Williams v. Callaghan, Civil Action No. 95-02335.

• Decision Date: 10 September 1996
• Docket Number: Civil Action No. 95-02335.
• Citation: 938 F. Supp. 46
• Parties: James D. WILLIAMS, Plaintiff, v. Attorney Martin CALLAGHAN, Esq., Defendant.
• Court: U.S. District Court — District of Columbia

938 F. Supp. 46

James D. WILLIAMS, Plaintiff, v. Attorney Martin CALLAGHAN, Esq., Defendant.

Civil Action No. 95-02335.

United States District Court, District of Columbia.

September 10, 1996.

James D. Williams, Lorton, VA, Pro Se.

James Thomas Maloney, Washington, DC, for defendant.

MEMORANDUM OPINION

SPORKIN, District Judge.

Plaintiff, who is proceeding pro se, brings this action against his former criminal defense trial attorney, alleging that certain of defendant's trial tactics caused plaintiff's conviction for drug distribution. Plaintiff asserts two causes of action: (1) legal malpractice; and (2) intentional infliction of emotional distress. Plaintiff's allegations are supported solely by plaintiff's own affidavit. Defendant moves for summary judgment.

BACKGROUND

On September 14, 1990, plaintiff, represented by defendant at trial, was convicted of distribution of a controlled substance in the Superior Court of the District of Columbia. On November 8, 1990, plaintiff was sentenced to ten to thirty years' incarceration. On November 20, 1991, the District of Columbia Court of Appeals found the evidence sufficient to sustain the conviction. James D. Williams v. United States, Docket No. 90-1465 (Nov. 20, 1991).

Plaintiff then sought relief from his sentence in the Superior Court of the District of Columbia, pursuant to D.C.Code § 23-110. Among other claims, plaintiff alleged ineffective assistance of trial counsel. On November 11, 1992 Judge Colleen Kollar-Kotelly¹ denied plaintiff's collateral attack. The Court reasoned that plaintiff was "barred from raising his claims of ineffective assistance of counsel ... because the bases for his claims are issues of which he knew or should have known at the time of his direct appeal." United States of America v. James D. Williams, Docket No. F-2202-90 B (Nov. 11, 1992) (citations omitted).

On November 22, 1993, the District of Columbia Court of Appeals affirmed the post-trial decision. The appellate court stated "absent a showing of cause and prejudice, which Williams has not made, this ruling was clearly correct." James D. Williams v. United States, Docket No. 92-CO-1458 (Nov. 22, 1993).

Plaintiff next filed a Petition for a Writ of Error Coram Nobis² which likewise contained claims of ineffectiveness of counsel. Judge Kollar-Kotelly denied the Petition on July 27, 1995, because plaintiff's claims failed to meet any of the five requirements of a Petition for a Writ of Error Coram Nobis.³ Most importantly, plaintiff failed to show any facts of which the trial court was unaware that would have prevented the sentence or judgment.

Plaintiff then brought this action against defendant for legal malpractice and intentional infliction of emotional distress. Plaintiff alleges acts of negligent and intentional professional misconduct identical to those raised in the prior collateral attacks based on ineffective assistance of counsel. Specifically, plaintiff alleges the following acts of misconduct:

(1) failure to adequately investigate identification evidence with respect to plaintiff's street name (i.e. that it is "Flat" and not "Chink");⁴

(2) failure to adequately interview potential witnesses;

(3) failure to make any pre-trial motions;

(4) failure to move for a mistrial (5) failure to vigorously cross-examine the police officer who field-tested the drugs; and

(6) failure to zealously advocate plaintiff's cause.

Defendant moves for summary judgment on grounds that plaintiff has failed to establish a prima facie case for either legal malpractice or intentional infliction of emotional distress.

SUMMARY JUDGMENT STANDARDS

Under Federal Rule of Civil Procedure 56, summary judgment shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c).

In Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), the Supreme Court outlined the standards governing summary judgment:

Summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed "to secure the just, speedy and inexpensive determination of every action." Fed.R.Civ.P. 1.

Rule 56 must be construed with due regard not only for the rights of the persons asserting claims and defenses that are adequately based in fact to have those claims and defenses tried to a jury, but also for the rights of persons opposing such claims and defenses to demonstrate in the manner provided by the Rule, prior to trial, that the claims and defenses have no factual basis.

Id. at 327, 106 S.Ct. at 2555 (citation omitted).

It is the function of the district court to determine whether any pertinent factual controversy actually exists. Exxon Corp. v. Federal Trade Commission, 663 F.2d 120 (D.C.Cir.1980). The non-moving party is "required to provide evidence that would permit a reasonable jury to find" in his favor. Laningham v. U.S. Navy, 813 F.2d 1236, 1242 (D.C.Cir.1987) (per curiam). Mere allegations or denials of the adverse party's pleading are not enough to prevent the issuance of summary judgment. Fed.R.Civ.P. 56(e). In reviewing the record all reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513-14, 91 L.Ed.2d 202 (1986). The inferences must be reasonable, however, and the non-moving party can only defeat a motion for summary judgment by responding with some factual showing to create a genuine issue of material fact. Harding v. Gray, 9 F.3d 150, 154 (D.C.Cir.1993).

ANALYSIS AND DECISION

I. Jurisdiction

As in any federal lawsuit, the first question this Court must address is whether jurisdiction lies with this Court. Plaintiff claims that subject matter jurisdiction is proper based both on the federal question doctrine and on diversity. As a pro se party, plaintiff is entitled to liberal construction of his pleadings.

Plaintiff has not established federal question jurisdiction. Neither of plaintiff's legal claims — malpractice and the intentional infliction of emotional distress — raises a federal question.

With respect to plaintiff's claim of subject matter jurisdiction based on diversity, plaintiff is seeking two million dollars, an amount well in excess of $50,000. Plaintiff further asserts that he is a citizen of the District of Columbia ("D.C.") and the defendant is a citizen of the Commonwealth of Virginia. Since defendant does not dispute plaintiff's claim that he is a D.C. citizen, the Court finds that plaintiff has established diversity jurisdiction and will proceed to decide the substantive issues presented.

II. Plaintiff's Claim of Legal Malpractice

Where ineffective assistance of trial counsel has previously been raised but not directly decided, as here, a judicial finding of ineffective assistance is not necessary in order to find a criminal defense attorney liable for legal malpractice. Glenn v. Aiken, 409 Mass. 699, 569 N.E.2d 783, 785 (1991).

In a legal malpractice action in the District of Columbia, the plaintiff bears the burden of presenting evidence establishing: (1) that there was an attorney-client relationship; (2) that the attorney breached the applicable standard of care; and (3) that there was a legally cognizable harm. Smith v. Haden, 872 F.Supp. 1040, 1043 (D.D.C.1994). In the instant case, it is undisputed that defendant was plaintiff's criminal defense attorney. However, plaintiff has failed to meet any of the remaining prongs of the three-part test necessary to establish legal malpractice.

A. Breach of a Professional Standard of Care

In order to make out a prima facie case of legal malpractice, "it is well established in this district that ... expert testimony proving the applicable standard of care is an essential element" of the case. Appelgate v. Dobrovir, Oakes and Gebhardt, 628 F.Supp. 378, 382 (D.D.C.1985), aff'd 809 F.2d 930, cert. denied, 481 U.S. 1049, 107 S.Ct. 2181, 95 L.Ed.2d 837 (1987). Plaintiff has failed to make any showing that he will provide expert testimony regarding the appropriate standard of care. Plaintiff's only evidence of malpractice is his affidavit. However, "conclusory allegations unsupported by factual data will not create a triable issue of fact." Marks v. United States Dep't of Justice, 578 F.2d 261, 263 (9th Cir. 1978).

"The requirement to produce an expert is excused only where the attorney's lack of care and skill is so obvious that the trier of fact can find negligence as a matter of common knowledge." Smith, 872 F.Supp. at 1044; Accord Mills v. Cooter, 647 A.2d 1118 (D.C.1994) (expert testimony required where alleged negligence was attorney's failure to join real estate brokers in an action alleging fraudulent real estate transaction). Allowing a statute of limitations to run is an example of the type of conduct by an attorney which can be found negligent as a matter of common knowledge. O'Neil v. Bergan, 452 A.2d 337, 342 (D.C.1982).

Plaintiff's allegations of defendant's breach are not of the sort for which the trier of fact might be able to find negligence as a matter of "common knowledge." Defendant's alleged failure to investigate, failure to interview potential witnesses and failure to vigorously cross-examine are trial tactics which would require the testimony of an expert witness to support a jury's finding of malpractice.

In the District of Columbia, vague and general allegations of professional negligence on the part of criminal defense attorneys, similar to those of plaintiff in this action, have been deemed insufficient to establish a prima facie case of legal malpractice. See, e.g., McCord v. Bailey, 636 F.2d 606 (D.C.Cir.1980) (summary judgment...