Snell & Wilmer L.L.P. v. Serenbetz

Filing 46

ORDER granting Cross-Defendants' ECF No. #35 Motion for Summary Judgment; directing Clerk to enter judgment in favor of Snell & Wilmer and Mr.Denney as to the claims in the Cross-Complaint. Signed by Judge Miranda M. Du on 9/14/2017. (Copies have been distributed pursuant to the NEF - KR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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SNELL & WILMER, LLP, an Arizona
Limited Liability Partnership,

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Plaintiff,
v.

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CLAY SERENBETZ, an individual,

Cross-Complainant,

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(Cross-Defs.’ Motion for Summary
Judgment – ECF No. 35)

CLAY SERENBETZ, an individual,

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ORDER

Defendant.

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Case No. 3:16-cv-00129-MMD-VPC

v.
CRAIG DENNEY, an individual, SNELL &
WILMER, LLP, an Arizona Limited Liability
Partnership, and DOES 1 thru 50,
inclusive,
Cross-Defendants.

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I.

SUMMARY

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Before the Court is Cross-Defendants Craig Denney and Snell & Wilmer’s

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(“Cross-Defendants”) Motion for Summary Judgment (“Motion”). (ECF No. 35.) The

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Court has reviewed Cross-Complainant Clay Serenbetz’s response (ECF No. 40) and

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Cross-Defendants’ Reply (ECF No. 42). Cross-Defendants’ Motion is granted for the

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reasons discussed below.

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II.

BACKGROUND

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The relevant facts are not in dispute and are taken from the parties’ pleadings.

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Clay Serenbetz retained the law firm of Snell & Wilmer to defend him in a criminal

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matter. (ECF No. 33 at ¶ 6.) Mr. Serenbetz neglected to pay his legal fees, and Snell &

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Wilmer filed a Complaint against Mr. Serenbetz to recover the fees. (ECF No. 35 at 5;

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ECF No. 35-2 at ¶ 4.) Snell & Wilmer also withdrew as counsel and asserted a lien on

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Mr. Serenbetz’s file. (ECF No. 35 at 5.) Mr. Serenbetz obtained new counsel, to whom

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Snell & Wilmer initially declined to release Mr. Serenbetz's file. (See id. at 5 n.1.) When

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the Court asked Snell & Wilmer why the firm had not released Mr. Serenbetz's file, Craig

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Denney (an attorney for Snell & Wilmer) responded by email. (Id. at 5.) Mr. Denney

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stated that the firm "has not turned over Mr. Serenbetz's file because we have asserted

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an attorney's lien on the file . . . ." (Id.)

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Mr. Serenbetz then filed a “Cross-Complaint” against Snell & Wilmer as well as

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Mr. Denney alleging legal malpractice, public disclosure of private facts, and breach of

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fiduciary duty, all based on the email Mr. Denney sent to the court. (ECF No. 7 at 3-6.)

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The Cross-Complaint was later amended to only claim legal malpractice and breach of

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fiduciary duty. (ECF No. 33 at 3-5.)

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III.

LEGAL STANDARD

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Summary judgment is appropriate when the pleadings, the discovery and

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disclosure materials on file, and any affidavits “show that there is no genuine issue as to

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any material fact and that the moving party is entitled to a judgment as a matter of law.”

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Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). An issue is genuine “if the evidence

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is such that a reasonable jury could return a verdict for the nonmoving party,” Anderson

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v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986), and a dispute is material if it could

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affect the outcome of the suit under the governing law. Id.

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Summary judgment is not appropriate when “reasonable minds could differ as to

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the import of the evidence.” See id. at 250-51. “The amount of evidence necessary to

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raise a genuine issue of material fact is [that which is] enough ‘to require a jury or judge

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to resolve the parties’ differing versions of the truth at trial.’” Aydin Corp. v. Loral Corp.,

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718 F.2d 897, 902 (9th Cir. 1983) (quoting First Nat’l Bank of Ariz. v. Cities Serv. Co.,

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391 U.S. 253, 288-89 (1968)). Decisions granting or denying summary judgment are

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made in light of the purpose of summary judgment “to avoid unnecessary trials when

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there is no dispute as to the facts before the court.” Nw. Motorcycle Ass’n v. U.S. Dep’t

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of Agric., 18 F.3d 1468, 1471 (9th Cir. 1994).

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The moving party bears the burden of showing that there are no genuine issues

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of material fact. Zoslaw v. MCA Distrib. Corp., 693 F.2d 870, 883 (9th Cir. 1982). Once

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the moving party satisfies the requirements of Rule 56, the burden shifts to the party

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resisting the motion to “set forth specific facts showing that there is a genuine issue for

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trial.” Anderson, 477 U.S. at 256. In evaluating a summary judgment motion, a court

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views all facts and draws all inferences in the light most favorable to the nonmoving

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party. In re Slatkin, 525 F.3d 805, 810 (9th Cir. 2008). If a party relies on an affidavit or

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declaration to support or oppose a motion, it “must be made on personal knowledge, set

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out facts that would be admissible in evidence, and show that the affiant or declarant is

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competent to testify on the matters stated.” Fed. R. Civ. P. 56(c)(4). The nonmoving

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party “may not rely on denials in the pleadings but must produce specific evidence,

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through affidavits or admissible discovery material, to show that the dispute exists,” Bhan

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v. NME Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir. 1991), and “must do more than

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simply show that there is some metaphysical doubt as to the material facts.” Orr v. Bank

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of Am., 285 F.3d 764, 783 (9th Cir. 2002) (quoting Matsushita Elec. Indus. Co. v. Zenith

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Radio Corp., 475 U.S. 574, 586 (1986)). “The mere existence of a scintilla of evidence in

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support of the plaintiff’s position will be insufficient . . . .” Anderson, 477 U.S. at 252.

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IV.

DISCUSSION

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A.

Duplicative Claims

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Cross-Defendants argue that Cross-Complainant’s two claims—legal malpractice

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and breach of fiduciary duty—should be considered as one. (ECF No. 35 at 6.) The

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Court agrees. A claim for breach of fiduciary duty arising from an attorney-client

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relationship is a legal malpractice claim. Stalk v. Mushkin, 199 P.3d 838, 842-44 (Nev.

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2009).

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B.

Adequacy of Pleadings

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The Court will consider only the legal arguments presented by the parties

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because they do not dispute any genuine issues of material fact. Cross-Complainant's

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claim is based solely on the email Mr. Denney sent to the court (ECF No. 35 at 5-6), a

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fact that Cross-Complainant failed to dispute in either his response brief (ECF No. 40) or

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his Response to Interrogatories (ECF No. 35-6).

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Cross-Defendants argue that Cross-Complainant’s claim cannot survive summary

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judgment because Cross-Complainant failed to include an allegation in his Cross-

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Complaint that he received appellate or post-conviction relief. (ECF No. 35 at 7.) A

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litigant claiming legal malpractice against private criminal defense counsel “must plead

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that he or she has obtained appellate or post-conviction relief in order to overcome a

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motion for summary judgment or a motion to dismiss.” Morgano v. Smith, 879 P.2d 735,

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737 (Nev. 1994). Cross-Complainant failed to allege that he received appellate or post-

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conviction relief in his First Amended Cross-Complaint. (ECF No. 33.) Moreover, Cross-

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Complainant stated that he has not obtained any post-conviction relief in his Response

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to Interrogatories. (ECF No. 35-6 at 12.) Consequently, Cross-Complainant’s claim fails

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as a matter of law.
In light of the inadequacy of Cross-Complainant's pleading and his failure to show

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any genuine issues of material fact, this Court grants Cross-Defendants’ Motion.

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V.

CONCLUSION

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The Court notes that the parties made several arguments and cited to several

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cases not discussed above. The Court has reviewed these arguments and cases and

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determines that they do not warrant discussion as they do not affect the outcome of the

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Motion.

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It is therefore ordered that Cross-Defendants’ Motion for Summary Judgment
(ECF No. 35) is granted.

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The Clerk is instructed to enter judgment in favor of Snell & Wilmer and Mr.
Denney as to the claims in the Cross-Complaint.
DATED THIS 14th day of September 2017.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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