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Lejeune v. Dinsmore

United States District Court, D. Colorado

January 27, 2017

CHARLESA LEJEUNE, Plaintiff,
v.
RICHARD J. DINSMORE, RICHARD J. DINSMORE, P.C., and HUNEGS, LENEAVE & KVAS, P.A., Defendants.

          RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          Michael E. Hegarty, United States Magistrate Judge.

         Before 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' Motion.[1]

         BACKGROUND

         I. Procedural History

         Proceeding 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.

         Defendants 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.

         On 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.

         II. Findings of Fact

         The 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 No. 34-5.
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. ...

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