Stafford v. Bernabei
Filing
5
OPINION AND ORDER DISMISSING CASE - Signed on 4/7/2014 by Judge Garr M. King. (pg)
UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
PORTLAND DIVISION
ANNA STAFFORD and MINOR CHILD
ASHER,
Plaintiffs,
Civil Case No. 3:14-cv-00483-KI
OPINION AND ORDER
DISMISSING CASE
v.
VINCENT BERNABEI,
Defendant.
Anna Stafford
2715 Jill Place
Port Hueneme, CA 93041
Pro Se Plaintiff
KING, Judge:
Plaintiffs Anna Stafford and minor child Asher bring a case against Vincent Bernabei,
alleging diversity jurisdiction. A party seeking to institute a civil action must pay a filing fee of
Page 1 - OPINION AND ORDER DISMISSING CASE
$400.00, consisting of $350.00 pursuant to 28 U.S.C. § 1914 and a $50.00 administrative fee.
An action may proceed without the prepayment of a filing fee only upon a proper application to
proceed in forma pauperis. 28 U.S.C. § 1915. Stafford has neither paid the filing fee nor
submitted an application to proceed in forma pauperis.
Even if Stafford paid the filing fee or submitted an application to proceed in forma
pauperis, the Complaint may be dismissed. Pro se complaints are construed liberally and may
only be dismissed “‘for failure to state a claim if it appears beyond doubt that the plaintiff can
prove no set of facts in support of his claim which would entitle him to relief.’” Engebretson v.
Mahoney, 724 F.3d 1034, 1037 (9th Cir. 2013) (quoting Silva v. Di Vittorio, 658 F.3d 1090, 1101
(9th Cir. 2011)). The court should allow a pro se plaintiff to amend the complaint unless it would
be impossible to cure the deficiencies of the complaint by amendment. Johnson v. Lucent Tech.
Inc., 653 F.3d 1000, 1011 (9th Cir. 2011).
For the following reasons, I dismiss the Complaint with leave to amend.
BACKGROUND
Stafford alleges the following:
Two emails were sent by The Stafford Family June and July 2013 to Mr. Vince
Bernabei asking him to stop appearing. Mr. Vince Bernabei showed false
appearance in Multnomah County Case 1709-70323 in August 2013, and signed a
divorce document in September 2013 without notifying Ms. Anna Stafford and
continued to falsely act as her legal representative.
Mr. Vincent Bernabei charged her $650 for the false appearance.
The Stafford family suffered from the false appearance and forgery. The Stafford
Family must pay child support, put a life insurance policy in the ex’s name, pay
son’s medical until he is 21, and pay court fees associated which top over four
times the Stafford Family 2013 salary of $4,000.
Page 2 - OPINION AND ORDER DISMISSING CASE
Compl. Claim I. Stafford seeks $550 million dollars “for the inconvenience of the Stafford
stolen identity and false representation.” Compl. Relief.
Although not entirely apparent, Stafford brings this action against her former lawyer
arising out of the six months he represented her in dissolution and custody litigation filed in
Multnomah County Circuit Court. See In re: Heifetz Adam J./Anna R., No. 120970323 (Mult.
Cnty. Cir. Ct. filed Sept. 17, 2012).1
Since I have reviewed several previous versions of this Complaint, brought against
Stafford’s ex-husband, his parents and their company, and the psychologist who testified in the
custody proceeding, I am familiar with the facts. See Stafford v. Heifetz Halle Consulting
Group, LLC, No. 3:13-CV-1057-KI, 2013 WL 4501048 (D. Or. Aug. 21, 2013); Stafford v.
Heifetz, No. 3:13-CV-1963-KI (D. Or. Dec. 23, 2013); Stafford v. Ransford, No. 3:13-CV-1454KI, 2014 WL 198783 (D. Or. Jan. 15, 2014); Stafford v. Heifetz, No. 3:14-CV-484-KI (D. Or.
Mar. 25, 2014). In the first referenced proceeding, I allowed Stafford an opportunity to amend
her complaint, but found even her Amended Complaint failed to state a claim against the
defendant LLC.
DISCUSSION
Stafford fails to state a claim against the defendant. Under Oregon law, an “action for
negligence by an attorney” requires the plaintiff to prove the following elements: duty, breach of
duty, causation, and damages. Harding v. Bell, 265 Or. 202, 204, 508 P.2d 216 (1973). “In
1
The Court may take judicial notice of a fact “not subject to reasonable dispute because it:
(1) is generally known within the trial court’s territorial jurisdiction; or (2) can be accurately and
readily determined from sources whose accuracy cannot reasonably be questioned.” Fed. R.
Evid. 201(b). This includes facts in the public record since they “are readily verifiable.” Reyn’s
Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006).
Page 3 - OPINION AND ORDER DISMISSING CASE
pleading a legal malpractice action, the client must allege facts sufficient to show the existence of
a valid cause of action or defense which, had it not been for the attorney’s alleged negligence,
would have brought about a judgment favorable to the client in the original action.” Id. “[A]
breach of ethical duty does not necessarily give rise to damages or a cause of action.” Allen v.
Lawrence, 137 Or. App. 181, 190 n.7, 903 P.2d 919 (1995). Here, Stafford fails to allege how
Bernabei’s appearance in the case for a total of six months, and refusal to withdraw when
Stafford initially requested it, damaged her or put her in a worse position than she would have
been had she proceeded without him. In other words, Stafford will need to show that but for
defendant’s impermissible representation of her, she would not have been responsible for the
child support, life insurance policy, medical care and court fees that she contends she now owes
because of defendant’s alleged negligence. See Watson v. Meltzer, 247 Or. App. 558, 566, 270
P.3d 289 (2011) (plaintiff required to demonstrate that “she would have obtained a more
favorable result but for the negligence of the defendant”).
Additionally, I note for Stafford’s benefit that while “‘[t]here is no single measure of
damages in a legal malpractice case . . . [g]enerally, . . . the measure of damages . . . is the
amount the client would have recovered but for the attorney’s negligence.’” Hamilton v. Silven,
Schmeits & Vaughan, No. 2:09-CV-1094-SI, 2013 WL 2318809, at *8 (D. Or. May 28, 2013)
(quoting 7A C.J.S. Attorney & Client § 335). Oregon law generally prevents the recovery of
emotional distress damages in a legal malpractice suit. Hilt v. Bernstein, 75 Or. App. 502, 515,
707 P.2d 88 (1985) (trial court did not err in striking the plaintiff’s allegations that sought
emotional distress damages related to the defendant attorney’s malpractice in handling her
divorce). Accordingly, Stafford’s $550 million demand for relief cannot be a realistic estimate of
Page 4 - OPINION AND ORDER DISMISSING CASE
the actual damage she may have suffered. Additionally, because Stafford alleges jurisdiction on
the basis of diversity, she should know that the amount in controversy must exceed $75,000 and
a complaint is subject to dismissal if the amount alleged is made in “bad faith,” i.e. solely to
invoke diversity jurisdiction. Crum v. Circus Circus Enters., 231 F.3d 1129, 1131 (9th Cir.
2000).
Stafford’s complaint is dismissed without prejudice. I will allow her 30 days from the
date of this order to file an amended complaint to the extent she can plead a claim as explained
above. If she fails to amend the complaint within 30 days from the date of this order, and fails to
either pay the $400 filing fee or file an application to proceed in forma pauperis, I will dismiss
the action with prejudice.
CONCLUSION
Because the action fails to state a claim upon which relief may be granted, I dismiss this
action without prejudice. If Stafford fails to amend the complaint within 30 days, and either fails
to pay the $400 filing fee or file an application to proceed in forma pauperis, I will dismiss the
action with prejudice.
IT IS SO ORDERED.
DATED this
7th
day of
April
, 2014.
/s/ Garr M. King
GARR M. KING
United States District Court Judge
Page 5 - OPINION AND ORDER DISMISSING CASE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?