Kaufman v. Jesser

• Decision Date: 19 July 2012
• Docket Number: No. CV–12–459–PHX–LOA.,CV–12–459–PHX–LOA.
• Citation: Kaufman v. Jesser, 884 F.Supp.2d 943 (D. Ariz. 2012)
• Parties: David KAUFMAN, Plaintiff, v. Steven H. JESSER and Paula M. Jesser, husband and wife, Defendants.
• Court: U.S. District Court — District of Arizona

884 F.Supp.2d 943

David KAUFMAN, Plaintiff,

v.Steven H. JESSER and Paula M. Jesser, husband and wife, Defendants.

No. CV–12–459–PHX–LOA.

United States District Court, D. Arizona.

July 19, 2012.

Prior Version Recognized as Unconstitutional

A.R.S. § 12–2602.

William Dale Cleaveland, William D. Cleaveland PLC, Mesa, AZ, for Plaintiff.

Bridget Ann Liccardi, Patricia L. Argentati, Mulherin Rehfeldt & Varchetto PC, Wheaton, IL, Steven H. Jesser, Steven H. Jesser Attorney at Law PC, Skokie, IL, for Defendants.

ORDER

LAWRENCE O. ANDERSON, United States Magistrate Judge.

This attorney malpractice action arises on Defendants Steven and Paula Jesser's (collectively “Defendants” or “Jesser”) Motion to Dismiss the Complaint for failure to state a claim upon which relief may be granted. (Docs. 20–21) Defendants raise four separate grounds for dismissal of this lawsuit pursuant to Federal Rule of Civil Procedure (“Rule”) 12(b)(6) or Arizona Revised Statute (“A.R.S.”) § 12–2602: 1) Plaintiff has certified that no liability expert is needed in this case, but Arizona law requires a standard-of-care expert in this professional negligence action; 2) the Complaint was untimely filed beyond Arizona's two-year statute of limitations, A.R.S. § 12–542, for negligence actions; 3) Plaintiff cannot prove that Jesser was the proximate cause of Plaintiff's alleged damages; and 4) Plaintiff cannot prove any allowable damages. (Doc. 21, ¶¶ 4, 7, 11, 14) Because oral argument would not aid the Court's decisional process and the briefing is adequate, Defendants' request for oral argument will be denied. Mahon v. Credit Bur. of Placer County, Inc., 171 F.3d 1197, 1200 (9th Cir.1999).

After considering the briefing and applicable law, the Court will deny Defendants' motion, order Plaintiff to secure a standard-of-care expert witness, provide a preliminary expert opinion affidavit to Defendants consistent with A.R.S. § 12–2602(b) within 30 days, and stay this action pending Plaintiff's filing a notice of compliance with this Order.

I. Background

This is a professional negligence action against a trial attorney, arising out of Plaintiff David Kaufman's (“Kaufman”) unsuccessful veterinary malpractice lawsuit against William Langhofer, D.V.M., and the Scottsdale Veterinary Clinic over the death of “Salty,” Kaufman's scarlet macaw. See Kaufman v. Langhofer, 223 Ariz. 249, 222 P.3d 272 (Ariz.Ct.App.2009) (“Kaufman I ”). In a 2007 action in the Maricopa County Superior Court, Kaufman, represented by attorney Steven H. Jesser, asserted claims of professional negligence, wrongful death, negligent misrepresentation, and destruction of Kaufman's personalproperty, Salty. A jury allocated 30 percent fault to the veterinarian and percent fault to Kaufman, but awarded Kaufman no damages. Id. Represented by a different attorney,¹ Kaufman appealed. In a published opinion, the Arizona Court of Appeals affirmed, holding that, under Arizona law, a pet owner is not entitled to recover damages for the emotional distress and loss of companionship over the death of his or her pet. Id., 223 Ariz. at 250, 222 P.3d at 273.² According to undisputed information in a public record provided by Kaufman, Kaufman's petition for review to the Arizona Supreme Court was denied on May 21, 2010. (Doc. 25–1 at 1)

According to the published appellate opinion, Kaufman purchased Salty in late 1996. Id. It was uncontested at trial that Salty was intelligent, affectionate, and playful. Kaufman considered Salty his companion. Salty accompanied Kaufman to work, engaged with customers in Kaufman's business, and participated in family holidays. Id. On May 1, 2005, a bird breeder diagnosed Salty with a cloacal prolapse.³Id. Kaufman brought Salty to Dr. Langhofer on May 5, 2005. After multiple consultations, Dr. Langhofer performed two operations, which cured Salty's cloacal prolapse, but left Salty with a uterine prolapse. Salty never fully recovered from the second operation, began to suffer respiratory distress, and died on June 21, 2005. Id.

Kaufman filed this legal malpractice suit (“ Kaufman II ”) against his former attorney in the Maricopa County Superior Court, State of Arizona, on December 21, 2011. (Docs. 1, ¶ 1 at 1; 1–1 at 3) Defendants were served on February 7, 2012, and removed this action to this District Court on March 5, 2012. ( Id.) Before answering the Complaint, Defendants filed the pending motion.

A. The Allegations

The Complaint alleges multiple failures by Jesser, an Illinois-based attorney admitted to practice law in numerous state courts, including Arizona, to meet the applicable standard of care before and during the trial of Kaufman I. (Doc. 1–1 at 3–16) Kaufman alleges that Jesser “held himself out to the public as an experienced provider of specialized law pertaining to animal litigation.” ( Id., ¶ 12 at 5) The Complaint in this lawsuit, Kaufman II, asserts, inter alia, that Jesser:

1. “failed to prepare a ... Rule 26.1 Disclosure Statement, and [Jesser] did not insist that [defendants] provide him one[;]” ⁴ 2. failed “to list many of [Kaufman's] exhibits and witnesses in a joint pretrial statement ... result[ing] in the exclusion of several of [Kaufman's] witnesses and many exhibits [at trial;]”

3. failed to instruct Kaufman to obtain clean copies of exhibits to introduce in evidence at trial, resulting in “[m]any of [Kaufman's] key exhibits [being] excluded at trial because the documents contained [Kaufman's] handwritten notes.”

4. “failed to submit any proposed jury instructions relating to recovery of veterinary fees [in excess of $10,000] [and submitted] no instruction on damages of any kind[;]” ⁵

5. failed to “request that the court reform or amend the jury verdict to include nominal damages” “[a]fter the jury returned a verdict in favor of [Kaufman] but awarded him zero dollars in damages[;]”

6. “was aware that Dr. Vaughn [Kaufman's veterinary expert witness] was charging exorbitant fees [over $107,000] to [Kaufman] for services that were not provided, yet [Jesser] did nothing to intervene with Dr. Vaughn or suggest that another expert be retained[;]”

7. failed to “require [defendants] to answer interrogatories, even after the trial court granted [Kaufman's] motion to compel [defendants'] response[;] and

8. failed to “request[ ] that the trial date be set far enough in the future to conclude all necessary discovery.”

( Id., ¶¶ 13–20, 29, 31, 42) According to Kaufman, the end result in Kaufman I was the jury found for Kaufman, awarded him no damages, the trial court awarded defendants $6,500 in costs as the prevailing party, Kaufman then lost on appeal and defendants were again awarded their costs as the prevailing party. ( Id., ¶¶ 21–23; doc. 25 at 4) Kaufman claims he “spent substantial amounts to retain what he understood to be experienced and highly competent council (sic), only to discover that he had purchased representation riddledwith numerous errors committed by Mr. Jesser.” (Doc. 25 at 4)

The Complaint alleges that, as a direct and proximate result of Jesser's “multiple breaches of his duty owed” to Kaufman, Kaufman “sustained various damages, including, but not limited to, the failure to recover (a) amounts paid for veterinary bills, (b) the value [Kaufman] placed on Salty, ... (c) costs incurred in the action ... [d] payment of [defendant's] costs, [e] payment of an attorney to appeal the adverse decisions caused by [Jesser's] actions and/or inactions, [f] payment of Dr. Vaughn's excessive expert fees, and [g] payment of [Jesser's] attorney's fees of over $120,000.00 for inadequate representation.” (Doc. 1–1, ¶¶ 48–49 at 13–14)

II. Jurisdiction

On March 5, 2012, Defendants removed this action on the basis that jurisdiction exists under 28 U.S.C. § 1332 because the parties' citizenship is completely diverse and the amount in controversy exceeds the sum of $75,000.00, exclusive of interest and costs. (Doc. 1, ¶¶ 2–4) The Notice of Removal alleges Kaufman is a citizen of the State of Arizona and Defendants are citizens of the State of Illinois. ( Id., ¶ 2) All parties have consented in writing to magistrate-judge jurisdiction pursuant to 28 U.S.C. § 636(c). (Docs. 13–15)

A. Choice of Law

“[F]ederal courts sitting in diversity jurisdiction apply state substantive law and federal procedural law.” Enterprise Bank & Trust v. Vintage Ranch Inv., LLC, 2012 WL 1267988, *2 (D.Ariz. April 16, 2012) (quoting Freund v. Nycomed Amersham, 347 F.3d 752, 761 (9th Cir.2003) (internal quotation marks omitted)). Because jurisdiction in this case is based on diversity, Arizona substantive law applies to this action. Nevertheless, the Federal Rules of Civil Procedure govern the procedural aspects of this action after removal. Rule 81(c)(1), Fed.R.Civ.P. (“These rules apply to a civil action after it is removed from a state court.”).

B. Substantive Law

Arizona substantive law is one that gives rise to “[state-created] rights and obligations in such a way that its application in federal court is required.” Amor v. Arizona, 2010 WL 960379, *6 (D.Ariz. March 15, 2010) (quoting Byrd v. Blue Ridge Rural Elec. Co-op., 356 U.S. 525, 535, 78 S.Ct. 893, 2 L.Ed.2d 953 (1958)). A law is substantive if it would “significantly affect the result of a litigation for a federal court to disregard a law of a State that would be controlling in an action upon the same claim by the same parties in a State court.” Hanna v. Plumer, 380 U.S. 460, 466, 85 S.Ct. 1136, 14 L.Ed.2d 8 (1965). The outcome-determinative test must be read with “reference to the twin aims of the Erie rule: discouragement of forum-shopping and avoidance of inequitable administration of the laws.” Id. at 468, 85 S.Ct. 1136 (referring to Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938)). The proper inquiry is “[w]hether the federal policy ... should yield to the state rule in the interest of furthering the objective that the litigation should not come out one way in the federal court...