The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge
Currently before the Court is the Renewed Motion for Summary Judgment as to the Plaintiff's Third Amended Complaint brought by Defendants Shaw, Bransford, Veilleux & Roth, P.C., William L. Bransford, Esquire, and Robert E. Gans, Esquire (collectively "Defendants"). In response to Defendants' Renewed Motion for Summary Judgment, Plaintiff has filed a one-paragraph submission indicating that she believes Defendants' Renewed Motion to be improper because she has filed an appeal in this case with the U.S. Court of Appeals for the D.C. Circuit, and also indicating that she wishes to incorporate a prior pleading in opposition to Defendants' Motion. As the Court has previously explained in two written Orders, the Court has not dismissed Plaintiff's case nor made any final decision affecting the viability of her claims, and Plaintiff is therefore mistaken in her belief that her case is ripe for appeal. Moreover, based on a searching review of the copious pleadings filed by each party, the relevant case law, and the entire record herein, the Court shall grant Defendants' Renewed Motion for Summary Judgment as to Plaintiff's Third Amended Complaint.
Rather than repeat the tortured history of Plaintiff's non-compliance with her basic discovery obligations in this case, and the multitude of motions that she has filed seeking to turn this Court's attention to any issue other than this failure, the Court notes these basic facts.*fn1 At a June 29, 2006 hearing before Magistrate Judge Alan Kay, the Magistrate directed that Plaintiff was to submit, by July 21, 2006, (1) a detailed explanation of all discovery materials that she has provided Defendant; (2) a clear statement of how she has complied with Magistrate Judge Kay's December 8, 2004 Order requiring substantive responses to Defendants' Interrogatories, Magistrate Judge Kay's April 6, 2005 Order requiring that Plaintiff file an objective Notice of Discovery setting out her specific discovery requests, and Magistrate Judge Kay's June 1, 2005 Order requiring Plaintiff to show cause pursuant to Rule 11 why she should not be sanctioned for discovery avoidance; and (3) a clear, succinct statement as to whether or not -- if this case were to go to trial -- Plaintiff would have an expert witness to testify on the issue of legal malpractice. As of June 29, 2006, this Court and Magistrate Judge Kay had given Plaintiff over 1.5 years to comply with these basic obligations, and Magistrate Judge Kay's Order of that date was his last-ditch effort to focus Plaintiff on her basic duties in prosecuting this case.
Nevertheless, Plaintiff failed to respond to either Magistrate Judge Kay's Order or this Court's July 6, 2006 Order reaffirming her obligations. Instead, Plaintiff (1) filed a Motion to Invalidate the Orders of Magistrate Judge Kay for lack of jurisdiction, and (2) appealed this case to the D.C. Circuit. However, as this Court explained in its July 6, 2006 and August 31, 2006 Orders, Plaintiff's actions were premised on a faulty assumption: the Court has not dismissed Plaintiff's case, nor has it made any final decision affecting the viability of her claims up to this point. Rather, as frequently explained, the Court's September 14, 2005 Opinions and Orders merely stayed the case for sixty (60) days to provide Plaintiff additional time for compliance and an opportunity for the Court to measure her progress in meeting both her discovery obligations and Magistrate Judge Kay's orders.
As a result, this Court's August 31, 2006 Order denied Plaintiff's Motion to Invalidate the Orders of Magistrate Judge Kay and, in light of Plaintiff's failure to indicate that she had complied with any discovery-related order issued by this Court or Magistrate Judge Kay, directed Defendants to file a renewed Motion to Dismiss and/or for Summary Judgment in this case, set forth a briefing schedule for that motion, and specifically advised Plaintiff of her responsibilities in responding to Defendants' motion.*fn2 Defendants filed their Renewed Motion for Summary Judgment as to the Plaintiff's Third Amended Complaint on September 28, 2006, and incorporated by reference therein their two previous Motions for Summary Judgment. Defs.' Mem. of P. & A. in Support of Their Renewed Mot. for Summ. J. as to the Plaintiff's Third Am. Compl. (hereinafter "Defs.' Renewed Mot. for Summ. J."). In response to Defendants' Renewed Motion, on October 14, 2006, Plaintiff filed a one-paragraph submission in which she again mistakenly asserted that Defendants' Renewed Motion was improper in light of her August 29, 2006 appeal, and further stated that "[sic] case record shows Defendants' motion as to Plaintiff's third amended complaint was a motion for default judgment. Plaintiff filed opposition and incorporates herein by reference." Pl.'s Filing Re: Defs.' Renewed Mot. for Summ. J. As To The Plaintiff's Third Amended Complaint (emphasis in original).*fn3 In a filing dated October 19, 2006, Defendants asked the Court to disregard Plaintiff's one-paragraph submission based on its inaccurate assertion that this case was closed. Thereafter, on November 10, 2006, Defendants filed a Reply to Plaintiff's Lack of Opposition to the Defendants' Renewed Motion for Summary Judgment as to the Plaintiff's Third Amended Complaint.
A party is entitled to summary judgment if the pleadings, depositions, answers to interrogatories, and affidavits demonstrate that there is no genuine issue of material fact in dispute and that the moving party is entitled to judgment as a matter of law. See FED. R. CIV. P. 56(c); Tao v. Freeh, 27 F.3d 635, 638 (D.C. Cir. 1994). Although a court should draw all reasonable inferences from the supporting records submitted by the nonmoving party, the mere existence of a factual dispute, by itself, is not sufficient to bar summary judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The adverse party's pleadings must evince the existence of a genuine issue of material fact. See id. at 247--48. To be material the factual assertion must be capable of affecting the substantive outcome of the litigation; to be genuine, the issue must be supported by sufficiently admissible evidence such that a reasonable trier-of-fact could find for the nonmoving party. See id.; Aka v. Washington Hosp. Ctr., 116 F.3d 876, 879 (D.C. Cir. 1997); Laningham v. United States Navy, 813 F.2d 1236, 1242--43 (D.C. Cir. 1987). Mere allegations or denials in the adverse party's pleadings are insufficient to defeat an otherwise proper motion for summary judgment. Rather, the nonmoving party bears the affirmative duty to present, by affidavits or other means, specific facts showing that there is a genuine issue for trial; not simply "show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); see also Anderson, 477 U.S. at 248--49. No genuine issue of material fact exists "[w]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party." Id. at 587.
Defendants' Renewed Motion for Summary Judgment asserts three separate and independent grounds for summary judgment or dismissal as to Plaintiff's Third Amended Complaint. First, Defendants argue that under District of Columbia law, Plaintiff is required to designate an expert in order to sustain a prima facie case for legal malpractice and that her failure to do so requires an entry of summary judgment for Defendants. Defs.' Renewed Mot. for Summ. J. at 6-8. Second, Defendants assert that the Court should involuntarily dismiss Plaintiff's Third Amended Complaint with prejudice pursuant to Federal Rule of Civil Procedure 41(b) for Plaintiff's failure to comply with Orders entered by this Court and Magistrate Judge Kay, failure to comply with the Federal Rules of Civil Procedure, and attendant failure to prosecute this action. Id. at 8-9. Finally, Defendants argue that dismissal of Plaintiff's Third Amended Complaint is appropriate under Federal Rule of Civil Procedure 37(b)(2)(C) based on Plaintiff's failure to comply with various discovery-related orders, including her failure to comply with Magistrate Judge Kay's December 8, 2004 Order that Plaintiff substantively respond to Defendants' May 28, 2004 Interrogatories. Id. at 10-14. The Court agrees with Defendants that Plaintiff's failure to designate an expert is fatal to her claims of legal malpractice and, as a result, the Court shall grant Defendants' Renewed Motion for Summary Judgment as to Plaintiff's Third Amended Complaint. The Court is also convinced that dismissal of Plaintiff's Third Amended Complaint is appropriate under either Federal Rules of Civil Procedure 41(b) or 37(b)(2)(C) based on Plaintiff's willful refusal to comply with her discovery obligations in this case, as well as numerous Orders of this Court and of Magistrate Judge Kay.
A. Failure to Designate an Expert
Under District of Columbia law "[w]hether a complaint is based on tort or breach of contract . . . the liability of an attorney for failure to properly perform his duties is governed by the same general standard of care." O'Neil v. Bergan, 452 A.2d 337, 341 (D.C. 1982). "In short, the 'reasonable skill' promised in [a contractual] agreement is the same as the 'reasonable skill' which an attorney must display to avoid tort liability." Id. Thus, although Plaintiff's Third Amended Complaint nominally includes allegations of breach of contract and fraudulent misrepresentation as well as legal malpractice, all of her claims require her to establish a prima facie case of legal malpractice. To do so, "the plaintiff must establish the applicable standard of care, that the attorney violated the standard, and that the violation caused a legally cognizable injury." Kaempe v. Myers, 367 F.3d 958, 966 (D.C. Cir. 2004) (citing O'Neil, 452 A.2d at 341)); see also Mavity v. Fraas, Civ. A. No. 05-0107 (RMU), 2006 WL 2868250, at *2 (D.D.C. Oct. 10, 2006) (citing Athridge v. Aetna Cas. & Sur. Co., 351 F.3d 1166, 1174 (D.C. Cir. 2003)). Furthermore, under District of Columbia law, to meet the first of these requirements, 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 find negligence as a matter of common knowledge." Kaempe, 367 F.3d at 966 (citing O'Neil, 452 A.2d at 341); Mavity, 2006 WL 2868250 at *2 (citing Athridge, 351 F.3d at 1174).
Plaintiff retained the Defendant law firm on July 31, 1996 "in connection with [her] employment with the Federal Aviation Administration." Defs.' Stmt. of Mat. and Rel. Facts Not in Dispute (hereinafter "Defs.' Stmt. of Mat. Facts") ¶ 1 & Ex. 1 (7/31/96 Fee Agreement signed by W. Bransford and D. Handy). Plaintiff's Title VII case proceeded to trial on September 22, 1997 and the jury returned a verdict in favor of the defendant in that case on September 29, 1997. Defs.' Stmt. of Mat. Facts ¶¶ 2-3. With respect to her discrimination lawsuit, Plaintiff's Third Amended Complaint alleges that Defendants breached their contract with Plaintiff by "failing to represent her" on specific issues discussed before the contractual agreement was signed, id. ¶ 8, and further asserts that the law firm "fraudulently misrepresented itself inducing Plaintiff into contract [sic]" by holding the firm out as experts and fraudulently misrepresenting who would handle Plaintiff's Complaint," id. ¶ 9.
Moreover, Plaintiff alleges that Defendants "failed to provide even competent representation and standard of care [sic] generally afforded clients and is [sic] expected of counsel not claiming a specific level of expertise," and specifically criticizes various aspects of Defendants' pre-trial preparation and trial performance, including Defendant's alleged "refus[al] to depose Agency's Medical Expert who examined the Plaintiff," obtain the Expert's Report, or examine the medical expert at trial. Id. ¶¶ 11-16. Plaintiff further alleges that Defendants failed to timely notify Plaintiff of her right to appeal, id. ¶ 17, failed to reasonably communicate a settlement offer to Plaintiff, id. ¶ 18, and engaged in a conflict of interest by "representing clients of the same agency having opposing issues," id. ¶ 19. In addition, Plaintiff's Third Amended Complaint alleges that ...