Wilcox v. Bibin et al

Filing 61

MEMORANDUM DECISION AND ORDER - NOW THEREFORE IT IS HEREBY ORDERED as follows:1) Defendants Motion for Summary Judgment (Dkt. 37 ) is GRANTED. Plaintiffs claims against Defendants are DISMISSED. 2) Defendants shall notify the Court in writing on or before 9/5/2017 as to how they intend to proceed on their counterclaims. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjs)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

CRAIG WILCOX, an individual,
Case No. 2:15-cv-00261-EJL-REB
Plaintiff/Counterdefendant,
MEMORANDUM DECISION
AND ORDER

v.
MICHAEL J. BIBIN, AND
ASSOCIATES, CPA, P.A., an Idaho
Corporation, and MICHAEL BIBIN,
an individual,
Defendants/Counterclaimants.

INTRODUCTION
Before the Court in the above-entitled matter is the Defendants’ Motion for
Summary Judgment. (Dkt. 37.) The parties have filed their responsive briefing and the
Motion is ripe for the Court’s consideration. The facts and legal arguments are adequately
presented in the briefs and record. In the interest of avoiding further delay and because the
Court conclusively finds that the decisional process would not be significantly aided by
oral argument, this matter is decided on the record without a hearing.
FACTUAL AND PROCEDURAL BACKGROUND
In June of 2012, Plaintiff Craig Wilcox and his father, Cort Wilcox, were financial
advisors for another entity when Wells Fargo Advisors LLC offered Plaintiff an
employment position. That offer prompted Plaintiff to explore a consulting arrangement

with Cort Wilcox to purchase his book of business in conjunction with accepting the
employment offer from Wells Fargo Advisors LLC. Plaintiff met with and hired
Defendants Michael J. Bibin and Associates CPA, P.A. and Michael Bibin (collectively
Bibin) for the purpose of obtaining federal and state income and employment tax advice
regarding these prospective employment and business acquisition opportunities. (Dkt. 1.)
Based on the advice from Defendants, Plaintiff accepted the employment offer and entered
into the consulting arrangement with Cort Wilcox. Later, in April of 2014, when
Defendants prepared Plaintiff=s 2013 tax returns they notified Plaintiff that he would not
be able to deduct the expenses relating to the consulting arrangement with Cort Wilcox due
to the operation of the Alternative Minimum Tax. Plaintiff=s resulting total federal tax
liability as reported was higher than expected and will continue to be higher for the ensuing
nine years. Additionally, Plaintiff alleges the Defendants failed to claim a state income tax
deduction for payments to Cort Wilcox resulting in additional tax liability and improperly
advised him concerning IRS Form 1099 resulting in other tax penalties.
As a result, Plaintiff initiated this action raising a negligence claim for professional
malpractice and a breach of fiduciary duty claim. (Dkt. 1.) Defendants filed a Motion to
Dismiss which this Court denied. (Dkt. 19, 57.) Thereafter, Defendants filed the instant
Motion for Summary Judgment as well as a related Motion to Strike. (Dkt. 37, 39.) The
Motion to Strike was referred to Chief Magistrate Judge Ronald E. Bush who recently
issued an Order granting the Motion to Strike concluding that the disclosures and testimony
of Plaintiff’s expert witness, Michael Larson, should be excluded. (Dkt. 58.) This Court
now finds as follows as to the Motion for Summary Judgment.

STANDARD OF REVIEW
Motions for summary judgment are governed by Rule 56 of the Federal Rules of
Civil Procedure. Rule 56 provides, in pertinent part, that judgment “shall be rendered
forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, 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). An issue is “material” if it affects the outcome of the litigation and may be
considered “genuine” if it is established by “sufficient evidence supporting the claimed
factual dispute…to require a jury or judge to resolve the parties’ differing versions of the
truth at trial.” Hahn v. Sargent, 523 F.3d 461, 464 (1st Cir. 1975) (quoting First Nat’l Bank
v. Cities Serv. Co. Inc., 391 U.S. 253, 289 (1968)); see also British Motor Car Distrib. v.
San Francisco Auto. Indus. Welfare Fund, 883 F.2d 371 (9th Cir. 1989).
Under Rule 56, summary judgment is mandated if the non-moving party fails to
make a showing sufficient to establish the existence of an element which is essential to the
non-moving party=s case and upon which the non-moving party will bear the burden of
proof at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). If the non-moving
party fails to make such a showing on any essential element, “there can be no ‘genuine
issue of material fact,’ since a complete[] failure of proof concerning an essential element
of the nonmoving party’s case necessarily renders all other facts immaterial.” Id. at 323.
In order to withstand a motion for summary judgment, a party
(1) must make a showing sufficient to establish a genuine issue of fact with
respect to any element for which it bears the burden of proof; (2) must show
that there is an issue that may reasonably be resolved in favor of either party;

and (3) must come forward with more persuasive evidence than would
otherwise be necessary when the factual context makes the non-moving
party=s claim implausible.
British Motor Car, 882 F.2d at 374 (citation omitted). When applying this standard, the
court views all of the evidence in the light most favorable to the non-moving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Hughes v. United States, 953
F.2d 531, 541 (9th Cir. 1992).
DISCUSSION
The claims raised in the Complaint are: 1) Negligence (Professional Malpractice)
and 2) Breach of Fiduciary Duty. (Dkt. 1.) Both claims require Plaintiff to prove breach of
the applicable standard of care by Defendants as a Certified Public Accountant (CPA) in
Idaho. See e.g. Estate of Cornell v. Johnson, 367 P.3d 173, 176 (Idaho 2015) (setting forth
the elements of a legal malpractice claim); Skinner v. U.S. Bank Home Mortg., 365 P.3d
398, 403-04 (Idaho 2016) (discussing the elements for a breach of fiduciary duty claim).
Such a showing necessarily demands that Plaintiff present expert testimony because the
standard of care for a CPA in Idaho is not ordinarily within the knowledge or expertise of
the members of a jury. See Greenfield v. Smith, 395 P.3d 1279, 1285 (Idaho 2017) (expert
testimony required to establish genuine issues of material fact on summary judgment as to
the standards of care in attorney malpractice case where jury lacks the knowledge or
experience necessary to make such determinations); see also Hayward v. Jack’s Pharmacy
Inc., 115 P.3d 713, 718 (Idaho 2005) (“We have consistently held that in order to survive
a motion for summary judgment in medical malpractice cases, the plaintiff must offer
expert testimony indicating the health care provider negligently failed to meet the standard

of care….”); Easterling v. Kendall, 367 P.3d 1214, 1226 (Idaho 2016) (expert testimony
required in medical malpractice case where “the causative factors are not ordinarily within
the knowledge or experience of laymen composing the jury”). The disclosures and
testimony of Plaintiff’s expert, Michael Larson, however, have now been stricken. (Dkt.
58.)
This Court has reviewed Magistrate Judge Bush’s Order striking Mr. Larson’s
testimony as well as the parties’ briefing on the matter both on the Motion to Strike as well
as the Motion for Summary Judgment and the entire record herein. (Dkt. 37, 39, 40, 45, 46,
51.) Having done so, this Court is in agreement with the Magistrate Judge’s legal analysis,
application of the facts, and conclusions as articulated in the Order granting the Motion to
Strike. 1 For the reasons stated in the Magistrate Judge’s Order, this Court too finds
Plaintiff’s failure to properly disclose his expert was neither justified nor harmless. See Yeti
by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir. 2001). The Court
further finds Plaintiff’s noncompliance with the expert disclosure requirements and
deadlines was willful given the fact that even after becoming aware of his having missed
the expert disclosure deadline, Plaintiff did not seek to extend the deadline or make any
attempt to otherwise remedy the error. See R&R Sails, Inc. v. Insurance Co. of Penn., 673
F.3d 1240, 1247-48 (9th Cir. 2012). For these reasons and those stated in the Magistrate
Judge’s Order, the Court finds Mr. Larson’s opinions and testimony are excluded from
consideration in this case. See Fed. R. Civ. P. 26(a)(2) and 37(c)(1); Yeti by Molly, 259

1

The Court expressly adopts and incorporates the Magistrate Judge’s Order herein. (Dkt. 58.)

F.3d at 1106. Plaintiff has pointed to no other evidence or alternative means for establishing
the necessary elements of his claims. For these reasons, the Court finds Plaintiff is unable
to establish the prima facie case on both of his claims. Therefore, summary judgment is
granted in favor of Defendants on both of Plaintiff’s claims.
In their Answer, Defendants have raised three counterclaims for Breach of Express
Contract, Breach of Implied-In-Fact Contract, and Unjust Enrichment. (Dkt. 21.) Plaintiff
has alleged affirmative defenses to the counterclaims. (Dkt. 22.) The Defendants shall
notify the Court as to how they intend to proceed on their counterclaims by filing a written
notice on or before September 5, 2017. (Dkt. 21.)
ORDER
NOW THEREFORE IT IS HEREBY ORDERED as follows:
1)

Defendants’ Motion for Summary Judgment (Dkt. 37) is GRANTED.

Plaintiff’s claims against Defendants are DISMISSED.
2)

Defendants shall notify the Court in writing on or before September 5, 2017

as to how they intend to proceed on their counterclaims.

DATED: August 30, 2017
_________________________
Honorable Edward J. Lodge
United States District Court