United States District Court, D. Nevada
KENT J. DAWSON, District Judge.
Before the Court is intervenor creditor Lawsuit Financial Corporation's ("LF") Motion for Summary Judgment (#306). Plaintiff opposed (#308) and LF replied (#312). Also before the Court is Plaintiff's Motion for Summary Judgment (#307). LF opposed (#309) and Plaintiff replied (#310). Finally, Plaintiff's sur-responses (#313, #314) and LF's sur-reply (#315) are before the Court.
Stephen Chakwin, ("Chakwin") and Michael Weisberg ("Weisberg") represented Plaintiff in her personal injury case against Parball Corporation, et al. (#256). During the case, Chakwin and Weisberg approached LF, a litigation financing business, and requested funds to pay for Plaintiff's living, travel, medical, and trial costs until the proceedings were resolved (#306, Ex. 1; #306, Ex. 2-2). Chakwin and Weisberg gave LF copies of Plaintiff's incident report and medical records to support their request (#306, Ex. 1; #306, Ex. 2-3). Mark Bello, LF's CEO, reviewed the documents and attempted to meet personally with Chakwin and Plaintiff (#306, Ex. 1). When Bello was unable to meet with Plaintiff because Plaintiff lives in a foreign country, Bello met with Abe Abrahamsen who claimed to be Plaintiff's personal representative in New York (#306, Ex. 1). After the meeting, LF agreed to provide Plaintiff $25, 000, and sent Chakwin a Pending Litigation Purchase Agreement with Purchase Price Rebate Schedule ("Pending Agreement") (#306, Ex. 1). Chakwin then faxed LF the contract, which was signed and notarized (#306, Ex. 2-4). LF wired $25, 000 to Chakwin's client trust account at Wachovia Bank NA of NJ/PA/NY upon receiving the contract (#306, Ex. 2-5). At some point, LF also received a copy of a signed promissory note that stated that Plaintiff agreed to advance Weisberg $25, 000 (#306, Ex. 2-6). LF's motion and other documents do not state, however, when LF received the promissory note, from whom LF received it, or if it influenced LF's decision to enter into a contract with Plaintiff.
A month later, Chakwin asked LF for additional funds and updated LF's case information (#306, Ex. 1). LF agreed to provide $5, 000, and sent a second Pending Agreement to Chakwin, who faxed LF the signed and notarized contract (#306, Ex. 2-7). LF then wired $5, 000 to Chakwin's client trust account at Hudson Valley Bank (#306, Ex. 2-8).
Plaintiff's case settled and the Court ordered proofs of claim to facilitate disbursement (#216). LF filed its proof of claim (#236) and Plaintiff objected (#245). LF did not respond to Plaintiff's objection. Seven months later, LF submitted a trial memorandum (#297) requesting a portion of the settlement. LF then filed its Motion for Summary Judgment (#306), which Plaintiff opposed (#308), and LF subsequently replied (#312). Plaintiff filed a Motion for Summary Judgment (#307), which LF opposed (#309), and Plaintiff subsequently replied (#310). Plaintiff also filed two sur-responses (#313, #314) and LF filed a sur-reply (#315).
II. Summary Judgment Standard
The purpose of summary judgment is to "pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587 (1986). Summary judgment may be granted if the pleadings, depositions, affidavits, and other materials of the record show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. See FED. R. CIV. P. 56(c); see also Celotex Corp. v. Catrett , 477 U.S. 317, 322 (1986).
A fact is material if it might affect the outcome of the suit under the governing law. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986). Uncorroborated and self-serving testimony, without more, will not create a genuine issue of material fact. See Villiarimo v. Aloha Island Air Inc. , 281 F.3d 1054, 1061 (9th Cir. 2002). Conclusory or speculative testimony is also insufficient to raise a genuine issue of fact. Anheuser Busch, Inc. v. Natural Beverage Distribs. , 69 F.3d 337, 345 (9th Cir. 1995).
The moving party bears the initial burden of showing the absence of a genuine issue of material fact. See Celotex , 477 U.S. at 323. Once that burden is met, it then shifts to the nonmoving party to set forth specific facts demonstrating that a genuine issue exists. See Matsushita , 475 U.S. at 587; FED. R. CIV. P. 56(e). If the nonmoving party fails to make a sufficient showing of an essential element for which it bears the burden of proof, the moving party is entitled to summary judgment. See Celotex , 477 U.S. at 322-23.
LF contends that it has a valid claim to a portion of Plaintiff's settlement. LF argues that its claim is valid because the proceeds were properly assigned and LF has a binding contract with Plaintiff. LF also claims that even if Plaintiff's signatures were forged on LF's contract, the contract is still valid under agency law because LF reasonably relied on Chakwin and Weisberg's apparent authority as Plaintiff's agents.
In Plaintiff's response, Plaintiff argues that LF does not have a valid claim. Plaintiff claims that the contract is not binding because her signature was forged and Plaintiff had no knowledge of the contract. Plaintiff also argues that agency law does not apply to attorney-client relationships under Nevada law.
A. Attorney-Client ...