Bradford v. Gauthier, Houghtaling & Williams, LLP et al

Filing 81

ORDER AND REASONS granting Defendants' 64 MOTION for Summary Judgment. Plaintiff's claims are DISMISSED WITH PREJUDICE. Signed by Judge Jane Triche Milazzo.(ecm) Modified document type on 9/8/2014 (ecm).

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

NARISSA DAWN BRADFORD

CIVIL ACTION

VERSUS

NO: 13-2407

GAUTHIER, HOUGHTALING & WILLIAMS, LLP

SECTION: "H"(4)

ORDER AND REASONS
Before the Court is Defendant's Motion for Summary Judgment. For the
following reasons, the Motion is GRANTED, and Plaintiff's claims are
DISMISSED WITH PREJUDICE.
BACKGROUND
This is a civil action for legal malpractice under Louisiana law. Plaintiff
Narissa Bradford, proceeding pro se, is a former client of Defendant–Attorneys
James Williams, Earl Perry, and the law firm Gauthier, Houghtaling &
Williams, LLP in Metairie, Louisiana.

1

Plaintiff retained Defendants to

represent her in an ongoing legal proceeding in Italy. Plaintiff alleges that
Defendants were negligent in their representation of her, resulting in the loss
of her claim and a judgment against her for litigation costs and compensatory
damages for abuse of process.
Plaintiff's allegations of negligence arise out of a civil action brought by
Plaintiff against her former companion in an Italian court in July of 2003 ("the
Italian civil suit"). In that case, Plaintiff alleged that her former companion,
Franco Colosio, had agreed to pay her the monthly amount of $50,000 for her life
after their romantic relationship ended.1

Plaintiff retained Defendants to

represent her in this ongoing matter in February of 2012. At this time, the case
had been pending for nine years, and the evidentiary portion of the litigation had
been closed since September 16, 2010.

LEGAL STANDARD
Summary judgment is appropriate "if the pleadings, depositions, answers
to interrogatories, and admissions on file, together with affidavits, if any, show
that there is no genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law."2 A genuine issue of fact exists only
"if the evidence is such that a reasonable jury could return a verdict for the
nonmoving party."3
1

Mr. Colosio argued, and the Italian court agreed, that neither a romantic relationship
nor a compensation agreement ever existed between Mr. Colosio and Plaintiff. R. Doc. 64-4.
2

Fed. R. Civ. P. 56(c) (2012).

3

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

2

In determining whether the movant is entitled to summary judgment, the
Court views facts in the light most favorable to the non-movant and draws all
reasonable inferences in his favor.4

"If the moving party meets the initial

burden of showing that there is no genuine issue of material fact, the burden
shifts to the non-moving party to produce evidence or designate specific facts
showing the existence of a genuine issue for trial."5 Summary judgment is
appropriate if the non-movant "fails to make a showing sufficient to establish the
existence of an element essential to that party’s case."6 "In response to a
properly supported motion for summary judgment, the non-movant must
identify specific evidence in the record and articulate the manner in which that
evidence supports that party’s claim, and such evidence must be sufficient to
sustain a finding in favor of the non-movant on all issues as to which the nonmovant would bear the burden of proof at trial."7 "We do not . . . in the absence
of any proof, assume that the nonmoving party could or would prove the
necessary facts."8 Additionally, "[t]he mere argued existence of a factual dispute
will not defeat an otherwise properly supported motion."9

4

Coleman v. Houston Indep. Sch. Dist., 113 F.3d 528 (5th Cir. 1997).

5

Engstrom v. First Nat’l Bank of Eagle Lake, 47 F.3d 1459, 1462 (5th Cir. 1995).

6

Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).

7

John v. Deep E. Tex. Reg. Narcotics Trafficking Task Force, 379 F.3d 293, 301 (5th Cir.
2004) (internal citations omitted).
8

Badon v. R J R Nabisco, Inc., 224 F.3d 382, 394 (5th Cir. 2000) (quoting Little v.
Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)).
9

Boudreaux v. Banctec, Inc., 366 F. Supp. 2d 425, 430 (E.D. La. 2005).

3

LAW AND ANALYSIS
In order to succeed in her claim for legal malpractice, Plaintiff must show
"(1) the existence of an attorney-client relationship; (2) negligent representation
by the attorney; and (3) loss caused by that negligence."10 Specifically, she has
the burden of proving that Defendants "failed to 'exercise at least that degree of
care, skill, and diligence which is exercised by prudent practicing attorneys in
[their] locality.'"11

Defendants argue that Plaintiff has not met this burden

because she has not provided expert testimony to establish either the standard
of care or Defendants' breach of that standard. Indeed, Plaintiff has not offered
any expert testimony to rebut Defendants' expert. In recognition of Plaintiff's
pro se status, this Court extended the original deadline for the submission of
Plaintiff's expert report from December 20, 2013, to June 6, 2014.12 On July 3,
2014, Plaintiff confirmed her decision to proceed without expert testimony by
filing a "Waiver to Her Right to Utilize Expert Testimony And Seek
Deposition."13
Typically, Louisiana courts require a plaintiff to retain an expert witness
to establish both the duty and breach elements of a legal malpractice claim.14
The Louisiana Supreme Court has, however, identified one exception, namely

10

MB Indus., LLC v. CNA Ins. Co., 74 So. 3d 1173, 1184 (La. 2011).

11

Id. (quoting Ramp v. St. Paul Fire & Marine Ins. Co., 269 So.2d 239, 244 (1972)).

12

 R. Doc. 35.

13

R. Doc. 67.

14

See MB Indus., LLC, 74 So. 3d at 1184; Crescent City Prop. Redev. Ass'n, LLC v.
Hardy, 89 So. 3d 1270, 1273 (La. Ct. App. 4th Cir. 2012).

4

that "expert testimony is not necessary where the alleged legal malpractice is
'obvious' or the defendant attorney committed 'gross error.'"15 Accordingly,
because Plaintiff has not filed expert testimony, the resolution of this Summary
Judgment Motion turns on whether Defendants' alleged negligent conduct rises
to this level of obviousness. This Court holds that it does not and that expert
testimony should have been offered to prove both the standard of care and
Defendants' breach of that standard.
The Louisiana Supreme Court has stated that an attorney's conduct is
obviously negligent such that no expert testimony is required if a "lay person
would recognize it as falling beneath the necessary standard of care."16 The
conduct must be of such a nature that it is within the "experience of the average
juror."17 For example, Louisiana courts have deemed the following acts to be
sufficiently obvious such that expert testimony is not required: delivering a box
of the client's document production to opposing counsel without first making
copies;18 failing to appear and defend the client at a hearing on a Motion for
Contempt and Sanctions;19 and failing to investigate the date of an accident and
allowing the claim to prescribe.20
On the other hand, courts have held that decisions that call for the
"exercise of professional judgment" require expert testimony in order for a jury
15

MB Indus., LLC, 74 So. 3d at 1185.

16

Id.

17

Id.

18

Id.

19

Frisard v. State Farm Fire & Cas. Co., 979 So. 2d 494, 498 (La. Ct. App. 1st Cir. 2007).

20

Watkins v. Sheppard, 278 So. 2d 890, 892 (La. Ct. App. 1st Cir. 1973).

5

to glean whether they fall below the standard of care of attorneys in the relevant
locality.21 Louisiana courts have deemed the following conduct too ambiguous
to be easily recognized as malpractice by a lay jury: failing to timely file
exceptions;22 failing to file a motion for summary judgment;23 failing to object
to discovery pleadings;24 advising a client to sign a compromise;25 failing to seek
a hearing;26 failing to include certain additional claims in the petition;27
withdrawing from the case only a few months before trial;28 missing deadlines
to add defendants or request a jury trial;29 failing to ask certain questions of
witnesses at trial;30 failing to call certain witnesses to testify;31 and failing to
obtain an expert witness.32
Plaintiff's allegations of malpractice are innumerable, inconsistent, and
ever-changing. Despite a moving target, this Court has attempted to distill her
claims into five chief complaints and will address each in turn. This Court holds
21

Houllion v. Powers & Nass, et al., 530 So. 2d 680, 683 (La. Ct. App. 4th Cir. 1988);
Crescent City Prop. Redev. Ass'n, LLC, 89 So. 3d at 1274 (". . . an evaluation of Attorney
Hardy's trial tactics should be done by legal experts—not by laymen or judges.").
22

 Frisard, 979 So. 2d at 498; U.S. Fid. & Guar. Co. v. E.L. Habetz Builders, Inc., CIV.A.
06-895, 2008 WL 850431 at *12 (W.D. La. Mar. 28, 2008).
23

Frisard, 979 So. 2d at 498.

24

Id.

25

MB Indus., LLC, 74 So. 3d at 1185–86.

26

Id.

27

Id.

28

Id.

29

Id.

30

Id.

31

Id.

32

Houllion, 530 So. 2d at 682.

6

that none of Defendants' alleged wrongful acts are so obviously negligent such
that Plaintiff is excused from offering expert testimony.
I. Failure to File Certain Documents
First, Plaintiff alleges that Defendants failed to file certain documents in
the proceeding to support her claim. Specifically, she alleges that Defendants
failed to file affidavits of additional favorable witnesses. She claims that prior
to retaining Defendants to represent her, she had instituted a separate suit for
perjury against twelve of the witnesses who testified against her in the Italian
civil suit. She alleges that the affidavits of these witnesses should have been
filed into the Italian civil suit to prove that the testimonies of these witnesses
were false.
The decision to call a certain witness is a trial tactic involving an
attorney's professional discretion. This sort of discretionary decision is precisely
the type of decision for which expert testimony is necessary to prove an
attorney's negligence.33 Indeed, the Louisiana Supreme Court has expressly
stated that "[w]ithout the assistance of an expert, a lay jury would have no basis
for deciding whether the decision to call a particular witness or introduce a
certain document was within the standard of care for a reasonably competent
attorney in the [relevant] area."34 Because Plaintiff has not offered expert

33

Id. ("The decision called for the exercise of professional judgment and the issue of
whether the decision was not in keeping with the standard of care of reasonable prudent
practicing attorneys in the area is not an “obvious” one."); Crescent City Prop. Redev. Ass'n,
LLC, 89 So. 3d at 1274 (". . . an evaluation of Attorney Hardy's trial tactics should be done by
legal experts—not by laymen or judges."); MB Indus., LLC, 74 So. 3d at 1185–86.
34

Id. at 1186.

7

testimony, she cannot prove an essential element of her claim of legal
malpractice as to this allegation of negligence. In addition, Plaintiff has offered
no evidence of the result of the perjury suit, the contents of the alleged witness
affidavits, or that the suit even occurred.
II. Failure to Inform Plaintiff of Settlement Opportunity
Second, Plaintiff complains that Defendants failed to inform her of the
possibility of settlement.

This allegation arises out of an e-mail sent to

Defendants by an Italian attorney, Carlo Rimini, whom they had retained to
provide "a report and a legal opinion about the civil case between Ms Bradford
and Mr Colosio."35 In this report, Mr. Rimini informed Defendants that he had
contacted Mr. Colosio's attorney regarding settlement and that:
[T]he only agreement possible provides that Ms Bredford [sic]
abandons the case and Mr Colosio renounces to obtain legal
expenses. Perhaps Mr Colosio could be inclined to pay a nearly
symbolic sum. If you want, I can arrange for you a meeting with [his
attorney], but I don't think that it [sic] worth traveling to Italy for
this issue.
Rimini's comments were not a definitive proposal for settlement. Rather, they
were a suggestion by a third party that Defendants might consider contacting
opposing counsel to attempt settlement discussions, which even Rimini indicated
would likely be futile. In deciding not to pursue this suggestion, Defendants
were exercising their professional judgment. Again, this is the kind of decision

35

R. Doc 64-3.

8

for which expert testimony is necessary to determine whether Defendants were
negligent in failing to pursue this avenue.36
III. Failure to Appeal
Likewise, Plaintiff alleges that Defendants were negligent in failing to
appeal the Italian court's verdict against her. This Court is not prepared to say
that the failure to appeal will never reach the requisite level of obviousness.
However, there are two problems with Plaintiff's claim. First, Plaintiff has
provided no evidence that she requested that Defendants pursue an appeal.
Therefore, Defendants' decision not to appeal is another instance in which they
exercised professional discretion. More importantly, Plaintiff has provided no
evidence that an appeal could have been successful. Defendants' expert opines
that there was no chance for a successful appeal.37 "[I]t seems to me highly
probable that, had an appeal been filed, the Court of Appeal would have
dismissed it as inadmissible for lack of reasonable chances of success . . . in light
of the overwhelming evidence on which the [lower court's] Ruling was based.38
Indeed, the evidence against Plaintiff was so overwhelming that the lower
Italian court imposed damages for abuse of process against Plaintiff and held
that neither a sentimental relationship nor a compensation agreement ever
existed between Mr. Colosio and Plaintiff.39 Plaintiff has offered no evidence to
rebut Defendants' expert. Failure to appeal under these circumstances is not so
36

MB Indus., LLC, 74 So. 3d at 1185–86.

37

R. Doc. 64-2 at p. 20.

38

Id.

39

R. Doc. 64-4 at p. 43.

9

obviously negligent such that Plaintiff is excused from offering expert testimony
to prove negligence.
IV. Failure to Communicate
Fourth, Plaintiff complains that Defendants failed to keep her informed
as to the progress of her case.

The record shows that Defendants did

communicate with Plaintiff on several occasions, and thus, any deficiencies in
their communications are not so obviously negligent that an expert is not
necessary to establish the requisite standard of care in client communications.
V. Failure to Reinstate Media Image
Lastly, Plaintiff alleges that Defendants were negligent in failing to help
her reinstate her media image, which she claims had been tarnished by the
pending Italian civil suit. Because this is not a task that attorneys frequently
undertake, it is certainly not obvious that Defendants were negligent. This Court
cannot determine that Defendants were negligent in their media relations
without the aid of expert testimony establishing a standard of care that they
should have followed. Plaintiff offers no expert testimony to establish what
Defendants should have done to improve her media image. In addition, Plaintiff
has not even provided evidence that this task was within the scope of the agreed
upon representation.
In addition to the complexity of the complaints raised by Plaintiff, her
claims are particularly ripe for expert testimony because of the involvement of
international law. The Louisiana Supreme Court has stated that an attorney
must "'exercise at least that degree of care, skill, and diligence which is exercised

10

by prudent practicing attorneys in [their] locality.'"40 Accordingly, the standard
of care utilized by Defendants should have been that of an attorney in the New
Orleans/Metairie area who is practicing abroad. This situation creates unique
considerations regarding the standard by which Defendants should be judged
and is best considered with the aid of expert testimony.
Plaintiff's 56-page opposition to this Motion is riddled with various
conclusory allegations of negligence against Defendants. She has provided no
expert testimony (and scant evidence) to establish the standard by which
Defendants' conduct should be judged or that Defendants were negligent in that
conduct. In addition, none of her claims allege conduct that is so obviously
negligent that a "lay person would recognize it as falling beneath the necessary
standard of care."41 Accordingly, Plaintiff cannot prove essential elements of a
legal malpractice action, and her failure to retain an expert is fatal to her
claims.42
In deciding this Motion, this Court has taken particular note of Plaintiff's
pro se status. Plaintiff has repeatedly reminded the Court that she is a pro se
litigant, and she is correct that this Court possesses a "traditional disposition

40

MB Indus., LLC, 74 So. 3d at 1184 (quoting Ramp, 269 So.2d at 244).

41

Id. at 1185.

42

Id.; see Crescent City Prop. Redev. Ass'n, LLC, 89 So. 3d at 1274 ("The Aldens have
provided only conclusory statements to make their allegation that Attorney Hardy's
engagement of Ms. Montgomery resulted in the loss of their case. The record is void of any
evidence or expert testimony which supports their contention. Such conclusory statements are
not sufficient to establish the requisite prima facie case because they do not contain facts which
establish negligence on Attorney Hardy's part. These statements are merely the opinions of a
non-prevailing party at the conclusion of litigation.").

11

of leniency toward pro se litigants."43 This Court has provided considerable
leeway to Plaintiff thus far, allowing Plaintiff to amend her complaint twice,44
holding seven status conferences45 and two settlement conferences,46 and
extending the deadline to submit expert reports by four months.47 In deciding
this Motion, this Court considered the entirety of Plaintiff's 56-page opposition,
which exceeded the limit set by local rules by 31 pages,48 scoured the record for
any exhibits that may support her allegations because she attached none,49 and
allowed oral argument on this Motion at the pretrial conference.50
In Fujita v. U.S., the Fifth Circuit held that a district court did not abuse
its discretion in granting summary judgment and dismissing a pro se litigant's
case when he was unable to designate an expert witness to establish the
standard of care in a medical malpractice case.51 The district court in that case
had extended the expert report deadline several times, but the Fifth Circuit
noted that it would have been justified in enforcing the deadline in its first
extension, which gave the pro se plaintiff an additional two months to secure an

43

Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998).

44

R. Docs. 14, 33.

45

R. Docs. 16, 23, 34, 51, 62, 68, 80.

46

R. Docs. 20, 77.

47

R. Doc. 35.

48

LR 7.7 ("Except with prior leave of court, a trial brief or memorandum supporting or
opposing a motion must not exceed 25 pages . . . .).
49

R. Doc. 76.

50

R. Doc. 80.

51

Fujita v. United States, 416 F. App'x 400, 402 (5th Cir. 2011).

12

expert.52 Likewise, this Court has provided Plaintiff with considerable leniency.
It cannot, however, ignore her failure to establish a claim cognizable in law.
Plaintiff's refusal to obtain expert testimony is fatal to her claims. Without
expert testimony she cannot establish essential elements of her claim, and this
Court has no choice but to grant summary judgment in her opponent's favor.

CONCLUSION
For the foregoing reasons, the Motion for Summary Judgment is
GRANTED, and the plaintiff's claims are DISMISSED WITH PREJUDICE.

New Orleans, Louisiana, this 5th day of September, 2014.

____________________________________
JANE TRICHE MILAZZO
UNITED STATES DISTRICT
JUDGE

52

Id.

13