Himebaugh v. Bookchin

7ermont Superior Court
Filed 02/23/26
Washington Unit

VERMONT SUPERIOR COURT CIVIL DIVISION
Washington Unit Case No. 25-CV-05505
65 State Street
Montpelier VT 05602
802-828-2091
www.vermontjudiciary.org
Derrick Himebaugh v. David Bookchin, Esq.

ENTRY REGARDING MOTION
Title: Motion to Dismiss; Motion to Dismiss; Motion for Default Judgment for Failure
to State a Claim; for Failure to Join Indispensable Party; Phone call from pltf; he wishes to
withdraw this motion for default (motion refers to Family Division). (Motion: 1; 2; 3)
Filer: James Cooley; James Cooley; Derrick Himebaugh
Filed Date: December 31, 2025; December 31, 2025; January 02, 2026

The motion is GRANTED IN PART and DENIED IN PART.

There are three motions currently pending before the court. Plaintiff has filed a motion
for default judgment under V.R.C.P. 55. Defendant has filed two motions to dismiss under
V.R.C.P. 12.

Taking Plaintiff's motion for default judgment first, a default judgment is only
appropriate when the opposing party has failed to file a pleading or otherwise defend against a
claim. V.R.C.P. 55(a). In this case, Defendant has filed two motions to dismiss, which are
sufficient to defend against the complaint and make default j udgment inappropriate. See also
V.R.C.P. 12(b) (indicating that a motion to dismiss may be filed before an answer is due). For
this reason, Plaintiff's motion for default judgment is inconsistent with Rule 55(a), and it is
Denied.

Defendant's first motion to dismiss concerns the lack of specificity in Plaintiff's
complaint. Under Rule 8, a party's complaint must state "a short and plain statement of the
claim showing that the pleader is entitled to relief..." V.R.C.P. 8(a). Pleadings must go
beyond bald assertions conclusions of law to state the specific wrongdoing that a plaintiff is
alleging in his or her claim. Leeds v. Meliz, 85 F.3d 51, 53 (2d Cir. 1996). Vermont is a notice
pleading state, which means that a complaint need only be a "bare bones statement that merely
provides the defendant with notice of the claims against it..." Colby v. Umbrella, Inc., 2008
VT 20, 1 13. Nevertheless, a pleading should put the opposing party on notice of what actions
are at issue and the basis for the claim. Mancini v. Mancini, 136 Vt. 231, 233 (1978).

In this case, the complaint alleges that Defendant committed legal malpractice in two
ways. First, in paragraph 12, it alleges that Defendant had an impermissible conflict of interest.!

1
The Court finds no issue with this portion of the pleading, which alleges that Defendant's joint
representation of the lender and Plaintiff and his wife was an unwaivable conflict of interest. This has put
Defendant on sufficient notice, and any additional details may be developed during discovery.
Second it alleges in paragraph 13 that Defendant additionally did not “exercise the degree of
care, skill, and diligence ordinarily exercised by reasonably prudent Vermont attorneys.”
Plaintiff lists four categories of improper actions. At least one of these, Paragraph 13(d) is a
restatement of the conflict-of-interest issue. The remaining three lack a degree of factual
specificity that do not provide adequate notice. Paragraph 13(b), for example, alleges that
Defendant utilized “improperly executed documents in the closing.” It is not clear what
documents or why they would be classified as improper. It is a classic bald assertion that leaves
Defendant without notice of the factual basis for the claim.

Nevertheless, the purpose of the notice pleading standard is “‘not to keep litigants out of
court but rather to keep them in’ so that the merits of the claim may ‘be sorted out during a
flexible pretrial process and, as appropriate, through the crucible of trial.’” Huntington Ingalls
Industries, Inc. v. Ace American Insurance Co., 2022 VT 45, ¶45 (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 575 (2007) (Stevens, J., dissenting)). Defendant acknowledges this
standard in his motion and has sought in the alternative that if the court is not inclined to dismiss
that it order a more definite statement on the allegations in paragraph 13.

The Court agrees that such a remedy is appropriate at this stage and consistent both with
the notice pleading standard and the provisions of Rule 12, which allow parties to provide more
clarity when the initial pleadings are insufficient. Therefore, the Court Grants Defendants
motion in part and Orders Plaintiff to provide more specific information about what actions
Defendant did or did not do that constitute the allegation of malpractice that are alluded to but
not identified in paragraph 13 of the complaint. In this respect, the Court will expect
identification of documents that were “improperly executed,” what information was omitted,
what actions fell below the standard of care. While Plaintiff does not have to identify each
specific action or document, the Court seeks some specificity as to the actions or omissions that
Plaintiff alleges fell below the standard.2 Plaintiff shall have 30 days from the date of this order
to file this amended complaint and more definite statement with the Court and Defendant.
V.R.C.P. 12(e).

Finally, Defendant claims that there is a missing, necessary party that must be joined to
the present action, Plaintiff’s wife and co-owner, Jennifer Himebaugh. V.R.C.P. 19(a). The
Court agrees that Ms. Himebaugh is a necessary party since she purchased the property with
Plaintiff, was represented by Defendant in the same transaction, and likely has the same claims
against Defendant as Plaintiff.

Plaintiff does not dispute Defendant’s argument, but he contends that Ms. Himebaugh is
amenable to being joined and can be joined as a party through an amended complaint. Such a
resolution is consistent with the purpose and function of Rule 19(a), which is not necessary to
block a claim but to ensure that litigation does not substantially advance until all necessary and

2 By way of example, the Court offers the following illustrations: if Plaintiff believes that Defendant did not

adequately explain the terms and conditions of the promissory note, then he should identify the document
and state what was or was not explained to him by Defendant. If Plaintiff believes that a document was
improperly executed, he should identify the document and indicate what is improper about the execution
(missing a signature, signed by the wrong party, signed by a party without authority, etc.).
indispensable parties are joined. V.R.C.P. 19. Only when an indispensable party cannot be
joined does the Court consider dismissal. Belter v. City of Burlington, 2025 VT 35, ¶ 11.

Given that Plaintiff is already amending the complaint pursuant to the Court’s ruling for a
more definite statement, the Court will allow Plaintiff the same 30-day window of time to add
Ms. Himebaugh as a necessary party and allow her to join the complaint as a Plaintiff by joining
the complaint and adding her signature. Based on this, Plaintiff’s second motion to dismiss is
Granted in Part.

If the Court does not receive an adequate filing from Plaintiff either for a more definite
statement under Rule 12(e) or the joinder of Ms. Himebaugh under Rule 19(a), then Defendant
may renew their motion to dismiss. If Plaintiff is able to join Ms. Himebaugh and provides a
more definite complaint, then Defendant shall have 21 days from such filing to either file an
answer or a dispositive motion under Rule 12(b).

ORDER

Based on the foregoing, Plaintiff’s Motion for Default Judgment is Denied. Defendants
Motions to Dismiss are Granted in Part. Plaintiff shall file an amended complaint with a more
definite statement of the alleged malpractice actions asserted in his present complaint under
paragraph 13, and he shall join Ms. Himebaugh as a co-Plaintiff, which must include her signing
any amended complaint as a party. V.R.C.P. 11.

Electronically signed on 2/20/2026 6:43 PM pursuant to V.R.E.F. 9(d)

__________________________________
Daniel Richardson
Superior Court Judge