Dennett v. Archuleta et al
Filing
38
OPINION AND ORDER denying 31 Motion for (Partial) Judgment on the Pleadings. So Ordered by Judge William E. Smith on 11/19/13. (Jackson, Ryan)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
______________________________
)
)
)
Plaintiff,
)
)
v.
)
)
MICHAEL ARCHULETA,
)
JAMAL ALSAFFAR,
)
LAURIE HIGGINBOTHAM,
)
ARCHULETA & ASSOCIATES, P.C., )
d/b/a ARCHULETA, ALSAFFAR &
)
HIGGINBOTHAM,
)
JOHN DOE(S),
)
ABC PARTNERSHIP(S), AND
)
DEF CORPORATION(S),
)
)
Defendants.
)
______________________________)
MICHAEL DENNETT,
C.A. No. 12-424-S-PAS
OPINION AND ORDER
WILLIAM E. SMITH, United States District Judge.
Before the Court is Defendants’ motion for partial judgment
on the pleadings pursuant to Rule 12(c) of the Federal Rules of
Civil Procedure.
Having unsuccessfully sought dismissal of the
entire action, see Dennett v. Archuleta, 915 F. Supp. 2d 248
(D.R.I. 2013), Defendants now take a piecemeal approach and seek
to eliminate just those claims accusing them of the unauthorized
practice
of
law
through
this
motion.
As
set
forth
below,
because issues of material fact remain, the motion is DENIED.
I.
Background
In
2009,
Middleton,
Plaintiff
Rhode
Michael
received
Island,
Dennett,
a
troubling
resident
news
from
of
the
doctors treating him at the Providence Veterans Affairs Medical
Center
(the
“Providence
VA”)
in
Providence,
(First Am. Compl. ¶ 1, ECF No. 7.)
Rhode
Island. 1
Tests revealed elevated
levels of prostate-specific antigen (“PSA”) and a biopsy was
necessary.
(Id. at ¶ 12.)
Dennett’s fears were confirmed when
the biopsy results returned with a diagnosis of prostate cancer.
(Id. at ¶ 13.)
made
a
Surgeons removed Dennett’s prostate, and then
surprising
discovery
prostate cancer after all.
–
Dennett
did
not
(Id. at ¶¶ 14-15.)
suffer
from
An investigation
revealed that the Providence VA had switched Dennett’s biopsy
sample with another patient’s sample, and it was this patient,
not Dennett, who had prostate cancer.
misdiagnosis
and
unnecessary
(Id. at ¶¶ 16-17.)
surgery
not
only
left
This
Dennett
without a prostate but also left him with infection, painful
fluid
collection
in
his
pelvis,
incontinence,
and
impotence.
(Id. at ¶ 22.)
Recognizing that he should be compensated for this error,
Dennett sought out legal representation.
1
As part of his search,
When analyzing a case for judgment on the pleadings, the
Court must take the facts as they are in the pleadings and draw
all favorable inferences in favor of the non-moving party.
Perez-Acevedo v. Rivero-Cubano, 520 F.3d 26, 29 (1st Cir. 2008).
2
Dennett
encountered
the
website
of
Archuleta,
Alsaffar
&
Higginbotham (“AA&H”), a Texas law firm specializing in Federal
Tort Claims Act (“FTCA”) cases.
(Id. at ¶¶ 5, 19.)
Attorneys
at AA&H include Defendants Michael Archuleta, Jamal Alsaffar,
and Laurie Higginbotham (together, with AA&H, the “Defendants”).
Of
chief
importance
for
this
motion
are
those
actions
undertaken by the Defendants that implicate the practice of law.
From start to finish, portions of the case took place in Rhode
Island.
Defendants’
website
states
that
they
“represent
[clients] regardless of where [they] live” and states that the
firm “handle[s] claims in all 50 states.”
(Id. at ¶ 8(m).)
After viewing this website, Plaintiff contacted Defendants and
entered into a contract with them to represent him in his FTCA
action.
The
contract
was
entered
governed by Rhode Island law.
provided
that
a
lawsuit
into
in
Rhode
(Id. at ¶ 8(c).)
would
potentially
be
Island
and
This contract
filed
in
Rhode
Island in the future by Defendants and/or Rhode Island counsel.
(Id. at ¶ 8(d).)
The contract also permitted Defendants to end
the representation at any time, including if Plaintiff’s claim
was administratively denied.
(Aff. of Michael Dennett Tab 7,
ECF No. 13-2.)
After Defendants engaged Plaintiff as a client, they began
preparing his case.
the
claims
from
Defendants conducted an investigation into
Texas
by
talking
3
to
various
witnesses
and
representatives in Rhode Island.
(First Am. Compl. ¶ 8(g).)
They sent an initial claim form to the VA in Providence.
at
¶
8(h).)
Thereafter,
negotiations
with
Eventually,
at
the
Defendants
Providence
Defendants’
entered
VA.
request,
into
(Id.
at
Dennett’s
(Id.
settlement
¶
8(i).)
claims
were
administratively transferred to the VA Office of General Counsel
in
Washington,
authority
to
branch did.
D.C.
settle
because
for
the
larger
(Id. at ¶ 21.)
Washington
amounts
office
than
the
had
the
Providence
These negotiations culminated in a
settlement reached out of Washington, D.C. for $300,000.
at ¶¶ 25, 27.)
(Id.
Plaintiff signed off on this agreement in Rhode
Island, releasing the government from liability for his improper
surgery.
(Aff. of Michael Dennett ¶¶ 36-37, ECF No. 13-2.)
During settlement negotiations, Defendants promised to help
Plaintiff find Rhode Island counsel to pursue claims against
others
responsible
for
the
medical
(First Am. Compl. ¶¶ 24, 28.)
malpractice
against
him.
Defendants then put Plaintiff in
touch with his current attorneys.
Ultimately, unhappy with the
settlement obtained by Defendants, Dennett instituted a legal
malpractice
and
unauthorized
Defendants in state court.
practice
of
law
action
against
Defendants removed that lawsuit to
this Court.
Thereafter,
in
May
2012
Defendants
filed
a
motion
to
dismiss this action in its entirety arguing that they were not
4
subject to personal jurisdiction in Rhode Island.
was denied in January 2013.
This motion
On August 2, 2013, Defendants filed
the instant motion for judgment on the pleadings arguing that
certain safe harbors protect them from Plaintiff’s allegations
concerning the unauthorized practice of law.
II.
(ECF No. 31.)
Discussion
A.
Standard of Review
A motion for judgment on the pleadings may not be granted
“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.”
Rivera-Gomez v. de Castro, 843 F.2d 631, 635 (1st Cir.
1988) (internal citation omitted).
Where dispute about one or
more material facts exists, judgment on the pleadings is not
appropriate.
38
(1st
Cir.
Gulf Coast Bank & Trust Co. v. Reder, 355 F.3d 35,
2004). 2
Conversely,
to
survive
a
motion
for
judgment on the pleadings, Plaintiff’s claims must rise above
the speculative level.
Nationwide Life Ins. Co. v. Steiner, 722
F. Supp. 2d 179, 181 (D.R.I. 2010).
Plaintiff does not face a
heightened pleading standard to accomplish this task, but must
merely provide “a short and plain statement of the claim showing
the pleader is entitled to relief.”
2
Fed. R. Civ. P. 8(a)(2);
Despite at times suggesting the Court look beyond the
pleadings, Defendants have not requested that this motion be
converted into a motion for summary judgment.
5
see also Koch v. I-Flow Corp., 715 F. Supp. 2d 297, 302 (D.R.I.
2010) (noting the Federal Rules of Civil Procedure require only
“notice” pleading).
Plaintiff has satisfied this burden with
respect to his unauthorized practice of law claim by pleading
that Defendants entered into a legal representation with him in
Rhode
Island,
conducted
legal
work
as
part
of
that
representation in Rhode Island, and ultimately settled the case
with the final execution of the settlement taking place in Rhode
Island.
During
Defendants
these
received
actions,
a
fee
Defendants
for
were
this
representation.
neither
licensed
to
practice law in Rhode Island, nor admitted to practice law pro
hac vice in Rhode Island.
Despite this, Defendants indicated on
their website they had the ability to bring an action in any
state.
Through these allegations, Plaintiff has satisfied the
dictates of Federal Rule of Civil Procedure 8(a).
Defendants here raise an affirmative defense arguing that
they fall within statutory and rule-based safe harbors, which
permit attorneys admitted to practice law in other jurisdictions
to
practice
Defendants
in
Rhode
themselves
Island
style
under
this
certain
argument
as
circumstances.
an
affirmative
defense.
(See Defs.’ Answer to Pl.’s First Am. Compl. 9, ECF
No. 28.)
Plaintiff was not required to anticipate and plead
around affirmative defenses raised by Defendants.
Toledo, 446 U.S. 635, 640 (1980).
6
See Gomez v.
Defendants’ reliance on an affirmative defense as the basis
for their motion for judgment on the pleadings suggests factual
issues may be present which prevent deciding the instant motion
in their favor.
See 5C Wright & Miller, Federal Practice and
Procedure § 1368 (3d ed. 2004).
Under the Federal Rules of
Civil Procedure,
[a]ccording to Rule 7(a), the plaintiff is not
required to reply to affirmative defenses or new
matter appearing in the answer, and, under Rule 8(d),
averments in a pleading to which no responsive
pleading is required are considered by the court to
have been denied. Thus, when material issues of fact
are raised by the answer and the defendant seeks
judgment on the pleadings on the basis of this matter,
his motion cannot be granted.
Id.
In
the
First
Circuit,
“[w]here
a
court
grants
a
Rule
12(b)(6) or Rule 12(c) motion based on an affirmative defense,
the facts establishing that defense must:
(1) be ‘definitively
ascertainable from the complaint and other allowable sources of
information,’
and
defense
certitude.’”
with
(2)
‘suffice
to
Gray
establish
v.
the
Evercore
affirmative
Restructuring
L.L.C., 544 F.3d 320, 324 (1st Cir. 2008) (internal citation
omitted).
defense
Allowable sources of information for evaluating the
include
the
complaint,
the
documents
annexed
to
it,
materials fairly incorporated within it, and matters susceptible
to judicial notice.
See Rodi v. S. New England Sch. of Law, 389
F.3d 5, 12 (1st Cir. 2004).
7
B.
Legislative and Judicial Safe Harbors
Rhode
Island
features
dual
prohibitions
against
the
unauthorized practice of law, with both the General Assembly and
Rhode Island Supreme Court prohibiting the practice of law by
those not admitted to do so in the state. 3
Specifically, the
unauthorized practice of law “include[s] conduct proscribed by
Chapter 11-27 of the Rhode Island General Laws, Article IV, Rule
1(d) of the Rhode Island Supreme Court Rules on the Periodic
Registration of Attorneys, and Article V, Rule 5.5 of the Rhode
Island Rules of Professional Conduct.”
1:12(1)(b).
R.I. Admin. Code 63-1-
These prohibitions also feature complimentary rules
or statutes that permit out of state attorneys to practice in
Rhode Island if they satisfy certain requirements.
With
respect
to
the
statutory
prohibition,
unauthorized
practice of law is governed by R.I. Gen. Laws § 11-27-1, et.
3
“It is well established that in situations in which a
statute and a rule approved by the Rhode Island Supreme Court
are in conflict, the court rule prevails.” Tonetti Enters., LLC
v. Mendon Road Leasing Corp., 943 A.2d 1063, 1071 (R.I. 2008)
(quoting Heal v. Heal, 762 A.2d 463, 467 (R.I. 2000)).
The
Rhode Island General Assembly “may act in aid of” the Supreme
Court’s ability to make determinations concerning the practice
of law, “but may not grant the right to anyone to practice law
save in accordance with standards enunciated” by the court.
Unauthorized Practice of Law Comm. v. State, Dep't of Workers'
Comp., 543 A.2d 662, 664 (R.I. 1988). As such, where these dual
prohibitions come into conflict, the Rhode Island Supreme
Court’s rule trumps the legislature’s statute. In addition, the
General Assembly may not by statute grant a right to practice
law where the Supreme Court’s rule prohibits it.
8
seq.
The
pertinent
provision
of
this
law
provides
that
no
“person, except a duly admitted member of the bar of this state,
whose authority as a member to practice law is in full force and
effect, shall practice law in this state.”
R.I. Gen. Laws § 11-
27-5.
In relevant part, the practice of law is defined to
include
the
drafting
“acting
as
a
of
pleadings,
representative
.
.
giving
.
to
legal
advice,
commence,
and
settle,
compromise, adjust, or dispose of any civil or criminal case or
cause of action.”
R.I. Gen. Laws § 11-27-2.
The statutory safe
harbor for visiting attorneys is found at R.I. Gen Laws § 11-2713, which provides that:
The provisions of §§ 11-27-1, 11-27-2, and 11-27-5 11-27-14 shall not apply to visiting attorneys at law,
duly authorized to practice law before the courts of
record in another state, while temporarily in this
state on legal business, or while permitted to conduct
or argue any case in this state according to the rules
of practice of the supreme court, but no visiting
attorney shall issue or indorse, as attorney, any writ
of any court of this state.
Id.
The
Rhode
Island
Supreme
Court
Rules
regarding
the
unauthorized practice of law are of a more recent vintage.
In
2007, the Rhode Island Supreme Court passed a series of rules,
which prohibit the unauthorized practice of law and provide an
exception
to
this
proscription.
As
a
general
matter,
Rhode
Island Supreme Court Rules Art. V, Rule 5.5(a) dictates that
“[a]
lawyer
shall
not
practice
9
law
in
a
jurisdiction
in
violation
of
jurisdiction,
the
regulation
or
assist
of
another
the
in
legal
doing
profession
so.”
In
in
that
addition,
Rhode Island Supreme Court Rules Art. V, Rule 5.5(b)(2) states:
“A lawyer who is not admitted to practice in this jurisdiction
shall not . . . hold out to the public or otherwise represent
that
the
lawyer
jurisdiction.”
is
admitted
to
practice
law
in
this
Contrary to the argument advanced by Plaintiff,
this provision relates to Rhode Island Supreme Court Rules Art.
IV,
Rule
1(d),
which
provides
that
anyone
not
admitted
to
practice law in Rhode Island “who practices law or who holds
himself or herself out in any manner to the public or to another
person as being competent, qualified, authorized or entitled to
practice
law
in
this
State
is
engaged
in
the
unauthorized
practice of law.”
An attorney admitted to practice in another state may find
safety
from
the
rule-based
prohibitions
under
Rhode
Island
Supreme Court Rules Art. V, Rule 5.5(c), which allows out-ofstate lawyers the privilege of practicing law in Rhode Island on
a temporary basis.
Relevant to the discussion here, this safe
harbor states that:
A
lawyer
admitted
in
another
United
States
jurisdiction, and not disbarred or suspended from
practice in any jurisdiction, may provide legal
services on a temporary basis in this jurisdiction
that:
10
(1) are undertaken in association with a lawyer who
is admitted to practice in this jurisdiction and who
actively participates in the matter;
(2) are in or reasonably related to a pending or
potential proceeding before a tribunal in this or
another jurisdiction, if the lawyer, or a person the
lawyer is assisting, is authorized by law or order
to appear in such proceeding or reasonably expects
to be so authorized.
R.I. Supreme Court Rules Art. V, Rule 5.5(c).
Defendants stake
their motion for judgment on the pleadings on the statutory and
judicial safe harbors.
C.
Questions of Fact Preclude Judgment on the Pleadings
The Court agrees with Plaintiff that disputes of material
fact preclude entry of judgment on the pleadings in favor of
Defendants.
disputes
Reder, 355 F.3d at 38.
are
readily
apparent,
At least three such factual
each
of
which
and
together
prevent Defendants from establishing their affirmative defense
with “certitude.”
legislative
and
representation
be
Gray, 544 F.3d at 324.
judicial
safe
temporary.
harbors
With
4
First, both the
require
respect
to
that
Rule
the
5.5, 4
Defendants analogize the instant case to Hockenhull v. Law
Office of Howard Lee Schiff, P.C., C.A. No. 12-415 S, 2012 WL
6525504 (D.R.I. Dec. 13, 2012). While this Court did recognize
in Hockenhull that Rule 5.5 does not require admission pro hac
vice on a yet-to-be-filed case, the question here is different.
Id. at *3.
In Hockenhull, the attorney in question ultimately
sought pro hac vice admission and participated in the case. The
questions here revolve around whether Defendants’ representation
was temporary, whether Defendants held themselves out as
entitled to practice law in Rhode Island, and whether Defendants
had a reasonable expectation of admission pro hac vice.
11
Defendants
which
point
state
that
to
a
Official
Comments
representation
accompanying
“may
be
the
rule
‘temporary’
even
though the lawyer provides services in this jurisdiction on a
recurring basis, or for an extended period of time, as when the
lawyer is representing a client in a single lengthy negotiation
or litigation.”
provide
that
Commentary, Rule 5.5.
recurring
or
temporary under the rules.
extended
This comment does not
representation
is
always
Instead, the comment itself suggests
that it is a factual question whether a representation is in
fact temporary.
Here, Defendants’ representation reflected the
entire life of Plaintiff’s case from inception to conclusion
showing the prominence of this factual determination, which must
be saved for summary judgment or trial.
Second, Plaintiff argues a question of fact exists about
whether Defendants held themselves out as admitted or entitled
to practice law in Rhode Island.
Defendants submitted a copy of
their website in an attempt to show they did not hold themselves
out as admitted in Rhode Island.
(Defs.’ Reply Mem. of Law in
Support of Their Mot. for J. on the Pleadings Ex. A, ECF No. 361.)
Three times in their Answer, however, Defendants pled that
the website Plaintiff undoubtedly looked at differed from the
Additionally, the Court notes that the request for judgment on
the pleadings in Hockenhull was denied due to disputes of fact.
Id. at *2-4.
12
present version.
(See Defs.’ Answer to Pl’s. First Am. Compl.
¶¶ 8(m)(1), 8(m)(2), 8(m)(3), ECF No. 28.) 5
By itself, this
shows that factual issues still exist because the Court cannot
determine
if
Defendants
held
themselves
practice law in Rhode Island.
out
as
entitled
to
In addition, the Commentary to
Rule 5.5 indicates that “[i]n some circumstances, a lawyer who
practices law in this jurisdiction pursuant to [the safe harbor
rule] may have to inform the client that the lawyer is not
licensed to practice law in this jurisdiction.”
Factual issues
remain about whether Defendants informed Plaintiff they were not
licensed to practice law in Rhode Island.
Finally,
regarding
Plaintiff
whether
argues
Defendants
that
had
a
a
factual
reasonable
issue
exists
expectation
admission pro hac vice as required under Rule 5.5.
of
Plaintiffs
have shown that Defendants’ engagement agreement permitted them
to withdraw from the case for several reasons, including if the
case was administratively denied.
Plaintiff suggests this calls
into question whether Defendants ever intended to file an action
and seek admission pro hac vice or instead intended to abandon
the case if it was not settled.
5
Defendants argue there is no
On its face it is clear that the website differs from the
one encountered by Plaintiff. The website contains biographical
information about an associate who joined AA&H in 2010.
The
settlement in this case was executed in 2009, when that
associate was a law clerk on the Fifth Circuit Court of Appeals.
(See Defs.’ Reply Mem. of Law in Support of Their Mot. for J. on
the Pleadings Ex. A, ECF No. 36-1.)
13
evidence establishing that they ever intended to do anything but
bring an action if settlement talks broke down.
But at this
stage, with discovery still ongoing, the Court cannot say that
no factual dispute exists in this regard.
III. Conclusion
For
the
reasons
stated
above,
judgment on the pleadings is DENIED.
IT IS SO ORDERED.
/s/ William E. Smith
William E. Smith
United States District Judge
Date: November 19, 2013
14
Defendants’
motion
for
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?