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Wyers v. Greenberg Traurig, LLP

United States District Court, D. Colorado

June 13, 2014



WILEY Y. DANIEL, Senior District Judge.

THIS MATTER is before the Court on the defendant, Greenberg Traurig, LLP, Mark L. Hogge, Laura M. Klaus, and Robert P. Charrow's Motion For Summary Judgment [ECF No. 123]. For the reasons stated below, the motion is DENIED.


This case arises from alleged legal malpractice in connection with a patent infringement appeal before the United States Court of Appeals for the Federal Circuit.

The appeal involved judgment in a case from this district, in favor of Philip W. Wyers and Wyers Product Group, Inc. ("the Plaintiffs") against Master Lock Company ("Master Lock") for patent infringement. See Case No. 01:06-cv-00619-LTB-MJW, Wyers, et al. v. Master Lock Company . At issue were three patents, all held by plaintiff, Philip W. Wyers, which involved adjustable receiver locks with a convertible shank. Cumulatively, the Plaintiffs award totaled approximately $8.7 million, which included jury awarded damages, royalties set by the district court, and pre-judgment interest set by the district court. Despite post-trial motions challenging the verdict, the district court upheld the verdict. Master Lock appealed to the Federal Circuit on the issue of the patents' obviousness. The Plaintiffs retained Greenberg Traurig, LLP to defend the appeal. Greenberg Traurig, LLP assigned defendants, Mark L. Hogge, Laura M. Klaus, and Robert P. Charrow (collectively "the Defendants") as appellate counsel. Master Lock and the Plaintiffs engaged in mandatory mediation as mandated by the Federal Circuit. At a meditation conference in Washington, D.C. ("D.C."), the Defendants advised the Plaintiffs not to accept a certain settlement offer from Master Lock. Subsequent to the mediation conference, Master Lock attempted to negotiate a settlement by tendering another offer. The Defendants allegedly advised the Plaintiffs that there was a high degree of probability that they would prevail on the appeal and that they should terminate all negotiations. On July 22, 2010, the Federal Circuit reversed the district court's holding that the three patents were nonobvious and stated that the patents "would have been obvious as a matter of law." Wyers v. Master Lock Co., 616 F.3d 1231, 1246 (Fed. Cir. 2010). As such, the Plaintiffs' award from the district court was vacated in its entirety.

On December 30, 2011, the Plaintiffs filed a legal malpractice suit against the Defendants in the District Court for the City and County of Denver, State of Colorado, captioned Wyers, et al. v. Greenberg Traurig, LLP, et al., Case No. 2011-CV-8834. ECF No. 1, p. 1, ¶ 1. On March 26, 2012, the Defendants removed the case to the United States District Court for the District of Colorado. ECF No. 1. On December 21, 2012, the Defendants filed their Amended Complaint [ECF No. 53] alleging the same legal malpractice claim. The substance of the Plaintiffs' claim is that: (1) the Defendants failed to properly apprise the Plaintiffs of the governing law regarding the patent appeal; (2) the Defendants failed to accept an alleged lucrative settlement offer; (3) the Defendants filed an insufficient appellate brief on the Plaintiffs' behalf; and, (4) as a result of the above mentioned actions, the Federal Circuit ruled against the Plaintiffs in the patent appeal. On November 19, 2013, the Defendants filed a Motion For Summary Judgment [ECF No. 123] arguing that: (1) D.C. law governs this action; (2) D.C. law bars this action because the Plaintiffs' trial counsel and non-party to this action, Aaron Bradford, was contributorily negligent in advising the Plaintiffs about settlement; and, (3) the Plaintiffs cannot establish damages.


A. Legal Standard for a Motion for Summary Judgment

Summary judgment is proper when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); Equal Employment Opportunity Comm. v. Horizon/CMS Healthcare Corp., 220 F.3d 1184, 1190 (10th Cir. 2000). "When applying this standard, [the court must] view the evidence and draw all reasonable inferences therefrom in the light most favorable to the party opposing summary judgment.'" Atl. Richfield Co. v. Farm Credit Bank of Wichita, 226 F.3d 1138, 1148 (10th Cir. 2000) (citation omitted). "A fact is material' if, under the governing law, it could have an effect on the outcome of the lawsuit." Horizon/CMS Healthcare, 220 F.3d at 1190. "A dispute over a material fact is genuine' if a rational jury could find in favor of the nonmoving party on the evidence presented." Id.

"The burden of showing that no genuine issue of material fact exists is borne by the moving party." Horizon/CMS Healthcare, 220 F.3d at 1190. "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.'" Atl. Richfield Co., 226 F.3d at 1148 (quotation omitted). All doubts must be resolved in favor of the existence of triable issues of fact. Boren v. Sw. Bell Tel. Co., 933 F.2d 891, 892 (10th Cir. 1991).

B. The Defendants' Motion For Summary Judgment [ECF No. 123]

1. Choice of Law

The parties dispute what law governs this action. The Defendants argue that D.C. law governs and the Plaintiffs argue that Colorado state law governs. When a plaintiff invokes a federal district court's diversity jurisdiction pursuant to 28 U.S.C. § 1332, as is the case here, courts look to the forum state's choice of law rules to determine which state's substantive law applies. Pepsi-Cola Bottling Co. of Pittsburg, Inc. v. PepsiCo, Inc., 431 F.3d 1241, 1255 (10th Cir. 2005) (citations omitted). The Colorado Supreme Court has stated that the choice of law standard used to determine what state law applies in a multi-state tort action is "the most significant relationship to the occurrence and parties test expressed in Restatement (Second) of the Conflicts of Laws §§ 145, 171 (1971)."[1] AE, Inc. v. Goodyear Tire & Rubber Co., 168 P.3d 507, 508 (Colo. 2007) (en banc).

Section 6(2) of the RESTATEMENT sets out the following principles to be considered in ...

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