Free Motion for Summary Judgment - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-01160-LTB-CBS ISABELLE Der KEVORKIAN, Plaintiff, v. LIONBRIDGE TECHNOLOGIES, INC., d/b/a LIONBRIDGE US, INC., SHARRYN E. ROSS and ROSS, MARTEL & SILVERMAN, LLP., Defendants. ______________________________________________________________________________ DEFENDANTS SHARRYN E. ROSS AND ROSS, MARTEL & SILVERMAN, LLP'S MOTION FOR SUMMARY JUDGMENT ______________________________________________________________________________ Defendants Sharryn E. Ross and Ross, Martel & Silverman, LLP (collectively, "Ross") by and through their attorney, John E. Bolmer, II of Hall & Evans, L.L.C., submit the following Motion For Summary Judgment: INTRODUCTION Plaintiff DerKevorkian commenced this action against Lionbridge US, Inc.

("Lionbridge") on or about May 18, 2004. An Amended Complaint, filed January 18, 2005, added a claim against Ross for legal malpractice and breach of fiduciary duty. STATEMENT OF UNDISPUTED MATERIAL FACTS1 BACKGROUND/PARTIES

Ross states that the following facts are undisputed for purposes of this Motion for Summary Judgment only. These Defendants specifically reserve the right to contest each and every one of these facts at any later stage of these proceedings including at trial.

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1.

Plaintiff DerKevorkian is a citizen of France who worked for Lionbridge and

predecessor entities in Boulder, Colorado from 1997 through October 1, 2003. (Amended Complaint, ¶s 3-5, 88). 2. Sharryn Ross is a partner in the Massachusetts law firm of Ross, Martel &

Silverman, LLP (now Ross, Silverman & Levy LLP). Ms. Ross has been actively licensed to practice law in Massachusetts since 1978 and has focused her practice in the field of immigration law. (Affidavit of Sharryn Ross, attached hereto as Exhibit A-1, ¶2). She has worked on immigration matters for Lionbridge for many years. (Exhibit A-1, ¶3). 3. In order to continue working in the United States beyond October 1, 2003,

DerKevorkian needed to obtain new authorization from the Immigration and Naturalization Service ("INS"). (Amended Complaint, ¶6) 4. One way for Ms. DerKevorkian to remain in the United States beyond October 1,

2003 was to file for permanent resident status (a "green card"). (Amended Complaint, ¶6). In early March 2002, the Lionbridge Human Resources Manager contacted Ross to look into filing for permanent residence for Ms. DerKevorkian. Ross informed him that it would also be

necessary to amend Ms. DerKevorkian's H-1B visa. (Exhibit A-1, ¶4). PLAINTIFF'S RELATIONSHIP WITH ROSS 5. DerKevorkian's contacts with Ross were limited. Her only written

communication directly with Sharryn Ross was a fax sent to Ms. Ross March 14, 2002 transmitting a form a Lionbridge employee requested DerKevorkian send to Ms. Ross. (Selected written discovery responses of DerKevorkian, attached hereto as Exhibit A-2, Request for Admission 7 and response thereto). Ms. Ross never communicated in writing directly to

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DerKevorkian, and DerKevorkian never met or spoke to Ross. (Exhibit A-2, Requests for Admission 8, 10 and 11 and responses thereto). DerKevorkian communicated a few times by email with staff at the Ross law firm. The substance of these e-mails was to give Ross answers to questions needed to amend her H-1B visa and begin the green card process, and thereafter to follow up on status of the process. (DerKevorkian deposition, day 2, excerpts attached hereto as Exhibit A-3, p. 13, lines 3-14; Exhibit A-1, ¶7 ). 6. By e-mail, dated July 17, 2002, DerKevorkian was told by a Ross paralegal, Mr.

Shaun Foster, that there would be no further direct e-mails between Ross and DerKevorkian, and future communications would have to go through Lionbridge. DerKevorkian did not complain to anyone at Ross about this procedure. (Exhibit A-2, Request for Admission 3 and response thereto; Exhibit A-3, p. 101, lines 15-25). DerKevorkian was also told in writing by Lionbridge not to communicate directly with Ross, and she does not recall objecting to anyone at Lionbridge about that directive. (Exhibit A-3, p. 98, line 9 through p. 99, line 2). 7. DerKevorkian never engaged Ross to be her attorney. (Exhibit A-2,

Interrogatory 1 and response thereto). DerKevorkian never paid Ross any money and had no written contract with Ross. (Exhibit A-2, Requests for Admission 1 and 2 and responses thereto). 8. DerKevorkian never asked for a legal opinion from Ross on anything, and never

asked Ross to do anything on her behalf. (Exhibit A-3, p. 43, lines 3-13; Exhibit A-1, ¶7). 9. Ross never entered an appearance for DerKevorkian in any court or in any

administrative proceeding. (Exhibit A-2, Request for Admission 9 and response thereto).

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10.

Ross never told DerKevorkian orally or in writing she was DerKevorkian's

lawyer for any purpose. Ross never told anyone at Lionbridge she was DerKevorkian's lawyer. (Exhibit A-1, ¶8). 11. As a result of Lionbridge's request, Ross looked into whether applying for a green

card for DerKevorkian would be possible. Ross learned the Colorado State Department of Labor found the prevailing wage for DerKevorkian's position was much higher than the salary Lionbridge was paying DerKevorkian. (Exhibit A-1, ¶5). As a result of the information learned regarding the prevailing wage determination, as well as other attempts to obtain a good prevailing wage for Ms. DerKevorkian's position and Ross' discussions with Lionbridge about that situation, no application for a green card for DerKevorkian was filed. (Exhibit A-1, ¶s 5 and 6). The application process never commenced. 12. Attached to Ms. Ross' affidavit, Exhibit A-1, is a draft "Notice of Entry of

Appearance as Attorney or Representative." This same document is identified as page 90 of Exhibit 50 to the Ross deposition, and is Exhibit 52 to day 2 of the DerKevorkian deposition. (Hereafter, the "Draft Entry of Appearance"). 13. The Draft Entry of Appearance was produced in this action by Ross prior to her

2004 deposition. Prior to such production, DerKevorkian had seen neither the document nor an earlier draft of the document. (Exhibit A-3, p. 42, lines 1-12). 14. The Draft Entry of Appearance was prepared by Ross with other draft documents

that would have been filed had the H-1B amendment process gone forward. Since Ross did not go forward with the H-1B application process for Ms. DerKevorkian, the Draft Entry of Appearance was never sent to Lionbridge for signature. It was never signed by Ross or anyone

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else. It was never circulated to DerKevorkian or anyone else. It was never filed with the INS. (Exhibit A-1, ¶9; Exhibit A-3, p. 42, line 1 through p. 43, line 2). UNDERSTANDINGS OF THE PARTIES 15. DerKevorkian knew Ross was a lawyer employed by Lionbridge to work on

Lionbridge's employees' visas. (Exhibit A-3, p. 31, lines 15-20 and p. 32, lines 2-4). 16. Lionbridge employees told DerKevorkian that Ross was Lionbridge's lawyer.

While the application for a green card was being considered, DerKevorkian at no point understood Ross was her lawyer. (Exhibit A-3, p. 30, lines 11-16). Plaintiff's response to Ross' Interrogatory No. 1 sums up her understanding of Ross' role: "Plaintiff never engaged

Defendant Ross. It appears that she was hired by Lionbridge. Plaintiff was aware that Ross was involved in the green card process, but Plaintiff did not know that Ross was supposed to be acting as her attorney until late 2004...." (Exhibit A-2, Interrogatory No. 1 and response thereto). 17. DerKevorkian was not privy to Lionbridge's instructions to Ross and has no

personal knowledge of the scope of Lionbridge's retention of Ross. (Exhibit A-3, p. 43, lines 18-23). 18. DerKevorkian first formed an opinion that Ross was supposed to be her counsel

after her visa expired. She formed the opinion in 2004 as a result of a document she saw in this civil action. (Exhibit A-3, p. 35, lines 11-16). That document is the Draft Entry of Appearance. (Exhibit A-2, Interrogatory No. 17 and response thereto). 19. At no time did Ross believe she was DerKevorkian's lawyer. (Exhibit A-1, ¶10).

Ross anticipated DerKevorkian would have been her client had Ross determined that it was

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possible to go forward with the permanent residence application process and had Ross been directed to do so by Lionbridge. If that had occurred, Ross would then have represented both Lionbridge and DerKevorkian in the matter. But since that process did not commence, Ross never became DerKevorkian's counsel. (Exhibit A-1, ¶s10-12). TIMING OF PLAINTIFF'S CONCERNS 20. By the summer of 2002, DerKevorkian was concerned about the status of her

green card. (Exhibit A-3, p. 15, lines 4-16). 21. Lionbridge employees Jenni Tymkovich and Barbara Peralta met with

DerKevorkian in or around September 2002. At that meeting, the Lionbridge employees told DerKevorkian the green card process would not be able to move forward because of the prevailing wage problem. (Exhibit A-3, p. 16, line 12 through p. 17, line 19 and page 19, line 19 through page 20, line 11). 22. By September of 2002, DerKevorkian was convinced that Ross had not done

everything she should have done to secure a green card for DerKevorkian. (Exhibit A-3, p. 25, line 20 through p. 26, line 4). She told the Lionbridge employees she met with at the September 2002 meeting of her concerns with Ross and her disagreement with Ross' conclusions about the prevailing wage issue. (Exhibit A-3, p. 26, line 5 through p. 27, line 14). 23. By November or December 2002, DerKevorkian realized Lionbridge was not

going to try to get her a green card, and believed that Ross had made errors in terms of what the prevailing wage problem was and how it could be overcome. (Exhibit A-3, p. 28, line 23 through p. 29, line 3 and p. 29, line 25 through p. 30, line 10).

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24.

DerKevorkian spoke to her own legal counsel regarding her green card situation

in the fall of 2002. (Exhibit A-2, Interrogatory No. 18 and response thereto). She hired her current counsel, Mr. Maguire, in November 2002. (Exhibit A-3, p. 13, line 24 through p. 14, line 5). INTERESTS OF LIONBRIDGE AND PLAINTIFF 25. Before approximately September of 2002, Lionbridge was trying to accomplish

the same thing Plaintiff wanted to accomplish -- getting Plaintiff a green card. (Exhibit A-3, p. 75, lines 17-21). 26. By the time Plaintiff's current counsel sent a December 5, 2002 letter to

Lionbridge, Plaintiff asserts her interests and Lionbridge's interests were different. Plaintiff testified that as of December 5, 2002 her interest "was to keep my job and get sponsored for a green card, and Lionbridge's interest was not to do that." (Exhibit A-3, p. 76, lines 12-19). ARGUMENT The Ross defendants are entitled to summary judgment on all of the Plaintiff's claims against them as a matter of law. First, Plaintiff states no cognizable claim for breach of a duty because no attorney/client relationship arose on which such a duty arose. Second, assuming for the sake of argument a duty arose, Plaintiff commenced her claim against Ross outside the applicable statute of limitations for negligence claims. Third, the facts established in this action do not support a claim of breach of fiduciary duty. I. No Duty Arose Which Would Support Plaintiff's Claims Plaintiff's Amended Complaint includes the Fifth Claim for Relief, identified as one for "Legal Malpractice." Nevertheless, Plaintiff includes in that claim references to alleged breaches

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of duty of loyalty and representation of parties with conflicts of interest. Ross understands the Fifth Claim for Relief to seek relief under both negligence and breach of fiduciary duty theories. Both a negligence and a fiduciary duty claim depend on the existence of a duty. If no duty is owed, neither claim stands. (International Tele-Marine Corp. v. Malone & Associates, 845 F. Supp. 1427, 1431 (D. Colo. 1994)). Ross was Lionbridge's counsel. But no duty flows from that relationship to third parties to the relationship, such as DerKevorkian (Glover v. Southard, 894 P.2d 21, 24 (Colo. App. 1994), cert. den. (1995); Schmidt v. Frankewich, 819 P.2d 1074, 1079 (Colo. App. 1991), cert. den. (attorney not liable to third-party beneficiary of attorney-client relationship except where fraud or malice shown), cited in International Tele-Marine, supra). DerKevorkian bears the burden of proving the existence of an attorney-client relationship between her and Ross. (International Tele-Marine, supra; Crystal Homes, Inc. v. Radetsky, 895 P.2d 1179, 1182 (Colo. App. 1995)). Such a relationship need not be express, but must in any case reflect the parties' express or implied agreement on the essential terms of the relationship. (International Tele-Marine, supra; Schmidt v. Frankewich, supra). Where no facts indicate assent to a contractual relationship between a lawyer and an individual, the issue of contract formation can be determined by the Court. (Hoiles v. Alioto, 345 F. Supp.2d 1178, 1186 (D. Colo. 2004)). Since the relationship is contractual and depends on the mutual assent of the parties, the attorney-client status must be proven to have existed during the alleged wrongdoing. (R. Mallen & J. Smith, Legal Malpractice §8.3 (5th Ed. 2000), footnote 3, citing several cases including First National Bank v. Lane & Douglass, 961 F. Supp. 153 (N.D. Tex. 1997), affirming and reversing on other grounds, 142 F.3d 802 (5th Cir. 1998)).

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If an attorney-client relationship is alleged to have been formed by the conduct of the parties, "there must be a showing that a person sought and received legal advice from the attorney concerning the legal consequences of the person's past or contemplated action." (Turkey Creek, LLC v. Rosania, 953 P.2d 1306, 1311 (Colo. App. 1998)). That fact that no fees were paid, while not determinative, is some evidence to support the position that no attorneyclient relationship was intended by the lawyer. (R. Mallen & J. Smith, supra, at §8.3). Ross never had an understanding that she represented DerKevorkian. The clearest

indication that Ross' actions did not give a basis to imply such a relationship is Plaintiff DerKevorkian's admission that she did not understand an attorney-client relationship existed between her and Ross at the time the alleged malpractice occurred. Ross' actions in preparing the Draft Entry of Appearance does not reflect her implied assumption of duties or convey to anyone that she was DerKevorkian's lawyer, since the document was not circulated, completed, filed or signed by anyone. Plaintiff DerKevorkian believed in 2002 that Ross was acting as the attorney for Lionbridge only. Ross had the same belief. No evidence exists to suggest Plaintiff's belief in 2002 was erroneous. II. Plaintiff's Negligence Claim is Time-Barred A plaintiff must commence an action for legal malpractice within two years of the date the action accrues.2 (C.R.S. §13-80-102(1)). A malpractice claim accrues when the plaintiff learns of facts that would put a reasonable person on notice of the general nature of the damage

2 A claim for breach of fiduciary duty is subject to the three-year period set out in C.R.S. §13-80-101(f).

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and that the damage was caused by the lawyer. (Torrez v. Edwards, 107 P.3d 1110, 1113 (Colo. App. 2004); Morrison v. Goff, 91 P.3d 1050 (Colo. 2004)). Plaintiff's commenced her claim against Ross in January 2005. At least one month and two years prior commencement of the action, Plaintiff knew Lionbridge was not going forward with her green card application, she believed Ross had erred in her analysis of the prevailing wage issue, and she incurred damages at least in the form of attorney fees to her current and other legal counsel. III. No Facts Support Plaintiff's Claim of Breach of Fiduciary Duty Plaintiff's sole claim for relief against Ross (the Fifth Claim for Relief) purports to be one for "legal malpractice" and is based mainly on allegations of negligence. The same claim, however, also includes allegations of conflicts of interest (see Amended Complaint ¶s 116 and 117). Plaintiff's responses to Ross' written discovery also confirms Plaintiff is seeking relief under a breach of fiduciary duty theory in addition to the negligence theory. As set forth above, Ross owed no duty to Plaintiff upon which a breach of fiduciary duty claim may be based. But assuming for the sake of argument such a duty is found, judgment in favor of Ross on the fiduciary duty claim is nevertheless appropriate. Plaintiff has failed to allege or support with evidence facts necessary to bring such claim. In Moguls of Aspen, Inc. v. Faegre & Benson, 956 P.2d 618 (Colo. App. 1997), the Court of Appeals affirmed the trial court's dismissal of a fiduciary duty claim against a law firm, and held that such a claim requires a showing of something beyond simple negligence. All of these allegations, while serious, do not implicate defendants' actions except in a negligence or malpractice context. There is no allegation or evidence that defendants' acts or omissions, if any,

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resulted from an improper motive, a conflict of interest, or any other consideration beyond carelessness and lack of attention. (Id., at 620-21). Even before the Moguls of Aspen decision, other decisions had suggested that specific allegations of the basis of a fiduciary duty (as opposed to a negligence duty) should be required. (See, e.g., DeBose v. Bear Valley Church of Christ, 890 P.2d 214, 225 (Colo. App. 1994), rev'd on other grounds, Bear Valley Church of Christ v. DeBose, 928 P.2d 1315 (Colo. 1996); Crystal Homes, Inc. v. Radetsky, 895 P.2d 1179, 1182 (Colo. App. 1995)). In Smith v. Mehaffy, 30 P.3d 727 (Colo. App. 2000) cert. den. (2001), a separate division of the Court of Appeals issued a ruling consistent with Moguls of Aspen. The Court of Appeals in Smith noted that "the attorney-client relationship involves a fiduciary relationship as a matter of law." (Id. at 733). But a distinction must be made between a negligence case, alleging breach of a standard of care, and a fiduciary duty case, alleging breach of a standard of conduct. If the allegations point to a breach of the standard of care, then a negligence claim and not a fiduciary duty claim is the proper theory to sue under. Where the complaint alleges only negligence, a fiduciary duty claim cannot be supported. (Smith, supra; Moguls of Aspen, supra). The distinction between a standard of care and standard of conduct was explicitly rejected in the recent decision in Aller v. Law Office of Carole C. Schriefer, PC, 2005 Colo. App. LEXIS 1210 (Colo. App. July 28, 2005) (opinion not yet released for final publication). The plaintiff in Aller was represented by Schriefer in a business matter. Thereafter, Schriefer represented Aller's business associate in a lawsuit against Aller. Aller asserted Schriefer's representation of an adverse party after Schriefer had gained confidential information from Aller constituted a breach of fiduciary duty. The Court of Appeals in Aller noted the progress made in

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the decisions noted above in expanding the circumstances in which a fiduciary duty claim would be deemed subsumed within a negligence claim. The Aller decision takes that case law one big step further: Courts which find that breach of fiduciary duty is separate from professional negligence see the fiduciary obligations as part of a standard of conduct and professional negligence as part of a standard of care. [Citations omitted]. This distinction, however, is technically deficient when applied to assess claims of malpractice. In some cases the distinction between duties based upon a standard of conduct and a standard of care is of no meaningful consequence. Where, as here, the operative allegations of the complaint assert violations of both standard of conduct and standards of care without making specific and particularized allegations of intentional conduct, we conclude that the malpractice claim is based on negligence. (Aller, at pages 10-11). The Court of Appeals suggests the fiduciary duty tort may still be viable where the alleged wrongdoing is theft of client funds. But in most situations, where the alleged wrongdoing is based on "a decision based on professional judgment pertaining to the representation of the client," a purported fiduciary duty claim is "indistinguishable from one for professional negligence." In this action, Plaintiff asserts Ross advised Lionbridge of its options regarding the green card application and the prevailing wage issue at times when Lionbridge's interests were in conflict with Plaintiff's. Assuming for the sake of argument these facts are established, they do not support a separate claim for breach of fiduciary duty under either the Aller decision or the case law in place prior to Aller. Plaintiff's fiduciary duty claim also fails because no facts exist to suggest Plaintiff suffered damages directly as a result of any alleged breach of fiduciary duty. This showing is

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required to support a fiduciary duty claim. (Aller, at pages 5-6, citing Miller v. Byrne, 916 P.2d 566, 575 (Colo. App. 1995) and Rupert v. Clayton Brokerage Co., 737 P.2d 1106, 1112 (Colo. 1987). No facts exist to suggest Lionbridge's course of action would have been different had it been advised by a lawyer without any alleged conflicts of interest. Therefore, no damages can be proven to support the fiduciary duty claim. (Aller, supra). CONCLUSION Plaintiff cannot establish a duty to support either a negligence or a breach of fiduciary duty claim. Plaintiff's negligence claim was commenced more than two years after accrual of the statute of limitations. Plaintiff cannot show a fact setting to support a separate claim of breach of fiduciary duty or damages to support that claim. Ross requests this Court grant them summary judgment and dismiss the Plaintiff's Amended Complaint against them in its entirety with prejudice, and for all other and further relief as this Court deems just and appropriate. DATED this 12th day of September 2005. HALL & EVANS, L.L.C.

By: _____________/s/_________________ John E. Bolmer, II David E. Leavenworth Suite 600 1125 Seventeenth Street Denver, Colorado 80202 (303) 628-3366 D.C. Box 05 ATTORNEYS FOR DEFENDANTS SHARRYN E. ROSS and ROSS, MARTEL & SILVERMAN, LLP

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CERTIFICATE OF SERVICE I hereby certify that on this 12th day of September 2005, a true and correct copy of the foregoing DEFENDANTS SHARRYN E. ROSS AND ROSS, MARTEL & SILVERMAN, LLP'S MOTION FOR SUMMARY JUDGMENT was served electronically on the following: Joel C. Maguire, Esq. Dietz and Davis, P.C. Suite 400 2060 Broadway Boulder, Colorado 80302 Dan S. Cross, Esq. The Overton Law Firm 1080 Kalamath Street Denver, Colorado 80204 ___________________________________

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