Protostorm Inc. v. Foley & Lardner LLP

MEMORANDUM & ORDER   Plaintiff Protostorm, Inc. brings this diversity action against Defendants Foley & Lardner LLP and Jonathan E. Moskin¹ alleging claims of legal malpractice. The sole basis for federal jurisdiction alleged in the complaint is diversity of citizenship. (Complaint, Dkt. 1, 2.) The parties do not dispute that Defendants are citizens of New York. (Id.

29, 32; Defendants’ Brief in Support (“Defs.’ Br.”), Dkt. 23-29, at 1.) Defendants, however, dispute Plaintiff’s assertion that it is a citizen of Delaware. (See, e.g, Defs.’ Br., Dkt. 23-29, at 2-3.) Pending before the Court is Defendants’ motion to dismiss for lack of subject matter jurisdiction. For the reasons set forth below, the Court grants Defendants’ motion and dismisses the action for lack of subject matter jurisdiction. BACKGROUND² Protostorm was created in 2000 as a Delaware limited liability company. (Declaration of Peter Faulisi (“Faulisi Decl.”), Dkt. 27, 2.) Protostorm’s only asset was “[t]he Invention” that “encompass[ed], among other things, an on-line computer game and related software that included a method of targeting advertising to the content of email communications.” (Id.) Protostorm retained a Virginia law firm (“Virginia Firm”), specializing in patent work, to prepare and file patent applications for the Invention. (Id. 3.) However, in February 2006, Protostorm learned that the Virginia Firm had failed to “properly prosecute the patent such that Protostorm’s patent was unenforceable in the United States.” (Id. 4.) In February 2008, Protostorm retained Defendants to bring a legal malpractice action against the Virginia Firm. (Id. 5.) Though Protostorm obtained a judgment against the Virginia Firm (Plaintiff Exhibit (“Pl.’s Ex.”) 1, Dkt. 25-1; see also Pl.’s Ex. 2, Dkt. 25-2, at 3), the judgment is unenforceable because the individual attorneys employed by the Virginia Firm were not held jointly and severally liable (Pl.’s Ex. 2, Dkt. 25-2, at 6 (noting that Protostorm “waived this issue [of joint and several liability] through statements made by Protostorm’s counsel at trial”)).³ Plaintiff brought the instant action asserting that Defendants committed legal malpractice by waiving this issue. (See Complaint, Dkt. 1,