Fraser and Wise, P.C. v. Primarily Primates, Inc.
| Decision Date | 31 May 1996 |
| Docket Number | Civ.A.No. 94-10097-RCL. |
| Citation | 966 F.Supp. 63 |
| Parties | FRASER AND WISE, P.C., Plaintiff, v. PRIMARILY PRIMATES, INC., Defendant. |
| Court | U.S. District Court — District of Massachusetts |
Recommendation Accepted. Objections filed by the plaintiff have not been considered because they were not timely filed.
Motion for Reconsideration is allowed. On reconsideration, the Court accepts the Report and Recommendation for the Magistrate Judge on the merits.
May 9, 1996.
Pending before this court are the above styled motions. (Docket Entry # # 72, 86, 88, 95, 97, 104 & 109). After conducting a hearing (Docket Entry # 113), this court took the motions (Docket Entry # # 72, 86, 88, 95, 97, 104 & 109) under advisement.
Plaintiff Fraser and Wise, P.C. ("Fraser & Wise"), a Massachusetts professional corporation organized for the purpose of practicing law, filed this action in December 1993 to collect payment on legal bills incurred in the course of representing defendant Primarily Primates, Inc. ("PPI"), a nonprofit Texas corporation. The complaint seeks recovery on the basis of breach of contract (Count I), fraud (Count IV) and quantum meruit (Count V). Fraser & Wise additionally brings counts entitled "Account Annexed" (Count II) and "Work" (Count III).
In September 1993, prior to the filing of the present lawsuit, PPI instituted a lawsuit in Texas against Attorney Steven Wise ("Attorney Wise"), a Massachusetts attorney and the President of Fraser & Wise, and Melissa J. Karron ("Karron") and Kay McMichael-Trevino ("Trevino"), both described in the amended complaint as volunteer workers at PPI. The amended complaint recited certain conduct on the part of Attorney Wise in the summer of 1993 in connection with a letter sent to Wallace Swett ("Swett"), identified as Trustee of PPI, on behalf of Karron and Trevino. The letter notified Swett of his suspension as a trustee and employee of PPI. The amended complaint additionally cited to Attorney Wise's violation of professional standards of conduct. (Docket Entry # 90, Ex. 2(D)).
The district judge in the Texas case accepted the recommendations of the magistrate judge to allow the defendants' motion for summary judgment. (Docket Entry # 96). On summary judgment, the magistrate judge characterized Swett's belief that Attorney Wise violated the attorney client privilege by turning over documents to animal rights organizations as speculative. The magistrate judge additionally concluded that PPI failed to refute the defendants' evidence that PPI suffered no damages. (Docket Entry # 90, Ex. 2(C)). In a separate order striking summary judgment evidence, the magistrate judge found that Swett's affidavit, which is not part of the present summary judgment record, lacked personal knowledge that PPI had incurred legal fees in excess of $50,000.1 (Docket Entry # 90, 2(A)).
In the present case, Fraser & Wise moves for summary judgment on all counts except for the fraud count, Count IV. (Docket Entry # 72). It maintains that there are no material facts in dispute with respect to the existence of a contract between Fraser & Wise and PPI for the rendering of legal services. To support summary judgment, Fraser & Wise maintains that PPI and Swett, President of PPI, stipulated that there was no evidence that the time billed was unauthorized, not expended or not incurred. Fraser & Wise therefore argues it is entitled to receive an accumulated amount of $59,079.95 in attorney's fees together with interest and the costs of collection. Fraser & Wise additionally asserts that, absent an express contract, it should recover $92,500 in fees together with expenses and costs.
In addition to seeking summary judgment, Fraser & Wise moves to strike an affidavit authored by Charity Dobbins, Esquire ("Attorney Dobbins"), a legal cost specialist with Legalguard, Inc. ("Legalguard"), a legal cost management and accounting firm retained by PPI to assess the reasonableness of Fraser & Wise's billings. (Docket Entry # 88). Fraser & Wise further moves to strike a replacement affidavit wherein PPI seeks to cure any deficiencies in Attorney Dobbins' initial affidavit. (Docket Entry # 95).
Fraser & Wise contends that the initial affidavit: (1) is unsworn; (2) does not indicate that Attorney Dobbins has personal knowledge; (3) does not recite that the facts are true and correct; (4) fails to establish Attorney Dobbins' expert qualifications; (5) violates Rule 26(a)(2)(B), Fed. R. Civ. P.;2 and (6) is contingent on the need for further information. (Docket Entry # 89). Because the summary judgment record depends, in part, on the merits of the motion to strike Attorney Dobbins' affidavit (Docket Entry # 88), this court initially addresses the above arguments.
The first sentence of the affidavit reads that Attorney Dobbins "upon her oath, deposes and says...." The recitation "upon oath" adequately complies with Rule 56(e), Fed.R.Civ.P.
Turning to the second argument, it is well established that an affiant must have personal knowledge of the recited facts. Rule 56(e), Fed.R.Civ.P., mandates that "opposing affidavits shall be made on personal knowledge, shall set forth facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." A nonmovant cannot expect this court to give weight to averments made without personal knowledge "or those which are in a form patently inadmissible at trial." Garside v. Osco Drug, Inc., 895 F.2d 46, 49 (1st Cir.1990).
The affidavit in question does not affirmatively recite that the affiant, Attorney Dobbins, has personal knowledge. Rather, Attorney Dobbins avers that she is a Legal Cost Specialist with Legalguard, Inc., attests to the experience of firm members and attaches a report detailing Legalguard's review of Fraser & Wise's billings. The cover page of the report reflects that Attorney Dobbins, together with a legal cost analyst, conducted the review of Fraser & Wise's legal bills. .
Such an affidavit might satisfy the personal knowledge requirement. See Jefferson Construction Company v. United States, 283 F.2d 265, 267 (1st Cir.1960) (), cert. denied, 365 U.S. 835, 81 S.Ct. 748, 5 L.Ed.2d 744 (1961). Nevertheless, because this court considers Attorney Dobbins only as an expert testifying about the fair and reasonable value of the services rendered by Fraser & Wise under the quantum meruit count, it is not necessary to address the personal knowledge requirement. To the extent an affiant is a qualified expert, her testimony need not be based on personal knowledge. F.R.E. 602 & 703. In addition and as more fully explained below, to the extent Attorney Dobbins failed to state that the report and the underlying facts and opinions therein were true, a nonmovant is generally entitled to have its disputed statements accepted as true. See Adams v. Metiva, 31 F.3d 375, 382 (6th Cir.1994).
Fraser & Wise additionally argues that Attorney Dobbins' affidavit fails to show that she qualifies as an expert based on her knowledge, training and education as required by Rule 702, F.R.E. "`[A]n individual can qualify as an expert where he possesses sufficient knowledge gained from practical experience, even though he may lack academic qualifications in the particular field of expertise.'" Sylla-Sawdon v. Uniroyal Goodrich Tire Company, 47 F.3d 277, 283 (8th Cir.) (citation omitted), cert. denied, ___ U.S. ___, 116 S.Ct. 84, 133 L.Ed.2d 42 (1995). In the case at bar, it is evident that Attorney Dobbins is an attorney employed at a firm devoted to managing legal costs and auditing legal billing. While she may not be qualified to render an opinion on every subject of the law, see Whiting v. Boston Edison Company, 891 F.Supp. 12, 24 (D.Mass.1995), she nevertheless has a certain amount of expertise in the area of attorney billing by virtue of her employment. In the discretion of this court, therefore, she has sufficient knowledge through experience and education to qualify as an expert. See, e.g., Payton v. Abbott Laboratories, 780 F.2d 147, 155-156 (1st Cir.1985). Once this threshold issue is determined, the factual underpinnings of an expert's opinion, Payton v. Abbott Laboratories, 780 F.2d at 156, and "challenges to the expert's skill or knowledge go to the weight to be accorded the expert testimony rather than to its admissibility." Sylla-Sawdon v. Uniroyal Goodrich Tire Company, 47 F.3d at 283.
Next, Fraser & Wise makes an abbreviated statement that Attorney Dobbins' opinion ...
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