Star Broadcasting, Inc. v. Reed Smith LLP, No. 1:2008cv00616 - Document 45 (E.D. Va. 2009)
Court Description: MEMORANDUM OPINION re 25 Motion for Summary Judgment. Signed by District Judge Claude M. Hilton on 2/24/2009. (rban, )
Download PDF
<![CDATA[
IN THE UNITED FOR THE STATES DISTRICT EASTERN DISTRICT COURT OF VIRGINIA Alexandria Division STAR BROADCASTING, ) INCORPORATED, ) ) Plaintiff, ) ) ) V. Civil Action No. 08-0616 ) REED SMITH LIMITED LIABILITY PARTNERSHIP, ) ) ) Defendant. ) MEMORANDUM OPINION This case is before the Court Summary Judgment pursuant Civil to Rule on Defendant's Motion for 56 of the Federal Rules of Procedure. Plaintiff, brought (hereinafter, Star), has this action against Defendant Reed Smith for legal malpractice, agent. Star Broadcasting Inc. breach of fiduciary duty and breach of duty as an Star filed the complaint on June Reed Smith to represent and assist it 13, 2008. Star engaged in negotiating and preparing a licensing agreement in 1999 between Star and the Defense Commissary Agency U.S. Department As that, its in of name 1998 (hereinafter, DeCA), an agency of the Defense. implies, and 1999, DeCA is the operated federal government approximately 300 agency military commissaries were worldwide. located remaining 30 within DeCA with Pursuant that opportunities the it and a seek for DeCA's food were to would 270 continental commissaries United States. determined Approximately other amendment store DeCA's for the customers, the early (hereinafter, RFP) The commissary law, DeCA advertising supplied which generated The shoppers. DeCA to issued identify would the continental vendors for DeCA. products and federal products vendors' 1998, In the to develop approximately $5 billion annually in sales advertisements to worldwide. grocery commissaries States, outside contractors vendors those United located 1997 of a be Request contractors directed to for could who Proposal install, maintain and operate a satellite-based in-store radio broadcast network in all 300 DeCA commissaries worldwide. the contract would announcements and require advertising all of DeCA's commissaries, of the vendors qualifying to cover contractor. percentage of the the radio network provide music, through satellite transmissions to and that it would be the responsibility contractor the The that The RFP stated that to sell contractor's contractor resulting would the costs also advertising advertising and be any to profit required revenue to DeCA's for to the pay a as a DeCA commission. Star was and has formed always been in approximately Star's sole -2- 1992. Pat shareholder, DiPlacido as well is as now its President proposal and CEO. During the spring in response to the RFP. of 1998, Star submitted DeCA then invited Star to make an oral presentation to DeCA staff at DeCA's headquarters in Ft. Virginia. Pat presentation addition to DiPlacido at accepted DeCA's making oral provided written materials On or about proposal to invitation and made on November presentation, to DeCA's February 8, install, the headquarters Star's 1999, maintain Pat 10, Lee, an oral 1998. DiPlacido In also staff. DeCA informed Star that Star's and operate the radio broadcast network in all 300 DeCA commissaries worldwide was acceptable, that DeCA and Star needed to enter into a contract. (then Roberta Hollifield) Officer at DeCA, sent {hereinafter, a model format meant to agreement. initiate Lee headquarters On February (hereinafter, 8, Mr. to finalize 1999, Mahone), Pat the language the DiPlacido the (for Reed Smith) that to assist Star "... DeCA to provide in-store music a Contracting contract, a document drafting process. in final the contract. contacted Reed Glenn Smith's contract. Mahone Pittsburgh assistance in Mr. Mahone was being engaged by Star, in achieving an agreement services." -3- of (and Reed Smith's) understood that he time, Keeter), contract terms a partner of Roberta Keeter 1999 meeting with Star at DeCA's office, and requested Mr. Mahone's negotiating and The strawman agreement was the DeCA also scheduled a February 18, Ft. Ms. Pat DiPlacido a draft referred to as a "strawman" a at with In 1999, Mr. Mahone Smith's Pittsburgh, in the area of and had business a of business a Mahone Smith in Pat services, background, brother, In Reed Smith law, Reed drafting the ownership and radio network. the practice of sought resolve a out Mr. a dispute In late law with Reed Mahone's (and Reed Mahone's radio Star had with Pat DiPlacido had been introduced to Mr. Frank DiPlacido, of Virginia and the ownership at least in part because of Mr. to help that in during the 1980s and including satellite returned to DiPlacido in the radio industry. resolve commercial career, nationwide after Mr. investors. and Prior to that time, 1993, 1991, with Mr. Mahone's practice was primarily radio station in Richmond, operation Smith's) partner Mahone had left Reed Smith and the practice of law pursued commercial and Mr. a PA office. negotiating contracts. early 1990s, was some of its Mahone by his and was aware of Mr. Mahone's background Mr. Mahone was successful in helping Star dispute. addition to calling Mr. Mahone on February 8, 1999, Pat DiPlacido sent him a copy of the strawman agreement on February 9, 1999. 9, Pat DiPlacido also faxed a letter to Mr. 1999. Mahone on February After discussions with Pat DiPlacido and Frank DiPlacido (Pat DiPlacido's brother and Star's Vice-President), prepared a agreement, February final draft which Pat 16, 1999. of Star's DiPlacido In response faxed communications -4- to to Ms. with the DeCA Keeter Mr. Mr. at Mahone Mahone strawman DeCA on between February 9, 1999 and February 16, 1999, the DiPlacido brothers had suggested changing the terms of the November 10, to DeCA, so as to advertising program make the vendors' "mandatory." Yet 1998 presentation participation Pat DiPlacido has in the testified that he knew the DeCA staff would question any such provision. "mandatory" agreement on language that Mr. February 16, did not appear in the "revised The strawman Mahone prepared and Pat DiPlacido faxed to DeCA 1999 because, despite Pat DiPlacido's DiPlacido's initial requests that the word "mandatory" and Frank be included in reference to the cooperative advertising program. After further consultation with Pat DiPlacido and Frank DiPlacido, and with their approval, Mr. Mahone prepared without using the word On February 18, Mr. Mahone met Officer), General Rex 1999, Ft. "revised Lee Pat DiPlacido, with Ms. (hereinafter, for DeCA, the agreement" terms Frank DiPlacido and Keeter Mr. (the DeCA Bragaw), Contracting an assistant and representatives of DeCA's Marketing (also known as the MBU). to discuss strawman "mandatory." Bragaw Counsel Business Unit was in the and language The purpose of the meeting of, and resolve any issues concerning, a final written contract for the radio network project. At the DiPlacido language February requested concerning final contract. 18, 1999 meeting, that DeCA agree the cooperative to Pat DiPlacido insert advertising the and Frank "mandatory" program into the DeCA rejected Star's request that it require its -5- vendors to participate DeCA participants testified that they in Star's at made the February clear, believing that Star understood, enter into a contract "mandatory" and 18, that program. 1999 they meeting all left the have meeting that DeCA could not and would not obligating DeCA to require its vendors to purchase advertising from Star. Pat DiPlacido has acknowledged that he was specifically told by DeCA staff at the February 18, require Star's their vendors to sign 1999 meeting that DeCA would not up for a 1/4 of 1% to work with program. Following the February 18, 1999 meeting, Mr. Mahone and the DiPlacidos continued to revise the strawman agreement. The further revised versions of the agreement were exchanged between Mr. Mahone and Star on or about February 25, 1999, 1999. Thereafter, on March 9, Pat DiPlacido signed the final revision of the agreement and sent it to DeCA. It was executed by DeCA on March 12, 1999. In the License Agreement, Star's advertising and sales goals were targets rather than mandates. The License Agreement called for Star to sell advertising directly to DeCA's vendors, and required DeCA to exercise its best efforts to advertising assist sales Star in program to developing support vendors to advertise on the network. and Star's implementing efforts In particular, to attract DeCA agreed to assist Star in developing and implementing a vendor cooperative -6- an advertising program with a targeted minimum of one-quarter (1) one percent DeCA was the participation rate designated to develop and implement procedures Network program and encourage their for the (1/4) of Network. to inform vendors of full participation in [Network] advertising and promotion opportunities available through Star and the Network. The License Agreement contained a provision that the oral and written presentations of the contractor DeCA RFP included were in incorporated his November contemporaneously into 10, that broadcast on the radio network. DiPlacido representatives either the suggested for also to Star assist oral it requirement on its that vendors In his November 10, the and in his statements advertising Star selling presentation for materials DePlacido and to be In the oral presentation to DeCA, in that DeCA would be Pat presentation sell represented selling advertising Star. would in responding to the contract. oral written representations Pat Star the 1998 submitted (Star) or required Star, that or they had national sales advertising. Nothing the submission to have that written in any responsibility DeCA would purchase impose advertising 1998 presentation to DeCA, any from Pat DiPlacido did not tell the DeCA staff that for the program to work for Star, it had to have DeCA require its vendors to participate in a cooperative advertising program pursuant to a mandatory cooperative advertising agreement. -7- Star began to perform under the License Agreement shortly after the License Agreement was signed by the parties in mid-March 1999. of Star installed its satellite in-store radio system in certain DeCA's commissaries, transaction February for which Mr. 1999 was, until with Star selling (and Reed purposes, Mr. advertising. Smith) complete. was The engaged According in to Reed Mahone did not have any professional concerning the DeCA matter from March 5, 1999 September 2002. In August DeCA began Mahone for all Smith's billing records, contact and was 2002, concerned DeCA contacted Star that Star had and requested a meeting. installed its network in only 90 of DeCA's 270+ commissaries United States, despite the agreed-upon time in-store radio in the continental line in the License Agreement that required Star to complete all the installations by November 2000. of the In addition, installations maintenance problems. agenda item its that DeCA was concerned that a large number had been installed were Star agreed to the meeting, concern that DeCA had not, experiencing and added as an in Star's view, instituted a cooperative advertising program with its vendors. The 2002 meeting took place at DeCA headquarters on September 25, 2002. This was the first time that Star had met with a DeCA Contracting Officer since had been staff. February 18, between Mr. Star Mahone was and 1999. All DeCA's contract neither intervening communications advised -8- of, specialists nor invited or other to, the September 25, At 2002 meeting, the September 25, and he 2 002 did not attend. meeting Star raised the cooperative advertising agreement, issue of a and again attempted to convince DeCA to create a mandatory cooperative advertising program. Edna Hoogewind (hereinafter, Ms. Hoogewind) DeCA's asked Frank DiPlacido if he had a copy of such a document for DeCA to review. He did not. Frank DiPlacido suggested to Ms. Hoogewind that she could find such a form on the internet. A few days after the meeting, sent Frank DiPlacido find such a form, Shortly e-mail to inform him that she could not and again asked him for one. after communication, an Ms. Hoogewind it received Star contacted Mr. Ms. Hoogewind's e-mail Mahone and engaged him to assist Star in creating a cooperative advertising agreement to submit to DeCA. Star language told Mr. Mahone that for such an agreement, DeCA had and asked Mr. conjunction with Frank DiPlacido, requested Mahone, proposed working in to prepare a number of documents as proposals to DeCA to amend the License Agreement and initiate a mandatory program. Those documents DiPlacido, documents well on was Star's a behalf, proposed on were submitted to DeCA by Frank December amendment to the 19, 2002. License Among Agreement, the as as a proposed cooperative advertising agreement. On June 18, contract, 2003 the new DeCA contracting officer for the Star Doreen Cadigan (hereinafter, Ms. Cadigan) wrote a letter to Pat DiPlacido, rejecting Star's proposed cooperative advertising -9- agreement Ms. and the Cadigan's with the proposed letter explained that other cooperative documents, require advertising program, to License Agreement. the proposed amendment, obligate agreement its the DeCA with vendors to to its enter along into vendors participate in a and, Star's something that DeCA had consistently said it do. Shortly Cadigan, would advertising necessarily, would not amendment after receiving the June 18, Pat DiPlacido consulted with Mr. potential decision responses. that Star network broadcasts Thereafter, would Pat continue 2003 Mahone letter to DeCA commissaries, the while Ms. regarding Star's DiPlacido made providing from the business in-store radio continuing to sell advertising to DeCA vendors as it had since shortly after March 12, 1999. By letter dated June agreed with DeCA's known that DeCA reading could not 27, of 2003, Star the License enter into a informed DeCA that Agreement; mandatory cooperative advertising program language; it had containing contract that it the and that Star would continue to operate the system and sell its own advertising. Pat DiPlacido policy of No has Star at written executed by Star acknowledged that the letter represented DeCA. to the License Instead, Star Agreement performed was five year term of the contract. -10- Not only did ever under the 2005, the License Agreement from December 2000 through December 31, full the time. amendment and that Star continue operating the network after receiving Ms. letter, but it operating under, did so under to wit: the Cadigan's same terms June 18, 2003 it had been that that Star would be responsible for selling its advertisements to the vendors. Pat DiPlacido testified that he continued the relationship because he still thought that Star could make a profit. At the end of DeCA did not terminate Star, License Agreement Following Ms. Mr. Mahone the initial term of the but rather decided not contract, to extend the thereafter. Cadigan's June 2003 denial, regarding contract action was its options. He Star conferred with indicated to Star best brought after expiration of that any the contract term. After the contract was terminated, matter to his Litigation Department. Thomas and Kurt Ferstl, Mr. Mahone referred the After meeting with Alexander Reed Smith concluded that Star did have a valid breach of contract claim based on the government's failure to proceed with the CAP. contract on January 27, Summary judgment Reed 2 006, under Smith sent February 24, Rule 56(c) e-mails 2006 of the regarding and March 1, Federal the 2006. Rules of Civil Procedure may only be granted if the moving party shows that there is no genuine issue of material fact and that it is entitled to a judgment as a matter of law. Anderson v. 477 U.S. There 242 (1986); are no genuine Celotex Corp. issues v. Catrett. of material -11- fact Liberty Lobby. 477 U.S. 317 Inc.. (1987). in dispute and this case is ripe for Star's summary judgment. contentions -related to alleged transactional malpractice in February and March 1999 and alleged negligent advice in June and December 2003 a. did not have the include allegations legal that Mr. Mahone: knowledge to represent Star in its relationship with DeCA; b. failed to appropriately involve Reed Smith's government contracts attorneys; c. did not do the legal work at the time to determine whether the contract he negotiated for Star was enforceable; d. failed to represent Star competently when he recommended that Star sign a contract with an undefined material term that Mr. e. Mahone admitted he did not understand; improperly failed to consider FAR Part under federal contracting law at 50 or other relief the time DeCA refused to go forward with the Cooperative Advertising Agreement 2003] or at the time of the Pinpoint decision; [June of f. misinformed Star as to its prospects of increasing damages by going forward and Reed Smith's willingness to represent Star against the government. This action was filed on June 13, most of his legal work for Star in trip to Virginia on February 18, 2008. Pittsburgh, they sit. (1941). The federal courts Klaxon Co. V. "settled rule" Mahone performed PA. He made one 1999 when he and the DiPlacidos met with DeCA's staff for several hours. law matters, Mr. In deciding conflict of look to the law of Stentor Elec. Mfg. in Virginia is that the state in which Co.. 313 U.S. 487 "the lex loci will govern as to all matters going to the basis of the right of action itself, is while the lex fori controls all -12- that connected merely with the remedy." Maryland v. See also McMillan v. R.S. Jones Assocs. McMillan. Inc.. Stanley Martin Cos.. limitation are Coard. 431 Inc.. S.E.2d 454, 253 S.E.2d 662 S.E.2d 585 generally 9 33 considered (Va. (Va. 1979); 1993); (Va. S.E.2d 567 458 and (Va. 2003). procedural, Jones v. Hansen v. Statutes unless limitation is part of the same law that creates the right, in wrongful death cases. Jones, statute of limitations 431 S.E.2d 34-36. 1940). of the such as Thus, Virginia's should apply. Virginia treats legal malpractice as a breach of contract for purposes of applying its statute of limitations. v. Kerr that the statute of limitations applicable contract governs actions for legal malpractice, may sound in tort, because .would have existed.'" 721 (Va. 1976)). 1988) ' [b]ut (citing Olevar v. Star claims for MacLellan v. See also Cox v. "We held in Oleyar Geary. the to breaches of although the action contract Throckmorton. Kerr. 225 (Va. it had an unwritten contract duty . . 367 S.E.2d 720, S.E.2d 624 S.E.2d 16 no 398, 399 (Va. 2006). with Reed Smith to provide legal services. The statute of limitations in Virginia for unwritten contracts is three years. Va. Code "Statutes of limitation are statutes of repose, ยง 8.01-246(4). the object of which is to compel the exercise of a right of action within a reasonable time. They are designed to suppress fraudulent from being asserted after a great lapse of time, the parties, when the evidence may have been -13- and stale claims to the surprise of lost, the facts may have become obscure have died or disappeared." Corp.. 517, because 39 S.E.2d 272, 519 (Va. 277 of defective Street v. (Va. 1946), memory, or the witnesses Consumers Mining Truman v. Spivev. 302 S.E.2d 1983) . Under Virginia law the statute of limitations begins to run in legal malpractice this case, cases when the alleged malpractice occurs. In that date is March 1999 as to the alleged transactional malpractice, and in June In Keller v. Denny, 2003 as to the alleged negligent advice. the Virginia Supreme Court stated: Accordingly we hold that when malpractice is claimed to have occurred during the representation of a client by an attorney with respect to a particular undertaking or transaction, the breach of contract or duty occurs and the statute of limitations begins to run when the attorney's services rendered in connection with that particular undertaking or transaction have terminated, notwithstanding the continuation of a general attorneyclient relationship, and irrespective of the attorney's work on other undertakings or transactions for the same client. Keller v. stated Denny. that: isolated 352 S.E.2d 327, "When act, Code the 330 (Va. 1987). alleged malpractice 8.01-230 now dictates The Court further consists of that the limitations begins to run when that act is performed, the time of its discovery." 593 S.E.2d 319, The Supreme 322 (Va. Court Id. at 331. a single, statute of regardless of See also Shipman v. Kruck. 2004). of Virginia has also established that "Continuous Representation malpractice. Shipman v. Rule" Kruck. applies 593 -14- to S.E.2d allegations 319, 324 of (Va. the legal 2004); Keller v. Penny. 352 S.E.2d 327, 330-31 (Va. 1987). As stated in Shipman: When malpractice is claimed to have occurred during the representation of a client by an attorney with respect to a particular undertaking contract or duty occurs begins to run when connection with transaction have Id^ at 324 or and transaction, the statute the of breach of limitations the attorney's services rendered in that particular undertaking or terminated. (quoting Keller. 352 S.E.2d at 330). Such a result "is particularly appropriate to an attorney-client agreement in view of the confidence and trust 352 S.E.2d at 331 (Va. inherent in that relationship." (quoting McCormick v. Romans. Keller. 198 S.E.2d 651, 655 1973)). Application of the continuous representation rule to the present matter shows that the statute of limitations did not begin to run until on or about April 11, 2006, when Reed Smith ceased providing advice to Star on the DeCA matter. Mr. Mahone negotiated and drafted the Licensing Agreement on behalf of Star, which was executed in March 1999. Mr. Mahone, was then called on to give attention to the matter until at least April 11, 2006. Pat DiPlacido concerning the take. DeCA format In June of as called communicated with Mr. a sales 2001 for in agreement under regarding Star's the Mahone in April of 1999 licensing the contract would need to obtain data from agreement and Mr. Mahone suggested language for Star to use in its correspondence to DeCA on -15- that matter. In conversation February about 2002, problems Star Pat was DiPlacido having had with a telephone DeCA under the agreement. Mr. Mahone was called in September of preparation program. of That documents process needed for 2002 implementation continued until December drafts were forwarded to DeCA for approval. DeCA rejected the December, to assist with the 2002 proposal, of of 2002 the CAP when the In June of 2003, after Star consulted with Mr. Mahone regarding the appropriate response and Star's options in the face of DeCA's denial. These discussions continued into 2006 when Star met with Alexander Thomas and Kurt Ferstl concerning potential remedies that might be available. Reed recurring services course of professional Smith's concerning transaction did not end until at least April 11, case was timely continuing 2006. and the DeCA Thus, this filed. Star must prove each of the elements of legal malpractice, must offer expert of its testimony with respect and to the causation element claim. Star has engaged three expert witnesses. testify as to ethics, government An expert's "Unless a Rigsby to L. James D'Agostino, Esquire to testify as to contracts, rebuttal witness as Michael L. and Charles Selcer, CPA, to testify as a to damages. testimony on causation [professional] is required in this case. malpractice case turns upon matters within -16- the common knowledge of to establish care, i.e. . . . Seaward S.E.2d 283, omitted) that negligence] damages." 287 . . expert testimony is required a deviation [from the the was proximate cause of Inc. 1990) Raines . such Int'l. (Va. (citing laymen et al. v. Price standard the of claimed Waterhouse. 391 (accounting malpractice case)(citations v. Lutz. (medical malpractice case). 341 S.E.2d 194, 196 (Va. 1986) In legal malpractice cases the rule is the same. As the Supreme Court reiterated in Gregory v. Hawkins, it is elements of the general rule liability "clearly knowledge and that unless lies experience," damages. that duty was Gregory v. Hawkins. also Heyward & Lee Constr. (Va. range expert establish the existence of a duty, the breach of evidence the within the Co.. of the the testimony jury's is common required to the breach of that duty and that a proximate 468 of cause S.E.2d 891, Inc. v. of 893 Sands. the plaintiff's (Va. 1996). See 453 S.E.2d 270, 272 states that it expresses "no 1995). Mr. D'Agostino's expert report opinion on the contract negotiation, representation of STAR, or any of the facts or Specifically, we are we able to, circumstances regarding that formation. [Mr. D'Agostino or Greenberg Traurig] did not, nor render any opinion between STAR and Reed Smith LLP." only contract "DeCA did exercise the Agreement ..." its regarding Instead, "best Mr. efforts" the relationship D'Agostino opines to perform under Mr. D'Agostino makes no effort to, -17- and makes no claim to be able to, opine on the proximate cause of the damages alleged by Star. Mr. Rigsby's causation in this representation reasonable There is expert report matter. of Star, standard of His provides opinions through care Mr. required no other opinion expressed. no opinion are that Mahone, of a Mr. addresses Star would whether or have not suffered Mr. legal proximately caused any damage Mr. Rigsby's opinion Smith's below the practitioner." Rigsby never expresses Mahone's alleged damages. Mahone's Reed "fell any opinion with respect to whether "but for" Mr. negligence, concerning Mr. alleged Rigsby never "deficiencies" to Star at all. is that, government contracts group, Mr. government contracts lawyer. He because Mahone has what would or should have happened no Reed should has a consulted have opinion if Mr. Smith a whatsoever to so. Mahone had done as He does not offer any causation opinion. Mr. witness Selcer is a CPA who was to rebut expert Jimmy J. and Star's Star's the Jackson. annual schedule proposed of Mr. testimony network expenses damages, the materials provided, of Reed Selcer reviewed Mr. and expenses for 1999 through 2006. or testing of identified by Star as a Mr. chart Star from Smith's damages Jackson's report 1999 schedule a rebuttal of through 2000, revenues and Selcer has not audited any of nor has he performed any other verification the information supplied to him by Star. -18- According to his report, registers, he has checks, expense charts, expenses. Mr. also not invoices, reviewed of the necessary etc.) any to compile schedules of damages, data (check network or schedules of revenues and Selcer has merely taken amounts, charts and schedules provided to him by Pat DiPlacido and mechanically reproduced them in his report. Mr. Mr. Selcer purports to address causation in this matter, yet Selcer's credentials provide no basis whatsoever for an opinion on causation. Not only does he have no qualifications concerning causation, to testify but he based his assumption of causation exclusively on Pat DiPlacido's statement to him to the effect that Star relied on Reed Smith's advice and would not have entered into the License Agreement except for that advice, and that Star was damaged in the amounts set forth in the charts and schedules Star provided to Mr. expert told him, Such evidence is such causation. without He any expert merely parrots analysis what Pat or preparation. inadmissable and surely insufficient has identified witness, but produce at trial, respect Selcer is unqualified to provide an to survive j udgment. Star expert Mr. opinion concerning DiPlacido summary Selcer. to has two expert not identified, any expert witness, the causation issue. qualified witnesses witness with Since respect -19- and and one therefore or expert evidence, Star has to rebuttal not cannot with identified any causation, it cannot establish proximate establish that cause "but for" for Star's alleged damages, Mr. Mahone's negligence nor can it Star would not have been damaged. Star business because must loss it satisfy was is clear burden of showing fact in its caused by Reed that a lawyer may that Smith's be too causal made a Star has failed under any set of circumstances, must offer expert testimony applicable standard of care in this case, standard by Reed Smith. transactional negotiation, Star negligence, establish the link. Star that alleged easily scapegoat for business misjudgments by his client. to show that it can, its either issues, are not This with respect and the alleged breach of case involves and the expert witnesses qualified to to the address the a complex identified by standard of care or have declined to provide such standard of care opinions in their respective expert witness reports. Neither Mr. addresses the breach of that Mr. standard of reasonable of report Star, standard of report care standard of Rigsby's representation Mr. Selcer's nor that Mr. applies D'Agostino's in this case, to consult or any care. broadly through asserts Mr. that Mahone, Reed fell Smith's below the care required of a legal practitioner. Rigsby's opinions are based on what he regards as Mr. failure report with any of his -20- law partners or Mahone's associates within the government practice group and did not present the Agreement to any of his colleagues in the government practice group for counsel. Mr. the Rigsby's Rules of obligations not opine of as government opinion is Professional "competence" to the contracts no expertise limited to Conduct, found in commercial most in Rule competence lawyer. issues Mr. of a opinion contracts group government Mr. turns, on one and contracts Rigsby Mr. that and get no or Rigsby acknowledged that he has Mahone's folks offers Rigsby does contracts or government contracts fact: the commercial and limits his opinion only to his area of interest: His to do with particularly 1.1. required Mr. having legal ethics. Reed Smith has obligation is a government to contact their advice on the evidence that Mr. law, the situation. Mahone's alleged failure caused any harm and does not provide any opinion concerning the care appropriate for contracts Mr. the an standard of attorney care practicing or a breach of in commercial that law or standard of government law. Rigsby has admitted his lack of qualifications to address standard of care and breach issues, stating that his only opinion in this case concerns a general standard of care rooted in the Rules of Professional Conduct. He acknowledges that he cannot opine on a specific standard of care or a breach of that standard of care for an attorney practicing in commercial law or government -21- contracts law. In addition, Mr. Rigsby admits that he did not consult with a government contracts lawyer to determine whether the Star/DeCA referred License to such Agreement a raised specialist. Mr. issues Rigsby that has needed be experience no to or training in commercial law or government contracts law and has not consulted with any government contracts lawyer, testimony as expert evidence concerning the the breach government of that contracts standard, lawyer in for this a and cannot provide standard of care, commercial lawyer or or a situation. The Rules of Professional Conduct make clear in their Preamble that " [v] iolation of a Rule should not give rise to a cause of action nor should it create any presumption that a legal duty has been breached." liability "They ..." are Thus, not Mr. designed Rigsby's Professional Conduct required Mr. contracts lawyer cannot, by to be opinion a basis that the for civil Rules of Mahone to consult a government itself, establish a claim witnesses and of legal malpractice. Star expert has identified witness, produce at respect to standard establish trial, the issues Since but the has any two not expert applicable expert identified, witness, standard or of and rebuttal therefore expert care one or cannot evidence, breach with of the herein. Plaintiff causation or cannot standard produce of -22- care evidence elements at of trial its to case, summary judgment must be granted. An appropriate Order shall issue. /s/ Claude M. Hilton United States District Judge Alexandria, Virginia February 2^ , 2009 -23-
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
