U-Haul Co. of Nevada, Inc. et al v USA, et al.

Filing 68

ORDER Granting 49 Motion for Judgment on the Pleadings as to Count Three. Signed by Judge Kent J. Dawson on 1/9/2012. (Copies have been distributed pursuant to the NEF - SLR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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U-HAUL INTERNATIONAL, INC., et al.,

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Plaintiffs,

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v.

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Case No. 2:08-CV-00729-KJD-PAL

UNITED STATES OF AMERICA, et al.,

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ORDER

Defendants.

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Before the Court is the United States’ Motion for Judgment on the Pleadings as to Count

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Three (#49). Plaintiff U-Haul filed an opposition (#53) and the United States filed a reply (#54).

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Background

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Beginning in 2004, U-Haul was the respondent in several consolidated unfair labor practice

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proceedings brought by the National Labor Relations Board (“NLRB”). During those proceedings,

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Assistant United States Attorney Steven Wamser (“Wamser”) supervised another Assistant United

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States Attorney, Nathan Albright (“Albright”), in the representation of the NLRB. U-Haul was

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represented by Kamer, Zucker, Abbott (“KZA”). KZA employed paralegal Debra Wilcher

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(“Wilcher”), who

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was assigned to assist the attorneys at KZA in the NLRB proceeding. Plaintiff alleges that during that

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proceeding, Albright had a sexual relationship with Wilcher (“the Affair”) and that during the

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Affair, Albright and Wamser sought and obtained attorney/client privileged information from

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Wilcher, including litigation strategy information (“Confidential Information”). Wilcher and

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Albright, who is now deceased, have been sued in separate litigation.

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The United States seeks judgment on the pleadings on U-Haul’s claim for

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negligence/professional negligence. U-Haul alleges that Wamser, in his role as opposing counsel and

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government attorney, owed a duty of care to U-Haul and that Wamser violated that duty when he

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solicited and obtained confidential information via Wilcher, used that information to influence the

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NLRB proceeding, and failed to withdraw as counsel in the NLRB proceding. (Amended Compl. ¶¶

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42-48.) U-Haul also alleges that Wamser breached a duty to U-Haul by failing to properly supervise

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Albright by allowing Albright to engage in the Affair and obtain and use the confidential

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information. (Id.)

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II. Analysis

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A. Legal Standard

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Rule 12(c) of the Federal Rules of Civil Procedure provides: “After the pleadings are

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closed – but early enough not to delay trial – a party may move for judgment on the pleadings.”

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Rule 12(c) is “functionally identical” to Rule 12(b)(6), and the “same standard of review”

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applies to a motion brought under either rule. Cafasso v. General Dynamics C4 Systems, Inc.,

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637 F.3d 1047, 1054 n.4 (9th Cir. 2011). Judgment on the pleadings is appropriate when, even if all

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material facts in the pleading under attack are true, the moving party is entitled to judgment as a

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matter of law. Hal Roach Studios Inc. v. Ricard Feiner & Co., Inc., 896 F.2d 1542, 1550 (9th

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Cir.1989). To survive a motion of this type, a party must show more than “labels and conclusions”

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or a “formulaic recitation of the elements of a cause of action.” Ashcroft v. Iqbal, 129 S. Ct. 1937,

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1949 (2009).

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B. Negligence/Professional Negligence

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“In Nevada, legal malpractice is premised upon an attorney-client relationship, a duty

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owed to the client by the attorney, breach of that duty, and the breach as proximate cause of the

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client’s damages.” Semenza v. Nevada Med. Liab. Ins. Co., 104 Nev. 666, 667-68 (1989);

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Warmbrodt v. Blanchard, 100 Nev. 703, 706-07 (1984). “It is the ‘contractual relationship creating a

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duty of care upon an attorney [which is] the primary essential to a recovery for legal malpractice.” Id.

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at 707, quoting Ronnigen v. Hertogs, 294 Minn. 7, 199 N.W.2d 420, 421 (1972). In Nevada, a civil

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action cannot be based on a violation of ethical rules “because the rules were not meant to create a

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cause of action for civil damages.” Mainor v. Nault, 120 Nev. 750, 101 P.3d 308, 321 (Nev.2004).

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U-Haul does not allege that it had any contractual relationship with Wamser or Albright.

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Instead, U-Haul argues that policy considerations may allow a court to find that an attorney owes a

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duty to a third party. U-Haul cites Charleson v. Hardesty, 108 Nev. 878, 882 (1992) in support of

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this. However, that case involved the duty owed by an attorney to the beneficiaries of a trust. As an

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adverse party, U-Haul was not a beneficiary of the NLRB proceeding where Wamser and Albright

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represented the NLRB. See Hartford Acc. & Indem. Co. v. Rogers, 96 Nev. 576, 580 (1980) (no

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cause of action against attorney because “[a]ppellant [adverse party, an insurance company] was

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certainly not an intended beneficiary of any of respondent’s [opposing party’s attorney’s] services.”)

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No Nevada Court has recognized a duty owed to opposing counsel.

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U-Haul also argues that Wamser “had a duty to properly supervise Mr. Albright so that Mr.

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Albright did not engage in conduct that fell outside the course and scope of his employment,

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and his failure to fulfill that duty seriously damaged U-Haul.” (Oppo. at 6.) However, no Nevada

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court has recognized a cause of action for negligent supervision in the absence of a physical injury to

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the plaintiff. See Hall v. Raley’s, 2010 WL 55332 *9 (D. Nev. 2010) (predicting that Nevada would

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follow the Restatement rule that physical harm is necessary for negligent supervision claim).

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Accordingly, U-Haul fails to state a claim for negligence/professional negligence.

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III. Conclusion
IT IS HEREBY ORDERED that the United States’ Motion for Judgment on the Pleadings
as to Count Three (#49) is GRANTED.
DATED this 9th day of January 2012.

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_____________________________
Kent J. Dawson
United States District Judge

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