Bibiano v. The Law Office of Amy E. Harrison, P.L.L.C. et al

Filing 36

OPINION AND ORDER by Magistrate Judge Kimberly E. West denying 30 Motion to Dismiss Case for Failure to State a Claim. Plaintiff shall file a Second Amended Complaint by September 8, 2017. (adw, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
CARLOS BIBIANO,

)
)
)
)
)
)
)
)
)
)
)

Plaintiff,
v.
THE LAW OFFICE OF AMY E.
HARRISON, P.L.L.C. and
AMY HARRISON, Individually,
Defendants.

Case No. CIV-17-023-KEW

OPINION AND ORDER
This matter comes before the Court on Defendants’ Motion to
Dismiss

Plaintiff’s

Amended

Complaint

(Docket

Entry

#30).

Plaintiff initiated this action on August 1, 2016, seeking recovery
for professional negligence against Defendants.

The case was

originally filed in the United States District Court for the
Western

District

of

Arkansas,

Texarkana

Division

transferred to this District on January 20, 2017.

but

was

The parties

consented to the undersigned on February 24, 2017.
On March 15, 2017, Plaintiff filed an Amended Complaint which
included the professional negligence claim and added claims for
breach of contract and fraud. The allegations generally arise from
the alleged solicitation of Defendants’ representation of Plaintiff
in relation to a claim stemming from a vehicle accident involving
Plaintiff which occurred on June 4, 2013.
Defendant

Amy

Harrison,

an

Plaintiff contends that

attorney,

entered

into

an

attorney/client agreement with him to assert his cause of action
for personal injury.

He further alleges that Defendant Harrison

failed to timely file the personal injury action such that the

claims were time-barred as outside of the statute of limitations
but filed a Petition to assert the claim on June 11, 2015.
Defendants first contend that Plaintiff failed to comply with
Okla. Stat. tit. 12 § 19.1 by failing to include a written opinion
from a qualified expert otherwise known as an affidavit of merit
with the Amended Complaint.

Oklahoma law in this regard provides:

A. 1. In any civil action for negligence wherein the
plaintiff shall be required to present the testimony of
an expert witness to establish breach of the relevant
standard of care and that such breach of duty resulted in
harm to the plaintiff, except as provided in subsection
B of this section, the plaintiff shall attach to the
petition an affidavit attesting that:
a.

the plaintiff has consulted and reviewed the
facts of the claim with a qualified expert,

b.

the plaintiff has obtained a written opinion
from
a
qualified
expert
that
clearly
identifies the plaintiff and includes the
determination of the expert that, based upon a
review of the available material including,
but not limited to, applicable records, facts
or other relevant material, a reasonable
interpretation of the facts supports a finding
that the acts or omissions of the defendant
against whom the action is brought constituted
negligence, and

c.

on the basis of the review and consultation of
the qualified expert, the plaintiff has
concluded that the claim is meritorious and
based on good cause.

2. If the civil action for negligence is filed:
a.

without an affidavit being attached to the
petition, as required in paragraph 1 of this
subsection, and

b.

no extension of time is subsequently granted
by the court, pursuant to subsection B of this
section,
2

the court shall, upon motion of the defendant, dismiss
the action without prejudice to its refiling.
Okla. Stat. Ann. tit. 12, § 19.1 (West).
While the Tenth Circuit has not specifically ruled upon this
requirement under Oklahoma law, this Court finds the reasoning
persuasive as set forth in the case of Ipock v. Manor Care of
Tulsa,

OK,

LLC,

2017

WL

1289865

(N.D.

Okla.).

Judge

Eagan

recognized the split in authority among the federal courts in
Oklahoma as to whether § 19.1 applies to federal diversity actions.
Ultimately, she concluded that the prerequisites of § 19.1 directly
conflicted with Fed. R. Civ. P. 8 and 9 when it imposes additional
pleading requirements than set forth in these rules.

Id. at *3.

As such is the case, Plaintiff was not required to comply with the
affidavit of merit in filing this action.
Defendants

next

contend

that

the

actions

for

breach

of

contract and negligence are essentially premature because action
which was ultimately filed has not been dismissed as time-barred.
In response, Plaintiff produced a dismissal court minute dated
September 2, 2016 from the District Court in and for McCurtain
County, Oklahoma.

It appears Plaintiff’s claims have ripened.

Defendants also assert that Plaintiff failed to assert which
provision of the alleged contract for legal services between them
that Defendants allegedly breached.

Plaintiff first states the

contract was not available to him at the time of the filing of the
Amended Complaint.

Defendants attached a copy to the Motion to

Dismiss. Plaintiff responded to Defendants’ arguments by asserting
3

that they violated the term wherein Defendants agreed “to commence
and prosecute claims.”
A plaintiff’s claims are required to meet the plausibility
standard enunciated in United States Supreme Court cases of Bell
Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v.
Iqbal, 556 U.S. 662 (2009).

Clearly, Bell Atlantic changed the

legal analysis applicable to dismissal motions filed under Fed. R.
Civ. P. 12(b)(6), creating a “refined standard” on such motions.
Khalik

v.

United

Airlines,

2012)(citation omitted).

671

F.3d

1188,

1191

(10th

Cir.

Bell Atlantic stands for the summarized

proposition that “[t]o survive a motion to dismiss, a complaint
must contain sufficient factual matter, accepted as true, to ‘state
a claim for relief that is plausible on its face.’”

Ashcroft v.

Iqbal, 129 S.Ct. 1937, 1949 (2009) quoting Bell Atlantic, 550 U.S.
at 570.

The Supreme Court did not parse words when it stated in

relation to the previous standard that “a complaint should not be
dismissed for failure to state a claim unless it appears beyond
doubt that the plaintiff can prove no set of facts in support of
his claim which would entitle him to relief” is “best forgotten as
an incomplete, negative gloss on an accepted pleading standard.”
Bell Atlantic,

550 U.S. at 546.

The Tenth Circuit has interpreted the plausibility standard as
referring “to the scope of the allegations in the complaint:

if

they are so general that they encompass a wide swath of conduct,
much of it innocent, then the plaintiffs ‘have not nudged their
claims across the line from conceivable to plausible.’” Robbins v.
4

Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008).

The Bell Atlantic

case, however, did not intend the end of the more lenient pleading
requirements of Fed. R. Civ. P. 8(a)(2). Khalik, 671 F.3d at 1191.
Rather, in Khalik, the Tenth Circuit recognized the United States
Supreme Court’s continued endorsement of Rule 8's “short and plain
statement” requirement in the case of Erickson v. Pardus, 551 U.S.
89 (2007) wherein the Supreme Court found “[s]pecific facts are not
necessary; the statement need only ‘give the defendant fair notice
of what the . . . claim is and the grounds upon which it rests.’”
Id. at 93.
Plaintiff’s allegations of breach are sufficient to maintain
the claim at this early stage of the litigation.

Defendants’

nuanced assertions that the language did not necessarily require
the filing of a lawsuit are simply alternative defenses to the
breach

claim

implausible.

and

do

not

render

Plaintiff’s

breach

claim

as

Plaintiff will be required to amend the Complaint

again to include the agreement and the specific allegations of
breach.
This Court recognizes the Oklahoma law espoused in the case of
Funnell v. Jones, 737 P.2d 105, 107 (Okla. 1985) which limits the
ability to bring an independent claim for breach of contract when
the claims are essentially based upon a breach of a standard of
care in a legal malpractice case.

However, at this stage, the

claim is not specifically precluded and will not be dismissed.
Plaintiff will also be required to amend the negligence claim
to set forth the specific facts relating to the dismissal of the
5

state court action as time-barred.

The court minute to which he

refers is somewhat cryptic as to the basis for dismissal, citing to
Okla. Stat. tit. 12 § 1004.

Plaintiff shall relate the specific

evidence of dismissal on the basis of a violation of the statute of
limitations as he alleges in the briefing.
Defendants also challenge the sufficiency of Plaintiff’s fraud
claim.

Clearly,

particularity.
Defendants

allegations

fraud

Fed. R. Civ. P. 9(b).

allegedly

articulated

of

for

made

this

to

Court

be

stated

with

The “false representations”

Plaintiff
to

must

are

not

ascertain

sufficiently

that

they

were

intentionally made for the purpose for Plaintiff to rely upon their
content.

If this evidence is lacking, Plaintiff’s claim were

represent mere negligence and not fraud.

Plaintiff will be

required to amend the Complaint to set forth these allegations of
fraud with particularity.
IT IS THEREFORE ORDERED that Defendants’ Motion to Dismiss
Plaintiff’s Amended Complaint (Docket Entry #30) is hereby DENIED.
Plaintiff shall file a Second Amended Complaint which (1) attaches
the alleged agreement which forms the basis for this action; (2)
sets forth the specific term of the agreement which was allegedly
breached by Defendants; (3) clarifies that the underlying state
court action was dismissed as time-barred as outside of the
applicable

statute

of

limitations;

and

(4)

sets

forth

the

allegations of fraud against Defendants with particularity.

The

Second Amended Complaint shall be filed by SEPTEMBER 8, 2017.

6

IT IS SO ORDERED this 30th day of August, 2017.

______________________________
KIMBERLY E. WEST
UNITED STATES MAGISTRATE JUDGE

7