United States District Court, D. Colorado
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.
A. BRIMMER UNITED STATES DISTRICT JUDGE
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,
The Court has subject-matter jurisdiction pursuant to 28
U.S.C. § 1332(a).
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.
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.
Plaintiff's Failure to File a Certificate of Review
Within Sixty Days
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).
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
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. 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.
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).
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,
§ 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 ...