United States District Court, D. Nevada
[PROPOSED] ORDER GRANTING
DEFENDANTS' RENEWED MOTION TO DISMISS WITH
WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP, Sheri M.
Thome, Esq., Chad C. Butterfield, Esq. Attorneys for
Defendants Kathryn Stryker Wirth, and Jolley Urga Woodbury
& Little aka Jolley Urga Woodbury & Standish aka
Jolley Urga Wirth & Woodbury
case involves allegations of legal malpractice, negligence
and breach of fiduciary duty by Kimberly Moffatt Jones
against her former counsel, Kathryn Stryker Wirth and Ms.
Wirth's former firm, Jolley Urga Woodbury & Little
aka Jolley Urga Woodbury & Standish aka Jolley Urga Wirth
the Court is Defendants' Renewed Motion to Dismiss Under
FRCP 12(b)(6) (“Motion”). (ECF No. 46). The Court
has reviewed Plaintiff's Opposition to Defendants'
Motion to Dismiss (ECF No. 49) and Defendants' Reply (ECF
No. 58). For the reasons below, the Motion to Dismiss is
granted, with prejudice.
relevant facts are taken from the Complaint and the Motion.
On or about July 1, 1998, Defendants, acting through Ms.
Wirth, represented Plaintiff in negotiating and executing a
prenuptial agreement, which Ms. Wirth signed as
Plaintiff's attorney. (ECF No. 1, ¶ 12). More than
fourteen years later, on or about October 4, 2012, Plaintiff
was named as a defendant in the case entitled Fletcher Jones,
Jr. v. Kimberly Jones, case number D-12-470239-U (hereinafter
the “Jones v. Jones case”), filed in the District
Court, Family Division in Clark County, Nevada. (ECF No. 1,
¶ 16). In the Jones v. Jones case, Fletcher Jones, Jr.
(“Mr. Jones”) sought specific performance and to
enforce three agreements, including a prenuptial agreement, a
marital settlement agreement, and a post marital agreement.
(ECF No. 1, ¶ 16).
Jones identified Ms. Wirth as a witness in the Jones v. Jones
case, and noticed her deposition, including requesting a copy
of Defendants' file on the transaction. Prior to Ms.
Wirth's deposition, Plaintiff executed an authorization
for the release of certain materials from her file to her
attorneys, with which Defendants complied. (ECF No. 1, ¶
18). During her deposition on November 4, 2013, Ms. Wirth
testified that her “notes” were not provided and
had been withheld from the production of the file to
Plaintiff, which Ms. Wirth explained was intentionally done
because of attorney-client privilege and work product issues.
Ms. Wirth was concerned that if she had reviewed the notes in
preparation for her deposition, that it might result in a
waiver of the privilege. (ECF No. 1, ¶ 19). At trial,
Mr. Jones called Ms. Wirth to testify as a witness on
February 7, 2014, at which time she testified that she had
reviewed her file and her personal notes in preparation for
her testimony on that date. (ECF No. 1, ¶ 22). The
Complaint alleges that Ms. Wirth's personal notes were
also ordered to be produced to Mr. Jones and his attorneys,
with some, but allegedly not all of the privileged
information redacted. (ECF No. 1, ¶23). Plaintiff
contends that Defendants committed legal malpractice by
allegedly causing confidential information that was entitled
to the protection of the attorney-client privilege to be
disclosed to Plaintiff's adversary in the Jones v. Jones
case. Plaintiff contends that her “defense in that
civil case was so severely compromised by acts and omissions
of the Defendants, and each of them, that Plaintiff had no
reasonable chance of prevailing at trial.” (ECF No. 1.,
filings attached to Defendants' Motion show that
following Ms. Wirth's testimony on February 7, 2014, Ms.
Wirth requested an order from the trial court permitting her
and her firm to release only to Plaintiff the attorney notes
Ms. Wirth maintained in Plaintiff's client file. (ECF No.
46-1, at p. 9). The trial court granted the request and
specifically ordered Ms. Wirth's notes be produced only
"to [Ms. Jones] to preserve the privilege." (ECF
No. 46-1, at p. 9). On February 12, 2014, counsel for Mr.
Jones requested an order directing the production of Ms.
Wirth's notes to Mr. Jones. (Id.) The following
day, the trial court directed Plaintiff's counsel to
provide a copy of Ms. Wirth's notes to Presiding Family
Court Judge Charles Hoskin for an in camera review of the
notes and to redact the privileged content. (ECF No. 46-1, at
p. 9). Counsel for both parties later received a copy of Ms.
Wirth's notes, as redacted by Judge Hoskin. (ECF No. 46-1
at p. 14). Eventually, the trial court ordered production of
certain unredacted notes, but that order was stayed by the
Nevada Supreme Court, and unredacted notes were never
produced to Mr. Jones. (ECF No. 46-3, 46-4).
a bench trial on the merits, the trial court in the Jones v.
Jones case found in favor of Mr. Jones, issuing a fifty-one
page judgment that included detailed Findings of Fact and
Conclusions of Law. (ECF No. 46-6). The trial court made some
unfavorable findings and conclusions as to Plaintiff's
credibility. (ECF No. 46-6, pp. 36, 49-50). Following trial,
Plaintiff filed an appeal to the Supreme Court of Nevada,
raising various issues, including "whether the district
court erred by admitting evidence relating to Kimberly's
credibility." [ECF No. 46-6, at p. 2] With respect to
this issue, the Supreme Court stated:
Kimberly [Jones] also argues [on appeal] that the district
court ‘should not have permitted Kimberly's former
attorney, Kathryn Stryker Wirth, to lead the impeachment
effort against Kimberly by relying on privileged notes.'
However, the district court ruled that there was an
attorney-client privilege and properly redacted the
documents. See In re Grand Jury Proceedings, 689
F.2d 1351, 1352 (11th Cir. 1982). Kimberly fails to identify
any specific testimony by Wirth that disclosed privileged
communications impacting the trial or any part of the
district court's findings and conclusions in which the
district court improperly relied on privileged testimony from
(ECF No. 46-7, at p. 12, n.5).
Complaint alleges claims of Legal Malpractice (First Cause of
Action), Negligence (Second Cause of Action) and Breach of
Fiduciary Duty (Third Cause of Action).