United States District Court, D. Colorado
RECOMMENDATION OF UNITED STATES MAGISTRATE
Michael E. Hegarty, United States Magistrate Judge.
the Court is Defendants' Motion to Dismiss Pursuant to
F.R.C.P. 12(b)(6), and Request for Same to be Converted to a
Motion for Summary Judgment [filed October 13, 2016; ECF
No. 34]. All parties have submitted briefs, and the
Court finds that oral argument, which the parties did not
request, will not assist in its adjudication of the motion.
Because Plaintiff has not presented evidence demonstrating a
genuine dispute of material fact, the Court recommends that
the district court grant Defendants'
pro se, Plaintiff initiated this case on July 25,
2016. Compl., ECF No. 1. Plaintiff's claims arise from
Defendants' allegedly negligent legal representation.
Id. Specifically, Plaintiff asserts Defendants
allowed the statute of limitations to lapse in her medical
malpractice action without filing suit. Id. at
¶ 34. Additionally, Plaintiff contends Defendants
breached a contract to prosecute Plaintiff's claim.
Id. at ¶¶ 40-43.
responded to the Complaint by filing the present Motion.
Defs.' Mot., ECF No. 34. Defendants argue summary
judgment is proper, because another law firm represented
Plaintiff at the time the statute of limitations on her
medical malpractice claim ran. Id. at 4-6. On
October 17, 2016, this Court issued a Minute Order advising
Plaintiff to file a written response to Defendants'
Motion on or before November 7, 2016. ECF No. 36. After
Plaintiff failed to file a response by the deadline, the
Court held a Status Conference, and extended Plaintiff's
response deadline to November 30, 2016. ECF No. 47. On
Plaintiff's motion, the Court then extended
Plaintiff's deadline to January 6, 2016. ECF No. 51.
Plaintiff again failed to comply with the Court's
extended deadline. Because Defendants support their Motion to
Dismiss with documents outside the pleadings, the Court
issued a Notice of Conversion to Summary Judgment pursuant to
Fed.R.Civ.P. 12(d) on January 11, 2017. ECF No. 53. The Court
permitted the parties to file additional briefing and/or
affidavits on or before January 23, 2017. Id.
January 20, 2017, Plaintiff filed a Response. Pl.'s
Resp., ECF No. 54. Plaintiff argues there are genuine issues
of material fact remaining as to whether Defendants informed
her when they terminated her representation and whether she
was represented by other counsel prior to the expiration of
the statute of limitations. Id. at 3-4. Defendants
filed a Reply on January 23, 2017, which argues that summary
judgment is proper, because Plaintiff does not provide any
affidavits or other evidence to support her contentions.
Defs.' Reply, ECF No. 55.
Findings of Fact
Court makes the following findings of fact viewed in the
light most favorable to Plaintiff, who is the non-moving
party in this matter.
1. On April 4, 2013, Plaintiff retained Defendants to
represent her in a potential medical malpractice claim.
Retainer Agreement, ECF No. 34-3; Aff. of Charles Cortez
¶ 2, ECF No. 34-2.
2. On April 16, 2014, Defendant Richard Dinsmore sent a
letter to Plaintiff, advising her that he is not licensed to
practice law in Colorado and that he no longer represents
her. ECF No. 34-4.
3. On May 27, 2014, Benjamin Silva, an attorney who was
licensed to practice in Colorado, sent a letter to Plaintiff
thanking her for choosing his law firm to represent her. ECF
4. On May 30, 2014, Plaintiff signed a contingent fee
agreement with the Silva Law Firm to represent her in a
medical negligence claim against Lasik Plus. ECF No. 34-6.
5. The two-year statute of limitations for Plaintiff's
medical malpractice claim expired in late-July 2014.
See Compl. ...