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