication review, and breach of fiduciary duty in failing to turn over his entire file as requested.[3] (DE 1). The following month, Bissonnette filed the second amended complaint (DE 14), which remains the operative complaint of record.

         On February 3, 2016, the Court held a preliminary pretrial conference, establishing the following deadlines: November 14, 2016, for the completion of all discovery; December 15, 2016, for Bissonnette's disclosure of experts; January 16, 2017, for Defendants' disclosure of experts; August 15, 2016, to seek leave to amend the pleadings; and March 28, 2017, to file dispositive motions. (DE 27; DE 28). These deadlines were subsequently extended to January 31, 2017, for the completion of all discovery; January 17, 2017, for Bissonnette's disclosure of experts; February 16, 2017, for Defendants' disclosure of experts; and May 12, 2017, to file dispositive motions. (DE 59; ...

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