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APPLEGATE v. DOBROVIR

December 2, 1985

RALPH A. APPLEGATE, Plaintiff,
v.
DOBROVIR, OAKES & GEBHARDT, Defendants



The opinion of the court was delivered by: OBERDORFER

OBERDORFER, U.S.D.J.

 MEMORANDUM

 I.

 Plaintiff is a former employee of the Department of Defense. He was employed as a Mechanical Engineer in the Defense Construction Supply Center (DCSC) in Columbus, Ohio, until November 1, 1976, when he was removed from his position. Second Amended Complaint at para. 5 (filed May 16, 1984). In April, 1978, after plaintiff lost his internal appeal of his removal, plaintiff sought a lawyer to represent him in a suit against the DCSC in federal court. Amended Complaint at paras. 9, 10 (filed Dec. 13, 1984). *fn1" Plaintiff "sought lawyers in writing, in person, by telephone in Ohio cities; Iowa; Maryland; New York City; Houston; San Francisco; Pittsburgh; Washington, D.C.; and other locations on a number of occasions during 1978 to no avail." Amended Complaint at para. 10.

 Defendants began their representation of plaintiff in December, 1978, after the Lawyer Referral and Information Service of the District of Columbia Bar asked the firm to consider representing plaintiff. Memorandum of Points and Authorities in Support of Defendant, Dobrovir, Oakes & Gebhardt's Motion for Summary Judgment (Defendants' Mem.) at 1 (filed March 14, 1985); Second Amended Complaint at para. 6. The Fund for Constitutional Government, a public interest foundation, agreed to finance partially defendants' representation of plaintiff. The rest of plaintiff's representation was provided by the law firm on a pro bono basis. Affidavit of William A. Dobrovir at paras. 3, 4 (filed March 14, 1985).

 On behalf of plaintiff, defendants filed Civil Action No. 79-0145 on Jan. 12, 1979. The suit sought to vindicate plaintiff's right as a public employee to speak out publicly on the issue of waste in federal procurements. Three and one-half years of litigation then ensued. During the course of the litigation, defendants responded to the government's, and filed their own, cross-motion for summary judgment, and argued for, and ultimately obtained, de novo fact-finding by the court on the first amendment issue raised, thus necessitating discovery. Id. at paras. 5, 6. During discovery, defendants filed numerous motions to compel. Id. at paras. 7, 8. Defendants then briefed a second round of cross-motions for summary judgment. Id. at para. 9. The court granted the government's cross-motion as to plaintiff's fifth amendment and 42 U.S.C. § 1985 claims. Id. The court determined the first amendment claim to require trial. Defendants thus engaged in further, expedited discovery. During the entire course of discovery, defendants took 2030 pages of deposition testimony. Defendants' Mem. at 4 n.2 (citing Record from C.A. 79-0145). Shortly before trial, defendant learned that certain potentially relevant documents held by the government had been destroyed. Dobrovir Affidavit at para. 11. The firm moved for imposition of sanctions. Id. Before that motion was decided, plaintiff agreed to settle his claim for $28,500. Id.

 Plaintiff's claims in this action arise out of this original representation. Plaintiff's claims are essentially two-fold: (1) professional malpractice; and (2) fraud and tortious misrepresentation, allegedly inducing Mr. Applegate to settle his case to his detriment on the eve of trial. See Second Amended Complaint, supra.

 II.

 A.

 At the September 18 hearing the parties raised two preliminary, technical questions. Defendants urged that the action be maintained against the law firm (as well as Mr. Dobrovir) despite the rule in the District of Columbia that a partnership is not an entity capable of suing or being sued. Defendants invoke an Ohio statute as authority for their position. Ohio Rev. Code § 2307.24. They claim that since this action was commenced in Ohio, plaintiff's domicile, the suit could have been maintained there against the partnership. *fn2" They refer to Fed. R. Civ. P. 17(b) which says that an individual's capacity to sue is determined by the law of his domicile. Plaintiff does not challenge defendants' suggestion, and there is strong authority supporting the Magistrate's recommendation, that Ohio law be applied. Van Dusen v. Barrack, 376 U.S. 612, 638-39, 11 L. Ed. 2d 945, 84 S. Ct. 805 (1964); see also Walko Corp. v. Burger Chef Systems, Inc., 180 U.S. App. D.C. 306, 554 F.2d 1165, 1167 (D.C. Cir. 1977). Accordingly, the case will be maintained here against both Mr. Dobrovir and the partnership, as it would have been if the case had not been transferred from the District Court in Ohio.

 B.

 Plaintiff questions the authority of the Magistrate to entertain, and to make recommendations on, the summary judgment motion. Plaintiff's Objection to Magistrate Burnett [sic] Memorandum Opinion, Report and Recommendation of September 10, 1985 (Plaintiff's Objection) (filed Sept. 17, 1985). However, there is clear statutory authority for this role for the magistrate. See 28 U.S.C. § 636. *fn3" While the order of reference to conduct pretrial proceedings did not specifically authorize the Magistrate to hear and make recommendations about dispositive motions, to do so is an authorized element of pretrial proceedings. 28 U.S.C. § 636 (b)(1)(B). Moreover, Mr. Applegate had notice of, and participated in, the summary judgment proceedings before the Magistrate. At this late date, he has no valid objection to the Court's having the benefit of the recommendation developed from those proceedings. Because plaintiff has raised written objections to the Magistrate's Report, the Court will decide the summary judgment motion de novo. 28 U.S.C. § 636; Tr. at 7-8. The bulk of plaintiff's objections address the merits of the Magistrate's Report. These concerns have been received and considered.

 A.

 On the malpractice issue, defendants contend, and the Magistrate recommends, that the motion be granted because it is well-established that the plaintiff in such a case has the burden of establishing the standard of care and of proving that the defendants failed to meet it. Defendants' Mem. at 8-22; Mem. at 2-11. Yet in this case, despite numerous opportunities and great effort to locate an expert willing and able to testify on his behalf with respect to the standard of care and defendants' departure from it, plaintiff has proffered none.

 Plaintiff explains that he has contacted numerous potential expert witnesses, without success. He does not claim that he lacks means to engage an expert, only that none has been willing to appear. In addition, plaintiff questions the necessity for expert testimony to establish his prima facie case. If one is nevertheless needed, he suggests that the Court appoint one. Plaintiff's Objection at 2.

 B.

 As the Magistrate correctly observes, Mem. at 3-6, it is well established in this district that in legal (as well as medical) malpractice cases, expert testimony proving the applicable standard of care is an essential element of plaintiff's prima facie case. E.g., Eibl v. Kogan, 494 A.2d 640 (D.C. App. 1985); O'Neil v. Bergan, 452 A.2d 337 (D.C. App. 1982). *fn4" This Court once permitted a legal malpractice claim to go to the jury despite plaintiff's failure to offer expert testimony only to have the judgment for plaintiff reversed and remanded. Hozie v. Rykhus, No. 76-2272 (D.D.C. April 14, 1978), rev'd., Nos. 78-1856 and 78-1893 (D.C. Cir. November 7, 1979) (unpublished). This is also the law in Ohio. McInnis v. Hyatt Legal Clinics, 10 Ohio St. 3d 112, 461 N.E.2d 1295 (1984); Bloom v. Dieckmann, 11 Ohio App. 3d 202, 464 N.E.2d 187 (1983).

 Both Ohio and the District of Columbia recognize the "common knowledge" exception to the general rule that a legal malpractice action must be supported by expert testimony. O'Neil, supra, provides:

 
In a legal malpractice action, the plaintiff must present expert testimony establishing the standard of care unless the attorney's lack of care and skill is so obvious that the trier of fact can ...

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