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Jones v. Wirth

United States District Court, D. Nevada

June 6, 2017

KIMBERLY MOFFATT JONES; Plaintiff,
v.
KATHRYN STRYKER WIRTH, and JOLLEY URGA WOODBURY & LITTLE aka JOLLEY URGA WOODBURY & STANDISH aka JOLLEY URGA WIRTH & WOODBURY, Defendants.

          [PROPOSED] ORDER GRANTING DEFENDANTS' RENEWED MOTION TO DISMISS WITH PREJUDICE

          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

         I. SUMMARY

         This 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 & Woodbury.

         Before 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.

         II. RELEVANT BACKGROUND

         The 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).

         Mr. 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., ¶ 25).

         Court 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).

         Following 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 Wirth.

(ECF No. 46-7, at p. 12, n.5).

         The Complaint alleges claims of Legal Malpractice (First Cause of Action), Negligence (Second Cause of Action) and Breach of Fiduciary Duty (Third Cause of Action).

         III. DISCUSSION

         A. ...


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