The opinion of the court was delivered by: Stanley S. Harris, District Judge.
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
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.
III. Plaintiff's Motion for Summary Judgment on All
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 ...