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SHAPIRO, LIFSCHITZ & SCHRAM v. R.E. HAZARD

March 17, 2000

SHAPIRO, LIFSCHITZ & SCHRAM, P.C., PLAINTIFF,
V.
R.E. HAZARD, JR., A CALIFORNIA LIMITED PARTNERSHIP, ET AL., DEFENDANTS. R.E. HAZARD, JR., A CALIFORNIA LIMITED PARTNERSHIP, ET AL., COUNTER-PLAINTIFFS, V. SHAPIRO, LIFSCHITZ & SCHRAM, P.C., COUNTER-DEFENDANT.



The opinion of the court was delivered by: Stanley S. Harris, District Judge.

OPINION

Before the Court are (1) plaintiff's motion for summary judgment on all counterclaims, (2) defendants' motion to extend time in which the parties may serve expert reports, (3) defendants' motion for leave to file a discovery request out-of-time, and (4) defendants' motion to extend the time in which defendants may oppose plaintiff's motion for summary judgment on all counterclaims.*fn1 The Court also considers plaintiff's opposition to defendants' three motions and defendants' reply thereto. Upon consideration of these motions, the Court grants plaintiff's motion for summary judgment and denies defendants' three motions. Because the Court grants plaintiff's motion for summary judgment on all counterclaims, the Court finds that plaintiff's previously filed motion to dismiss the fourth counterclaim is moot. "Findings of fact and conclusions of law are unnecessary on decisions of motions under Rule 12 or 56." Fed.R.Civ.P. 52(a); Summers v. Department of Justice, 140 F.3d 1077, 1079-80 (D.C.Cir. 1998). Nonetheless, the Court sets forth its reasoning.

I. Background

After the Court dismissed several of defendants' original counterclaims, defendants filed eight amended counterclaims on October 23, 1998. On February 23, 1999, the Court issued a Scheduling Order, requiring the party with the burden of proof on a claim or counterclaim to serve its expert report, if any, on the opposing party by April 12, 1999.*fn2 Defendants carried the burden of proof on their counterclaims. They did not, however, serve an expert report by the Court's deadline. Notably, they also did not file any motions for extension of time. Plaintiff consequently did not file a responsive expert report, although it had already contacted an expert in anticipation of filing a report.

On May 3, 1999, plaintiff filed a motion for summary judgment on all counterclaims, arguing that in order to establish a prima facie case of legal malpractice, a party must present expert testimony establishing the standard of care by which the attorney can be measured. See e.g., Smith v. Haden, 872 F. Supp. 1040, 1044 (D.D.C. 1994). Plaintiff asserts that, without expert testimony, defendants cannot establish a prima facie case, and therefore, could not prevail on their counterclaims as a matter of law. On May 14, 1999, instead of filing an opposition to plaintiff's motion, defendants filed the three motions currently before the Court.

II. Defendants' Motions*fn3

Defendants state that they obtained documents and billing records from plaintiff in discovery during a California state court action brought by plaintiff before refiling the suit in this Court. Defendants assert that these documents form the basis for their counterclaims. However, defendants' counsel cite several difficulties now in locating these documents. First, frequent changes in defendants' California counsel have made it impossible to locate the documents readily. Furthermore, defendants, who are located in California, have limited resources to fund cross-country litigation and also run their businesses. Defendants now request leave to reopen the period for fact discovery, which closed on February 12, 1999, in order to make another discovery request for their misplaced documents. Furthermore, defendants request an extension of time to submit the expert reports, over a month after the deadline has passed, as well as an extension of time to oppose plaintiff's motion for summary judgment on the counterclaims.

The fact that defendants' counsel have misplaced the documents which they previously requested from plaintiff is insufficient reason to delay this case further or impose upon plaintiff. Defendants give no reason for failing to file a timely motion for extension of time when the expert reports were due.*fn4 Furthermore, the Court will not exercise its discretion to grant an extension of time to oppose plaintiff's motion for summary judgment, because, as discussed below, the Court can discern no viable way for defendants to prevail on their counterclaims under the applicable law. Any unfortunate results from the inability of defendants' counsel (including their counsel in California) to maintain discovery materials or file timely motions for extensions of time arise from their own voluntary choice of attorneys. See Link v. Wabash Railroad Co., 370 U.S. 626, 633-4, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962). The Court finds no good cause to grant any of defendants' motions.

III. Plaintiff's Motion for Summary Judgment on All Counterclaims

Summary judgment may be granted only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In considering a summary judgment motion, all evidence and the inferences to be drawn from it must be considered in a light most favorable to the nonmoving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). Summary judgment cannot be granted "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986).

Defendants assert eight amended counterclaims: four claims alleging professional negligence, three claims alleging breach of fiduciary duty, and one claim alleging breach of contract. All of the claims rely on plaintiff's alleged failure to exercise reasonable care, prudence, and diligence in undertaking to perform and performing legal services by:

(1) allegedly assigning two attorneys to take depositions where only one attorney was necessary, charging for time when plaintiff was performing services for other clients, and charging for time when plaintiff was engaged in social or other activity unrelated to defendants' legal matters;

(2) allegedly charging fees and costs in excess of the expected potential recovery for defendants in the School District litigation (which gave rise to the payment dispute at issue in this case) so as to force defendants into settling the case;

(3) allegedly unreasonably threatening to withhold legal representation several days before a mediation proceeding until defendants paid plaintiff for past legal services, thereby placing plaintiff's pecuniary ...


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