Bobbitt v. Milberg LLP

• Decision Date: 10 September 2015
• Docket Number: No. 13–15812.,13–15812.
• Parties: Philip BOBBITT, individually and on behalf of all others similarly situated; John J. Sampson ; John Hall; Brenda Hall, Plaintiffs, and Lance Laber, Intervenor–Plaintiff–Appellant, v. MILBERG LLP; Melvyn I. Weiss ; Michael C. Spencer; Janine Lee Pollack; Lee A. Weiss; Brian C. Ker; Uitz & Associates; Ronald A. Uitz; Lustigman Firm; Sheldon S. Lustigman; Andre B. Lustigman; Gabroy Rollman & Bosse PC; John Gabroy; Ronald M. Lehman, Defendants–Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

801 F.3d 1066

Philip BOBBITT, individually and on behalf of all others similarly situated; John J. Sampson ; John Hall; Brenda Hall, PlaintiffsandLance Laber, Intervenor–Plaintiff–Appellant

v.MILBERG LLP; Melvyn I. Weiss ; Michael C. Spencer; Janine Lee Pollack; Lee A. Weiss; Brian C. Ker; Uitz & Associates; Ronald A. Uitz; Lustigman Firm; Sheldon S. Lustigman; Andre B. Lustigman; Gabroy Rollman & Bosse PC; John Gabroy; Ronald M. Lehman, Defendants–Appellees.

No. 13–15812.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 25, 2015.

Filed Sept. 10, 2015.

Lawrence A. Kasten (argued), Robert H. McKirgan, and William G. Voit, Lewis Roca Rothberber LLP, Phoenix, AZ; Guy M. Hohmann and Ryan T. Shelton, Hohmann, Brophy & Shelton, PLLC, Austin, TX; R. James George, Jr. and Gary L. Lewis, George, Brothers, Kincaid & Horton, LLP, Austin, TX, for Intervenor–Plaintiff–Appellant.

Douglas J. Pepe (argued), Gregory P. Joseph, Honey L. Kober, and Jeffrey H. Zaiger, Joseph Hage Aaronson LLC, New York, N.Y.; Peter Akmajian, Ed Moomjian II, and Michele G. Thompson, Udall Law Firm LLP, Tucson, AZ, for Defendants–Appellees.

Appeal from the United States District Court for the District of Arizona, Frank R. Zapata, Senior District Judge, Presiding. D.C. No. 4:09–cv–00629–FRZ.

Before: SIDNEY R. THOMAS, Chief Judge, JOHN B. OWENS, Circuit Judge, and ANTHONY J. BATTAGLIA,^* District Judge.

OPINION

OWENS, Circuit Judge:

Intervenor-plaintiff-appellant Lance Laber appeals from the district court's denial of the motion for class certification brought by named plaintiffs Philip Bobbitt and John Sampson in their malpractice lawsuit against defendant-appellee Milberg LLP and various other law firms and lawyers (collectively “Milberg”). Because the district court erred in holding that the law of each class member's home state governed his or her individual claim, rather than the law of Arizona where the alleged malpractice occurred, we vacate the district court's order and remand this case for further proceedings.

I. FACTS

A. The VALIC litigation

In 2001, Milberg, a national law firm specializing in class actions, filed a lawsuit in Arizona district court against Variable Annuity Life Insurance Company, Inc. (“VALIC”), for alleged securities law violations. In January 2004, the district court certified a class of plaintiffs, a significant accomplishment in any class action litigation.¹

But things went downhill for Milberg and the class. Milberg failed to meet certain mandatory disclosure deadlines, and in August 2004, the district court struck the plaintiffs' expert testimony and witness list as a sanction. Milberg could not prove class-wide damages without witnesses, so the court vacated class certification. And, because Milberg could not, without witnesses, establish causation and damages for the named plaintiffs, the court entered judgment for VALIC, ending the case. Milberg did not alert any of the absent class members to the certification or decertification of the class or the dismissal of the action, nor did it otherwise attempt to preserve the class's claims.²

B. The Milberg Litigation

Plaintiffs in this appeal sued Milberg for malpractice for failing to meet the discovery requirements in the VALIC class action. Plaintiffs named as defendants four law firms as well as various lawyers who worked for them. The firms are located in New York, Washington, D.C., and Arizona. The lawyer defendants are residents of Florida, New York, Washington, D.C., Virginia, New Jersey, and Arizona. The two lead plaintiffs are Texas residents.

After some litigation, the plaintiffs moved for class certification. Defendants opposed on various grounds, arguing the plaintiffs could not meet the requirements of Rule 23(a) and (b)(3). The district court denied the motion for class certification, ruling that plaintiffs had failed to meet the predominance requirement of Rule 23(b)(3). The court held that individual questions predominated over common questions, because the law applicable to each unnamed class member's claim was the law of that member's domicile state. Because the laws of up to fifty states were implicated and plaintiffs had failed to meet their burden to show that conflicts between the fifty states' laws did not defeat the predominance requirement, the court denied class certification.

Named appellants Bobbitt and Sampson moved for voluntary dismissal of their individual claims. The court granted the motion on March 29, 2013, creating a final judgment. Laber, an unnamed member of the putative class, successfully moved to intervene for the limited purpose of bringing this appeal.

II. ANALYSIS

A. Jurisdiction

We have jurisdiction over this appeal pursuant to Baker v. Microsoft Corp., 797 F.3d 607, 611–12 & n. 4, 2015 WL 4393964, at *4 & n. 4 (9th Cir. July 20, 2015), and Berger v. Home Depot USA, Inc., 741 F.3d 1061, 1065–66 (9th Cir.2014).

B. Standard of Review

We review the denial of class certification for an abuse of discretion. Stearns v. Ticketmaster Corp., 655 F.3d 1013, 1018 (9th Cir.2011). A district court abuses its discretion when it makes an error of law, or when it reaches a result that is illogical, implausible, or without support in inferences that may be drawn from the record. United States v. Hinkson, 585 F.3d 1247, 1261, 1263 (9th Cir.2009) (en banc). Choice of law questions are reviewed de novo. Coneff v. AT & T Corp., 673 F.3d 1155, 1157 (9th Cir.2012).

C. Class Certification

Under Federal Rule of Civil Procedure 23, a class may be certified if it meets all four class action prerequisites set forth in Rule 23(a) and satisfies the requirements of at least one of the three types of class actions of Rule 23(b)(1) to (3). Plaintiffs here sought certification as a Rule 23(b)(3) class, and the district court denied class certification because, in its view, the law applicable to each individual class member's claim is the law of that member's domicile state. The court thus held that common questions of law did not predominate as required under Rule 23(b)(3).

D. Choice of Law

The district court properly applied the choice-of-law rules of the forum state, Arizona. Nelson v. Int'l Paint Co., 716 F.2d 640, 643 (9th Cir.1983). Arizona courts apply the Restatement (Second) of Conflict of Laws (1971) (hereinafter “Restatement”) to determine the controlling law for multistate torts. Bates v. Superior Court, 156 Ariz. 46, 749 P.2d 1367, 1369–70 (1988). The Restatement instructs courts to look to the state that has “the most significant relationship to the occurrence and the parties” of any tort claim. Restatement § 145(1). The “especially relevant contacts” to be considered include:

1. The place where the injury occurred;

2. The place where the conduct causing the injury occurred;

3. The domicile, residence, nationality, place of incorporation and place of business of the parties;

4. The place where the relationship, if any, between the parties is centered.

Bates, 749 P.2d at 1370 (quoting Restatement § 145(2) ). “The inquiry is qualitative, not quantitative. The court must evaluate the contacts ‘according to their relative importance with respect to the particular issue.’ ” Id. (citation omitted) (quoting Restatement § 145(2) ).

The first § 145 factor, the place of injury, supports application of Arizona law. The unnamed class members were injured when Milberg failed to meet deadlines and make timely filings in the Arizona court. The result of that alleged negligence was vacatur of the class certification order, which also occurred in the Arizona court. The unnamed class members lost the potential benefits of class certification in the Arizona litigation. This injury occurred in Arizona.

Indeed, most courts applying § 145 in analogous situations agree that negligent behavior in litigation injures the client in the forum state of the court, whether or not the client is physically present in the state. See Patton v. Cox, 276 F.3d 493, 497 (9th Cir.2002) (considering the location of a quasi-judicial proceeding as the “most persuasive” factor in choice-of-law analysis); ACE Am. Ins. Co. v. Sandberg, Phoenix & Von Gontard, PC, 900 F.Supp.2d 887, 896 (S.D.Ill.2012) (place of litigation controlled because “[t]he gist of this action is that [defendant] bungled the defense of the ... case”); Foulke v. Dugan, 187 F.Supp.2d 253, 257 (E.D.Pa.2002) (injury resulting from legal malpractice was having case dismissed, and that injury occurred where litigation was pending); In re Kaiser Grp. Int'l, Inc., Adversary No. 09–52317–MFW, 2010 WL 3271198, at *5 (Bankr.D.Del. Aug. 17, 2010) (“Because the bankruptcy case, and the actions giving rise to the alleged attorney malpractice, occurred in Delaware, the Court concludes that Delaware is the place of injury.”); see also David B. Lilly Co., Inc. v. Fisher, 18 F.3d 1112, 1119–20 (3d Cir.1994) (injury occurred where, “[a]s a practical matter, ... [legal] services were rendered”).

The district court appeared to assume that any economic injury necessarily occurs in the victim's domicile state. While this general principle may apply in many cases, certain economic interests may be held—and may be injured—out of state. Our inquiry focuses not on the place where the victim feels the consequences of the injury, but on the location of injury itself. Cf. Fields v. Legacy Health Sys., 413 F.3d 943, 952–53 (9th Cir.2005) (in wrongful death case, the injury occurred where the decedent was harmed, not where she died). The interest here is not the right to recover on the underlying claim, since the unnamed class members' underlying claims remained intact after the decertification of the class. Rather, the interest at issue is the potential recovery in Arizona litigation. That interest was held in Arizona, and thus the place of injury is Arizona.

Milberg cites Johnson v. Nextel Commc'ns Inc., 780 F.3d 128 (2d Cir.2015), in which the Second Circuit applied § 145 to the claims of unnamed class members in a class action alleging attorney...