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Hanson v. Bosley and Bratch, Inc.

United States District Court, D. Colorado

September 18, 2018

DAVID H. HANSON, Plaintiff,
BOSLEY AND BRATCH, INC., doing business as Bosley and Bratch, BOSLEY AND BRATCH, P.C., doing business as Bosley and Bratch, RALPH JUDSON BRATCH, in his individual capacity and as an Attorney at Law, Registered Agent doing business as Bosley and Bratch, THEODORE JARVI, in his individual capacity and as an Attorney at Law, Jarvi and Bratch, Inc., P.C. and Bosley and Bratch, Inc., and Bosley and Bratch (Trade Name), and RICHARD PALMATIER, JR., Attorney at Law, Arizona Registered Agent and Plaintiff Representative, Defendants.



         This matter is before the Court on Bosley and Bratch Defendants' Motion to Dismiss for Failure to File Certificate of Review and for Improper Venue [Docket No. 43] filed by defendants Bosley and Bratch, Inc., Bosley and Bratch, P.C., Ralph Judson Bratch, and Richard Palmatier, Jr.[1] The Court has subject-matter jurisdiction pursuant to 28 U.S.C. § 1332(a).

         I. BACKGROUND[2]

         This is a legal malpractice action. Plaintiff David H. Hanson retained the defendants to represent him in his application for benefits from the Veterans' Administration. Docket No. 27 at 3, ¶¶ 13-14. Plaintiff alleges that, in December 2016, defendants notified plaintiff that they had missed a critical deadline resulting in the closure of his benefits claim. Id., ¶ 15.

         On June 19, 2017, plaintiff, acting pro se, filed a complaint against defendants. Docket No. 1. On November 14, 2017, plaintiff, now represented by counsel, filed an amended complaint alleging professional negligence. Docket No. 27. On January 9, 2018, defendants filed their motion to dismiss. Docket No. 43.

         II. ANALYSIS

         A. Plaintiff's Failure to File a Certificate of Review Within Sixty Days

         Defendants argue that this case must be dismissed because plaintiff did not file the certificate of review within sixty days after service of the complaint as required by Colo. Rev. Stat. § 13-20-602(1)(a). Docket No. 43-1 at 7. Under Colo. Rev. Stat. § 13-20-602, in an action for damages based upon alleged professional negligence, “the plaintiff's . . . attorney shall file with the court a certificate of review for each . . . licensed professional named as a party . . . within sixty days after the service of the complaint.” The certificate of review must declare that the attorney for the plaintiff “has consulted a person who has expertise in the area of the alleged negligent conduct” and that the consulted professional has concluded, based on the review of known facts, “that the filing of the claim . . . does not lack substantial justification.” See Colo. Rev. Stat. § 13-20-602(3)(a). The Colorado Supreme Court has clarified that “the certificate of review is required only with respect to those claims of professional negligence which require the plaintiff to establish a prima facie case by means of expert testimony.” Martinez v. Badis, 842 P.2d 245, 249 (Colo. 1992).

         Plaintiff argues that he can establish a prima facie case of legal malpractice without expert testimony. Docket No. 44 at 3. In particular, plaintiff argues that an “average juror is not in need of specialized or technical knowledge to know that an attorney is required to file documents by the required deadline.” Id.; see also Gerrity Oil & Gas Corp. v. Magness, 946 P.2d 913, 929 (Colo. 1997), as modified on denial of reh'g (Oct. 20, 1997) (“[E]xpert testimony is required in negligence cases when the defendant is held to a standard of care that is outside the common knowledge and experience of ordinary persons.”).

         In their initial brief, defendants accept the facts as pleaded and argue that expert testimony is nonetheless required. Docket No. 43-1 at 6. But in their reply, defendants change tack and argue that plaintiff “can only be relying on a March 21, 2017 Rating Decision” for plaintiff's veterans' benefits claim that states that certain documents “were not submitted timely, ” which defendants claim is “simply erroneous.” Docket No. 51 at 3.[3] The Court disregards this reply argument for two reasons. First, defendants do not request that the Court convert their request for dismissal under Fed.R.Civ.P. 12(b)(6) based on failure to file a certificate of review into a motion for summary judgment, and the Court declines to do so. See Docket No. 43-1 at 3. Therefore, the Court must disregard “matters outside the pleadings” in deciding this issue . See Fed. R. Civ. P. 12(d). Second, defendants presented the argument for the first time in their reply.

         While defendants may ultimately prove correct about the facts, the Court must accept plaintiff's well-pleaded factual allegations as true for the purposes of deciding defendants' motion to dismiss insofar at it is based on Fed.R.Civ.P. 12(b)(6). Miller v. Glanz, 948 F.2d 1562, 1565 (10th Cir. 1991) (citing Curtis Ambulance of Fla., Inc. v. Board of County Comm'rs, 811 F.2d 1371, 1374 (10th Cir. 1987)). Here plaintiff alleges that, in December 2016, defendants admitted to him that “they had missed a critical deadline in his [veterans' benefits] case resulting in the closure of [his] claim.” Docket No. 27 at 3, ¶ 15. The Court agrees with plaintiff that the relevant standard of care in such an instance is not outside the experience of ordinary persons because it is well known that attorneys should exercise due care not to miss critical deadlines that could result in the loss of their clients' claims. See O'Neil v. Bergan, 452 A.2d 337, 342 (D.C.1982) (“The kind of care and skill that can be found within the jury's common knowledge may include typical failures to act; for example, allowing the statute of limitations to run on the client's claim or permitting entry of a default against the client.” (citations omitted)); Allyn v. McDonald, 910 P.2d 263, 266 (Nev. 1996) (“The situation whereby an attorney has allowed the statute of limitations to run against his or her client's cause of action is an example of the sort of negligence so apparent as to make expert evidence as to the standard of care and deviation therefrom unnecessary.”); George v. Caton, 600 P.2d 822, 829 (N.M. Ct. App. 1979) (“It does not require expert testimony to establish the negligence of an attorney who is ignorant of the applicable statute of limitations or who sits idly by and causes the client to lose the value of his claim for relief.”). Accordingly, the Court finds that expert testimony is not required for plaintiff to state a prima facie case that defendants breached the relevant standard of care and that plaintiff was not required to file a certificate of review. Shelton v. Penrose/St. Francis Healthcare Sys., 984 P.2d 623, 626 (Colo. 1999) (citing Martinez, 842 P.2d at 251).

         B. Improper Venue

         Defendants also move to dismiss on the basis of improper venue. Docket No. 43-1 at 8. Defendants argue that the allegations in the amended complaint do not show that a “substantial part of the events or omissions giving rise to the claim occurred” in this district as required by 28 U.S.C. § 1391(b)(2). Docket No. 43-1 at 10. Plaintiff's response states that “venue is proper in this Court based on the contract that was executed within the State of Colorado, ” but, rather than addressing venue, plaintiff incongruously argues that this district has personal jurisdiction over defendants. Docket No. 44 at 1, 6-9.[4]

         Under § 1391(b)(2), venue is not limited to the district where the majority of the events or omissions occurred. Rather, § 1391(b)(2) “contemplates that venue can be appropriate in more than one district . . . [and] permits venue in multiple judicial districts as long as a substantial part of the underlying events took place in those districts.” Emp'rs Mut. Cas. Co. v. Bartile Roofs, Inc., 618 F.3d 1153, 1166 (10th Cir. 2010) (“Bartile”) (applying prior version of § 1391) (quoting Gulf Ins. Co. v. Glasbrenner, 417 F.3d 353, 356 (2d Cir. 2005)). Once venue is challenged, it is the plaintiff's burden to show that venue is proper in the forum district. See Gwynn v. TransCor Am., Inc., 26 F.Supp.2d 1256, 1261 (D. Colo. 1998); 5B Charles Alan W right et al., Federal Practice & Procedure § 1352 (3d ed. 2015) (noting that imposing burden on plaintiff “seems correct inasmuch as it is the plaintiff's obligation to institute his action in a permissible forum, both in terms of jurisdiction and venue”). The Court conducts a “two-part analysis when reviewing challenges to venue under § 1391(a)(2).” Bartile, 618 F.3d at 1166. First, the Court ...

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