RUDOLPH CONTRERAS, United States District Judge.
Plaintiff Nieves Rocha ("Mrs.Rocha"), individually and as the personal representative of the estate of her deceased husband, Oscar Rocha ("Mr.Rocha"), has commenced this action against attorney Daniel Brown, his law firm, Brown & Gould, LLP, and David Lipman, P.A. (collectively, "Defendants") alleging legal malpractice (Count I), breach of fiduciary duty (Count II), and breach of contract (Count III). Mrs. Rocha alleges that Defendants committed malpractice by failing to file her asbestos-related claims, which arose out of her husband's death from complications caused by mesothelioma, in Maryland state court. Defendants instead filed a lawsuit on Mrs. Rocha's behalf in D.C. Superior Court, and the D.C. court ultimately ruled that the claims were time-barred under D.C.Code § 12-311. Relatedly, Mrs. Rocha alleges that Brown, through his work with the Trial Lawyers Association of Metro Washington, D.C. ("DC-TLA"), erred by failing to get D.C.Code § 12-311 amended in a way that would have made Mrs. Rocha's asbestos-related lawsuit retroactively timely.
Now before the Court is a motion for summary judgment filed by Brown & Gould, LLP and Daniel Brown (collectively, the "B & G Defendants"), as well as a motion for summary judgment filed by Lipman that incorporates the B & G Defendants' motion and adds arguments specific to Lipman's role in the representation. Together, Defendants seek judgment on Mrs. Rocha's legal malpractice claim in Count I by arguing that the claim is barred by both the statute of limitations and the "judgmental immunity" doctrine. Defendants also request judgment in their favor as to the breach of fiduciary duty claim in Count II on the basis that the claim is not separate and distinct from the legal malpractice claim in Count I. Finally, Defendants seek judgment on Count III, which is premised on Brown's legislative activity, on the basis that Mrs. Rocha fails to state any cognizable legal theory entitling her to relief. In response, Mrs. Rocha has filed a cross-motion asking the Court to enter judgment for her on the issue of whether the legal malpractice claim in Count I was timely filed. For the reasons explained below, the Court will grant the B & G Defendants' and Lipman's motions for summary judgment, and the Court will deny Mrs. Rocha's motion.
Upon consideration of the evidentiary record submitted by the parties, the Court finds that the following facts are not in dispute. See Fed.R.Civ.P. 56(a).
Oscar Rocha, a Virginia resident, was employed as a carpenter and painter in the Virginia and D.C. area from approximately 1971 through 1984. See Omnibus Order, Civ. Act. No. 0838-9, Jan. 10, 2011 (D.C.Sup.Ct.) ("Omnibus Order"), ECF No. 37-5, Ex. 9 at 21.
Mrs. Rocha first spoke to Brown and his associates by telephone on February 9, 2009. See N. Rocha Dep., ECF No. 37-1, Ex. 1 at 26:20-27:17; Lawson-Hue Dep., ECF No. 37-3, Ex. 5 at 16:1-10. Because Mr. Rocha was diagnosed with mesothelioma on February 22, 2006, and died on February 10, 2008, Brown initially determined that the one-year limitations period in D.C.Code § 12-311 likely would expire on February 10, 2009, and the limitations period for a survival action in Maryland likely would expire twelve days later. See Brown Aff., ECF No. 37-9, at ¶¶ 8-10. Medical records later indicated that Mr. Rocha was not informed of his diagnosis until February 28, 2006, which may have extended the Maryland limitations period by six days, but Brown did not have this information in February 2009. See id. ¶ 10.
During the initial telephone call on February 9, 2009, Mrs. Rocha provided Brown with information regarding Mr. Rocha's work history. In particular, she informed Brown that Mr. Rocha had worked for many years as a carpenter, drywall worker, and independent painter; that he had worked at the Skyline Towers apartment complex in Virginia when it collapsed in 1973; and that he had performed painting work at the D.C. Greyhound Bus terminal, where he may have been exposed to asbestos or asbestos-containing insulation. See Client Intake Form, ECF No. 37-9, Ex. 28; N. Rocha Dep. at 29:1-33:15; see also Brown Dep., ECF No. 37-2, Ex. 3 at 60:10-17, 98:22-99:10.
Mrs. Rocha and her son, Michael, met with Brown in-person the next day, February 10, 2009. Given the imminent potential limitations deadlines, Brown informed the Rochas that it was imperative to locate any witnesses or evidence that might provide information regarding where Mr. Rocha was exposed to asbestos. See Brown Aff. ¶ 11. At this meeting, the Rochas did not advise Brown that Mr. Rocha had performed work in Maryland that might have exposed him to asbestos. See id.; Interview Notes, ECF No. 37-9, Ex. 29. Also at this meeting, Brown gave Mrs. Rocha a client intake questionnaire to fill out. See N. Rocha Dep. at 34:5-35:12; Client Questionnaire, ECF No. 37-9, Ex. 31. Mrs. Rocha's responses to the questionnaire did not indicate any potential connection between Mr. Rocha and asbestos exposure in Maryland, nor did Mrs. Rocha indicate that she had knowledge of a witness who might possess such information about Mr. Rocha's potential exposure in Maryland. See Client Questionnaire, Ex. 31; see also N. Rocha Dep. at 33:18-36:12, 39:6-40:17, 43:16-44:5; Brown Dep. at 50:3-51:18; Brown Aff. ¶ 11.
In her answers to the questionnaire, Mrs. Rocha provided the contact information for her eldest son, John, but neither Mrs. Rocha nor Michael Rocha told Brown
During his deposition on October 6, 2014, as part of this litigation, John Rocha testified as to certain recollections about his father's potential work history in Maryland. In particular, John recalled that around five-or six-years of age (i.e., between October 1975 and October 1976), he had accompanied his father on one occasion from Virginia across the Woodrow Wilson Bridge, and he thought they may have gone to a jobsite in Prince George's County, Maryland, where Mr. Rocha may have performed mudding, drywall work, and painting. See J. Rocha Dep. at 47:16-49:23, 59:17-62:18, 77:6-14; Brown Aff. ¶ 13. This deposition testimony remains the only direct evidence that Mr. Rocha may have been exposed to asbestos in Maryland. See Enslein Email, Sept. 15, 2014, ECF No. 37-9, Ex. 32.
On February 10, 2009, Mrs. Rocha signed a written retainer agreement with Brown & Gould and the Lipman Law Firm (the "First Retainer"). See First Retainer, ECF No. 37-5, Ex. 7. The First Retainer provided, in relevant part:
At her deposition, Mrs. Rocha testified as to the following regarding her understanding of the First Retainer:
N. Rocha Dep. at 78:18-79:10. The First Retainer does not provide that Brown & Gould or the Lipman Law Firm would undertake any legislative services on Mrs. Rocha's behalf. See First Retainer, Ex. 7.
On February 16, 2009, Brown wrote a letter to the DC-TLA in regard to the group potentially seeking a legislative clarification about the application of the statute of limitations in D.C.Code § 12-311, which deals with asbestos-related claims.
The DC-TLA took up the limitations issue as a legislative priority, and the D.C. Council took two interim clarifying steps before ultimately passing a final amended statute. First, the D.C. Council adopted an emergency resolution intended to clarify the original legislative intent of the statute. Specifically, Resolution 18-642, which was dated October 5, 2010, and entitled "Asbestos Statute of Limitations Clarification Emergency Declaration Resolution of 2010," provided that the intent of
Following this emergency legislative activity in October 2010, the final legislative process occurred, and an amended statute was codified in June 2011 with language slightly different from the emergency act. The amended version of D.C.Code § 12-311 provides:
D.C.Code § 12-311 (June 3, 2011).
With evidence of Mr. Rocha's likely asbestos exposure in Virginia, Brown decided to pursue a "back-up" case in Virginia state court on Mrs. Rocha's behalf. See Brown Dep. at 67:3-18, 112:9-13; Brown Aff. ¶ 33. In making the decision to file in Virginia, Brown considered the fact that Virginia procedural rules allowed for "sleeper suits" and nonsuits, which were unavailable in D.C. See Brown Dep. at 112:9-13; Brown Aff. ¶¶ 33-34. Thus, on February 10, 2010, Brown, through Virginia lawyer Erin Jewell, filed a wrongful death lawsuit in the Circuit Court for Newport News. See Compl. Civ. Act. No. 10-00316TF (Cir. Ct. Newport News, Va. Feb. 10, 2010), ECF No. 43-9, Ex. 7. On January 12, 2011, Brown instructed Jewell to nonsuit the Virginia action, see Brown Email, Jan. 12, 2011, ECF No. 44-8, Ex. 18, and on January 31, 2011, the Virginia court entered the order of nonsuit dismissing the case, see Order of Nonsuit, Civ. Act. No. 10-00316TF (Cir. Ct. Newport News, Va. Jan. 31, 2011), ECF No. 45-7, Ex. 27.
On February 10, 2009, the same day that Mrs. Rocha signed the First Retainer, Brown & Gould filed a wrongful death and survival complaint on her behalf in the D.C. Superior Court against Bondex International, Inc., Georgia-Pacific Corporation, Union Carbide Corporation, and seven other companies. See Compl., Civ. Act. No. 0838-09 (D.C.Sup.Ct. Feb. 10, 2009), ECF No. 37-5, Ex. 8. As of December 2010,
On January 10, 2011, the Superior Court issued an Omnibus Order explaining the summary judgment decision. See generally Omnibus Order, Ex. 9. In particular, the court found that the language in the pre-June 3, 2011, version of D.C.Code § 12-311 was "clear and unambiguous" such that the statute's one-year limitations period applied to Mrs. Rocha's mesothelioma claims and did not give her the option of relying on the three-year limitations period in § 12-301(8). See id. at 29. The court therefore determined that because "the disability and discovery dates ... [were] on or before February 28, 2006, when Mr. Rocha was diagnosed with mesothelioma and no longer able to work," Mrs. Rocha "had one year from that date in which to sue" under § 12-311; accordingly, her February 10, 2009, complaint in D.C. Superior Court was time-barred. See id. at 32. Finally, looking to the recent emergency legislative activity, the court found no language in Resolution 18-642 or D.C. Act 18-585 indicating that the legislature intended for § 12-311 to apply retroactively to a complaint that was filed prior to the amendment and that had expired by the time of filing, which was the status of Mrs. Rocha's D.C. lawsuit. See id. at 32-34.
On February 4, 2011, Brown & Gould filed a notice of appeal in the D.C. Court of Appeals. See Notice of Appeal, ECF No. 37-5, Ex. 10. On March 24, 2011, the D.C. Court of Appeals dismissed Mrs. Rocha's appeal without prejudice because the trial court had not yet entered a final judgment as to all defendants. See Dismissal Notice, ECF No. 37-5, Ex. 11. On April 22, 2011, Brown & Gould filed a consent motion to reinstate the Superior Court action and for the entry of a final order dismissing the last defendant, Bondex. See Consent Mot., ECF No. 37-5, Ex. 12. The Superior Court entered a corrected final order effecting the full dismissal of the lawsuit on April 26, 2011. See Final Order, ECF No. 37-5, Ex. 13.
Following the Omnibus Order, Mrs. Rocha, Michael Rocha, and Brown engaged in numerous conversations regarding potential terms and conditions by which Defendants might represent Mrs. Rocha during an appeal to the D.C. Court of Appeals.
After the March 4 letter, Brown attempted to communicate with Mrs. Rocha and her son throughout April and May regarding whether Mrs. Rocha would sign a new retainer for the appeal, but the Rochas mostly ignored Brown's many phone messages, emails, and letters:
Consistent with Mrs. Rocha's rejection of Brown's March 4 proposal, one issue delaying the signing of a new retainer was concern by Mrs. Rocha and her son about the fees and costs incurred under the First Retainer, as well as the potential costs of Defendants' representation during the appeal. See M. Rocha Dep. at 128:20-130:18. Mrs. Rocha therefore would not sign a new retainer until these concerns about past and future costs were resolved. See id. at 133:10-134:6. In addition, Mrs. Rocha demanded that any new retainer must grant her the right to pre-approve expenses going forward, see id. at 136:4-137:15, and the Rochas also expressed concerns about Defendants' substantive handling of the D.C. and Virginia actions, see id. 146:14-147:22.
Thus, on May 20, 2011, with Mrs. Rocha still having not signed a new retainer, Brown sent her a letter stating that "[t]his concludes our representation of you at the trial level in this matter [but] please keep in mind that we stand ready, willing, and able to proceed with the appeal of [the Superior Court] order if you wish us to do so." Brown Letter, May 20, 2011, Ex. 19.
On May 23, 2011, Brown held a two-hour telephone conference with Mrs. Rocha and Michael Rocha, and Brown gave them until 5:00 PM that night to decide whether to sign the proposed retainer for the appeal. See Brown Letter, May 23, 2011, ECF No. 37-8, Ex. 20. As of this date, Mrs. Rocha remained interested in pursuing the appeal pro se or hiring new counsel, and Brown mailed the Rochas the relevant trial court paperwork in the event that they decided to file a notice of appeal on their own. See id.; M. Rocha Dep. at 157:3-13.
At 4:50 PM on May 23, 2011, Michael Rocha emailed Brown to inform him that Mrs. Rocha would sign a new retainer for Defendants to represent her during the appeal before the D.C. Court of Appeals (the "Second Retainer"). See M. Rocha Email, ECF No. 37-8, Ex. 21. The Second Retainer differed from the First Retainer in that it changed the compensation format to a contingency fee agreement based on the total amount recovered in the case. See Second Retainer, ECF No. 37-8, Ex. 22. The next day, May 24, a Brown & Gould attorney filed a second notice of appeal at the D.C. Superior Court on Mrs. Rocha's behalf. See Dkt., Civ. Act. No. 0838-09 (D.C.Sup.Ct.).
On June 9, 2011, Brown sent a letter to Mrs. Rocha stating that Defendants would no longer represent her in the appeal due to "breakdowns in ... communications" and a "lack of cooperation." See Brown Letter, June 9, 2011, ECF No. 37-8, Ex. 23. Between the signing of the Second Retainer on May 23 and Brown's letter on June 9, the only service provided by Defendants was filing the second notice of appeal on May 24. See Brown Aff. ¶ 44.
On June 10, 2011, Brown & Gould filed a motion to withdraw in the D.C. Court of Appeals. See Mot. Withdraw, Case No.
David Lipman funded the advertisement that first led Mrs. Rocha to contact Brown & Gould about her husband's death. See M. Rocha Dep. at 174:21-22; see also 2d Am. Compl., ECF No. 40, at ¶¶ 19-20. Lipman was a party to the First and Second Retainers, see First Retainer, Ex. 7; Second Retainer, Ex. 22, and his role during the Superior Court matter included financing the litigation, being available to Brown as a consultant, and assisting Brown if the case went to trial. See Brown Dep. at 95:1-8.
Lipman was not present at the February 10, 2009, meeting between Mrs. Rocha and Brown. See N. Rocha Dep. at 139:15-140:18; M. Rocha Dep. at 173:19-175:4; Lipman Dep., ECF No. 38-3, Ex. 3 at 7:18-8:8. Instead, Lipman first spoke with Mrs. Rocha in late 2010. See N. Rocha Dep. at 139:15-140:18; Lipman Dep. at 16:4-6. Lipman did not promise to perform any legislative work on Mrs. Rocha's behalf, nor did Lipman voluntarily engage in such activity. See Lipman Stmt. Facts, ECF No. 38-1, at ¶ 4.
On June 9, 2014, Mrs. Rocha filed a Complaint against Defendants in D.C. Superior Court, and she filed a nearly identical First Amended Complaint with the Superior Court on June 22, 2014. On July 3, 2014, the B & G Defendants removed the action to this Court. See Notice of Removal, ECF No. 1. On January 9, 2015, Mrs. Rocha filed a Second Amended Complaint asserting three counts against Defendants: legal malpractice in Count I, breach of fiduciary duty in Count II, and breach of contract in Count III based on "express promises to Mrs. Rocha that [Defendants] would get the District of Columbia statute of limitations changed to make her claim timely there[.]" See 2d Am. Compl. ¶ 132.
Now before the Court are the following dispositive motions: (1) the B & G Defendants' motion for summary judgment as to all counts, see B & G Defs.' Mem. Supp. Mot. Summ. J., ECF No. 37;
Pursuant to Federal Rule of Civil Procedure 56(a), summary judgment may be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Holcomb v. Powell, 433 F.3d 889, 895 (D.C.Cir.2006). A fact is "material" if it is capable of affecting the substantive outcome of the litigation. See Liberty Lobby, 477 U.S. at 248, 106 S.Ct. 2505; Holcomb, 433 F.3d at 895. A dispute is "genuine" if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. See Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007); Holcomb, 433 F.3d at 895. When Rule 56 is invoked, the moving party has the initial burden of demonstrating the absence of a genuine dispute as to any material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). When the moving party does not bear the burden of persuasion at trial, its burden "may be discharged by `showing' — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party's case." Id. at 325, 106 S.Ct. 2548.
Once the moving party has met its burden, the nonmoving party, to defeat the motion, must designate "specific facts showing that there is a genuine issue for trial." Id. at 324, 106 S.Ct. 2548. Though courts must view this evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in that party's favor, see Grosdidier v. Broad. Bd. of Governors, Chairman, 709 F.3d 19, 23-24 (D.C.Cir.2013), the nonmoving party must show more than "[t]he mere existence of a scintilla of evidence in support of" his position — "there must be evidence on which the jury could reasonably find for [the nonmoving party]." Anderson, 477 U.S. at 252, 106 S.Ct. 2505. The nonmoving party, moreover, "may not rest upon mere allegation or denials of his pleading but must present affirmative evidence showing a genuine issue for trial." Laningham v. U.S. Navy, 813 F.2d 1236, 1241 (D.C.Cir. 1987) (internal citation and quotation marks omitted).
Finally, this Court has supplemented Rule 56 with Local Civil Rule 7(h), pursuant to which a party filing a motion for summary judgment must include a statement of material facts as to which that party contends there is no genuine dispute. See also Herbert v. Architect of Capitol, 766 F.Supp.2d 59, 63-64 (D.D.C.2011). "The party opposing the motion must, in turn, submit a statement enumerating all material facts which the party contends are genuinely disputed." Id. at 63 (citing LCvR 7(h)(1)). This local rule "places the burden on the parties and their counsel, who are most familiar with the litigation and the record, to crystallize for the district court the material facts and relevant portions of the record." Jackson v. Finnegan, Henderson, Farabow, Garrett & Dunner,
Mrs. Rocha brings claims against Defendants under D.C. law for legal malpractice (Count I), breach of fiduciary duty (Count II), and breach of contract (Count III).
First, the Court grants judgment for Defendants as to Count I on the basis that, under the "continuous representation" rule, Mrs. Rocha's legal malpractice claim is time-barred by the limitations period in D.C.Code § 12-301(8). Second, and alternatively, the Court concludes that judgment for Defendants as to Count I also is appropriate because the legal malpractice claim fails on the merits due to the "judgmental immunity" doctrine and the lack of proximate cause. Third, the Court grants judgment for Defendants as to Count II on the basis that the breach of fiduciary duty claim is not separate and distinct from the failed legal malpractice claim in Count I. And fourth, the Court grants judgment for Defendants as to Count III on the basis that Mrs. Rocha fails to state any cognizable theory of liability for the legislative activity claim, including her varying contract, quasi-contract, and "Good Samaritan" tort theories. Accordingly, the Court denies Mrs. Rocha's motion and enters judgment in favor of Defendants as to all counts.
Through Count I, Mrs. Rocha alleges that, in early 2009, Defendants committed legal malpractice by failing to file an asbestos-related lawsuit on behalf of her and her late husband in Maryland state court.
To determine whether Mrs. Rocha's legal malpractice claim was timely filed on June 9, 2014, the Court must resolve when the limitations period began running. Under D.C.Code § 12-301(8), which is the District's catch-all limitations provision, legal malpractice claims must be brought within three years "from the time the right to maintain the action accrues." See also Seed Co. Ltd. v. Westerman, No. CV 8-00355, 62 F.Supp.3d 56, 63, 2014 WL 3746957, at *4 (D.D.C. July 30, 2014). "In normal negligence actions — where the harm is often apparent — an injury occurs when the harm is suffered. In legal malpractice actions, however — when the harm is often not immediately identifiable — courts apply the `discovery rule' to determine when the statute of limitations begins to run." Id. (internal citations omitted); see also Bleck v. Power, 955 A.2d 712, 715 (D.C.2008). "The discovery rule states that a claim accrues when the plaintiff becomes aware — or by the exercise of reasonable diligence should have become aware — of (1) the harm, (2) its cause in fact, and (3) some evidence of wrongdoing." Seed, 62 F.Supp.3d at 63, 2014 WL 3746957, at *4 (citing Bleck, 955 A.2d at 715; Wagner v. Sellinger, 847 A.2d 1151, 1154 (D.C.2004)).
Defendants argue that under the discovery rule, the limitations period began to run when the D.C. Superior Court issued its Omnibus Order on January 10, 2011. See B & G Defs.' Mem. Supp. Mot. Summ. J. at 12. Mrs. Rocha, on the other hand, argues that the relevant date under the discovery rule is April 26, 2011, which is when the Superior Court entered the corrected final order dismissing the entire suit, because "[i]t was at this point that Mrs. Rocha suffered the harm of having her case dismissed with prejudice as a result of Defendants' negligence and was damaged." See Pl.'s Mem. Supp. Mot. Summ. J. at 22.
Mrs. Rocha's argument misses the mark. Her legal malpractice claim alleges that Defendants should have filed a lawsuit in Maryland, and this contention is precipitated by the fact that on January 10, 2011, the D.C. Superior Court ruled that her asbestos-related claims were time-barred under the court's application of D.C.Code § 12-311.
Accordingly, the Court finds that under the discovery rule, the limitations period for the legal malpractice claim began to run on January 10, 2011. And if that were the end of the analysis today, there is no question that Mrs. Rocha's claim would be untimely, as her complaint was filed approximately three-and-a-half years later on June 9, 2014. But the limitations discussion does not stop with the discovery rule; instead, the Court next must consider an exception to the discovery rule that may grant a plaintiff additional time to sue her counsel by tolling the accrual date for malpractice actions: the "continuous representation" rule.
In cases of alleged legal malpractice, the D.C. Court of Appeals has adopted the "continuous representation" rule, "which tolls the statute of limitations on legal malpractice claims until `the attorney's representation concerning the particular matter in issue is terminated'" — even if the client was on actual or inquiry notice of the attorney's malpractice before then. Seed, 62 F.Supp.3d at 63-64, 2014 WL 3746957, at *5 (quoting R.D.H. Commc'ns, Ltd. v. Winston, 700 A.2d 766, 768 (D.C. 1997)); see also Bleck, 955 A.2d at 715. The purpose of this exception to the discovery rule "is to respect the attorney-client privilege and to avoid placing the client in `the untenable position of suing his attorney while the latter continues to represent him.'" Seed, 62 F.Supp.3d at 64, 2014 WL 3746957, at *6 (quoting R.D.H. Commc'ns, 700 A.2d at 768). Under D.C. law, however, what constitutes the "particular matter in issue" and when that matter was "terminated" are questions of fact about which "there is little guidance." Id. at 64, 2014 WL 3746957, at *5. Nevertheless, to resolve the motions for summary judgment, the Court must answer those two questions next.
Through their motion, Defendants assert that the "particular matter in issue" was their representation of Mrs. Rocha before the D.C. Superior Court under the First Retainer, which, they argue, concluded as a result of either the Omnibus Order on January 10, 2011, or at the latest, the final order on April 26, 2011. See B & G Defs.' Mem. Supp. Mot. Summ. J. at 14; B & G Defs.' Reply Supp. Mot. Summ. J., ECF No. 51, at 6-7. Defendants further argue that, first, their discussions with Mrs. Rocha after the Omnibus Order about a new retainer did not continue the original representation, and second, the Second Retainer is irrelevant to the limitations analysis because that agreement involved a new representation for a different "matter" than the First Retainer. See B & G Defs.' Mem. Supp. Mot. Summ. J. at 16-18. Lastly, Defendants argue that any assistance they gave to Mrs. Rocha after the conclusion of the Superior Court litigation was minimal and insufficient to extend the representation. See B & G Defs.' Reply Supp. Mot. Summ. J. at 6-7.
In effect, Mrs. Rocha's argument aims to create a continuous representation by merging the Superior Court matter into the Court of Appeals matter on the basis that Defendants played a role in each. In offering this theory, however, Mrs. Rocha overlooks the fact that the continuous representation rule applies narrowly to toll the limitations period only until the particular matter in issue — that is, the specific matter in which the alleged legal malpractice occurred — is terminated; consequently, "subsequent general representation of the plaintiffs regarding matters unrelated to the initial transaction does not warrant the application of the doctrine." De May v. Moore & Bruce, LLP, 584 F.Supp.2d 170, 181 (D.D.C.2008) (quotation marks omitted); see also Jones v. Lattimer, 29 F.Supp.3d 5, 15 (D.D.C.2014) ("[T]he continuous representation rule does not apply where the attorney represents the same client in a wholly different matter.").
Here, the original representation between Mrs. Rocha and Defendants was defined by the First Retainer, which specifically excluded from the scope of that representation any appeal of the Superior Court matter. See First Retainer, Ex. 7 ("I understand that by this Agreement you do not agree to appeal this case should it be necessary."). Indeed, Mrs. Rocha acknowledged in her deposition that, when signing the First Retainer, she knew that she was hiring Defendants exclusively for the trial court proceedings, and she also understood that a new retainer was required if Defendants were to represent her during an appeal. See N. Rocha Dep. at 78:18-79:10.
Despite the plain language of the First Retainer, Mrs. Rocha attempts to rely on Judge Huvelle's decision in De May v. Moore & Bruce, LLP, to support her position that the first representation continued after the Superior Court's final order, but the Court finds that De May does not compel such a result. In De May, the plaintiffs had retained the defendant-attorneys to "oversee the overall management of [plaintiffs'] assets," and Judge Huvelle therefore found that the continuous representation rule applied to work defendants had performed both in setting up trusts for the plaintiffs and later in representing the plaintiffs in an appeal to the Tax Court. See De May, 584 F.Supp.2d at 180-84. In reaching this conclusion, Judge Huvelle explained that De May was "not a situation where the lawyer's general representation [was] separate and distinct from the alleged malpractice," but rather, "defendants' roles in creating and amending the trusts, administering the trusts, and defending the trusts against the IRS were all inextricably intertwined and without interruption for almost a decade." Id. at 182.
Different facts are in play here. Specifically, Mrs. Rocha and Defendants intentionally contracted through the First Retainer to separate the Superior Court representation from a potential future representation during an appeal — a future representation that would (and did) require
Indeed, even in De May, the primary case on which Mrs. Rocha relies, Judge Huvelle considered a similar possibility by asking whether there was any reason to define the "particular matter in issue" more narrowly, but the Court found that "the facts relating to defendants' legal work cannot be conveniently divided into transactional work versus litigation given the extensive overlap between these functions." De May, 584 F.Supp.2d at 182. Thus, rather than De May, the facts here are more similar to those in Encyclopaedia Britannica, Inc. v. Dickstein Shapiro, LLP, Civ. No. 10-0454, 2012 WL 8466139 (D.D.C. Feb. 2, 2012). There, Judge Bates declined to apply the continuous representation rule because the "particular matter in issue" was the defendant-law firm's patent prosecution work for the plaintiff, and the Court found that this work was legally separate and distinct from subsequent patent infringement litigation in which the defendant played only a minor role. See id. at *13-16. In reaching this conclusion, Judge Bates emphasized that one important reason for drawing the line between the two matters was that the plaintiff "itself considered the representation `divided into transactional work versus litigation.'" Id. at *16 (quoting De May, 584 F.Supp.2d at 182).
Likewise here, the representation under the First Retainer included only the trial court litigation, and the alleged malpractice occurred only within that representation, not during the later appellate representation for which a new retainer was signed. Thus, given the parties' agreement, the "particular matter in issue" ended, at the latest, with the Superior Court's corrected final order on April 26, 2011.
In short, the Court's review of the undisputed facts of this case reveals no basis for upending the plain terms of the First Retainer and extending the relevant representation past April 26, 2011. To start, on March 4, 2011, Brown sent a letter to Mrs. Rocha reiterating that the First Retainer covered only the Superior Court matter and proposing new terms for a retainer that would apply to an appeal. See Brown Letter, Mar. 4, 2011, Ex. 14. Mrs. Rocha declined Brown's offer. See N. Rocha Dep. at 84:12-85:13, 87:6-10; M. Rocha Dep. at 128:20-130:18. The relationship between Mrs. Rocha and Defendants then continued to deteriorate over the course of March, April, and early May, as Mrs. Rocha ignored Brown's attempts to negotiate a new retainer and to discuss a litigation strategy moving forward. See, e.g., Brown Letter, Apr. 12, 2011, Ex. 15; Brown Letter, Apr. 29, 2011, Ex. 16; Brown Letter, May 6, 2011, Ex. 17; Brown Letter, May 12, 2011, Ex. 18. Further, during this period in early 2011, Mrs. Rocha and her son considered hiring new counsel for the appeal or proceeding pro se, and Defendants therefore were left wondering for several months whether Mrs. Rocha would hire them for the appeal. See, e.g., Brown Letter, Apr. 29, 2011, Ex. 16; Brown Letter, May 12, 2011, Ex. 18; M. Rocha Dep. at 139:5-140:22, 142:18-144:22. Still without a decision from Mrs. Rocha nearly a month after the final order and several months after the Omnibus Order, Brown sent a letter to Mrs. Rocha on May 20, 2011, unequivocally stating that "[t]his concludes our representation of you at the trial level in this matter."
Overall, the events during the months between the Omnibus Order and the signing of the Second Retainer on May 23 — e.g., the prolonged communication breakdown, Brown's letter informing Mrs. Rocha
Mrs. Rocha offers several arguments for why the relationship did not end on April 26, but the Court finds none of them persuasive.
Mrs. Rocha also argues that "Brown continued to refer to [her] as his client in correspondence with her on the day she signed a retainer agreement for the appeal,"
In the end, Mrs. Rocha offers only one argument for why the limitations period should be tolled until after June 9, 2011: The D.C. Court of Appeals did not grant Brown & Gould's motion to withdraw as counsel until June 28, 2011. See id. at 23. Mrs. Rocha's position, however, ignores the nature of the continuous representation rule, which only "tolls the statute of limitations on legal malpractice claims until the attorney's representation concerning the particular matter in issue is terminated." Seed, 62 F.Supp.3d at 63, 2014 WL 3746957, at *5 (quotation marks omitted; emphasis added). As defined by the contract and confirmed by the actions of the parties, the "matter in issue" here was Defendants' representation during the Superior Court litigation under the First Retainer, which ended on April 26, 2011, at the latest.
Finally, courts in this Circuit consistently look to the continuous representation rule's purpose — which is "to avoid placing a client in the untenable position of suing his attorney while the latter continues to represent him," Williams, 901 F.2d at 163 — when determining whether to apply the rule to a particular set of facts. See, e.g., Encyclopaedia Britannica, 2012 WL 8466139, at *15 (the "purpose of the continuous representation rule would not be served by triggering the rule" under the facts of the case); Seed, 62 F.Supp.3d at 64, 2014 WL 3746957, at *6 ("Any other ruling [under the facts of the case] would run afoul of the continuous representation rule's purpose.").
Here, the Court finds that Mrs. Rocha was never placed in an "untenable" position that prevented her from filing a lawsuit against her counsel during the period between the April 26, 2011, final order (or even the January 10, 2011, Omnibus Order) and the signing of the Second Retainer — a period during which no substantive litigation activity was occurring before either the D.C. Superior Court or the D.C. Court of Appeals. To the contrary, Mrs. Rocha received notice that the representation under the First Retainer had terminated, and up through May 23, 2011, she made the decision not to continue the relationship during this dormant period by refusing Brown's many attempts to negotiate a new retainer. Thus, Mrs. Rocha had no reasonable expectation during this time that Defendants would continue representing her in the future, as she was the one who refused to maintain a relationship of trust and communication by ignoring Brown's efforts while actively considering her alternatives for the future. Absent a sufficient hardship preventing Mrs. Rocha from filing a malpractice lawsuit during the period after the original representation ended, the Court finds no policy justification for applying the rule to toll the limitations period beyond that termination date.
Even if Mrs. Rocha's legal malpractice claim were timely filed on June 9, 2014, the Court finds that the claim also would fail on the merits, which provides an alternative basis for entering judgment in favor of Defendants on Count I.
To prevail on a legal malpractice claim under D.C. law, a plaintiff must demonstrate
Defendants move for summary judgment on the basis that the judgmental immunity doctrine bars Mrs. Rocha's legal malpractice claim. See B & G Defs.' Mem. Supp. Mot. Summ. J. at 27. In particular, Defendants argue that the decision about whether to file in Maryland or elsewhere required the application of their professional judgment to unsettled legal questions regarding the various state limitations periods in play. See id. at 30-32. Defendants further argue that given this uncertain legal landscape, they made an informed decision by assessing the risks and benefits of filing in each forum, including Maryland. See id. at 41-44. Thus, according to Defendants, even if Maryland also was a suitable forum in February 2009 — a fact that Defendants dispute — Mrs. Rocha's malpractice claim fails because the judgmental immunity doctrine shields them from liability for their decision. See id. at 31-32.
Mrs. Rocha does not respond to Defendants' lengthy judgmental immunity argument, nor does she challenge the many judgmental immunity cases that Defendants cite. Instead, Mrs. Rocha relies on her expert's testimony to argue that the standard of care required Defendants to file a lawsuit in Maryland. Because Mrs. Rocha ignores the judgmental immunity doctrine in her opposition, she concedes that Defendants exercised reasonable care when making the forum selection decision. See COMPTEL v. FCC, 945 F.Supp.2d 48, 55 (D.D.C.2013) ("Where a party fails to address arguments raised by the opposing party's motion for summary judgment, the Court may treat those arguments as conceded."); Hopkins v. Women's Div., Gen. Bd. of Global Ministries, 284 F.Supp.2d 15, 25 (D.D.C.2003) ("It is well understood in this Circuit that when a plaintiff files an opposition to a dispositive motion and addresses only certain arguments raised by the defendant, a court may treat those arguments that the plaintiff failed to address as conceded."). The Court therefore may enter judgment for Defendants as to Count I on this basis.
In addition to conceding the judgmental immunity issue, Mrs. Rocha's separate standard of care argument also proves why the doctrine would apply here. In particular, Mrs. Rocha's expert, John Amato, IV, opined that, even without evidence of Maryland asbestos exposure, Brown should have known that Maryland would be a more favorable forum than D.C. because the presumed application of Maryland law to at least the wrongful death portion of Mrs. Rocha's asbestos-related claims (but not her survival action) would
Amato further opined that an attorney's decision about where to file a lawsuit is "a matter of weighing the factors and applying [his or her] professional judgment," Amato Dep. at 41:1-8, and Amato testified that "Brown exercised his professional judgment in deciding to file the case in D.C.... and to file a back-up suit ... in Virginia," see id. at 129:2-13. See also id. at 106:7-15. Nonetheless, Amato still asserted that Brown breached the standard of care by not filing a lawsuit in Maryland. See id. at 106:11-12; see also Pl.'s Mem. Supp. Mot. Summ. J. at 45. Thus, according to Amato, Brown exercised his professional judgment to evaluate whether to file in D.C. and Virginia, but the standard of care also required Brown — and thus placed the filing decision outside Brown's professional judgment as a matter of law — to file a lawsuit in Maryland because that state may have been another suitable forum. But Mrs. Rocha cannot have it both
Finally, Mrs. Rocha presents no evidence that Brown's decision-making process was unreasonable or insufficient when he exercised his judgment about where to file; Mrs. Rocha and her expert simply disagree with Brown's final decision about the suitability and necessity of filing in Maryland given the unsettled nature of how a Maryland court would evaluate Mrs. Rocha's hypothetical lawsuit. Cf. Brown Aff. ¶ 19-20 (discussing considerations for deciding where to file Mrs. Rocha's claims). The judgmental immunity doctrine, however, prohibits hindsight attacks that are based on unsettled legal questions "about which reasonable attorneys could disagree," as was the case here in regard to how a Maryland court — as well as a D.C. court and a Virginia court — would evaluate Mrs. Rocha's case. Encyclopaedia Britannica, 2012 WL 8466139, at *16; see also Biomet, 967 A.2d at 667 (the question is "whether that professional judgment was reasonable at the time it was made, not whether a different strategy may have resulted in a more favorable judgment" for the client); Mills, 647 A.2d at 1121 ("[W]here reasonable attorneys could differ with respect to the legal issues presented, the second-guessing after the fact of [the attorney's] professional judgment [is] not a sufficient foundation for a legal malpractice claim[.]"). Accordingly, because the forum decision was committed to Brown's professional judgment, and because Mrs. Rocha fails to create a genuine dispute of fact that Brown failed to engage in a reasonable process when exercising that judgment in February 2009, the judgmental immunity doctrine applies to bar the legal malpractice claim in Count I.
The "elements of an action for professional negligence are the same as those of an ordinary negligence action," and a plaintiff asserting a legal malpractice claim therefore must establish "that the attorney's negligence resulted in and was the proximate cause of a loss to the client." Chase, 499 A.2d at 1211 (quotation marks omitted); see also Macktal v. Garde, 111 F.Supp.2d 18, 21 (D.D.C.2000). In their motion for summary judgment, Defendants argue that proximate cause is lacking here because "the fate of the Rocha case, had it been filed in Maryland, is at best an issue of pure guess-work requiring the impermissible use of both hindsight and speculation as to different legal results a court might reach." B & G Defs.' Mem. Supp. Mot. Summ. J. at 40; see also Pietrangelo v. Wilmer Cutler Pickering Hale & Dorr, LLP, 68 A.3d 697, 710 (D.C.2013) ("We have declined to find proximate cause where we would have to speculate about a legal result."); Chase, 499 A.2d at 1212 ("more is required than speculation" to establish that an "attorney's negligence caused a legally cognizable injury").
Mrs. Rocha fails to address this argument and instead simply responds that Defendants confuse professional judgment with proximate cause. See Pl.'s Mem. Supp. Mot. Summ. J. at 58. But only Mrs. Rocha is confused, as proximate cause clearly is a distinct, and necessary, element for a legal malpractice claim. By ignoring Defendants' proximate cause argument, Mrs. Rocha concedes the issue,
Under D.C. law, when a plaintiff's breach of fiduciary duty claim is "indistinguishable from [her] legal malpractice claim, [her] inability to prove the malpractice claim renders [the fiduciary duty claim] unsustainable." Johnson v. Sullivan, 748 F.Supp.2d 1, 12 (D.D.C.2010); see also Mawalla v. Hoffman, 569 F.Supp.2d 253, 257 (D.D.C.2008) ("In professional malpractice cases, additional claims which are based on the underlying malpractice claim cannot survive if the professional malpractice claim fails."). On the other hand, courts applying D.C. law have found a distinct fiduciary duty claim only under narrow circumstances, such as when the conduct involved an alleged violation of the Rules of Professional Conduct regarding loyalty or the reasonableness of fees. See, e.g., So v. Suchanek, 670 F.3d 1304, 1308 (D.C.Cir.2012) ("a breach occurs when an attorney represents clients with conflicting interests" (quotation marks omitted)); Hickey v. Scott, 738 F.Supp.2d 55, 67-68 (D.D.C.2010) (finding that the fee-related fiduciary duty claim is distinct from the legal malpractice claim); Shapiro, Lifschitz & Schram, P.C. v. Hazard, 24 F.Supp.2d 66, 75-76 (D.D.C.1998) (discussing distinct fiduciary duty claim based on allegations of unconscionable fees).
Here, it is undisputed that Mrs. Rocha's fiduciary duty and legal malpractice claims involve identical underlying conduct (e.g., Defendants' failure to file a Maryland lawsuit), and there is no evidence even hinting at a separate fiduciary duty owed to Mrs. Rocha beyond the representation that gave rise to the failed legal malpractice claim. See B & G Defs.' Mem. Supp. Mot. Part. J. Plead., ECF No. 22-1, at 4-5. Accordingly, the Court grants summary judgment for Defendants as to Count II because Mrs. Rocha fails to establish a legally distinct cause of action for breach of fiduciary duty. See Macktal, 111 F.Supp.2d at 23 ("[I]f plaintiff is unable to prove his professional negligence claim, contract and tort claims which are essentially restatements of the failed malpractice claim must also fail."); Biomet, 967 A.2d at 670 n. 4 ("Biomet's attempt to recast its malpractice argument as also breach of contract and breach of fiduciary duty fails.").
Trying to pin down the legal theory underlying Mrs. Rocha's legislative activity claim in Count III is akin to playing a game of "Whack-a-Mole" for Defendants: Every time Defendants believe they are about to hammer down one theory of recovery, that theory vanishes and a new theory pops up elsewhere. Nevertheless, for the reasons explained next, the Court concludes that despite her many attempts to recharacterize the basis for this claim, Mrs. Rocha fails to state any cognizable legal theory entitling her to relief based on Brown's legislative activity.
Mrs. Rocha filed her original Complaint in D.C. Superior Court on June 9, 2014, and she filed a substantively identical First Amended Complaint on June 22, 2014.
And thus began the game of "Whack-a-Mole." Rather than addressing the B & G Defendants' motion, Mrs. Rocha responded by filing a motion for leave to file a Second Amended Complaint, which the Court granted on January 9, 2015. See Order, ECF No. 39. In this superseding complaint, Mrs. Rocha alleged, for the first time, that on February 10, 2009, the same day she signed the First Retainer, Brown made an oral promise to her that he would "get the District of Columbia statute of limitations [in § 12-311] changed to make her claim timely there." See 2d Am. Comp. ¶ 3; see also id. ¶¶ 36-40. The B & G Defendants responded by filing an opposition to Mrs. Rocha's motion for leave arguing that her breach of an oral contract theory failed due to both the parol evidence rule and the lack of separate consideration. See B & G Defs.' Mem. Opp'n Mot. Leave, ECF No. 26, at 15-18.
Rather than addressing these arguments, Mrs. Rocha attempted to change course once more by filing a reply to the B & G Defendants' opposition that argued, again for the first time, that promissory estoppel applied to excuse the lack of consideration for Brown's alleged oral promise. See Pl.'s Reply Supp. Mot. Leave, ECF No. 27, at 19-20. Trying to catch up, the B & G Defendants responded by filing a motion to strike the promissory estoppel argument from Mrs. Rocha's reply brief, and the motion to strike alternatively argued that the promissory estoppel theory itself failed as a matter of law. See B & G Defs.' Mem. Supp. Mot. Strike, ECF No. 28-1, at 1-4. Mrs. Rocha did not respond to the promissory estoppel arguments; instead, the theory underlying her legislative activity claim shifted yet again.
This time, Mrs. Rocha offered a theory that was not raised in any complaint, but rather was offered for the first time by her expert. Specifically, Amato rejected Mrs. Rocha's prior theories that Brown owed her an affirmative duty to get D.C.Code § 12-311 changed, and Amato instead opined that Brown's only duty to achieve legislative change on Mrs. Rocha's behalf arose under the voluntary undertaking, or "Good Samaritan," doctrine:
Amato Dep. at 207:16-21, 216:5-11, 217:10-15. To summarize, Mrs. Rocha's legislative activity claim in Count III has taken the following dizzying path: (a) first, she alleged breach of a written contract; (b) then, the breach of a written contract theory was abandoned and replaced with the breach of an oral contract theory; (c) next, it was not breach of any contract (written or oral), but rather a quasi-contract promissory estoppel claim; and finally (d) it was not an affirmative contract or quasi-contract duty, but rather only a "Good Samaritan" tort duty. The Court turns to those remaining theories next.
In the Second Amended Complaint, Mrs. Rocha alleges that on February 10, 2009, Brown made an oral promise prior to her signing the First Retainer that he would "get the District of Columbia statute of limitations [in § 12-311] changed to make her claim timely there[.]" See 2d Am. Comp. ¶ 3. A genuine dispute of fact exists as to whether Brown actually made a promise to Mrs. Rocha about his legislative activity with the DC-TLA. Compare N. Rocha Dep. at 127:14-129:15 (testifying that Brown promised to get D.C.Code § 12-311 changed), and Pl.'s Resp. to Interrog. 11, Ex. 34 ("On or about February 9, 2009, ... Brown promised Mrs. Rocha that he would get the law changed to make sure her case would be deemed timely by the D.C. courts and informed her that he was already working on achieving the legislative change."), with Brown Aff. ¶ 25 ("I did not tell the Rochas that I would change the law in D.C. nor did I promise to do so."); see also Pl.'s Stmt. Facts in Dispute ¶ 102. But a factual dispute is "material," and thus sufficient to prevent summary judgment, only if it affects the substantive outcome of the litigation. See Liberty Lobby, 477 U.S. at 248, 106 S.Ct. 2505. Here, the Court finds that this dispute is not material because, assuming arguendo that Brown made the promise as alleged, Mrs. Rocha's theory still fails.
Specifically, Defendants argue that Mrs. Rocha's oral promise theory fails under the parol evidence rule, which provides that "extrinsic or parol evidence which tends to contradict, vary, add to, or subtract from the terms of a written contract must be excluded." Affordable Elegance Travel, Inc. v. Worldspan, L.P., 774 A.2d 320, 327 (D.C.2001) (quotation marks and alteration omitted); see also Klayman v. Judicial Watch, Inc., No. CIV.A.06 670, 2007 WL 1034937, at *8 (D.D.C. Apr. 3, 2007) ("`[A] completely integrated contract
"`[W]hether an agreement is completely integrated is a preliminary question of fact for the trial court.'" Ghahremani v. Uptown Partners, LLC, No. CIV.A. 05-1270, 2005 WL 3211463, at *9 (D.D.C. Nov. 13, 2005) (quoting Howard Univ. v. Good Food Servs., 608 A.2d 116, 126 (D.C.1992)). A court's inquiry must focus on the "intent of the parties at the time they entered into the agreement," Hercules, 613 A.2d at 927, and that "investigation begins with an examination of the contract itself," Klayman, 2007 WL 1034937, at *8. Thus, "if a document is facially unambiguous, its language should be relied upon as providing the best objective manifestation of the parties' intent." Hercules, 613 A.2d at 927 (quotation marks and alteration omitted). Finally, "[a] presumption exists that a written contract contains all of the parties' terms, and the presence of an integration clause strengthens that presumption." Johnson v. Reno, Civ. No. 93-206, 1996 WL 33658687, at *5 (D.D.C. Apr. 17, 1996) (citing Luther Williams, Jr., Inc. v. Johnson, 229 A.2d 163, 165 (D.C.1967)).
Here, the First Retainer contained an integration clause that stated: "I, the undersigned client, have read the above provisions and agree that they constitute the entire agreement between the parties." First Retainer, Ex. 7. Other than Brown's alleged oral promise, Mrs. Rocha offers no legal or factual extrinsic justification for why the Court should not accept the unambiguous language in this clause as conclusive evidence of the parties' intent to enter a completely integrated legal services contract.
Further, to the extent that Mrs. Rocha still relies on a promissory estoppel theory, the Court finds that such an argument fails for three reasons. First, the Second Amended Complaint makes no mention of promissory estoppel, nor does it specifically plead the elements required for a promissory estoppel claim as to Brown's alleged oral promise. Cf. Ficken v. AMR Corp., 578 F.Supp.2d 134, 145 (D.D.C.2008) (under D.C. law, the elements of promissory estoppel are "that (1) there was a promise, (2) the promise reasonably induced reliance on it, and (3) the promisee relied on the promise to his or her detriment"). Second, "reliance on a promise cannot be reasonable when it is completely at odds with the terms of a written agreement covering the same transaction," as is the case with Brown's alleged legislative activity promise because that promise clearly contradicts the scope of the First Retainer. Daisley v. Riggs Bank, N.A., 372 F.Supp.2d 61, 71 n. 5 (D.D.C.2005); see also In re U.S. Office Prods. Co. Sec. Litig., 251 F.Supp.2d 77, 97-98 (D.D.C.2003) (explaining that reliance on an oral statement is unreasonable when the statement contradicted the terms of, and was not incorporated into, the written agreement).
And third, promissory estoppel is available only in the absence of an express, enforceable contract. See Ficken, 578 F.Supp.2d at 145; see also Greggs v. Autism Speaks, Inc., 987 F.Supp.2d 51, 55 (D.D.C.2014) ("Promissory estoppel ... is not available in all circumstances: District of Columbia law presupposes that an express, enforceable contract is absent when the doctrine of promissory estoppel is applied." (quotation marks omitted)); 3D Global Solutions, Inc. v. MVM, Inc., 552 F.Supp.2d 1, 7 (D.D.C.2008) ("District of Columbia law does recognize a cause of action for promissory estoppel, although it does so only in the absence of an express, enforceable contract."). Here, there was an enforceable contract in the form of the First Retainer, and the existence of this written contract prohibits Mrs. Rocha from relying on promissory estoppel for a prior, contradictory oral promise. See Int'l Bus. Mach. Corp. v. Medlantic Healthcare Grp., 708 F.Supp. 417, 424 (D.D.C.1989) ("[C]ourts have ... held that an integrated written contract controls as against any and all prior inconsistent oral agreements or promises; such a contract nullifies the effect that promissory estoppel might otherwise have.")
Without promissory estoppel, Mrs. Rocha's oral contract theory also fails due to a lack of separate consideration for Brown's alleged promise. See Henke v. U.S. Dep't of Commerce, 83 F.3d 1445, 1450 (D.C.Cir.1996) ("legal consideration" is an "essential element" of a valid contract). Under D.C. law, an "`exchange of promises' or a `detriment to the promisee' constitutes legally sufficient consideration, so long as it is bargained for." Wash. Inv. Partners of Del., LLC v. Sec. House, K.S.C.C., 28 A.3d 566, 574-75 (D.C.2011) (quotation marks omitted). Here, Mrs. Rocha acknowledges that no consideration was provided in exchange for Brown's alleged promise to perform legislative activity that was separate from the consideration given for Defendants' services under the First Retainer, and thus no valid contract was formed. See N. Rocha Dep. at 76:5-22 (testifying that there was "no separate payment" in exchange for Brown's alleged promise to change the law); Pl.'s
The only remaining potential theory of liability for Mrs. Rocha's legislative activity claim in Count III is her "Good Samaritan" duty argument. On this point, Amato opined that rather than an affirmative duty to achieve legislative change, Brown assumed a duty towards Mrs. Rocha by voluntarily undertaking to amend D.C.Code § 12-311 through his work with the DC-TLA. See, e.g., Amato Dep. at 207:16-21, 216:5-11, 217:10-15. Defendants assert two arguments in response: first, Mrs. Rocha's "Good Samaritan" claim is time-barred; and second, under D.C. law, the "Good Samaritan" duty does not apply because Brown's legislative activity only posed a risk of economic harm to Mrs. Rocha, not physical harm. The Court agrees with both arguments.
Defendants first argue that Mrs. Rocha's "Good Samaritan" tort claim is time-barred.
Assuming arguendo that Mrs. Rocha presents a cognizable "Good Samaritan" negligence claim, the Court finds that the limitations period for that claim began accruing no later than when the D.C. Superior Court issued the Omnibus Order on January 10, 2011. In that order, the D.C. court explicitly ruled that the D.C. Council's emergency resolution and emergency act were insufficient to render timely Mrs. Rocha's underlying asbestos-related lawsuit. At that point, Brown's alleged failure to achieve the necessary legislative change became evident, and the injury to Mrs. Rocha, in the form of the Superior Court dismissing her D.C. lawsuit as time-barred, occurred. Accordingly, because Mrs. Rocha's June 9, 2014, complaint was filed more than three years after January 10, 2011, her "Good Samaritan" tort claim is time-barred.
Alternatively, Mrs. Rocha's "Good Samaritan" claim also fails on the merits under D.C. law. Cf. Metz, 774 F.3d at 21-22 (the Court's task when sitting in diversity is "to achieve the same outcome [that] would result if the District of Columbia Court of Appeals considered this case" (quotation marks omitted)). Defendants do not dispute that D.C. courts recognize the "Good Samaritan" duty. Instead, Defendants argue that the scope of this duty under D.C. law extends only to volunteer actions that result in, or create an increased risk of, physical harm to the plaintiff or her property. See B & G Defs.' Mem. Supp. Mot. Quash Subpoena, ECF No. 33, at 4-5. As such, Defendants move for summary judgment on the basis that the "Good Samaritan" duty does not apply to Brown's legislative activity, which involved only economic harm to Mrs. Rocha. See id.; see also B & G Defs.' Mem. Supp. Mot. Summ. J. at 47. Mrs. Rocha, on the other hand, contends that D.C. courts have, in fact, applied the "Good Samaritan" duty to cases that involve only economic loss. See Pl.'s Mem. Supp. Mot. Summ. J at 38.
The Court's review of the cases applying the "Good Samaritan" duty under D.C. law reveals that the scope of this duty in the District is firmly rooted in the Restatement (Second) of Torts. In particular, in Haynesworth v. D.H. Stevens Co., 645 A.2d 1095 (D.C.1994), the D.C. Court of Appeals cited § 323 of the Restatement as the authoritative definition for the duty:
Restatement (Second) of Torts § 323 (quoted by Haynesworth, 645 A.2d at 1097). The D.C. court in Haynesworth thus explained that "[a]lthough the Restatement has not been formally adopted by this court, it is clear that the particular concept [in § 323] is well known and has been readily applied, where appropriate." Id. (citing Long v. District of Columbia, 820 F.2d 409, 419 (D.C.Cir.1987)).
Like Haynesworth, other cases considering the "Good Samaritan" duty under D.C. law consistently have begun their analysis by citing the definition in § 323. See Hornbeck Offshore Transp., LLC v.
The Court therefore also rejects as inapposite the cases on which Mrs. Rocha relies that plainly did not involve the "Good Samaritan" duty and did not cite § 323. For example, Mrs. Rocha cites Hedgepeth v. Whitman Walker Clinic, 22 A.3d 789 (D.C.2011), where the plaintiff alleged that he suffered emotional distress after a doctor negligently informed him that he was HIV positive when he was not. See id. at 792. In the context of the plaintiff's negligent infliction of emotional distress claim, and without mentioning the "Good Samaritan" duty, the D.C. court adopted a "limited" rule to supplement the zone of physical danger test for the negligent infliction tort when a "defendant has an obligation to care for the plaintiff's emotional well-being or the plaintiff's emotional well-being is necessarily implicated by the nature of the defendant's undertaking." Id. Hedgepeth says nothing about the "Good Samaritan" duty.
A similar error befalls Mrs. Rocha's reliance on Security National Bank v. Lish, 311 A.2d 833 (D.C.1973). See Pl.'s Mem. Supp. Mot. Summ. J. at 40-41. In Lish, the defendant-attorney negligently provided false information to a bank in regard to the status of a second trust being used as security for a loan the bank made to the lawyer's client. See Lish, 311 A.2d at 834. The bank then sued the attorney for losses sustained from the loan. See id. On appeal from the trial court's granting of summary judgment to the attorney, the D.C. Court of Appeals explained that "in appropriate circumstances, an attorney is not exempt from the general principle that `one who assumes to act, even though gratuitously, may thereby become subject to the duty of acting carefully, if he acts at all.'" Id. (citation omitted). The court continued that "[o]ne engaged in supplying information has a duty to exercise reasonable care," and "[w]here information is supplied directly to a third party (or indirectly for the benefit of a specific third party), then the same duty of reasonable care exists, notwithstanding a lack of privity." Id. at 834-35. In making this statement, the court cited Restatement of Torts § 552, which relates to the negligent misrepresentation of information in a business capacity. See id. at 835. But here, Mrs. Rocha does not present a claim for negligent misrepresentation under § 552, nor does she offer any allegations that Brown negligently provided false or misleading information to the D.C. Council or another third party. Lish is legally and factually inapposite.
Mrs. Rocha likewise mislabels as a "voluntarily undertaking doctrine" case the decision in Burlington Insurance Co. v. Okie Dokie, Inc., 329 F.Supp.2d 45 (D.D.C. 2004). See Pl.'s Mem. Supp. Mot. Summ. J. at 40. Burlington, which cites Lish, involved false statements made by an applicant to an insurance company in an insurance application, and the case dealt with a negligent misrepresentation claim
Mrs. Rocha also relies on Arnold's Hofbrau, Inc. v. George Hyman Construction Co., 480 F.2d 1145 (D.C.Cir.1973), but nothing in that case supports her position that the "Good Samaritan" duty extends to economic harm under D.C. law. There, the plaintiff operated a restaurant that was damaged during construction by the defendants on an adjacent property. See id. at 1146. The plaintiff then relied on the defendants' promise to fix the damage, but the defendants were negligent in making the repairs. See id. at 1147-48. On appeal, the D.C. Circuit found that liability could be established against the defendants through a voluntary undertaking duty in accordance with § 323, as well as through promissory estoppel. See id. at 1148. Mrs. Rocha now suggests that Arnold's Hofbrau supports her claim because "[t]he court ruled that plaintiffs were not limited solely to physical injury and that Defendants were liable as well for economic damages." Pl.'s Mem. Supp. Mot. Summ. J. at 40. But the type of damages recovered is distinct from the type of harm created by the defendants' negligence (especially when that recovery also was based on promissory estoppel), and § 323 concerns itself only with the initial harm question. In fact, though not explicitly discussed by the court, Arnold's Hofbrau's voluntary duty analysis was fully consistent with § 323 because the defendants' negligence created a risk of physical harm to the plaintiff and his property (i.e., the restaurant).
Lastly, the Court is not persuaded by Mrs. Rocha's reliance on a footnote in In re Sabin Oral Polio Vaccine Products Liability Litigation, 774 F.Supp. 952 (D.Md. 1991). In Sabin, the Maryland federal district court justified its citation to § 324A of the Restatement (Second) of Torts for the definition of the "Good Samaritan" duty by clarifying language in an earlier Maryland state court opinion.
In re Sabin, 774 F.Supp. at 955 n. 6. Chew therefore involved the Maryland court explicitly refusing to follow § 323, and it was only after rejecting the Restatement's
But regardless of the analysis in Sabin and Chew, the D.C. Court of Appeals has explained that Maryland common law is "the source of the District's common law and an especially persuasive authority when the District's common law is silent." Napoleon v. Heard, 455 A.2d 901, 903 (D.C.1983) (emphasis added); see also Interstate Fire & Cas. Co. v. Wash. Hosp. Ctr. Corp., 758 F.3d 378, 383 (D.C.Cir. 2014) ("When local law is silent, the common law of Maryland is especially persuasive authority, as Maryland law is historically the source of the District's common law." (quotation marks omitted)). The Court therefore declines Mrs. Rocha's request to look towards foreign law because D.C. courts have spoken on the "Good Samaritan" duty by repeatedly holding that § 323 provides the pertinent definition.
Returning to that D.C. law, in Service Employees International Union Health & Welfare Fund v. Philip Morris, Inc., 83 F.Supp.2d 70 (D.D.C.1999), this Court addressed an issue nearly identical to that raised by Mrs. Rocha today.
Consistent with Philip Morris and without any D.C. cases to the contrary, this Court finds no grounds for departing from § 323, which, as recognized in Haynesworth and elsewhere, clearly provides that a defendant is subject to liability only when his failure to exercise reasonable care either increased the risk of physical harm to the plaintiff or caused the plaintiff to suffer actual physical harm.
Specifically, Mrs. Rocha alleges that absent Brown successfully getting D.C.Code § 12-311 amended to include an alternative three-year limitations period and a retroactivity clause, her claims were time-barred in D.C. See, e.g., 2d Am. Compl. ¶ 3 ("Brown drafted legislation to effect the change [to § 12-311] but failed ... thereby dooming Plaintiff's [D.C.] action to dismissal by summary judgment on limitations grounds."). But assuming that the D.C. Superior Court was correct in dismissing Mrs. Rocha's claims under D.C.Code § 12-311, Mrs. Rocha found herself in exactly the same position (i.e., with
Accordingly, the Court concludes that the "Good Samaritan" doctrine does not impose a legal duty on Brown under the facts of this case. Cf. Hedgepeth, 22 A.3d at 806 (a "duty of care" is a necessary element for a negligence claim). The Court therefore grants judgment for Defendants as to Count III because Mrs. Rocha fails to state any cognizable claim for relief.
Lipman filed a separate motion seeking judgment in his favor as to Count III on the grounds that he did not owe Mrs. Rocha a contract or tort duty to perform legislative activity. See Lipman's Mem. Supp. Mot. Summ. J. at 4. In support, Lipman asserts that he was not present when Brown made the alleged legislative activity promise to Mrs. Rocha, and he also did not engage in, nor promise to engage in, such activity for her at a later time. See id. at 4-5; see also Lipman Stmt. Facts ¶¶ 2, 4. In addition, Lipman asserts, and Mrs. Rocha does not dispute, that Amato's testimony about the "Good Samaritan" duty only discussed Brown and did not opine on a duty owed by Lipman to Mrs. Rocha. See Lipman's Mem. Supp. Mot. Summ. J. at 5.
Mrs. Rocha responds by suggesting that "Lipman's motion merely adopts [the B & G Defendants'] motion for summary judgment and offers no other grounds entitling [him] to summary relief." Pl.'s Mem. Supp. Mot. Summ. J. at 12 n.1. Not so. Though Lipman does not dispute that he would be jointly liable with the B & G Defendants under the First Retainer, see Lipman Dep. at 7:1-10, Mrs. Rocha's theory in Count III is separate from the representation under the retainer. By ignoring Lipman's arguments about his lack of liability on any Count III theory, as well as Lipman's statement of facts in support of
For the foregoing reasons, the Court
Id. at 1052 (emphasis added). Here, Defendants' alleged malpractice occurred under the First Retainer, which was terminated well before June 9, 2011, and the relationship under Second Retainer was "separate and distinct" from that prior relationship.
