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MANATEE CABLEVISION CORP. v. PIERSON

June 17, 1977

MANATEE CABLEVISION CORPORATION, Plaintiff,
v.
W. THEODORE PIERSON, et al., Defendants



The opinion of the court was delivered by: RICHEY

 This lawsuit is brought by Manatee Cablevision Corporation, a Florida corporation, against 17 attorneys who allegedly were partners in the Washington, D.C. law firm of Pierson, Ball & Dowd at the time pertinent to the allegations contained in plaintiff's complaint. The complaint, generally speaking, charges defendants with attorneys' malpractice. Plaintiff's claim is rendered in three counts which allege, respectively, breach of contract, breach of fiduciary obligations, and negligence. Jurisdiction is founded on diversity of citizenship. 28 U.S.C. § 1332.

 Plaintiff's complaint arises out of the law firm's representation of plaintiff in an antitrust lawsuit filed in 1972 in the United States District Court for the Middle District of Florida. Plaintiff alleges that defendants in effect forced plaintiff to accept an unfavorable settlement of a portion of plaintiff's claim in the Florida litigation. This result was achieved, plaintiff alleges, when defendants insisted that plaintiff either accept the proposed settlement or pay defendants a substantial amount of money, not contemplated by the parties' original contingency fee arrangement, to continue with the litigation. Plaintiffs also allege that, after the aforementioned settlement was achieved, defendants indicated that they would not continue to represent plaintiff for the remainder of its claim unless plaintiff modified the contingency fee arrangement between the parties. Plaintiff alleges that in early 1974 it terminated its agreement and relationship with defendants, as a result of the aforementioned breaches on defendants' part.

 This suit was filed on October 22, 1976. One day earlier, plaintiff had filed a nearly-identical suit in the United States District Court for the Middle District of Florida. By consent of the parties, the instant case was stayed pending action in the Florida litigation. On February 1, 1977, after defendants had filed and plaintiff had opposed a motion to dismiss that action because, inter alia, it was barred by the Florida statute of limitations, plaintiff voluntarily dismissed the Florida case. The motion to dismiss was pending when plaintiff filed its voluntary dismissal.

 The aforesaid voluntary dismissal removed any cause for further stay of this case. The case is now before the Court on defendants' motion to dismiss. In support of their motion, defendants claim that: (1) the Florida statute of limitations applies to and bars this case; (2) even if the District of Columbia statute of limitations, rather than the Florida statute, applies, the action is nevertheless time-barred; (3) venue is not proper in this district. *fn1" For the reasons that follow, the Court will deny defendants' motion in full.

 I. The District of Columbia's Statute of Limitations Applies To This Litigation.

 The Court notes first that the result it reaches herein has been the traditional approach in the District of Columbia for many years. See Filson v. Fountain, 90 U.S. App. D.C. 273, 197 F.2d 383 (1952); Universal Airline, Inc. v. Eastern Air Lines, Inc., 88 U.S. App. D.C. 219, 188 F.2d 993 (1951); Kaplan v. Manhattan Life Insurance Co., 71 App. D.C. 250, 109 F.2d 463 (1939); Wells v. Alropa Corp., 65 App. D.C. 281, 82 F.2d 887 (1936); Fowler v. A & A Co., 262 A.2d 344 (D.C. Ct. App. 1970); Namerdy v. Generalcar, 217 A.2d 109 (D.C. Ct. App. 1966). The traditional approach was confirmed by the United States Court of Appeals for the District of Columbia Circuit in a 1971 opinion authored by Judge Spottswood W. Robinson III. See Fox-Greenwald Sheet Metal Co. v. Markowitz Brothers, Inc., 147 U.S. App. D.C. 14, 452 F.2d 1346, 1357 (1971). However, less than a year later, Judge Robinson cast some doubt on the traditional approach in a footnote in Nyhus v. Travel Management Corp., 151 U.S. App. D.C. 269, 466 F.2d 440, 443 n.11 (1972):

 
The record does not disclose where the employment contract was made or where it was to be performed. The law of the District of Columbia -- the forum -- thus governs the determination as to whether the action was barred by the statute of limitations, as well as all other determinations respecting application of the statute. . . .

 (Emphasis added.) This language seemed to suggest that if the record had revealed that another jurisdiction had an interest in the contract in question, the court would have found it appropriate to perform an "interest analysis" in determining which jurisdiction's statute of limitations applied.

 Relying in large part on the above-quoted footnote in Nyhus, this Court adopted the interest analysis approach when it confronted the issue three years ago in Cornwell v. CIT Corp., 373 F. Supp. 661 (D.D.C. 1974). However, for the reasons enumerated below, the Court now believes that it was incorrect in its prior conclusion on this issue and that the viability of the traditional approach continues in the District of Columbia. First, the Court notes that in 1973, the District of Columbia Court of Appeals (since 1971 "the highest court of the District of Columbia," *fn2" )re-affirmed the traditional approach, albeit in dictum, in May Department Stores Co. v. Devercelli:

 
This issue [a claim raising the bar of the statute of limitations] being procedural is governed by the statute of limitations of the forum. Kaplan v. Manhattan Life Ins.. . .

 314 A.2d 767, 773. Although May was issued shortly before this Court's opinion in Cornwell, it was apparently not brought to the Court's attention, for the Court did not refer to May in rejecting the traditional approach. *fn3"

 In addition, the Court now believes it placed undue emphasis on the passing reference in Nyhus quoted above. As mentioned above, the Nyhus opinion was issued by the Court of Appeals less than a year after the same court, with the same judge authoring the opinion, had re-affirmed the long-standing traditional approach. Fox-Greenwald, supra, 452 F.2d at 1357. It would seem that if the court intended to overthrow such long-standing authority, it would have done so in much more clear and complete fashion than the obscure footnote in Nyhus. Moreover, even the authorities cited immediately after the portion of Nyhus quoted above cast doubt on the proposition that the court intended to overthrow the traditional approach, for the court cites for support the very cases -- Filson, supra; Kaplan, supra ; and Wells, supra -- that such a decision would have cast aside.

 In Cornwell, this Court indicated that one of the benefits of adopting the interest analysis approach was that "the door is now open in this jurisdiction for a rational consideration of the limitations question . . . ." 373 F. Supp. at 664. The Court still believes that, from a policy standpoint, the "interest analysis" approach is a far better method of resolving conflicts between statutes of limitations. However, the Court is mindful of ...


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