Jones v. Wirth et al

Filing 71

ORDER granting Defendants' ECF No. #46 Renewed Motion to Dismiss Under FRCP 12(b)(6); dismissing with prejudice Plaintiff's complaint; directing Clerk to enter judgment and close case. Signed by Judge Miranda M. Du on 6/6/2017. (Copies have been distributed pursuant to the NEF - KR)

1

2
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
DISTRICT OF NEVADA
10
KIMBERLY MOFFATT JONES;

CASE NO.: 2:16-cv-00243-MMD-GWF

11
Plaintiff,
[PROPOSED] ORDER GRANTING
DEFENDANTS’ RENEWED MOTION TO
DISMISS WITH PREJUDICE

12
v.
13
14
15

KATHRYN STRYKER WIRTH, and JOLLEY
URGA WOODBURY & LITTLE aka JOLLEY
URGA WOODBURY & STANDISH aka
JOLLEY URGA WIRTH & WOODBURY,

16

Defendants.

17
18

I.

SUMMARY

19

This case involves allegations of legal malpractice, negligence and breach of fiduciary duty

20

by Kimberly Moffatt Jones against her former counsel, Kathryn Stryker Wirth and Ms. Wirth’s

21

former firm, Jolley Urga Woodbury & Little aka Jolley Urga Woodbury & Standish aka Jolley Urga

22

Wirth & Woodbury.

23

Before the Court is Defendants’ Renewed Motion to Dismiss Under FRCP 12(b)(6)

24

(“Motion”). (ECF No. 46). The Court has reviewed Plaintiff’s Opposition to Defendants’ Motion to

25

Dismiss (ECF No. 49) and Defendants’ Reply (ECF No. 58). For the reasons below, the Motion to

26

Dismiss is granted, with prejudice.

27
28
1153324v.2

1

II.

RELEVANT BACKGROUND

2

The relevant facts are taken from the Complaint and the Motion. On or about July 1, 1998,

3

Defendants, acting through Ms. Wirth, represented Plaintiff in negotiating and executing a prenuptial

4

agreement, which Ms. Wirth signed as Plaintiff’s attorney. (ECF No. 1, ¶ 12). More than fourteen

5

years later, on or about October 4, 2012, Plaintiff was named as a defendant in the case entitled

6

Fletcher Jones, Jr. v. Kimberly Jones, case number D-12-470239-U (hereinafter the “Jones v. Jones

7

case”), filed in the District Court, Family Division in Clark County, Nevada. (ECF No. 1, ¶ 16). In

8

the Jones v. Jones case, Fletcher Jones, Jr. (“Mr. Jones”) sought specific performance and to enforce

9

three agreements, including a prenuptial agreement, a marital settlement agreement, and a post

10

marital agreement. (ECF No. 1, ¶ 16).

11

Mr. Jones identified Ms. Wirth as a witness in the Jones v. Jones case, and noticed her

12

deposition, including requesting a copy of Defendants’ file on the transaction. Prior to Ms. Wirth’s

13

deposition, Plaintiff executed an authorization for the release of certain materials from her file to her

14

attorneys, with which Defendants complied. (ECF No. 1, ¶ 18). During her deposition on November

15

4, 2013, Ms. Wirth testified that her “notes” were not provided and had been withheld from the

16

production of the file to Plaintiff, which Ms. Wirth explained was intentionally done because of

17

attorney-client privilege and work product issues. Ms. Wirth was concerned that if she had reviewed

18

the notes in preparation for her deposition, that it might result in a waiver of the privilege. (ECF No.

19

1, ¶ 19). At trial, Mr. Jones called Ms. Wirth to testify as a witness on February 7, 2014, at which

20

time she testified that she had reviewed her file and her personal notes in preparation for her

21

testimony on that date. (ECF No. 1, ¶ 22). The Complaint alleges that Ms. Wirth’s personal notes

22

were also ordered to be produced to Mr. Jones and his attorneys, with some, but allegedly not all of

23

the privileged information redacted. (ECF No. 1, ¶23). Plaintiff contends that Defendants committed

24

legal malpractice by allegedly causing confidential information that was entitled to the protection of

25

the attorney-client privilege to be disclosed to Plaintiff’s adversary in the Jones v. Jones case.

26

Plaintiff contends that her “defense in that civil case was so severely compromised by acts and

27
28

Page 2 of 8
1153324v.2

1

omissions of the Defendants, and each of them, that Plaintiff had no reasonable chance of prevailing

2

at trial.” (ECF No. 1., ¶ 25).

3

Court filings attached to Defendants’ Motion show that following Ms. Wirth's testimony on

4

February 7, 2014, Ms. Wirth requested an order from the trial court permitting her and her firm to

5

release only to Plaintiff the attorney notes Ms. Wirth maintained in Plaintiff’s client file. (ECF No.

6

46-1, at p. 9). The trial court granted the request and specifically ordered Ms. Wirth's notes be

7

produced only "to [Ms. Jones] to preserve the privilege." (ECF No. 46-1, at p. 9). On February 12,

8

2014, counsel for Mr. Jones requested an order directing the production of Ms. Wirth's notes to Mr.

9

Jones. (Id.) The following day, the trial court directed Plaintiff’s counsel to provide a copy of Ms.

10

Wirth's notes to Presiding Family Court Judge Charles Hoskin for an in camera review of the notes

11

and to redact the privileged content. (ECF No. 46-1, at p. 9). Counsel for both parties later received

12

a copy of Ms. Wirth's notes, as redacted by Judge Hoskin. (ECF No. 46-1 at p. 14). Eventually, the

13

trial court ordered production of certain unredacted notes, but that order was stayed by the Nevada

14

Supreme Court, and unredacted notes were never produced to Mr. Jones. (ECF No. 46-3, 46-4).

15

Following a bench trial on the merits, the trial court in the Jones v. Jones case found in favor

16

of Mr. Jones, issuing a fifty-one page judgment that included detailed Findings of Fact and

17

Conclusions of Law. (ECF No. 46-6).

18

conclusions as to Plaintiff’s credibility. (ECF No. 46-6, pp. 36, 49-50). Following trial, Plaintiff filed

19

an appeal to the Supreme Court of Nevada, raising various issues, including "whether the district

20

court erred by admitting evidence relating to Kimberly's credibility." [ECF No. 46-6, at p. 2] With

21

respect to this issue, the Supreme Court stated:

22

The trial court made some unfavorable findings and

Kimberly [Jones] also argues [on appeal] that the district court ‘should
not have permitted Kimberly's former attorney, Kathryn Stryker Wirth,
to lead the impeachment effort against Kimberly by relying on
privileged notes.’ However, the district court ruled that there was an
attorney-client privilege and properly redacted the documents. See In
re Grand Jury Proceedings, 689 F.2d 1351, 1352 (11th Cir. 1982).
Kimberly fails to identify any specific testimony by Wirth that
disclosed privileged communications impacting the trial or any part of
the district court's findings and conclusions in which the district court
improperly relied on privileged testimony from Wirth.

23
24
25
26
27

(ECF No. 46-7,at p. 12, n.5).
28

Page 3 of 8
1153324v.2

The Complaint alleges claims of Legal Malpractice (First Cause of Action), Negligence

1
2

(Second Cause of Action) and Breach of Fiduciary Duty (Third Cause of Action).

3

III.

DISCUSSION

4

A.

Legal Standard

5

A court may dismiss a plaintiff’s complaint for “failure to state a claim upon which relief can

6

be granted.” Fed. R. Civ. P. 12(b)(6). A properly pleaded complaint must provide “a short and plain

7

statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2); Bell

8

Atlantic v. Twombly, 550 U.S. 544, 555 (2007). While Rule 8 does not require detailed factual

9

allegations, it demands more than “labels and conclusions” or a “formulaic recitation of the elements

10

of a cause of action.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at

11

555). “Factual allegations must be enough to rise above the speculative level.” Twombly, 550 U.S. at

12

555. Thus, to survive a motion to dismiss, a complaint must contain sufficient factual matter to

13

“state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 678 (internal quotation marks

14

omitted).

15

B.

16

Defendants’ Motion attaches publicly filed documents as Exhibits 46-1, 46-2, 46-3, 46-4, 46-

17

5, 46-6 and 46-7, consisting of a Petition for Writ of Mandamus and/or Prohibition filed with the

18

Nevada Supreme Court, an Order from the Family Division of the District Court, two Orders

19

granting stays issued by the Nevada Supreme Court, Findings of Fact and Conclusions of Law issued

20

by the Family Division of the District Court, and an Order of Affirmance from the Nevada Supreme

21

Court. Defendants requested that the Court take judicial notice of these documents, and Plaintiff did

22

not oppose the request. All of the documents are publicly-filed court records whose contents are

23

either alleged in or central to the Complaint. As a result, the Court may take judicial notice of these

24

documents without converting the motion to dismiss into a motion for summary judgment. See Lee

25

v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001). Defendants’ request to take judicial

26

notice of Exhibits 46-1 through 46-7 is granted.

Judicial Notice of Exhibits Attached to Defendants’ Motion

27
28

Page 4 of 8
1153324v.2

1

C.

Plaintiff’s Complaint Fails to State a Claim for Which Relief May be Granted
under Fed. R. Civ. P. 12(b)(6).

2
3

Plaintiff’s Complaint alleges that by virtue of Ms. Wirth’s review of her privileged notes

4

prior to testifying at trial, privileged information contained in those notes was disclosed to her

5

former husband, and used to impeach her credibility at trial. (ECF No. 1, ¶¶ 23, 24, 25, 36).

6

However, those notes were reviewed and redacted by the Presiding Judge of the Family Division, at

7

the request of the trial court, before being provided to Plaintiff’s former husband. Thus, no

8

privileged portions of the notes were provided to Mr. Jones. The Nevada Supreme Court, in

9

affirming the Findings of Fact and Conclusions of Law issued by the District Court, specifically

10

addressed Ms. Wirth’s notes and rejected the claim Plaintiff asserts in her Complaint, by stating:

11

Kimberly also argues that the district court “should not have permitted
Kimberly’s former attorney, Kathryn Stryker Wirth, to lead the
impeachment effort against Kimberly by relying on privileged notes.”
However, the district court ruled that there was an attorney-client
privilege and properly redacted the documents. See In re Grand Jury
Proceedings, 689 F.2d 1351, 1352 (11th Cir. 1982). Kimberly fails to
identify any specific testimony by Wirth that disclosed privileged
communications impacting the trial or any part of the district court’s
findings and conclusions in which the district court improperly relief
on privileged testimony from Wirth.

12
13
14
15
16

(ECF No. 46-7, page 12, fn. 5).
17
Plaintiff concedes that she is bound by the Nevada Supreme Court’s ruling, even if she
18
disagrees with it. As a result, Plaintiff’s allegations do not state a plausible claim under Fed. R. Civ.
19
P. 12(b)(6).
20
In Plaintiff’s Opposition and at oral argument, Plaintiff argued that her claim was broader
21
than plead in the Complaint. Plaintiff argued that Ms. Wirth fell below the standard of care and
22
breached a fiduciary duty because she decided to review her notes in preparation for her trial
23
testimony, when she had not reviewed her notes prior to her deposition testimony. Plaintiff argues
24
that this change in strategy led to the notes becoming an issue, and ultimately impacted the trial
25
court’s conclusions about Plaintiff’s credibility. The Court finds no merit in Plaintiff’s argument,
26
however, because Plaintiff has failed to identify any authority preventing Ms. Wirth from reviewing
27
her notes in order to provide truthful testimony under subpoena, when no privileged information was
28

Page 5 of 8
1153324v.2

1

revealed. There is no legal duty under which Ms. Wirth would be precluded from reviewing her

2

notes and testifying truthfully and fully. Plaintiff argued that Nevada Rule of Professional Conduct

3

1.9(c) imposes such a duty. Nevada Rule of Professional Conduct 1.9(c) states:

4

(c)

5

A lawyer who has formerly represented a client in a matter or whose
present or former firm has formerly represented a client in a matter shall
not thereafter:

6

(1)

Use information relating to the representation to the disadvantage
of the former client except as these Rules would permit or require
with respect to a client, or when the information has become
generally known; or

(2)

Reveal information relating to the representation except as these
Rules would permit or require with respect to a client.

7
8
9
10

The Court finds that Rule of Professional Conduct 1.9(c) does not apply. Ms. Wirth did not

11

use information relating to her prior representation of Plaintiff to the disadvantage of Plaintiff. Ms.

12

Wirth provided truthful testimony in response to a subpoena to do so, which the Court does not

13

consider as any improper “use” under the Rule.

14

The Court also finds that Plaintiff’s legal malpractice cause of action fails to state a claim

15

under Fed. R. Civ. P. 12(b)(6), on an independent basis. The elements of a legal malpractice claim

16

under Nevada law are 1) an attorney-client relationship; 2) a duty on the part of the lawyer; 3) a

17

failure to perform the duty; and 4) damage caused to the client as a result. Further, “the attorney

18

must be employed in such a capacity as to impose a duty of care with regard to the particular

19

transaction connected to the malpractice claim.” Warmbrodt v. Blanchard, 100 Nev. 703, 706-707,

20

692 P.2d 1282, 1285 (1984)(superceded by statute on other grounds as stated in Humphries v. Eighth

21

Jud. Dist. Ct., 129 Nev. Adv. Op. 85, 312 P.3d 484 (2013)), citing Shropshire v. Freeman, 510

22

S.W.2d 405 (Tex. Civ. App. 1974); Mainor v. Nault, 120 Nev. 750, 768, 101 P.3d 308 (2004), as

23

corrected on denial of reh’g (Apr. 13, 2005)(commenting that a legal malpractice claim focuses on

24

whether the attorneys adhered to the standard of care in their representation of the case). At the time

25

of the incidents alleged in the Complaint, Ms. Wirth did not have an attorney-client relationship with

26

Plaintiff. Plaintiff is not alleging any acts of malpractice at the time of the drafting of the pre-nuptial

27

agreement in 1998, when she and Ms. Wirth did have an attorney-client relationship. Thus, the

28

Page 6 of 8
1153324v.2

1

Court finds that Plaintiff cannot state a claim for legal malpractice against Ms. Wirth arising out of

2

her trial testimony in 2014 under the pleading standards of Iqbal and Twombly.

3

D.

Leave to Amend is Denied as Futile

4

Plaintiff’s Opposition seeks the opportunity to amend the Complaint. The Court should

5

“freely give” leave to amend when there is no “undue delay, bad faith[,] dilatory motive on the part

6

of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue

7

prejudice to the opposing party by virtue of ... the amendment, [or] futility of the amendment.” Fed.

8

R. Civ. P. 15(a); Foman v. Davis, 371 U.S. 178, 182 (1962). Generally, leave to amend is only

9

denied when it is clear that the deficiencies of the complaint cannot be cured by amendment. See

10

DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992). The Court finds that

11

amendment would be futile, as Ms. Wirth did not disclose privileged information in violation of the

12

Rules of Professional Conduct, and Plaintiff cannot state facts demonstrating a violation or a breach

13

of the standard of care by virtue of her testimony at trial.

14

IV.

CONCLUSION

15

It is hereby ordered that Defendants’ Renewed Motion to Dismiss Under FRCP 12(b)(6)

16

(ECF No. 46) is granted. Plaintiff’s Complaint is dismissed with prejudice. The Clerk is directed to

17

enter judgment in accordance with this Order and close this case.

18
19
20
21

ORDER
IT IS SO ORDERED.
6th
June
Dated this _____ day of _____________, 2017
________________________________________
UNITED STATES DISTRICT COURT JUDGE

22
23
24
25
26
27
28

Page 7 of 8
1153324v.2

1

DATED this 2nd day of June, 2017.

2
3
4

Respectfully Submitted,
WILSON, ELSER, MOSKOWITZ, EDELMAN
& DICKER LLP

5
6
7
8
9
10
11

BY: /s/ Sheri M. Thome
Sheri M. Thome, Esq.
Nevada Bar No. 008657
Chad C. Butterfield, Esq.
Nevada Bar No. 010532
300 South Fourth Street, 11th Floor
Las Vegas, Nevada 89101
Attorneys for Defendants
Kathryn Stryker Wirth, and Jolley Urga
Woodbury & Little aka Jolley Urga
Woodbury & Standish aka Jolley Urga Wirth
& Woodbury

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

Page 8 of 8
1153324v.2