Marbury Law Grp., PLLC v. Carl
| Decision Date | 21 July 2013 |
| Docket Number | Civil Action No. 09-01402 (CKK) |
| Parties | MARBURY LAW GROUP, PLLC, Plaintiff/Counter-Defendant, v. BERNARD J. CARL, Defendant/Counter-Plaintiff. |
| Court | U.S. District Court — District of Columbia |
Plaintiff/Counter-Defendant Marbury Law Group, PLLC ("Marbury") has moved for summary judgment on counterclaims brought by Defendant/Counter-Plaintiff Bernard J. Carl ("Carl"), who is proceeding pro se in this action.1 Carl's three counterclaims - the only claims that remain at issue in this case - sound in legal malpractice and breach of fiduciary duty and all challenge, in one way or another, the adequacy of Marbury's legal representation of Carl in connection with two prior legal actions. Upon consideration of the parties' submissions, the applicable authorities, and the record as a whole, the Court shall GRANT Marbury's motion for summary judgment and dismiss this case in its entirety.2
On March 6, 2009, Marbury brought suit against Carl in the Fairfax County Circuit Court of the Commonwealth of Virginia, seeking to collect unpaid fees for legal services that it provided to Carl while representing him in connection with two legal actions. When Carl failed to defend against the Virginia action, the Fairfax County Circuit Court entered a default judgment against him. See Order of J. as to Def. Bernard J. Carl, Marbury Law Grp., PLLC v. Carl, Civ. Action No. 2009-3375 . Shortly thereafter, Marbury commenced this action, seeking to register the default judgment with this Court. See Compl., ECF No. [1]. On October 15, 2009, Carl filed a responsive pleading, answering the allegations in the Complaint and asserting a total of seven counterclaims sounding in breach of contract, breach of fiduciary duty, and legal malpractice. See Countercl., ECF No. [7].
Subsequently, Marbury realized that this Court lacked jurisdiction to register the default judgment entered by the Fairfax County Circuit Court and moved this Court to dismiss the Complaint. See Counter-Def.'s Mem. in Supp. of Mot. to Dismiss, ECF No. [12-1], at 1-2. Contemporaneously, Marbury moved this Court to dismiss Carl's counterclaims, contending that Carl's claims were either barred by the doctrine of res judicata or failed to state a claim for relief. See Counter-Def.'s Mem. in Supp. of Mot. to Dismiss, ECF No. [13-1]. On December 3, 2009, having received no response from Carl, the Court granted both motions as conceded and dismissed the entire action without prejudice. See Order (Dec. 3, 2009), ECF No. [15]; Mem. Op. (Dec. 3, 2009), ECF No. [16].
However, on July 27, 2010, upon Carl's motion, the Court reconsidered and vacated its prior dismissal order. See Order (July 27, 2010), ECF No. [28]; Mem. Op (July 27, 2010), ECF No. [29]. Then, reaching the merits of the motions, the Court dismissed Marbury's Complaint for lack of subject matter jurisdiction, but held-in-abeyance Marbury's motion to dismiss Carl's counterclaims pending further briefing on the threshold question of whether the Court retained jurisdiction over those claims. See Order (July 27, 2010); Mem. Op (July 27, 2010).
On September 9, 2010, upon consideration of the parties' supplemental briefing, the Court agreed with the parties that it retains jurisdiction over Carl's counterclaims in light of the diversity of citizenship between the parties and the amount in controversy. See Order (Sept. 9, 2010), ECF No. [32]. On that same date, the Court further granted Carl leave to file amended counterclaims and denied Marbury's motion to dismiss Carl's counterclaims without prejudice, with leave to refile after tailoring the motion to speak to Carl's amended counterclaims. See id.
On September 9, 2010, Carl filed his First Amended Counterclaim, in which he narrowed his claims against Marbury to a total of three counterclaims—two sounding in legal malpractice and a third sounding in breach of fiduciary duty. See Am. Countercl. Each of Carl's three counterclaims challenge, in one way or another, the adequacy of Marbury's legal representation of his interests in connection with two legal actions: (a) a civil action in the United States District Court for the Eastern District of Virginia captioned Carl v. BernardJCarl.com, Civ. Action No. 07-1128 (E.D. Va.) (hereinafter the "Website Case"); and (b) a bankruptcy proceeding in the United States Bankruptcy Court for the Eastern District of Virginia captioned In re Logan, Case No. 07-12564 (Bankr. E.D. Va.) (hereinafter the "Bankruptcy Case"). In his First Counterclaim, Carl claims that Marbury committed legal malpractice in connection with the Website Case by failing to pursue legal rights on his behalf, failing to undertake necessary legal research, andfailing to meet minimum professional standards for legal representation. See Am. Countercl. ¶¶ 67-69. In his Second Counterclaim, Carl claims that Marbury committed legal malpractice in connection with the Bankruptcy Case by failing to be adequately prepared for discovery, failing to undertake necessary legal research, failing to file timely motions, and failing to meet minimum professional standards for legal representation. See id. ¶¶ 73-79. In his Third Counterclaim,4 Carl claims that Marbury breached its fiduciary duty to him in connection with the Bankruptcy Case by failing to be adequately prepared for discovery, failing to undertake necessary legal research, failing to file timely motions, and failing to meet minimum professional standards for legal representation. See id. ¶¶ 80-86.5
On October 1, 2010, Marbury filed a Motion for Summary Judgment, which was opposed by Carl, and which argued that Carl's counterclaims should be dismissed because they are barred by the doctrine of res judicata and fail on the merits. See Counter Def.'s Mem. in Supp. of Mot. for Summ. J. , ECF No. [35]. On August 1, 2011, the Court denied summary judgment, finding that Marbury's motion failed to fully account for two important principles that circumscribe the reach of the preclusive effect of the default judgment entered by the Fairfax County Circuit Court - specifically, (1) the general rule that a party failing to assert a permissive counterclaim in a prior action ordinarily will not be barred from bringing a future suit on that claim, and (2) that all counterclaims are permissive under Virginia law. See Mem. Op. (August 1, 2011), ECF No. [49]. The Court declined to consider Marbury's alternative contention that Carl's counterclaims fail on the merits because Marbury failed to comply with the procedural requirements for presenting a motion for summary judgment in this Court. Id.
On November 2, 2011, this Court entered a [55] Scheduling and Procedures Order that required the parties to designate experts and produce expert reports by no later than March 20, 2012, and to conclude all discovery by June 12, 2012. Soon thereafter, the parties filed a [56] Joint Discovery Plan according to which all expert depositions would be completed by June 4, 2012. The Court did not hear from the parties for the next seven months of the discovery period, and the Court therefore assumed that the parties were diligently pursuing discovery. When the discovery period closed on June 12, 2012, without either party having filed a discovery-related motion or seeking an extension of time, the Court reasonably assumed that the parties had completed discovery. On June 22, 2012, the Court held a Status Hearing to discuss post-discovery proceedings.6
Subsequently, Marbury filed a [64] Motion to Dismiss or in the Alternative, for Summary Judgment, which Carl opposed. On July 29, 2012, the Court denied Marbury's motion. See Order (July 29, 2012), ECF No. [69]. Marbury's primary argument was that the case should be dismissed for lack of prosecution in light of a settlement agreement that the parties apparently reached in April 2012 - two months before the close of discovery, whereby Carl appears to have waived and released his right to pursue his counterclaims subject to certain conditions - most notably, his right to take the deposition of a third party defendant, John McMahon ("McMahon"), by a date certain. Notably, despite this Court's express instructions, the parties had failed to inform the Court once they had reached the purported agreement to settle this case. See Scheduling & Procedures Order (Nov. 2, 2011), at 5 (). Accordingly, the Court found that because it hadnever been presented with a copy of the settlement agreement, let alone endorsed it, and because Marbury did not ask the Court to enforce its terms, the settlement agreement was not an issue properly before the Court. See id.
The Court found significantly more compelling Marbury's alternative argument - namely, that summary judgment was appropriate because Carl failed to appoint an expert and expert testimony is required for all three of his counterclaims. See id. However, the Court ultimately declined to grant summary judgment on this basis on the record then before it, finding that neither party had provided the Court with any factual exegesis of the counterclaims sufficient to determine whether expert testimony is required. See id. This given, the Court ordered Marbury to refile its motion for summary judgment providing a comprehensive factual and legal analysis as to why Carl's counterclaims must fail in the absence of expert testimony. See id.
Shortly after the Court's July 29, 2012 Order, and before Marbury filed its renewed motion, Carl filed a [71] Motion for Extension of the Discovery Period, which requested a "limited" extension of the then expired discovery period solely for the purpose of completing the deposition of McMahon. The Court denied Carl's motion because, among other reasons, Carl had not even served his discovery requests upon McMahon until June 1, 2012 (less than two weeks before the close of discovery, despite...
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