Wilborn v. Trant et al
MEMORANDUM OPINION - For the reasons stated above, Defendants motion for summary judgment, (doc. 158), is GRANTED. A separate order will be entered. Signed by Magistrate Judge John H England, III on 9/13/2018. (KEK)
2018 Sep-13 PM 02:34
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
DON MITCHELL WILBORN,
DOUGLAS A. TRANT, et al.,
Case No.: 4:15-cv-02071-JHE
Plaintiff Don Mitchell Wilborn (“Wilborn”), a prisoner proceeding pro se, brings this legal
malpractice action against Defendants Douglas A. Trant (“Trant”) and Whitt, Cooper, Trant &
Hendrick, P.A. (the “Firm”). (Doc. 1). Defendants have moved for summary judgment on the
basis Wilborn has not provided expert testimony in support of his claim, as required by Alabama
law. (Doc. 158). As described below, Wilborn has failed to file a response in opposition to the
motion for summary judgment. For the reasons stated below, the motion is GRANTED.
Standard of Review
Under Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment is proper “if
the movant shows that there is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” “Rule 56(c) mandates the entry of summary judgment, after
In accordance with the provisions of 28 U.S.C. § 636(c) and Federal Rule of Civil
Procedure 73, the parties have voluntarily consented to have a United States Magistrate Judge
conduct any and all proceedings, including trial and the entry of final judgment. (Doc. 31).
The undersigned notes that on November 24, 2017, Plaintiff filed a motion to withdraw his
previously-given consent. (Doc. 140). However, Plaintiff subsequently withdrew that motion.
(See doc. 150 at 5).
adequate time for discovery and upon motion, against a party who fails to make a showing
sufficient to establish the existence of an element essential to that party’s case, and on which that
party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
The moving party bears the initial burden of proving the absence of a genuine issue of material
fact. Id. at 323. The burden then shifts to the nonmoving party, who is required to “go beyond the
pleadings” to establish that there is a “genuine issue for trial.” Id. at 324. (citation and internal
quotation marks omitted). A dispute about a material fact is genuine “if the evidence is such that
a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986).
The Court must construe the evidence and all reasonable inferences arising from it in the
light most favorable to the non-moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157
(1970); see also Anderson, 477 U.S. at 255 (all justifiable inferences must be drawn in the nonmoving party’s favor). Any factual disputes will be resolved in Plaintiff’s favor when sufficient
competent evidence supports Plaintiff’s version of the disputed facts. See Pace v. Capobianco,
283 F.3d 1275, 1276-78 (11th Cir. 2002) (a court is not required to resolve disputes in the nonmoving party’s favor when that party’s version of the events is supported by insufficient evidence).
However, “mere conclusions and unsupported factual allegations are legally insufficient to defeat
a summary judgment motion.” Ellis v. England, 432 F.3d 1321, 1326 (11th Cir. 2005) (per curiam)
(citing Bald Mtn. Park, Ltd. v. Oliver, 836 F.2d 1560, 1563 (11th Cir. 1989)). Moreover, “[a] mere
‘scintilla’ of evidence supporting the opposing party’s position will not suffice; there must be
enough of a showing that the jury could reasonably find for that party.” Walker v. Darby, 911
F.2d 1573, 1577 (11th Cir. 1990) (citing Anderson, 477 U.S. at 252).
Wilborn, who is a federal prisoner incarcerated in the Federal Correctional Institution in
Estill, South Carolina (“FCI Estill”), filed the complaint in this action on November 16, 2015, 3
alleging Defendants, an attorney and a law firm, committed legal malpractice in representing him
in his federal postconviction proceeding under 28 U.S.C. § 2255.4 (Doc. 1). Wilborn failed to pay
the filing fee or file a motion for leave to proceed in forma pauperis, and the undersigned ordered
him to correct this deficiency. (Doc. 2). On December 10, 2015, Wilborn filed a motion for leave
to proceed in forma pauperis and an amended complaint. (Docs. 3 & 4). The undersigned granted
the motion for leave to proceed in forma pauperis and ordered service of the amended complaint
on Defendants. (Docs. 5 & 8). Defendants answered the amended complaint on February 29,
2016. (Doc. 15). On April 8, 2016, the undersigned entered a scheduling order setting the deadline
for Wilborn’s expert disclosures at August 8, 2016, and the dispositive motion deadline at
November 8, 2016. (Doc. 23).
The resolution of Defendants’ motion for summary judgment involves two separate but
related issues: Wilborn’s failure to provide expert testimony in support of his legal malpractice
claim and his lack of response to the motion for summary judgment. The undersigned has included
this background section to illustrate the somewhat convoluted development of both of these issues,
as well as the undersigned’s repeated attempts to accommodate Wilborn due to his status as a an
incarcerated pro se litigant.
Because Wilborn is an incarcerated pro se litigant, he is entitled to the benefit of the
“mailbox rule,” under which documents he files are deemed to be filed on the day they were
delivered to prison authorities for mailing. See Garvey v. Vaughn, 993 F.2d 776 (11th Cir. 1993).
Accordingly, this memorandum opinion’s references to the dates on which Wilborn filed a
particular document reflect the date that appears on the document itself (if indicated), not the date
on which the court received the document.
Wilborn also filed a legal malpractice action in this court against his trial counsel in the
underlying criminal action. See Wilborn v. Tuten, et al., Case No. 4:16-cv-00106-VEH. On July
12, 2017, Wilborn’s action was dismissed for lack of subject-matter jurisdiction. See id. at docs.
35 & 236.
A. Initial Discovery Issues
On April 8, 2016, at Wilborn’s request, the Clerk of Court issued a subpoena directing
nonparty Laura Hodge (“Hodge”), an Assistant United States Attorney for the Northern District of
Alabama, to produce “All discovery materials in United States v. Wilborn, 4:11-cr-00470-VEHHGD-1, including but not limited to, audio recordings, video surveillance, statements of
codefendants (Form 302s): to be provided in CD/DVD format, accessible in Quick View Plus
software, where available.” (Doc. 48 at 4).
On June 9, 2016, Wilborn filed motions to compel production by nonparties Cullman
County Sheriff Matt Gentry (“Gentry”) and Assistant United States Attorney Laura Hodge
(“Hodge”). (Docs. 47, 48 & 49). The undersigned entered separate orders to show cause for each
of these motions. (Docs. 51, 52 & 53). On June 17, 2016, the Cullman County Sheriff’s Office
filed a motion to quash the subpoena directed to Gentry. (Doc. 54).
On June 14, 2016, Wilborn filed a motion to extend the deadlines in the scheduling order.
(Doc. 55). The motion was received by the court on June 20, 2016. (See id.). Wilborn’s motion
specifically requested sixty to ninety days of additional time, and particularly noted his looming
expert witness disclosure deadline. (Id. at 6). Because of the pending motions to compel and
quash, the undersigned suspended all deadlines during those motions’ pendency. (Doc. 57).
On June 27, 2016, the undersigned denied the motion to compel directed to Hodge without
prejudice, as it appeared that Wilborn had not complied with the Department of Justice’s
regulations in requesting material. (Doc. 60). The other motions remained pending.
On August 23, 2016, the undersigned held a telephone conference to discuss the pending
motions. At that conference, Defendants suggested that, because this legal malpractice action
requires Wilborn to offer expert testimony on the standard of care, it would be appropriate to defer
ruling on the pending motions until there was some indication that Wilborn would actually be able
to retain an expert witness and offer that testimony. The undersigned agreed. Therefore, on
August 24, 2016, the undersigned ordered Wilborn to designate an expert on the applicable legal
standard of care by September 23, 2016, or show cause why he had not done so. (Doc. 75). The
undersigned deferred ruling on the pending discovery motions until Wilborn made this
B. Wilborn’s Expert Designation
Wilborn responded to this order on August 31, 2016, arguing the order was ineffective
because all deadlines in the case had been suspended by previous order, and that he could not
reasonably submit an expert report without the discovery that was the subject of these motions to
compel. (Doc. 77). On September 15, 2016, in an order on several additional discovery motions,
the undersigned informed Wilborn he need not submit an expert report, only designate an expert;
the undersigned reminded Wilborn the September 23, 2016 deadline was still in effect. (Doc. 84
Wilborn submitted two documents on September 23, 2016. The first of these was a status
update indicating Wilborn had consulted with two experts and attempted to contact another, but
neither of them were able to review materials and provide a report by the deadline; consequently,
he requested an additional thirty to forty-five days to make his designation. (Doc. 86). The second
was a purported expert designation, which was a list of experts Wilborn designated “subject to
their review of all discovery materials and approval, and subject to revision and/or substitution of
this designation,” as well as “any other expert witness identified after this filing.” (Doc. 87). On
October 7, 2016, finding the latter document “so non-committal that it cannot reasonably be
considered a designation,” the undersigned struck it. (Doc. 89 at 2). In the same order, the
undersigned granted Wilborn an additional thirty days to designate his expert, notwithstanding it
did not appear Wilborn had been diligent in seeking out an expert. (Id. at 2-3).
On November 4, 2016, Wilborn provided another status update. (Doc. 97). In that update,
Wilborn submitted a number of attempts to communicate with attorneys, none successfully
securing one as an expert witness. (Id.). Wilborn requested an additional thirty days to designate
his expert. (Id.). The undersigned granted that request. (Doc. 99).
On December 16, 2016, Wilborn designated Dennis W. Hartley as an expert witness. (Doc.
100). Wilborn also designated Mark I. Harrison and Scott Harwell, but acknowledged neither had
been retained; Harrison could not be retained until Wilborn secured counsel, and Harwell could
not be retained until his fee was paid. (Id.). Wilborn attached a letter from Hartley in which
Hartley stated he had agreed to provide an expert report. (Doc. 100-1). Wilborn also filed a
supplement to his designation on December 21, 2016, in which he attached an additional letter
from Hartley dated prior to Wilborn’s expert designation deadline and confirming Hartley’s
agreement to review the discovery concerning Wilborn’s former counsel’s performance. (Doc.
On March 6, 2017, in an omnibus order, the undersigned denied Defendants’ motion to
strike Wilborn’s expert designation, (doc. 102). (Doc. 108 at 11-12). In the same order, the
undersigned disposed of the pending motions to compel and quash. (Id. at 1-10).
C. Subsequent Discovery Issues and Appeal
On March 17, 2017, Wilborn renewed his motion to compel production by Hodge. (Doc.
109). Hodge responded with an additional motion to quash. (Doc. 115). After briefing on the
motion, (docs. 117, 118, 119, 120, 121 & 122), and a telephone conference, the undersigned denied
Wilborn’s motion to compel on June 12, 2017. (Doc. 125). In that order, the undersigned noted
that, although Wilborn had premised his need for the information he sought from the U.S.
Attorney’s Office (i.e., the discovery in his criminal case) on his inability to submit an expert report
without it, he had never explained in any way the material’s relevance to the allegations in this
case, which is premised on postconviction representation by different counsel. (Id. at 9-10).
Following this order, the undersigned entered a new scheduling order. (Doc. 127). After
Wilborn requested on August 7, 2017, the scheduling order be modified due to his inability to
review discovery material due to FCI Estill policies, his inability to communicate with his expert
due to issues with the facility’s copy machine, and closures to the law library and word processing
equipment, (see doc. 130), the undersigned modified that scheduling order on October 5, 2017.
(Doc. 133). As a result, Wilborn’s expert reports under Fed. R. Civ. P. 26(a)(2)(B) were due by
December 8, 2017, and the dispositive motion deadline was extended to February 8, 2018. (Id.).
On December 11, 2017, this court received a notice of interlocutory appeal, ostensibly filed
by Wilborn on August 9, 2017. (Doc. 142). The notice, which Wilborn had filed in the Eleventh
Circuit, was stamped “December 1, 2017.” (Id.). The subject of Wilborn’s appeal was the
undersigned’s June 12, 2017, denial of his motion to compel, (doc. 125).
With the appeal pending, Defendants filed the instant motion for summary judgment,
premised on Wilborn’s failure to come forward with expert testimony, on February 6, 2018. (Doc.
158). The undersigned set a briefing schedule on the motion, with Wilborn's response due by
February 27, 2018. (Doc. 159). On February 12, 2018, citing the appeal, Wilborn moved to
suspend all deadlines. (Doc. 160). Wilborn also stated he had not received a copy of the motion
for summary judgment. (Id.). Although the undersigned noted that the appeal was likely frivolous
because the Eleventh Circuit lacked jurisdiction over it and that the appeal only questionably
related to the motion for summary judgment, on February 21, 2018, the undersigned granted
Wilborn’s motion to the extent Wilborn’s response deadline was suspended during the pendency
of the appeal. (Doc. 162). Two days later, on February 23, 2018, the Eleventh Circuit sua sponte
dismissed Wilborn’s appeal for lack of jurisdiction. (Doc. 163).
D. Wilborn’s Response to the Motion for Summary Judgment
On February 28, 2018, the court received a motion for an extension of time to respond to
the motion for summary judgment filed by Wilborn on February 22, 2018, prior to receiving either
the order suspending the response deadline or the Eleventh Circuit’s order. (Doc. 164). In that
motion, Wilborn again stated he had not received a copy of the motion for summary judgment.
(Id.). On March 5, 2018, the undersigned received correspondence from counsel for Defendants
to Wilborn, enclosing another copy of the motion for summary judgment; that correspondence was
made a part of the record. (Docs. 165 & 165-1). The undersigned then set a telephone conference
to discuss Wilborn’s issues receiving mail from the court and from Defendants, as well as a
deadline to respond to the motion for summary judgment. (Doc. 166).
Prior to the telephone conference, on March 13, 2018, Wilborn moved again to stay all
deadlines in this case, citing the fact he had filed a motion to reconsider in the Eleventh Circuit
and arguing he should be permitted a stay until at least the expiration of time to petition the United
States Supreme Court for a writ of certiorari.5 (Doc. 167). At the March 21, 2018, telephone
conference, Wilborn informed the court he had finally received a copy of the motion for summary
judgment. Wilborn requested twenty-one additional days to respond to the motion for summary
judgment. The same day, the undersigned denied the motion to stay but granted Wilborn thirty
days — nine more than he had requested — to oppose the motion for summary judgment; this
The Eleventh Circuit denied Wilborn’s motion to reconsider on May 7, 2018. (Doc. 169).
made Wilborn’s response due by April 20, 2018. (Doc. 168 at 1). To address Wilborn’s alleged
difficulties receiving mail from the court, and consistent with Wilborn’s representations and the
representations of the Bureau of Prisons (“BOP”) for how mail is to be designated as legal mail,
the undersigned directed the Clerk to designate the order “Legal Mail — Open only in the presence
of the inmate.” (Id. at 2). No opposition to the motion for summary judgment was timely received
by the court.
On May 18, 2018, the undersigned received an email from counsel for the BOP regarding
Wilborn’s attempts to schedule depositions, which was made a part of the record. (Docs. 171 &
171-1). Wilborn moved for leave to respond to the email on May 22, 2016, and in that motion
stated he had not received a copy of Defendants’ reply to his response in opposition to their motion
for summary judgment, which he stated was “currently before the Court.” (Doc. 173 at 2-3).
Noting that the court had not received a copy of Wilborn’s response and that it was not before the
court, the undersigned provided Wilborn until June 13, 2018 to refile his response. (Doc. 174).
Again, this order was marked “Special Mail — Open only in the presence of the inmate.”6 (Id. at
Rather than refiling his response, on June 12, 2018, Wilborn filed a “Supplemental
Response in Opposition to Motion for Summary Judgment.” (Doc. 175). That supplemental
In the intervening period between this order and the previous order, Wilborn filed a
motion to treat mail originating from this court as legal mail. (Doc. 169). Wilborn attached a
decision in an inmate complaint appeal in which the BOP stated: “As explained to you in the
Warden's response, staff are now trained to treat mail from the Clerk of the Courts as
‘Special/Legal’ mail as long as it is properly marked ‘Special Main [sic]-Open only in the presence
of the inmate.’” (Id. at 10). Although both “Legal Mail” and “Special Mail” are apparently
interchangeable to designate a piece of mail as legal mail, (see id.), the undersigned adopted the
“Special Mail” formulation to fully conform to the BOP’s explanation.
response stated: “Mr. Wilborn does not wish to waive, or forfeit, any argument that the Defendants
have waived, or forfeited, their right to respond by failing to timely file a reply to Mr. Wilborn’s
response in opposition to motion for summary judgment.” (Id. at 1-2) (emphasis in original).
Wilborn further purported to “incorporate by reference herewith his response in opposition to
motion for summary judgment, (ECF No. [unk.]), and simply supplements his all-inclusive
response in opposition to summary judgment, pages 23-24, related to his inability to conduct video
depositions.” (Id. at 2). The remainder of the supplemental response addressed only Wilborn’s
difficulties in obtaining video depositions. (See id. at 2-5).
On June 26, 2018, the undersigned set a final deadline for Wilborn to refile his response.
(Doc. 176). That order stated:
As explicitly stated in the May 30, 2018 order Wilborn references, “[t]he Court has
received no opposition to Defendants’ motion for summary judgment as of the date
of this Order.” (Doc. 174 at 1). Nor has it received Wilborn’s response since that
date. There is no “all-inclusive response in opposition to summary judgment” to
supplement, nor to incorporate by reference. As it stands, per the docket in this
case, Defendants’ motion for summary judgment is unopposed.
[. . .]
Assuming the accuracy of Wilborn’s earlier representations he has filed a response
that the Court has simply not received, Wilborn has ignored the undersigned’s
instructions to resubmit that response, and has instead simply attempted to
incorporate it by reference, apparently to deny Defendants the opportunity to
submit a reply brief. This does not help Wilborn at all with his primary problem,
which is that the undersigned cannot consider material that has not been received
by the Court.
Although Wilborn has failed to comply with the instructions in the previous
order, Wilborn will receive one final additional opportunity to resubmit his
response to the motion for summary judgment. He must do so by July 10,
2018. Wilborn is advised this is his last opportunity to put his response before
the Court. If Wilborn fails to submit a response by the deadline, the
undersigned will treat Defendants’ motion for summary judgment as
unopposed and will rule on it accordingly.
(Id. at 1-3) (emphasis in original). The undersigned also directed Defendants to file a status report
indicating whether they had received Wilborn’s response. (Id. at 3). Once again, this order was
marked “Special Mail — Open only in the presence of the inmate.” (Id.).
Defendants filed a status report on July 2, 2018, indicating they had not received Wilborn’s
response. (Doc. 177). As of the date of this memorandum opinion, no opposition to the motion
for summary judgment has been received by the court.
Summary Judgment Facts7
In December 2011, Wilborn was indicted for conspiracy to distribute methamphetamine
and distribution of methamphetamine. (Doc. 158-1 at ¶ 3). See also USA v. Wilborn, et al., Case
Wilborn was represented by an attorney unaffiliated with
Defendants in that proceeding. (Doc. 158-1 at ¶ 3). Wilborn entered into a plea agreement on
those charges, under the terms of which he agreed to plead guilty to the conspiracy charge and
serve 240 months in prison. (Id. at ¶ 4). Wilborn pleaded guilty and began his sentence, after
which he retained Trant, who is a partner in the Firm, to represent him in a postconviction
proceeding under 28 U.S.C. § 2255 to vacate or reduce his sentence. (Id. at ¶ 5). Trant researched
the viability of a § 2255 motion under the facts of the case. (Id. at ¶ 6). Based on his experience,
research, and professional judgment, Trant determined a motion to vacate would have a reasonable
chance of success and would not otherwise prejudice Wilborn. (Id. at ¶ 8). The motion, which
was premised on the contentions that Wilborn’s sentence was impermissibly based on prior drug
Because Wilborn has not responded to the motion for summary judgment, he has failed
to dispute any of the facts Defendants cite. Therefore, the undersigned treats the facts contained
in Defendants’ motion as undisputed. See FED. R. CIV. P. 56(e)(2) (when a party fails to address
another party’s assertion of fact, the court may consider that fact undisputed for the purposes of
convictions and that Wilborn’s trial counsel was ineffective, was ultimately unsuccessful. (Id. at
As discussed above, despite being provided with numerous extensions of time, Wilborn
has failed to file any opposition to Defendants’ motion for summary judgment beyond his
“supplemental response,” (doc. 175). Therefore, consistent with the warning in the previous order,
(see doc. 176 at 3), the undersigned treats Defendants’ motion as unopposed (although the
supplemental response is addressed further below, see infra at n.11).
“summary judgment, even when unopposed, can only be entered when ‘appropriate.’” United
States v. One Piece of Real Prop. Located at 5800 SW 74th Ave., Miami, Fla., 363 F.3d 1099, 1101
(11th Cir. 2004). Therefore, the court must consider the motion on its merits and review the
evidence in support of the motion to determine whether the Defendants have met their burden
under Rule 56.
Wilborn’s amended complaint is founded on the allegation he hired Trant for his § 2255
proceeding based on Trant’s misrepresentation to Wilborn he would receive a substantial reduction
in his sentence. (Doc. 3 at ¶ 11). However, Trant failed to uncover in his research binding circuit
precedent that foreclosed the arguments he made in the § 2255 motion. (Id. at ¶¶ 12-19). The
district court denied the § 2255 motion on this basis, as well as because Wilborn had affirmatively
waived his right to appeal and to collaterally attack the plea agreement. (Id. at ¶ 19). On these
allegations, Wilborn asserts a count under the Alabama Legal Service Liability Act, (id. at ¶¶ 2732); a declaratory judgment count seeking to allow him the opportunity to file a second or
successive § 2255 claim, (id. at ¶¶ 33-41); a fraudulent misrepresentation count, (id. at ¶¶ 42-50);
a conversion count, (id. at ¶¶ 51-54); a negligence count, (id. at ¶¶ 55-58); a breach of contract
count, (id. at ¶¶ 59-65); a wantonness count, (id. at ¶¶ 66-69); and a negligent infliction of
emotional distress count, (id. at ¶¶ 70-74).
Although Wilborn’s complaint nominally contains separate counts, each is centered on
Defendants’ legal malpractice. Under Alabama law, legal malpractice claims are governed by the
Alabama Legal Service Liability Act, (“ALSLA”), ALA. CODE § 6-5-570 et seq. The ALSLA
specifically provides: “[t]here shall be only one form and cause of action against legal service
providers in courts in the State of Alabama and it shall be known as the legal service liability action
and shall have the meaning as defined herein.”
ALA. CODE § 6-5-573.
‘embraces’—and thus supersedes—every ‘form of action in which a litigant may seek legal redress
for a wrong or an injury and every legal theory of recovery, whether common law or statutory,
available to a litigant in a court in the State of Alabama now or in the future’” for legal malpractice.
Free v. Lasseter, 31 So. 3d 85, 89 (Ala. 2009) (quoting ALA. CODE § 6-5-572(1)) (emphasis in
original). Therefore, regardless of the theories his complaint purports to assert, Wilborn’s only
claim against Defendants is a single legal service liability action under § 6-5-573.8 See id. (holding
that common-law claims and declaratory judgment claim arising out of legal services must be
recast as a unitary cause of action under the ALSLA).
To prove legal malpractice under Alabama law, a plaintiff must prove the same elements
that must be proven in an ordinary negligence suit: a duty, a breach of that duty, an injury, that the
injury was proximately caused by the breach, and damages. Independent Stave Co. v. Bell,
On May 21, 2018, the undersigned denied Wilborn leave to amend his complaint to add
a count of unjust enrichment and a count of breach of fiduciary duty on the basis the amendment
would be futile; both proposed counts would be duplicative of the ALSLA count already contained
in his amended complaint, (doc. 3 at ¶¶ 27-32). (Doc. 172 at 1-5).
Richardson & Sparkman, P.A., 678 So. 2d 770, 772 (Ala. 1996). Under the ALSLA, breach is
shown by a legal service provider’s failure to adhere to the standard of care. San Francisco
Residence Club, Inc. v. Baswell-Guthrie, 897 F. Supp. 2d 1122, 1190 (N.D. Ala. 2012) (citing
Independent Stave, 678 So. 2d at 772). The ALSLA sets out that “[t]he applicable standard of care
against the defendant legal service provider shall be such reasonable care and skill and diligence
as other similarly situated legal service providers in the same general line of practice in the same
general area ordinarily have and exercise in a like case.” ALA. CODE § 6-5-580(1).
Alabama law generally requires expert testimony to show that a defendant attorney’s
specific actions breached the standard of care. Green v. Ingram, 794 So. 2d 1070, 1072 (Ala.
2001). Consequently, “[w]hen a defendant in a legal malpractice action has moved for a summary
judgment and has properly supported the motion with evidence that makes a prima facie showing
that the defendant did not act negligently, then, in order to defeat the summary judgment motion,
the plaintiff must rebut the defendant's prima facie showing with expert testimony indicating that
the defendant lawyer did act negligently.” McDowell v. Burford, 646 So. 2d 1327, 1328 (Ala.
1994). The only exception to this rule is the “common knowledge” exception, where the breach
of the standard of care “is so apparent as to be understood by a layperson and [would] require
only common knowledge and experience to understand it.” Valentine v. Watters, 896 So. 2d 385,
394 (Ala. 2004).
Defendants have supported their motion with Trant’s affidavit, (doc. 158-1). 9
affidavit, Trant states he has been a practicing attorney since 1978 and has personally had success
Alabama courts have permitted an attorney accused of malpractice to make out a prima
facie case of non-negligence by offering his own affidavit as expert testimony. See Peoples v.
Nassaney, 638 So. 2d 879, 880 (Ala. 1994). Further, there appears to be no federal barrier to a
having sentences of clients reduced and/or vacated in cases similar to Wilborn’s. (Id. at ¶¶ 2, 7).
Trant further states, based on his research and experience, he made the professional determination
that “a motion to vacate had a reasonable chance of success, and would not otherwise prejudice
Wilborn if it was not successful.” (Id. at ¶ 8). Based on his experience as an attorney with
approximately forty years of experience practicing criminal law, Trant opines his representation
of Wilborn satisfied the ALSLA standard of care. (Id. at ¶ 11). This is sufficient to make out a
prima facie case of non-negligence.
Defendants assert this is not the type of case in which the “common knowledge” exception
applies, and therefore Wilborn must oppose the motion for summary judgment with expert
testimony. (Doc. 158 at 9-10). The undersigned agrees. Alabama courts have applied the common
knowledge exception only non-complex scenarios such as missing a filing deadline and
misrepresenting the attorney’s expertise, Valentine, 896 So. 2d at 394; failing to notify the client
of a ruling on a motion in time for the client to timely file an appeal, Guyton v. Hunt, 61 So. 3d
1085, 1090 (Ala. Civ. App. 2010); or misrepresenting to a client that a non-refundable retainer was
enforceable under Alabama law when it was undisputedly unenforceable, Roberts v. Lanier, 72
So. 3d 1174, 1187 (Ala. 2011), as modified on denial of reh'g (June 10, 2011). This case, by
contrast, involves Trant filing what Wilborn alleges was a meritless § 2255 motion. The logical
result of this claim is that Wilborn would have to prove the § 2255 motion was in fact meritless.
See Valentine, 896 So. 2d at 394 n.5 (noting a party must essentially prove, as a “case within a
party serving as his own expert. See, e.g., Malloy v. Monahan, 73 F.3d 1012, 1016 (10th Cir.
1996) (allowing expert testimony from plaintiff on sufficient showing of expertise).
case,” the merits of the underlying legal issue). In other words, the issue in this case is whether
Trant appropriately exercised his professional judgment in the § 2255 proceeding. Cf. Wachovia
Bank, N.A. v. Jones, Morrison & Womack, P.C., 42 So. 3d 667, 684 (Ala. 2009), as modified on
denial of reh'g (Jan. 22, 2010). This would necessarily involve delving into the nuances of federal
postconviction proceedings, the applicability of the waivers in Wilborn’s plea agreement, and
whether the arguments raised in the § 2255 motion were the type an attorney would not have made
had he employed reasonable care, skill, and diligence, none of which are within common
knowledge and experience. Consequently, the exception is inapplicable, and Wilborn is required
to present expert testimony in order to prevail in this case.
To that end, Defendants allege Wilborn has failed to provide an expert report pursuant to
Fed. R. Civ. P. 26(a)(2)(B) by his December 8, 2017 deadline to do so.10 (Doc. 158 at 10). That
Rule requires that an expert disclosure be accompanied by:
As described above, Wilborn designated an expert in December 2016 in compliance with
a series of orders. Nothing in those orders absolved Wilborn of the obligation to submit an expert
report under the Rule. To the contrary, the undersigned noted Wilborn was not required to submit
a “report under Fed. R. Civ. P. 26(a)(2)(B) at this time.” (Doc. 89 at 3) (emphasis added).
Wilborn’s designation specifically stated Hartley’s expert report, “which conforms to all the
requirements of Rule 26(a)(2)(B) of the Federal Rules of Civil Procedure, will be disclosed in
accordance with further directives of this honorable Court,” (doc. 100 at ¶ 1), and Wilborn
included similar language as to the experts whom he was then exploring the option of retaining,
(id. at ¶¶ 2-3). Hartley’s letter to Wilborn also sets out that he expects to provide an expert report.
(Doc. 100-1 at 1). When Defendants challenged Wilborn’s expert designation, the undersigned
noted “[t]he intention behind the requirement [to designate an expert], as heavily implied by
several of the undersigned’s orders, was to ensure Wilborn could make a threshold showing he
had secured the services of an attorney who could, at least debatably, provide an opinion as to the
standard of care.” (Doc. 108 at 12). Finally, the amended scheduling order explicitly includes a
deadline for “disclosures of expert witnesses—including a complete report under Fed. R. Civ. P.
26(a)(2)(B) from any specially retained or employed expert,” (doc. 127 at 1), and the order
amending the scheduling order retains this language, (doc. 133 at 3-4).
(i) a complete statement of all opinions the witness will express and the basis and
reasons for them;
(ii) the data or other information considered by the witness in forming them;
(iii) any exhibits that will be used to summarize or support them;
(iv) the witness's qualifications, including a list of all publications authored in the
previous 10 years;
(v) a list of all other cases in which, during the previous 4 years, the witness testified
as an expert at trial or by deposition; and
(vi) a statement of the compensation to be paid for the study and testimony in the
FED. R. CIV. P. 26(a)(2)(B). A party who “fails to provide information . . . as required by Rule
26(a) . . . is not allowed to use that information or witness to supply evidence on a motion . . . or
at a trial, unless the failure was substantially justified or is harmless.” FED. R. CIV. P. 37(c)(1).
See also Romero v. Drummond Co., 552 F.3d 1303, 1323 (11th Cir. 2008) (upholding district
court’s refusal to allow expert witnesses to testify at trial when their reports were inadequate under
Rule 26(a)(2)(B)); Cooper v. S. Co., 390 F.3d 695, 728 (11th Cir. 2004), overruled on other
grounds by Ash v. Tyson Foods, Inc., 546 U.S. 454, 457 (2006) (affirming exclusion of expert
witness’s testimony when no report in compliance with Rule 26(a)(2)(B) was provided).
Wilborn’s failure to respond to the motion for summary judgment leaves Defendants’
allegation he has failed to provide an expert report unrebutted. 11 Wilborn has not provided
Even if the undersigned considered Wilborn’s supplemental response as opposition to
the motion for summary judgment, it also would not support his ability to present expert testimony.
The supplemental response details Wilborn’s efforts to set up video depositions at FCI Estill,
dating back to June 2016. On June 22, 2016, the undersigned granted Wilborn’s motion for leave
to take depositions by video. (Doc. 58). Wilborn indicates he attempted to find out the procedures
for doing so on July 1, 2016, but was ultimately informed by BOP Counselor Sheila A. Smith that
he could not do so. (Doc. 175 at 2-3). Wilborn’s supplemental response does not contain any
information about any further efforts to set up depositions by videoconference until February 15,
substantial justification for failing to provide an expert report,12 nor has he made any argument his
lack of disclosure was harmless. Therefore, under the “unambiguous terms of Rule 37(c),” see
Cooper, 390 F.3d at 728, any expert testimony Wilborn might purport to offer in opposition to the
instant motion or at trial is inadmissible. And since Wilborn has not responded to the motion for
summary judgment, there is no evidence in the record, admissible or otherwise, to oppose Trant’s
affidavit. Because Wilborn has not provided (and cannot provide) expert testimony rebutting
Defendants’ prima facie showing of non-negligence, Defendants’ motion for summary judgment
is due to be granted.
2018, when he discovered that hearings are routinely conducted at FCI Estill by videoconference.
(Id. at 3). From there, Wilborn states he attempted to complete the required form to set up
depositions, but encountered numerous roadblocks set up by the BOP. (Id. at 3-4).
The undersigned notes Wilborn pointed to potential difficulties with setting up depositions
in a motion to clarify on July 5, 2016. (Doc. 63). The undersigned addressed this motion on March
6, 2017, stating the parties were expected to resolve logistical issues among themselves, but “[i]f
the Bureau of Prisons requires an order beyond what the Court has previously entered, Wilborn
may move for such an order when the prospect becomes more than hypothetical.” (Doc. 108 at
11). Wilborn never presented the issue to the court again until his supplemental response, which
was filed on June 12, 2018, and largely concerns events that happened after the February 8, 2018
discovery deadline had passed, (see doc. 133). Wilborn does not account at all for the fifteenmonth period between the order and the supplemental response, during which he apparently knew
that FCI Estill had denied him the ability to conduct depositions by videoconference. And, more
importantly for the sake of this motion, Wilborn’s supplemental response does not connect the
issues with depositions to his lack of expert testimony.
To the extent Wilborn’s supplemental response can be construed as requesting leave to
conduct discovery after the deadline has passed, and thus as a request to amend the scheduling
order out of time, Wilborn has not shown that he failed to file a motion prior to the close of
discovery because of excusable neglect, nor that he had good cause for failing to meet the original
deadlines. See Ashmore v. Sec'y, Dep't of Transp., 503 F. App'x 683, 685 (11th Cir. 2013); FED
R. CIV. P. 6(b)(1)(B). Therefore, that request is DENIED.
Wilborn has generally stated he cannot submit an expert report without the discovery he
has attempted to subpoena from Hodge. (See doc. 120 at 5-6). However, as the undersigned has
previously noted, Wilborn has never explained why this is the case. (See doc. 125 at 9).
For the reasons stated above, Defendants’ motion for summary judgment, (doc. 158), is
GRANTED. A separate order will be entered.
DONE this 13th day of September, 2018.
JOHN H. ENGLAND, III
UNITED STATES MAGISTRATE JUDGE
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