Sawaf v. Alred et al
Filing
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MEMORANDUM OPINION & ORDER: (1) Defendants' Motion to Dismiss Plaintiff's Complaint (Doc. # 12 ) is granted in full and Plaintiff's Complaint (Doc. # 1 ) is dismissed with prejudice; (2) Plaintif's Motion for Leave to Certify a Question to the Kentucky Supreme Court (Doc. # 15 ) is denied; (3) Plaintiff's Motion for Reconsideration (Doc. # 18 ) is denied as moot; and(4) The case is stricken from the Courts active docket. Case Terminated. Signed by Judge David L. Bunning on 5/11/2016.(RBB)cc: COR, paper copy forwarded to Ali Hadi Sawaf, via US Mail.
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
AT LONDON
CIVIL ACTION NO. 15-108-DLB
ALI HADI SAWAF
V.
PLAINTIFF
MEMORANDUM OPINION AND ORDER
RUSSELL D. ALRED, et al.
DEFENDANTS
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I.
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INTRODUCTION
This legal malpractice action is before the Court on three separate motions:
Defendants Russell D. Alred and Russell D. Alred, Attorney at Law, P.S.C.’s Motion to
Dismiss Plaintiff Ali Sawaf’s Complaint (Doc. # 12), Plaintiff’s Motion for Leave to Certify
a Question to the Kentucky Supreme Court (Doc. # 15), and Plaintiff’s Motion for
Reconsideration of the Court’s September 29, 2015 Order granting Plaintiff’s Counsel’s
Motion to Withdraw (Doc. # 18). Each motion is fully briefed and ripe for review. The Court
has jurisdiction over this matter pursuant to 28 U.S.C. § 1332.
II.
FACTUAL AND PROCEDURAL BACKGROUND
On June 28, 2001, a federal grand jury returned an eleven-count Indictment against
Plaintiff, charging him with unlawful drug distribution. (Doc. # 1, at 3). Specifically, the
United States alleged that Plaintiff prescribed controlled substances without a legitimate
medical purpose in violation of 21 U.S.C. § 841(a)(1). Id. Once arrested, Plaintiff retained
Defendant Russell D. Alred and his law firm, Russell D. Alred, Attorney at Law, P.S.C.
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(collectively “Defendants”), to represent him. During the course of the criminal case, the
United States and Plaintiff, through Defendant Alred, engaged in plea discussions. Id. As
a result of these discussions, the United States offered Plaintiff a plea bargain that would
have resulted in a significantly reduced prison sentence of forty-one months. Id. at 4-5.
Upon the advice of his counsel, Defendant Alred, Plaintiff rejected the United States’ plea
offer and proceeded to trial, where he was ultimately found guilty of eight of the eleven
counts brought against him, and sentenced to a 240-month term of imprisonment. Id.
On direct appeal, the Sixth Circuit Court of Appeals affirmed Plaintiff’s conviction but
reversed and remanded the sentence pursuant to the United States v. Booker, 543 U.S.
220 (2005) decision. (6:01-cr-00047-KKC-CJS-1, Doc. # 104), On September 23, 2005,
Defendant was re-sentenced to the same 240 month term of imprisonment. (6:01-cr00047-KKC-CJS-1, Doc. # 116). That sentence was vacated on March 16, 2006. (6:01-cr00047-KKC-CJS-1, Doc. # 127). Defendant Alred was permitted to withdraw and Plaintiff
was appointed counsel for re-sentencing. On March 8, 2007, Plaintiff was re-sentenced
to 240 months imprisonment. (6:01-cr-00047-KKC-CJS-1, Doc. # 155). On July 28, 2008,
the Sixth Circuit affirmed Plaintiff’s conviction and sentence. 6:01-cr-00047-KKC-CJS-1,
Doc. # 162). Plaintiff’s petition for writ of certiorari to the U.S. Supreme Court was denied
on October 9, 2008. (6:01-cr-00047-KKC-CJS-1, Doc. # 165).
On November 16, 2009, Plaintiff filed a Motion to Vacate pursuant to 28 U.S.C. §
2255, claiming he received ineffective assistance of counsel because Defendant Alred
failed to inform him of the Sentencing Guidelines and that he would be exposed to a much
lengthier prison sentence by proceeding to trial and rejecting the United States’ forty-one
month plea offer. (6:01-cr-00047-KKC-CJS-1, Doc. # 166). The district court denied
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Plaintiff’s Motion to Vacate (6:01-cr-00047-KKC-CJS-1, Docs. # 213, 214) on March 27,
2013. Plaintiff appealed.
On June 30, 2014, the Sixth Circuit reversed the district court and remanded the
case, finding that Plaintiff was prejudiced by Defendant Alred’s failure to properly advise
him during plea negotiations and had made a sufficient showing for his ineffective
assistance of counsel claim. See Sawaf v. United States, 570 F. App’x 544 (6th Cir. 2014).
On September 24, 2014, the district court re-sentenced Plaintiff to time-served as to each
count. ((6:01-cr-00047-KKC-CJS-1, Docs. # 236, 237).
Almost nine months after being re-sentenced, Plaintiff filed the instant action against
Defendants asserting claims for legal malpractice, breach of fiduciary duties, and negligent
representation. (Doc. # 1). On September 8, 2015, Defendants moved to dismiss Plaintiff’s
Complaint alleging that it failed to state a claim upon which relief can be granted for two
reasons: (1) the statute of limitations bars Plaintiff’s claim, and (2) Kentucky law prevents
a convict from bringing a legal malpractice claim unless he has been exonerated of the
underlying criminal charges. (Doc. # 12). After briefing on the Motion to Dismiss was
completed (Docs. # 13, 14), Plaintiff filed a Motion for Leave to Certify a Question to the
Kentucky Supreme Court, claiming Kentucky law is unsettled, and proposing the following
question: “When does the Statute of Limitations in a legal malpractice action in a criminal
case begin to run? A. One year after the successful conclusion/termination of postconviction relief? Or B. One year from the criminal defendant’s sentence?” (Doc. # 15).
On September 28, 2015, Plaintiff’s counsel in the instant action, C. William Swinford,
filed a Motion to Withdraw, citing irreconcilable differences and attaching a pro se Motion
for Habeas Corpus that Plaintiff recently filed in his 2001 criminal case, alleging his re3
sentencing for time-served was improper and that Mr. Swinford’s failure to object to such
re-sentencing constituted ineffective assistance of counsel. (Docs. # 16, 16-1). The Court
granted Mr. Swinford’s Motion to Withdraw by gavel order on September 29, 2015. (Doc.
# 17). As a result of that Order, Plaintiff filed a Motion for Reconsideration, disputing the
existence of irreconcilable differences, noting his financial inability to retain other counsel
and the pending (but fully briefed) Motion to Dismiss, and asking the Court to require Mr.
Swinford to continue as Plaintiff’s counsel of record. (Doc. # 18). The Court will address
each of these pending Motions in turn.
III.
ANALYSIS
A.
Choice of Law
Before considering the issues raised in the Defendants’ Motion to Dismiss and the
Plaintiff’s Motion for Certification, the Court must determine which State’s law governs. As
a federal court sitting in diversity, this Court must apply “the choice of law rules of the forum
state.” Hayes v. Equitable Energy Res. Co., 266 F.3d 560, 566 (citing Klaxon Co. v. Stentor
Elec. Mfg., 313 U.S. 487, 496 (1941)). Therefore, Kentucky choice of law rules govern.
However, the Court need not go through the choice of law analysis when there is no
potential for conflict between two states’ laws. Cf. Williams v. Toys “R” Us, 138 F. App’x
798, 803 (6th Cir. 2005). If there is no potential for conflict, Kentucky law applies.
Although the parties do not address the choice of law issue in their briefs, they
apparently believe that Kentucky law applies, and the Court agrees. Here, the only state
with any significant contacts to this case is Kentucky.1 “During 2000 and 2001,” the
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The fact that Plaintiff is now a resident of Johnson City, Tennessee, does not affect the
Court’s choice of law analysis.
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relevant time for Plaintiff’s claims, he “was a medical doctor and board certified urologist,
licensed to practice medicine in the Commonwealth of Kentucky.” (Doc. # 1, at 1).
Defendant Alred is a resident of Kentucky and Defendant Russell D. Alred, Attorney at Law,
P.S.C. is a professional service corporation organized under Kentucky law, with its principal
place of business in Kentucky. Id. Furthermore, the underlying criminal case upon which
Plaintiff’s claims are based was indicted and tried in Kentucky. Id. Accordingly, the lack of
potential conflict, combined with the strong preference for applying Kentucky law,2 requires
the Court to apply Kentucky law to this dispute.
B.
Plaintiff’s Motion for Certification
“The decision whether or not to utilize a certification procedure lies within the sound
discretion of the district court.” Pennington v. State Farm Mut. Auto. Ins. Co., 553 F.3d 447,
449-50 (6th Cir. 2009) (citing Transam. Ins. Co. v. Duro Bag Mfg. Co., 50 F.3d 370, 372
(6th Cir. 1995). “Resort to the certification procedure is most appropriate when the
question is new and state law is unsettled.” Transam. Ins. Co., 50 F.3d at 372.
Furthermore, the Court should “not trouble our sister state courts every time an arguably
unsettled question of state law” arises. Pennington, 553 F.3d at 450 (citing Pino v. United
States, 507 F.3d 1233, 1236 (10th Cir. 2007). Instead, where there is “a reasonably clear
and principled course, [the Court] will seek to follow it [itself].” Id. After examining Kentucky
law on the statute of limitations issue and finding it to be settled, the Court declines to
certify Plaintiff’s proposed question to the Kentucky Supreme Court, and Plaintiff’s Motion
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Kentucky courts are “very egocentric or protective concerning choice of law questions” and
thus, there is a strong preference in Kentucky for applying Kentucky law. Paine v. La Quinta
Motor Inns, Inc., 736 S.W.2d 355, 357 (Ky. Ct. App. 1987), overruled on other grounds by
Oliver v. Schultz, 885 S.W.2d 699 (Ky. 1994); see also Wallace Hardware Co., Inc. v.
Abrams, 223 F.3d 382, 391 (6th Cir. 2000).
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for Certification (Doc. # 15) is denied. Accordingly, the Court will address the merits of the
Defendants’ Motion to Dismiss.
C.
Defendants’ Motion to Dismiss
Defendants move to dismiss Plaintiff’s Complaint pursuant to Fed.R.Civ.P. 12(b)(6)
for failure to state a claim upon which relief can be granted, on the grounds that Plaintiff’s
legal malpractice, breach of fiduciary duties, and negligent representation claims are barred
by the applicable one-year statute of limitations. (Docs. # 12, 12-1). Or, in the alternative,
that Plaintiff cannot state a claim upon which relief can be granted because Kentucky law
prohibits a convict from maintaining an action for legal malpractice, unless exonerated from
the underlying criminal charges, and Plaintiff cannot satisfy this innocence requirement. Id.
To survive a Rule 12(b)(6) Motion to Dismiss, “a complaint must contain sufficient
factual matter, accepted as true, to state a claim to relief that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The court will grant a Motion to Dismiss under
Rule 12(b)(6) only if there is an absence of law to support a claim of the type made, or of
facts sufficient to make a valid claim, or if on the face of the complaint there is an
insurmountable bar to relief indicating that the plaintiff does not have a claim. See Rauch
v. Day & Night Mfg. Corp., 576 F.2d 697, 702 (6th Cir.1978). While Rule 12(b) does not
specifically address motions to dismiss based upon the alleged expiration of the applicable
statute of limitations, “the prevailing rule is that a complaint showing on its fact that relief
is barred by an affirmative defense,” including the defense of limitations, “is properly subject
to a 12(b)(6) motion to dismiss for failure to state a claim.” Rauch, 576 F.2d at 702.
However, dismissal of a complaint because it is barred by the applicable statute of
limitations is proper only “when the statement of the claim affirmatively shows that the
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plaintiff can prove no set of facts that would entitle him to relief.” Duncan v. Leeds, 742 F.2d
989, 991 (6th Cir.1984). In this regard, Plaintiff’s Complaint must be liberally construed in
determining whether the action is time-barred. Ott v. Midland–Ross Corp., 523 F.2d 1367,
1369 (6th Cir.1975).
As discussed above, the statute of limitations for legal malpractice in Kentucky is
settled law. KRS § 413.245 provides that “[n]otwithstanding any other prescribed limitation
of actions which might otherwise appear applicable ... a civil action, whether brought in tort
or contract, arising out of any act or omission in rendering, or failing to render, professional
services for others shall be brought within one (1) year from the date of the occurrence or
from the date when the cause of action was, or reasonably should have been, discovered
by the party injured.” KRS § 413.243 defines “professional services” as “any service in a
profession required to be licensed, administered and regulated as professions in the
Commonwealth of Kentucky,” and the practice of law is such a profession. Kentucky law
establishes that KRS § 413.245 is the “exclusive statute of limitations governing claims of
attorney malpractice” if the “claims clearly arise out of acts or omissions in rendering, or
failing to render, professional services.” Abel v. Austin, 411 S.W.3d 728, 738 (Ky. 2013)
(internal citations omitted). Here, Plaintiff has alleged three claims: legal malpractice,
breach of fiduciary duties, and negligent representation. Because each of these claims
“clearly arise out of [Defendants’ alleged] acts or omissions in rendering, or failing to
render” legal services to Plaintiff during his criminal case, each of his claims are governed
by KRS § 413.245's one-year statute of limitations.
While the parties agree that this statute establishes the statute of limitations for
Plaintiff’s claims, they disagree over when the statute of limitations began to run.
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Defendants claim that the statute of limitations began to run when Plaintiff’s direct appeal
became final, and thus, Plaintiff missed the statute of limitations by more than ten years.
(Doc. # 12, at 1). Plaintiff, on the other hand, claims that the statute of limitations does not
begin to run until the successful conclusion of a post-conviction proceeding. (Doc. # 13, at
5).
The Kentucky Court of Appeals has considered this exact issue. In Stephens v.
Denison, 64 S.W.3d 297 (Ky. Ct. App. 2001), the Court of Appeals considered whether
KRS § 413.245 barred Stephens’ malpractice lawsuit. The Court held that the one-year
statute of limitations “does not begin to run in a legal malpractice case until damages have
become fixed and nonspeculative.” Stephens, 64 S.W.3d at 299. Applying this rule, the
Court of Appeals determined that the statute of limitations did not begin to run until “the
date Stephens’ appeal in the criminal case became final,” not when he was originally
sentenced, because that date is when a criminal defendant’s legal malpractice damages
“become fixed and nonspeculative.” Id.
The Court of Appeals has also addressed whether post-conviction relief affects KRS
§ 413.245's one-year statute of limitations. In Bryant v. Howell, 170 S.W.3d 421 (Ky. Ct.
App. 2005), the Court of Appeals rejected the plaintiff’s argument that his habeas corpus
petition tolled the statute of limitations. Specifically, the Court of Appeals determined that
a habeas corpus petition is “an extraordinary remedy which is available only when relief by
the usual process is inadequate” and may not be used “as a means to extend a statutory
period.” Bryant, 170 S.W.3d at 423. Accordingly, the Court of Appeals held that a habeas
petition “constitutes a collateral attack on the judgment” and KRS § 413.245's one-year
statute of limitations is not tolled by the filing of a petition for habeas corpus relief. Id. In
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fact, the Bryant court cautioned that permitting collateral attacks, like habeas petitions, to
extend or toll the one-year period for bringing legal malpractice claims would render the
statute of limitations in KRS § 413.245 “meaningless.” Id. at 424.
Here, Plaintiff’s appeals were exhausted and his conviction and sentence became
final on July 28, 2008 – once Plaintiff’s conviction and 240-month sentence were finally
affirmed by the Sixth Circuit. (6:01-cr-00047-KKC-CJS-1, Docs. # 162, 163). Defendants’
assertion that Plaintiff’s appeal became final on March 22, 2005 is incorrect. (Doc. # 12-1,
at 2). On March 24, 2005, the Sixth Circuit affirmed Plaintiff’s conviction, but reversed for
re-sentencing in light of the intervening Supreme Court decision in Booker. After resentencing, Plaintiff’s criminal case again went up on appeal, and the Sixth Circuit vacated
and remanded the case for re-sentencing again. Finally, on July 28, 2008, after the third
appeal, the Sixth Circuit affirmed both Plaintiff’s convictions and sentence.
On June 23, 2015, Plaintiff filed this legal malpractice action – approximately six
years and ten months after his direct appeals became final. Therefore, Plaintiff missed the
statute of limitations by more than five years and his claims are barred by KRS § 413.245.
In fact, even if the one-year statute of limitations did toll for collateral attacks, as Plaintiff
argues, he would still come up short, because he did not file his Motion to Vacate until
November 16, 2009 – approximately one year and three months after his appeals became
final.
Therefore, Plaintiff’s claims would be time-barred, even under his incorrect
interpretation of Kentucky law. Because Kentucky law unequivocally establishes that the
one-year statute of limitations in KRS § 413.245 bars each of Plaintiff’s claims, the Court
need not address the parties’ arguments relating to the innocence requirement.
Accordingly, Defendants’ Motion to Dismiss (Doc. # 12) is granted and Plaintiff’s Complaint
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(Doc. # 1) is dismissed with prejudice.
D.
Plaintiff’s Motion for Reconsideration
The Court having decided that dismissal of Plaintiff’s claims are appropriate, and
Plaintiff’s Motion for Reconsideration (Doc. # 18) of the Court’s September 29, 2015 Order
granting Mr. Swinford’s Motion to Withdraw being now rendered moot, the Court need not
address those arguments. Therefore, Plaintiff’s Motion for Reconsideration (Doc. # 18) is
denied as moot.
IV.
CONCLUSION
Accordingly, for the reasons stated herein,
IT IS ORDERED as follows:
(1)
Defendants’ Motion to Dismiss Plaintiff’s Complaint (Doc. # 12) is granted
in full and Plaintiff’s Complaint (Doc. # 1) is dismissed with prejudice;
(2)
Plaintiff’s Motion for Leave to Certify a Question to the Kentucky Supreme
Court (Doc. # 15) is denied;
(3)
Plaintiff’s Motion for Reconsideration (Doc. # 18) is denied as moot; and
(4)
The case is stricken from the Court’s active docket.
This 11th day of May, 2016.
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