United States District Court, D. Nevada
before the court is defendants Carrie Hanlon and Morris,
Sullivan, Lemkul & Pitegoff's motion to reconsider.
(ECF No. 17). Plaintiff filed a response (ECF No. 19), to
which defendants replied (ECF No. 25).
before the court is defendants' motion to dismiss. (ECF
No. 8). Plaintiff Western National Insurance Group filed a
response (ECF No. 11), to which defendants replied (ECF No.
before the court is defendants' motion for leave to file
supplemental brief. (ECF No. 27). Plaintiff filed a response
(ECF No. 30), to which defendants replied (ECF No. 32).
present legal malpractice dispute arises out of a
slip-and-fall action litigated in state court. On January 2,
2013, non-party Tammy Herbster allegedly slipped and fell on
the sidewalk of Desert Linn Spanish Gardens (“Desert
Linn”) at 348 Sunward Drive in Henderson, Nevada. (ECF
No. 1). Desert Linn had a landscape maintenance agreement
with Classic Landscapes, LLC. Id. Classic Landscapes
was insured by Western National Mutual Insurance company.
filed a complaint against Desert Linn in state court.
Id. Desert Linn filed a third-party complaint
against Classic Landscapes. Id. Thereafter, Western
National contacted defendants Carrie Hanlon and Morris,
Sullivan, Lemkul & Pitegoff (“MSLP”)
regarding representing Classic Landscapes in the dispute.
Id. Defendants accepted the representation, and
served as counsel in the state matter. Id.
November 10, 2015, Herbster's counsel served an offer of
judgment on Classic Landscapes valued at $1 million.
Id. On November 20, 2015, Herbster's counsel
served Classic Landscapes with written discovery including
interrogatories, requests to produce, and requests for
admission. Id. Responses to the request for
admissions were due before December 20, 2015. Id.
However, defendants did not timely respond to plaintiff's
request for admissions. Id.
January 5, 2016, Herbster's attorney filed a motion for
summary judgment based on the unanswered requests for
admissions, which counsel argued were deemed admitted under
Nevada Rule of Civil Procedure 26. Id. On January 6,
2016, defendants prepared and served responses to the
requests. Id. According to plaintiff,
“[d]efendants denied key requests which, if admitted,
could lead to a finding of liability.” Id.
Defendants did not inform Western National or Classic
Landscapes of their failure to meet the deadline or any
potential consequences thereof, and “never sought
judicial relief from the failure to timely answer
further alleges that during this period of time defendants
committed numerous acts that could support a legal
malpractice claim: defendants failed to properly apprise
plaintiff or Classic Landscapes of the status of the case;
defendants failed to provide either party with a liability
analysis to help the parties understand the potential
exposure to liability and whether to agree to any of the
settlement offers provided by Herbster's attorney, and
defendants did not inform plaintiff or Classic Landscapes of
requests to engage in mediation from Herbster's attorney.
January 13, 2016, Herbster's counsel withdrew the motion
for summary judgment without prejudice to re-file.
Id. Thereafter, the parties proceeded with limited
discovery. Id. During this time, defendant Hanlon
ended her employment with MSLP. Id. Hanlon advised
plaintiff that “[w]hile the file stayed with the law
firm, [she] would take the case with her once she found a new
firm with which to practice.” Id. On March 24,
2016, MSLP moved to withdraw from the case. Id. On
April 5, 2016, defendant Hanlon emailed plaintiff, stating
that she had begun working again and would serve as
plaintiff's counsel. Id. On April 11, 2016,
Hanlon informed plaintiff that Hanlon could no longer work on
the case. Id. An unspecified law firm took over the
April 11, 2016, Herbster's counsel re-filed a motion for
summary judgment based on the deemed request for admissions.
Id. On May 17, 2016, the state court granted
Herbster's motion for summary judgment based on the
deemed admissions. Id. Western National and Classic
Landscapes' substituted counsel filed a motion for
reconsideration, which the court denied. Id. After
the parties received another time limit demand from
Herbster's counsel, plaintiff and Classic Landscapes
decided to settle the case for $1.5 million. Id.
March 21, 2017, plaintiff filed a complaint in this court.
Id. Plaintiff asserts three causes of action: (1)
breach of fiduciary duty; (2) breach of contract; (3) legal
April 14, 2017, defendants filed a motion to stay the case.
(ECF No. 9). Defendants asserted that they were appealing the
state district court's grant of summary judgment to the
Nevada Supreme Court. Id. Defendants argued that the
instant federal case should be stayed pending the outcome of
the state litigation, as a claim for legal malpractice is not
ripe if an appeal is pending in the underlying case.
30, 2017, Magistrate Judge Hoffman denied the motion to stay.
(ECF No. 15). The court held that a malpractice claim is not
always premature in cases where an appeal is pending in the
underlying case, and focused on the importance of whether the
appeal would negate the damages award in the case.
Id. The court held that because a settlement has
already been reached in this case and the appeal will not
affect the settlement, “WNI's alleged damages are
fixed at the amount of the settlement. Their malpractice
claim is therefore ripe for adjudication.” Id.
Motion to reconsider
district judge may affirm, reverse, or modify, in whole or in
part, a magistrate judge's order, as well as ...