Travelers Property Casualty Company of America et al v. Bossier et al, No. 2:2014cv02176 - Document 225 (E.D. La. 2016)

Court Description: ORDER AND REASONS RE 111 Motion for Summary Judgment-IT IS ORDERED that Blue Williams motion for summary judgment is GRANTED and the instant action is DISMISSED WITH PREJUDICE. IT IS FURTHER ORDERED that Blue Williams second motion for summary jud gment is DENIED AS MOOT. IT IS FURTHER ORDERED that all pending motions in limine are DISMISSED AS MOOT. IT IS FURTHER ORDERED that the pending motion to seal is DISMISSED AS MOOT. IT IS FURTHER ORDERED that the parties motions for leave to file supplemental and amended exhibit lists are DISMISSED AS MOOT. Signed by Judge Susie Morgan on 7/26/16. (cg)

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Travelers Property Casualty Company of America et al v. Bossier et al Doc. 225 U N ITED S TATES D ISTRICT COU RT EASTERN D ISTRICT OF LOU ISIAN A TRAVELERS PROPERTY CASU ALTY COMPAN Y OF AMERICA, ET AL., Pla in tiffs , CIVIL ACTION VERSU S N o . 14 -2 176 BRIAN C. BOSSIER, ET AL., D e fe n d an ts , SECTION “E”( 5) ORD ER AN D REAS ON S Before the Court is the “Motion for Sum m ary J udgm ent,”1 as well as the “Secon d Motion for Sum m ary J udgm ent”2 filed by Defendants, Blue William s, LLC, Richard L. Olivier, and Brian C. Bossier (collectively “Blue William s”). 3 Plaintiffs, Travelers Property Casualty Com pany of Am erica and St. Paul Fire & Marine Insurance Com pany (collectively “Travelers”) tim ely opposed both m otions. 4 The Court granted Blue William s leave to file two supplem ental m em oranda supporting its first sum m ary judgm ent m otion. 5 The Court also granted Travelers leave to file two supplem ental m em oranda in opposition. 6 On J une 6, 20 16, the deadline for supplem ental briefing on the first m otion for sum m ary judgm ent, Blue William s filed its second m otion for sum m ary judgm ent. 7 Finding Blue William s’ argum ent in its second m otion for sum m ary judgm ent to be closely related to an argum ent raised in its first, the Court expedited the subm ission date 1 R. Doc. 111. R. Doc. 171. 3 There are several other pen ding m otion s, which, for the reasons stated herein, the Court will dispose of as m oot. 4 R. Doc. 117 & 196. 5 R. Docs. 134 & 174. 6 R. Docs. 152, &173. 7 R. Docs. 158 & 171. 2 1 Dockets.Justia.com for the second m otion and set both m otions for oral argum ent on J une 15, 20 16. 8 The Court advised the parties they would be free to request leave to file post-hearing m em oranda following oral argum ent, if appropriate. 9 At oral argum ent, the Court advised the parties that it did n ot view Blue William s’ second m otion for sum m ary judgm ent as a proper m otion for sum m ary judgm ent, but instead as a supplem ental m em orandum elaborating on an argum ent raised in the first m otion for sum m ary judgm ent. Neither party sought leave to file a post-hearing m em orandum after oral argum ent. 10 The Court now rules on Blue William s’ first m otion for sum m ary judgm ent; however, in so doing considers the argum ents raised in Blue William s’ second m otion for sum m ary judgm ent. Upon consideration of the argum ents of the parties, the record, and the applicable law, the Court grants Blue William s’ first m otion for sum m ary judgm ent and dism isses the instant action with prejudice. I. Backgro u n d This is a legal m alpractice action, arising out of a group of consolidated state-court personal injury cases (“the Marable litigation”). 11 In the Marable litigation, a group of plaintiffs (“the Marables”) sought recovery for severe personal injuries related to a May 20 12 sem i-tractor trailer truck accident. 12 Travelers hired Blue William s in Novem ber 20 12 to represent two of its insured (collectively referred to as “Em pire”), defendants in the Marable litigation. 13 The Marables alleged that Em pire had recently perform ed service 8 R. Doc. 176. R. Doc. 194. 10 The Court notes that the originally noticed subm ission date on Blue William s’ second m otion for sum m ary judgm ent has passed and that, while Travelers has sought leave to am end its witness and exhibit list, Travelers has not sought leave to file a post-hearin g m em orandum . See R. Doc. 171-5. 11 R. Doc. 111-1; R. Doc. 117-2. 12 Id. “[Mrs.] Marable was run over by her husband’s sem i-tractor trailer truck in a Lowe’s parking lot in New Orleans East.” Id. 13 Id. 9 2 and repair work on the truck and failed to properly diagnose or repair the truck. 14 Em pire had perform ed the work on the truck under a service ticket containing an arbitration clause. 15 On Septem ber 19, 20 13, the state-court judge presiding over the Marable litigation, J udge Griffin, entered a scheduling order detailing certain pretrial deadlin es and setting the trial for February 3, 20 14. 16 The order stated that “[a]ll discovery is to be com pleted on or before J anuary 3, 20 14,” though the parties do not apparently dispute that the “agreed discovery deadline” was actually J anuary 6, 20 14. 17 Under a heading titled “Witnesses,” the order also provided “Expert reports: See LA. CCP Article. 1425 (c).”18 Louisiana Code of Civil Procedure Article 1425(C) reads: If the court orders the disclosures of Paragraph B of this Article, they shall be m ade at the tim es and in the sequence directed by the court. In the absence of directions from the court or stipulation by the parties, the disclosures ordered pursuant to Paragraph B of this Article shall be m ade at least nin ety days before the trial date or, if the evidence is intended solely to contradict or rebut evidence on the sam e subject m atter identified by another party under Paragraph B of this Article, within thirty days after the disclosure m ade by the other party. The parties shall supplem ent these disclosures when required by Article 1428. Paragraph B of Article 1425 reads: Upon contradictory m otion of any party or on the court's own m otion, an order m ay be entered requiring that each party that has retained or specially em ployed a person to provide expert testim ony in the case or whose duties as an em ployee of the party regularly involve giving expert testim ony provide a written report prepared and signed by the witness. The report shall contain a com plete statem ent of all opinions to be expressed and the basis and reasons therefor and the data or other inform ation 14 Id.; see also R. Doc. 37 at 6. R. Doc. 117-33 at 3. 16 R. Doc. 111-1; R. Doc. 117-2; R. Doc. 111-6. This appears to have been the second schedulin g order entered in the case. See R. Doc. 117-4. The first scheduling order appears to have had the sam e expert witness language as the Septem ber 19, 20 13, order. Id. 17 Id. at 3; R. Doc. 117-2 at 4. 18 R. Doc. 111-6 at 2. Although the parties refer to the subsection of the article as “1425(c),” in reality the correct citation is 1425(C). 15 3 considered by the witness in form ing the opinions. The parties, upon agreem ent, or if ordered by the court, shall include in the report any or all of the following: exhibits to be used as a sum m ary of or support for the opinions; the qualifications of the witness, including a list of all publications authored by the witness within the preceding ten years; the com pen sation to be paid for the study and testim ony; a listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years. The state-court scheduling order contained no discussion of expert reports beyon d the unelaborated referen ce to Article 1425(C). 19 On Decem ber 9, 20 13, Em pire, through Blue William s, filed a m otion to continue the trial date. 20 In the m otion, Blue William s argued that discovery was ongoing an d could not be com pleted in tim e for trial. 21 Blue William s further asserted that num erous experts would be necessary and contended that the Marables had failed to tim ely produce three of their expert reports. 22 Blue William s argued that the Marables’ failure to tim ely produce the reports was “in direct contradiction of the Court’s Pre-Trial Order, and as m andated by law – Civil Code of Procedure Article 1425 (c) which requires their production no later than ninety (90 ) days prior to trial [, Novem ber 3, 20 13].”23 At a hearing on the m otion to continue on J anuary 10 , 20 14, J udge Griffin stated, “I’m not inclined to continue the trial. I will however ask that the lawyers be prepared to participate in a status conference . . . so that I can find out where you are at that point.”24 J udge Griffin later stated, “I’m not saying that you guys have run into issues and problem s throughout the course of this, I have som e concerns, but I’m not inclined to continue it at 19 See generally R. Doc. 111-6. R. Docs. 111-1 & 117-2; R. Doc. 111-8. 21 R. Doc. 111-8 . 22 Id. 23 Id. at 6. 24 R. Doc. 111-11 at 13. 20 4 this juncture.”25 J udge Griffin set a status conference for J anuary 24, 20 16. 26 Also on J anuary 10 , 20 14, Travelers requested from Blue William s a trial evaluation report. 27 On J anuary 13, 20 14, the Marables produced a “supplem ental Life Care Plan,” increasing their stated value of care for the severely injured Marable plaintiff from $ 5.6 m illion to $ 20 m illion. 28 That day, Blue William s produced the requested trial evaluation report, which recom m ended that Travelers attem pt to settle the case for between $ 6 m illion and $ 7 m illion, but noted that it did “not contem plate plaintiffs’ am ended Life Care Plan received today.”29 The parties dispute the date the Marables produced the Miller Report to Blue William s, with Blue William s citing to eviden ce in dicating that it did not receive a version of the Miller Report with all attachm ents until Decem ber 12, 20 13, 30 and Travelers citing to evidence in dicating that Blue William s had possession of at least the body of the Miller Report no later than October 23, 20 13. 31 The parties apparently agree that on J anuary 13, 20 14, Blue William s produced to the Marables three expert rebuttal reports by J ohn Cunag, Peter Sullivan, and J ack Wentzell (the “Em pire rebuttal reports”) to a Marables liability expert report written by Charlie Miller (“the Miller Report”). 32 25 Id. at 14. Id. at 14– 16. 27 R. Docs. 111-1 & 117-2. 28 Id. 29 R. Docs. 111-1 & 117-2; R. Doc. 111-14 at 12. 30 R. Doc. 117-9 at 68– 70 ; R. Doc. 117-18. 31 R. Doc. 117-39 (version of Miller Report in possession of Blue William s counsel on October 23, 20 13). 32 See R. Docs. 117 at 10 & 134 at 5; R. Doc. 117-20 ; R. Doc. 111-25 at 2. 26 5 One day later on J anuary 14, 20 14, Travelers term inated Blue William s and soon after hired replacem ent counsel for Em pire. 33 On J anuary 20 , 20 14, the Marables and Em pire, through replacem ent counsel, scheduled a m ediation for J anuary 27, 20 14. 34 On J anuary 24, 20 14, J udge Griffin, in an open court proceeding, granted m otions for sum m ary judgm ent dism issing the two other corporate defendants in the Marable litigation. 35 At that sam e proceeding, counsel for the Marables advised J udge Griffin that they would file an expedited m otion to strike Travelers’36 liability experts because their rebuttal reports were untim ely produced. 37 The next day, Em pire’s replacem ent counsel produced a m em orandum to a representative of Travelers expressin g their opinion that Blue William s received the Miller Report in August 20 13, that the 30 -day rebuttal deadline of Article 1425(C) applied, and that Blue William s untim ely produced the Em pire rebuttal reports to the Miller Report on J anuary 13, 20 16. 38 On J anuary 27, 20 14, the scheduled m ediation occurred an d Travelers agreed to settle the Marable litigation for $ 13,750 ,0 0 0 . 39 The Marables’ m otion to strike the three experts had been set for hearing on J anuary 28, 20 14, but was never heard or decided. 40 Travelers filed the instant suit on Septem ber 22, 20 14, alleging that Blue William s com m itted legal m alpractice by failing to tim ely subm it expert rebuttal reports and that 33 R. Docs. 111-1 & 117-2. It does not appear on the record that Travelers decision to term inate Blue William s was m otivated by Blue William s’ production of the Em pire rebuttal reports or the Marables’ m otion to strike experts for untim ely production of reports discussed in the paragraphs below. 34 Id. 35 Id.; R. Doc. 111-21. 36 The Court acknowledges that, at this point in the Marable litigation, the witn esses were actually Em pire’s; however, the Court refers to the experts as belon g to Travelers for consistency and ease of reference. 37 R. Doc. 111-21. 38 R. Doc. 111-25. 39 R. Docs. 111-1 & 117-2. 40 There appear to have been at least a few other pendin g m otions at the tim e Travelers settled, includin g a m otion in lim ine to strike the Marables’ supplem ental life care plan (R. Doc. 117-29 at 18 2) and a Daubert m otion to strike the author of the Miller Report (R. Doc. 117-38 at 6). 6 Blue William s breached its contract with Travelers. 41 On J anuary 22, 20 15, Travelers m oved for leave to file an am ended com plaint. 42 The assign ed m agistrate judge granted the m otion for leave on February 10 , 20 15. 43 The am ended com plaint added a third claim that Blue William s com m itted legal m alpractice by failing to adequately review and discuss an arbitration clause contained in the service ticket covering Em pire’s work on the truck involved in the accident. 44 II. Argu m e n ts o f th e Partie s A. Blue William s’ Sum m ary J udgm ent Argum ents i. Untim ely Expert Reports Blue William s argues it is entitled to sum m ary judgm ent on Travelers’ untim ely production claim on three grounds. First, Blue William s argues it was not negligent, because J udge Griffin’s scheduling order did not order disclosure of expert reports under Article 1425(B) an d, as a result, Article 1425(C)’s 30 -day rebuttal deadline did not apply. 45 Blue William s argues that J udge Griffin’s scheduling order m erely referred the parties to Louisiana Civil Code of Procedure 1425(C), which does not require expert reports absent a separate court order. 46 Because no party at any point m oved for an order requiring disclosure of expert reports under Article 1425(B), and the court did not sua sponte order disclosure, Blue William s argues it had no duty to produce expert reports, or to produce them on a certain tim eline. 47 Blue William s also argues that it did not receive a fin al version of the Miller Report until 30 days before Blue William s produced the Em pire 41 R. Doc. 1. R. Doc. 26. 43 R. Doc. 36. 44 R. Doc. 37. 45 R. Doc. 111-2 at 16– 17. 46 Id. 47 Id. 42 7 rebuttal reports on J anuary 13, 20 14, m eaning its production was tim ely even if Article 1425(C) did apply. 48 Second, Blue William s conten ds that Travelers’ theory of causation is too speculative to support a m alpractice claim under Louisiana law. 49 Blue William s em phasizes that the state trial court never heard the Marables’ m otion to strike Travelers’ experts, m uch less actually struck the experts. 50 In its second m otion for sum m ary judgm ent, Blue William s supplem ented this argum ent by asserting that Louisiana m alpractice law requires Travelers to show not only that Blue William s’ alleged n egligence caused them “som e loss,” but also that the outcom e of the Marable litigation m ore likely than not would have been favorable to Travelers but for Blue William s’ alleged negligence (often described as the “case within a case doctrine”). 51 Blue William s argues the sum m ary judgm ent eviden ce and witness and exhibit list subm itted by Travelers dem onstrate that, at trial, Travelers will n ot be able to prove the Marable litigation would have resulted in a favorable outcom e to Travelers but for Blue William s’ alleged n egligence. 52 Third, Blue William s argues that Travelers’ failure to defend against the m otion to strike in the Marable litigation constituted a failure to m itigate dam ages as required under Louisiana law. 53 Blue William s also argues that Louisiana m alpractice law recognizes a form of equitable estoppel triggered by a m alpractice plaintiff’s decision to settle rather than exhaust judicial rem edies by challenging the Marables’ m otion to strike or challenging it on appeal had the m otion been granted by J udge Griffin. 54 48 R. Doc. 172 at 3. R. Doc. 111-2 at 17– 22. 50 Id. at 19. 51 See generally R. Doc. 171-4. 52 Id. at 7– 9. 53 R. Doc. 111-2 at 22– 27. 54 Id. 49 8 ii. Failure to Arbitrate Sim ilar to its causation argum ent regarding Travelers’ untim ely production claim , Blue William s argues that Travelers’ theory of causation on its failure to arbitrate claim is overly speculative. 55 Blue William s also argues Travelers’ failure to arbitrate claim is perem pted under Louisiana law. 56 Finally, Blue William s argues that Travelers did not am end its com plaint to add the arbitration claim until after the applicable one-year perem ption period passed and Federal Rule of Civil Procedure Rule 15(c)’s relation-back provision does not apply. 57 Specifically, Blue William s argues both that Rule 15(c)’s relation-back provision does not apply, because Travelers’ initial com plaint did not put Blue William s on sufficient notice of the arbitration claim , and that Rule 15(c) cannot apply, because Louisiana’s claim perem ption laws are substantive in nature. 58 iii. Breach of Contract Blue William s argues an attorney m ay only be liable for breaching a legal representation contract when the attorney provides an express warranty as to a specific result or agrees to undertake the representation and does nothing. 59 Blue William s argues that the allegations of Travelers’ com plaint alone show that Blue William s did m ore than nothing. 60 Furtherm ore, Blue William s notes there is no language in the contractual language cited by Travelers in its com plaint establishing Blue William s m ade an express warranty as to a specific result. 61 55 Id. at 27. Id. at 28 – 29. 57 Id.; see also R. Docs. 134 at 8– 9. & 172 at 6– 7. 58 Id. 59 R. Doc. 111-2 at 29. 60 Id. 61 Id. 56 9 B. Travelers’ Opposition i. Untim ely Expert Reports Travelers’ opposes Blue William s’ argum ents regarding negligence, causation, and m itigation of dam ages. As to negligence, Travelers asserts it has com e forward with eviden ce showing Blue William s counsel knew the 30 -day expert rebuttal deadline of Article 1425(C) applied and represented as m uch both to Travelers in em ails and to J udge Griffin in its Decem ber 9, 20 13, m otion to continue. 62 Furtherm ore, Travelers asserts that counsel for Blue William s concede they received a signed version of the Miller Report no later than October 22, 20 13, m eaning Blue William s knew it was untim ely in producing the Em pire rebuttal reports on J anuary 13, 20 14. 63 As to causation, Travelers argues Louisiana m alpractice law no longer im poses the “case within a case” burden on m alpractice plaintiffs m eaning Travelers need only show that Blue William s’ alleged negligence caused it som e loss. 64 Furtherm ore, Travelers argues that, even if the “case within a case doctrine” still exists in som e cases, it is inapplicable under Louisiana law in this case because Travelers has dem onstrated that Blue William s was clearly negligent. 65 As em phasized by counsel for Travelers at oral argum ent, Travelers asserts that—at a m inim um —it has put forward sufficient evidence that but for Blue William s’ alleged negligence Travelers would have been able to settle the case for less than it did and that this is sufficient evidence of causation. 66 Travelers argues further that the evidence it has presented dem onstrates J udge Griffin was reasonably likely to grant the m otion to strike and that the loss of rebuttal experts would strip 62 R. Doc. 117 at 17– 19. Id.; see also R. Docs.152 at 3– 5 & 173 at 4– 5. 64 Id.; see also R. Doc. 152 at 5– 7; see also generally R. Doc. 196. 65 Id. 66 Id. 63 10 Travelers of the ability to discredit the Marables experts, thereby also stripping Travelers of the m eans to dem onstrate that the Marables’ theory of how Em pire was liable was without m erit. 67 Travelers asserts it has identified docum ents and witness testim ony that will allow it to m eet even the “case within a case” burden at trial, if necessary. 68 Finally as to m itigation of dam ages and possible equitable estoppel, Travelers contends the applicable standard to be applied is whether a reasonably prudent actor in Travelers’ situation would have settled prior to J udge Griffin’s decision on the m otion to strike Travelers’ experts. 69 Travelers asserts that it has com e forward with sufficient eviden ce dem onstratin g that it was reasonable in deciding to settle the case rather than face the risk going to trial without rebuttal experts. 70 ii. Failure to Arbitrate Travelers argues its failure to arbitrate claim survives sum m ary judgm ent both because causation is not too speculative and because the claim is not perem pted. 71 Travelers argues Blue William s’ failure to pursue arbitration stripped it of a defense an d that it has com e forward with expert legal testim ony supporting the conclusion that the failure to arbitrate substantially increased Travelers’ litigation costs and liability exposure. 72 Travelers further argues the am en ded com plaint adding its failure to arbitrate claim relates back to its first com plaint under Rule 15(c), because both the initial and 67 Id. R. Doc. 196 at 12– 15. The Court notes that an exam in ation of Travelers’ tim ely filed witness list does not support the conclusion that Travelers was prepared to call the fact witnesses and experts n ecessary to testify as to the events and circum stances underlyin g the Marable litigation . See R. Doc. 131. Other than attorn eys and claim s handlers involved in the Marable litigation, the witness list includes only three individuals associated with “Em pire Truck Sales” and a broad designation for “[a]ny and all other individuals involved in the underlyin g m atter form in g the basis of this litigation.” See id. at 2. Such an om nibus reference is not sufficient to com ply with the Court’s pretrial instructions. 69 Id.; see also R. Doc. 173 at 2– 4. 70 Id. 71 R. Doc. 117 at 26– 29; see also R. Docs. 152 at 9– 10 & 196 at 11– 12. 72 Id. 68 11 am ended com plaint relate to Blue William s’ representation of Travelers and Rule 15(c)’s relation back provision is applied liberally. 73 Travelers argues district courts have already analyzed the substantive nature of Louisiana perem ption and Rule 15(c) and concluded that Rule 15(c)’s relation back provision controls in cases like this. 74 iii. Breach of Contract Travelers contends its contract with Blue William s contain ed a specific reporting obligation, the breach of which supports a breach of contract claim not covered by tort law. 75 Specifically, Travelers asserts Blue William s breached its contract with Travelers by failing to tim ely produce the rebuttal reports, failing to provide m onetary exposure analysis until the eve of trial, and failing to advise Travelers of an arbitration defense. 76 Travelers also argues Blue William s’ lack of an express warrant argum ent is untim ely, because Blue William s did “not raise [the] alleged failure to state a claim prior to answering” so “the defense is lost.”77 III. Le ga l Stan d ard Sum m ary judgm ent is appropriate only “if the m ovant shows that there is no genuine dispute as to any m aterial fact and the m ovant is entitled to judgm ent as a m atter of law.” F ED.R.CIV.P. 56; see also Celotex Corp. v. Catrett, 477 U.S. 317, 322– 23 (198 6). “An issue is m aterial if its resolution could affect the outcom e of the action.” DIRECTV Inc. v. Robson, 420 F.3d 532, 536 (5th Cir. 20 0 5). When assessin g whether a m aterial factual dispute exists, the Court considers “all of the evidence in the record but refrains from m aking credibility determ inations or weighing the evidence.” Delta & Pine Land Co. 73 Id. Id. 75 R. Doc. 117 at 29. 76 Id. (citing Rec. Doc. 117-34 at 7– 8). 77 R. Doc. 117 at 29. 74 12 v. N ationw ide Agribusiness Ins. Co., 530 F.3d 395, 398 (5th Cir. 20 0 8 ); see also Reeves v. Sanderson Plum bing Prods., Inc., 530 U.S. 133, 150 – 51 (20 0 0 ). If the dispositive issue is on e on which the m oving party will bear the burden of proof at trial, the m oving party “m ust com e forward with evidence which would ‘entitle it to a directed verdict if the eviden ce went uncontroverted at trial.’” Int'l Shortstop, Inc. v. Rally 's Inc., 939 F.2d 1257, 1263– 64 (5th Cir. 1991). The nonm oving party can then defeat the m otion by either countering with sufficient evidence on its own, or “showing that the m oving party's evidence is so sheer that it m ay not persuade the reasonable fact-finder to return a verdict in favor of the m oving party.” Id. at 1265. If the dispositive issue is one on which the nonm oving party will bear the burden of proof at trial, the m oving party m ay satisfy its burden by m erely pointing out that the eviden ce in the record is insufficient with respect to an essential elem ent of the nonm oving party's claim . See Celotex, 477 U.S. at 325. The burden then shifts to the nonm oving party, who m ust, by subm itting or referring to evidence, set out specific facts showing that a genuine factual dispute exists. See id. at 324; TIG Ins. Co. v. Sedgw ick Jam es, 276 F.3d 754, 759 (5th Cir. 20 0 2) (internal quotation om itted) (citing F ED. R. CIV. P. 56(e); Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986)). The nonm ovant m ay not rest upon the pleadings, but m ust identify specific facts that establish a genuine issue for trial. Id. at 325; see also Little v. Liquid Air Corp., 37 F.3d 10 69, 10 75 (5th Cir. 1994) (“Rule 56 ‘m andates the entry of sum m ary judgm ent, after adequate tim e for discovery and upon m otion, against a party who fails to m ake a showing sufficient to establish the existence of an elem ent essential to that party's case, and on which that party will bear the burden of proof at trial.’”) (citing Celotex, 477 U.S. at 332). 13 Though all reasonable inferences are drawn in favor of the non-m oving party, conclusory allegations, denials, im probable inferences, unsubstantiated assertions, speculation, and legalistic argum entation do not adequately substitute for specific facts showing a genuine factual issue for trial. Little, 37 F.3d at 10 75 (5th Cir. 1994); TIG Ins., 276 F.3d at 759 (citing SEC v. Recile, 10 F.3d 10 93, 10 97 (5th Cir. 1993)). There is no genuine issue of m aterial fact if, even viewing the evidence in the light m ost favorable to the non-m oving party, no reasonable trier of fact could find for the non-m oving party, thus entitling the m oving party to judgm ent as a m atter of law. Sm ith v. Am edisy s, Inc., 298 F.3d 434, 440 (5th Cir. 20 0 2). The district court has no duty to survey the entire record in search of evidence to support a non-m ovant's position . Jones v. Sheehan, Young, & Culp, P.C., 8 2 F.3d 1334, 1338 (5th Cir. 1996) (citing Forsy th v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1992); N issho-Iw ai Am . Corp. v. Kline, 8 45 F.2d 130 0 , 130 7 (5th Cir. 198 8)). IV. La w & An alys is A. Did Blue William s Com m it Malpractice by Producing Rebuttal Expert Reports in an Untim ely Manner? In order to assert a cognizable Louisiana m alpractice claim , at trial a plaintiff m ust convince a reasonable trier of fact of the following: (1) the existence of an attorney-client relationship; (2) negligent representation by the attorney; and (3) loss caused by that negligence. MB Indus., LLC v. CAN Ins. Co., 20 11-0 30 3 (La. 10 / 25/ 11); 74 So.3d 1173, 1184. In this case, it is undisputed that an attorney-client relationship existed between Blue William s and Travelers. Blue William s as the m ovant for sum mary judgm ent argues there are no disputed issues of m aterial fact with respect to the second and third elem ents of the claim for m alpractice, the evidence in the record is insufficient for Travelers to 14 establish those elem en ts at trial, and as a result Blue William s is en titled to judgm ent as a m atter of law that it did not com m it m alpractice. The Court finds that Travelers, as the non-m ovant with the burden of proof at trial, has com e forward with sufficient evidence to establish there are disputed questions of m ixed fact and law with respect to Blue William s’ negligence. Sum m ary judgm ent is nevertheless appropriate because Travelers’ burden is to establish all three prongs of the analysis. Travelers has failed to com e forward with evidence to show that a specific factual dispute exists with respect to causation and, under those undisputed facts, Blue William s is entitled to judgm ent as a m atter of law that it did not com m it m alpractice. i. N egligence Blue William s argues the undisputed facts show that: 1) J udge Griffin’s scheduling order did not require disclosure of expert reports pursuant to Article 1425(B), m eaning the disclosure tim elines of Article 1425(C) did not apply; and 2) even if Article 1425(C) did apply, Blue William s did not receive a final version of the Miller Report until Decem ber 12, 20 13, and thereafter tim ely disclosed the rebuttal expert reports. Arguing that there are no disputed issues of m aterial fact with respect to the second prong of Travelers’ m alpractice claim , Blue William s believes it is entitled to judgm ent as a m atter of law because the evidence in the record is insufficient for Travelers to establish the negligence prong of the m alpractice analysis. Travelers counters that it has com e forward with eviden ce showing Blue William s’ counsel knew the 30 -day expert rebuttal deadline of Article 1425(C) applied and represented as m uch both to Travelers in em ails an d to J udge Griffin in its Decem ber 9, 20 13, m otion to continue. 78 Furtherm ore, Travelers 78 R. Doc. 117 at 17– 19. 15 asserts that counsel for Blue William s concede they received a signed version of the Miller Report no later than October 22, 20 13, m eaning Blue William s knew it was untim ely in producing the Em pire rebuttal reports on J anuary 13, 20 14. 79 Based on the eviden ce in the record, it is unclear whether Article 1425(C) applied. The scheduling order’s bare referen ce to Article 1425(C) could be interpreted as an order requiring disclosure of expert reports under Article 1425(B) with the attendant tim elines in Article 1425(C). On the other hand, the scheduling order could be read as requiring the parties to file a m otion requesting the court to require disclosure of expert reports as allowed by Article 1425(B). 80 Likewise, the factual record is unclear on whether the version of the Miller Report received by counsel for Blue William s before Decem ber 13, 20 13, was sufficient to trigger the 30 -day rebuttal report tim eline, even assum ing the scheduling order required disclosure of expert reports under Article 1425(B) with the attendant tim elines in Article 1425(C). To determ ine whether Blue William s com m itted m alpractice by breaching the applicable standard of care, the trier of fact would need to know the standard of care for attorneys in New Orleans under these circum stances. See Brenn an’s, 20 16 WL 1449334 at *2. With respect to this issue, Blue William s argues that J udge Griffin would not have struck its experts citin g cases supporting the proposition that striking expert witnesses for non-com pliance with a pre-trial order is disfavored as overly “draconian,” particularly where it is the attorney and not the party responsible for the non-com pliance. 81 Blue 79 Id.; see also R. Docs.152 at 3– 5 & 173 at 4– 5. Upon agreem ent of the parties or at the instigation of the court, an order m ay be entered under Article 1425(B) requirin g the party disclosin g its expert report to also disclose all exhibits the expert used to form the opinions, as well as details regarding the expert’s qualifications and past court appearances. See LA. CODE CIV. P. art. 1425(B). 81 R. Doc. 111-2 at 21– 22. 80 16 William s also includes m inutes from a later proceeding in the Marable case (that is, after Travelers settled) in which J udge Griffin indicated that she was not likely to “jam ” attorneys, so long as they did not jam each other. 82 Blue William s also points to em ails in which the Marables’ attorneys an d Blue William s apparently agreed to keep exchanging discovery despite deadlines in the scheduling order. 83 Finally, Blue William s points to the deposition testim ony of Rico Alvendia—counsel for the Marables in the underlying litigation—who testified it was highly unlikely the m otion to strike would have been granted, stating that “although I would have liked it to have been granted, I don’t think I’ve ever seen in practicing for 17 years a judge strike all of the defen se witnesses, expert witnesses.”84 In response, Travelers’ sum m ary judgm ent evidence consists alm ost entirely of unsubstantiated legal opinions of its replacem ent counsel, opinions of legal experts hired to opine in hindsight on what the judge would have decided, 85 the Blue William s trial evaluation report, and the testim ony of the representative of Travelers, which is the entity that decided to settle the case. 86 Counsel in the Marable litigation’s conflicting opinions regarding the interpretation of the scheduling order and how J udge Griffin would have ruled on the m otion to strike the rebuttal expert reports cannot resolve the disputes over J udge Griffin’s intent as to what the scheduling order required. 87 As a 82 R. Doc. 111-30 at 6– 8 (“An d m y theory about tryin g a case especially when you have this m any lawyers and again if you tried cases [] in front of m e you know that as long as you all are willing to work with each other even when you m iss a deadline and order I am not going to jam you, if you’re not jam m in g each other. The issue is when you start jam m ing each other I have to do the double edge sword, what’s good for the good is good for the gander, that’s how it is. The only thin g I’m really a jerk about, and ya’ll know this, is a trial date”). 83 R. Doc. 111-9. 84 R. Doc. 111-19 at 15. Alven dia further stated that a ruling that struck Travelers’ experts would have been “extrem ely drastic and prejudicial,” is “not favored by our district courts,” and that he didn’t “thin k that this particular judge would have actually struck the witnesses.” Id. 85 The Court em phasizes that Travelers’ legal experts would be excluded from opining on anythin g other than the applicable standard of care at trial. 86 See R. Doc. 117 at 19– 23; R. Doc. 152 at 5– 7; R. Doc. 173 at 3; R. Doc. 196 12– 14. 87 The Court notes that the parties’ respective references to the deposition testim ony of legal experts has no bearing on the Court’s determ ination of the issue. As will be discussed later, legal experts m ay testify as to 17 result, the unsubstantiated opinions of the legal experts put forward by the parties do not provide the Court with a sufficient basis to determ ine the applicable standard of care and whether it was violated by Blue William s. The applicable standard of care for this m alpractice claim has not been established. See Brennan’s Inc. v. Colbert, 20 15-0 325 (La. App. 4 Cir. 4/ 13/ 16); 20 16 WL 1449334 (not yet published); see also Frisard v. State Farm Fire and Cas. Co., 20 0 6-2353 (La. App. 1 Cir. 11/ 2/ 0 7); 979 So.2d 494, 497. While courts som etim es exercise their own judgm ent to determ ine the applicable standard of care because the n egligence is so apparent so as to negate the need for the plaintiff to establish the standard of care, that is not the case here. See also SCB Diversified Mun. Portfolio v. Crew s & Assoc., Civ. A. No. 0 9-7251, 20 12 WL 1370 8 at *5 (E.D.La. J an. 4, 20 12); Scheslinger v . Herzog, 95-1127 (La. App. 4 Cir. 4/ 3/ 96); 672 So.2d 70 1-70 8. Based on a review of J udge Griffin’s scheduling order an d Article 1425, and the sum m ary judgm ent evidence put forth by Travelers, the Court finds that disputed questions of m ixed law and fact exist with respect to whether Article 1425(C) did or did not apply and whether the version of the Miller Report received before Decem ber 13, 20 13 was sufficient to trigger the 30 -day rebuttal report period. To answer these questions, the Court would have to speculate as to J udge Griffin’s understanding of whether the scheduling order triggered the written report requirem ent in Article 1425(B) and, if so, whether she inten ded Article 1425(C)’s rebuttal report deadline to be triggered by an expert report without exhibits attached. Questions about J udge Griffin’s intent when she entered the scheduling order referen cing Article 1425 create disputed m ixed questions of the applicable standard of care for a legal m alpractice claim , see Brennan’s Inc. v. Colbert, 20 15-0 325 (La. App. 4 Cir. 4/ 13/ 16) (not yet published), but the Court rejects any contention that a legal expert m ay opine in hindsight on how a judge would have ruled on an un decided m otion . 18 fact and law that cannot be disposed of on sum m ary judgm ent. 88 Further com plicating the analysis, if J udge Griffin intended for the scheduling order to require the parties to the Marable suit to file written expert reports at least ninety days before the trial date, and rebuttal reports within thirty days thereafter, the standard of care would be different than if she did not. Not surprisingly, the parties have not com e forward with deposition testim ony of J udge Griffin as to her intent and understanding regarding the scheduling order. Without this inform ation, questions of fact and law rem ain unresolved and it is im possible to determ ine the applicable standard of care and whether Blue William s breached that standard of care on sum m ary judgm ent. Nevertheless, this unsettled issue of negligence does not preclude sum m ary judgm ent on Travelers’ m alpractice claim . Travelers has the burden of proving all three elem ents of the m alpractice claim analysis, and Travelers has not com e forward with record evidence to show there are disputed issues of fact with respect to the causation prong of the analysis or that, on the eviden ce, Blue William s is not entitled to judgm ent as a m atter of law. ii. Causation To prevail on sum m ary judgm ent, Blue William s m ust establish there are no disputed issues of m aterial fact with respect to the causation prong and the m aterial facts in the record are in sufficient for Travelers to establish this elem ent at trial. As Blue William s correctly notes, it is an undisputed fact that the state trial court never heard the 88 J udge’s Griffin intent with regard to the schedulin g order is a m ixed question of fact and law. Cf. Alpaugh v. Continental Ins. Co., 20 0 1-0 10 1 (La. 6/ 29/ 0 1); 791 So.2d 71, 74 (interpretation of insurance agreem ent involving questions of party intent presents m ixed questions of fact and law); O’N eill v. Thibodeaux, 9710 65 (La. App. 3 Cir. 3/ 6/ 98); 70 9 So.2d 962, 974 (issue of parties’ intent concerning a contract is m ixed question of law and fact). 19 Marables’ m otion to strike Travelers’ experts and never struck them . 89 As a result, Blue William s argues Travelers will not be able to prove causation at trial because its theory of causation is too speculative. 90 Furtherm ore, Blue William s argues that Louisian a m alpractice law requires Travelers to show not only that Blue William s’ alleged n egligence caused them “som e loss,” but also to show that the outcom e of the Marable litigation m ore likely than not would have been favorable to Travelers but for Blue William s’ alleged negligence (often described as the “case within a case doctrine”). 91 Blue William s argues the sum m ary judgm ent eviden ce and witness and exhibit list subm itted by Travelers dem onstrate that at trial Travelers will not be able to prove the Marable litigation would have resulted in a favorable outcom e to Travelers but for Blue William s’ alleged negligence. 92 Travelers responds that Louisiana m alpractice law no longer im poses the “case within a case” burden on m alpractice plaintiffs m eaning Travelers need only show that Blue William s’ alleged negligen ce caused it som e loss. 93 Furtherm ore, Travelers argues that, even if the “case within a case doctrine” still exists in som e cases, it is inapplicable under Louisiana law in this case because Travelers has dem onstrated that Blue William s was clearly negligent. 94 Travelers asserts that—at a m inim um —it has put forward sufficient eviden ce that but for Blue William s’ alleged negligence, Travelers would have been able to settle the case for less than it did and that this is sufficient evidence of causation. 95 Travelers argues further that the evidence it has presented dem onstrates 89 Id. at 19. R. Doc. 111-2 at 17– 22. 91 See generally R. Doc. 171-4. 92 Id. at 7– 9. 93 Id.; see also R. Doc. 152 at 5– 7; see also generally R. Doc. 196. 94 Id. 95 Id. 90 20 J udge Griffin was reasonably likely to grant the m otion to strike and that the loss of rebuttal experts would strip Travelers of the ability to discredit the Marables’ experts, thereby also stripping Travelers of the m eans to dem onstrate that the Marable’s theory of Em pire’s liability was without m erit. 96 Travelers asserts it has identified docum ents and witness testim ony that will allow it to m eet even the “case within a case” burden at trial, if necessary. Travelers relies on a line of cases stem m ing from the Louisiana Suprem e Court’s decision in Jenkins v. St. Paul Fire & Marine Insurance Co. to support its argum ent that it will not be required to prove the Marable case within its m alpractice case. Those cases, however, only apply where a m alpractice plaintiff m akes a prim a facie case by showing clear negligence and, even then, do not relieve the plaintiff of proving the m alpractice caused the unfavorable outcom e of the litigation. In Jenkins, the Louisiana Suprem e Court held that a m alpractice plaintiff’s burden to prove causation under the case within a case doctrin e is lighten ed when a court can determ ine that both an attorney-client relationship existed and there was clear negligen ce by the attorney. See 81-C-0 776 (La. 10 / 1/ 85); 422 So.2d 110 9, 1110 . In the Jenkins case, the defendant attorneys conceded they had been negligent in not tim ely filing the underlying suit. Id. Thus, there was clear negligence. The Jenkins court reasoned that: Causation, of course, is an essential elem ent of any tort claim . However, once the client has proved that his form er attorney accepted em ploym ent and failed to assert the claim tim ely, then the client has established a prim a facie case that the attorney’s negligence caused him som e loss, sin ce it is unlikely the attorney would have agreed to handle a claim com pletely devoid of m erit. In such a situation, a rule which requires the client to prove the am ount of dam ages by trying the “case within a case” sim ply im poses too great a standard of certainty of proof. Rather, the m ore logical approach is to im pose on the negligent attorney, at this point in the trial, the burden 96 Id. 21 of going forward with eviden ce to overcom e the client’s prim a facie case by proving that the client could not have succeeded on the original claim , and the causation and dam age questions are then up to the jury to decide. Otherwise, there is an undue burden on an aggrieved client, who can prove negligence and causation of som e dam ages, when he has been relegated to seeking relief by the only rem edy available after his attorney’s negligence precluded relief by m eans of the original claim . Id. Under Jenkins, when a prim a facie case of clear n egligence has been proven, the burden of proof shift to the negligent attorney to prove that the client could not have succeeded on the underlying claim . The Louisiana Suprem e Court has clarified the principles laid out in Jenkins. See, e.g., MB Indus. v. CAN Ins. Co., 20 11-0 30 3 (La. 10 / 25/ 11); 74 So.3d 1173, 1184. In MB Industries, the m alpractice plaintiff alleged its attorney com m itted negligence by a variety of m isconduct, including the failure to tim ely am end a petition to add viable claim s, the loss of a box of im portant docum ents, and failing to seek a protective order on som e of the lost docum ents. Id. at 1178. The MB Industries court em phasized that, regardless of whether the showing of negligence is clear, “it is not enough to sim ply show” negligen ce. Id. at 118 7. The m alpractice plaintiff: m ust also introduce evidence of causation and “[a]lthough this Court disavowed the ‘case within a case’ doctrine in Jenkins . . . we reiterated that causation ‘is an essential elem ent of any tort claim .’ At the very least, [the m alpractice plaintiff] m ust establish som e causal connection between the alleged negligen ce and the eventual unfavorable outcom e of the litigation. Id. A survey of post-Jenkins and MB Industries persuasive authority supports the conclusion that a m alpractice plaintiff only gains the benefit of Jenkins burden shifting upon establishing a prim a facie case of clear negligence and that, regardless of whether Jenkins applies, a m alpractice plaintiff always carries the threshold burden of establishing som e causal connection between the alleged negligence and the unfavorable 22 outcom e of the litigation. See, e.g., Colonial Freight Sy s., Inc. v. Adam s & Reese, L.L.P., 524 Fed.Appx. 142 (5th Cir. 20 13) (“if a m alpractice plaintiff offers only a speculative theory of loss causation, the defendant is entitled to judgm ent as a m atter of law”). It is obvious that Travelers has not m ade a prim a facie showing of clear negligence in this case. Because Travelers has not established that Blue William s was clearly negligent, Travelers’ causation burden is far greater than m erely establishing that it suffered “som e loss” as a result of Blue William s’ alleged negligence. See MB Indus., 74 So.3d at 1186– 87. Even assum ing Travelers had established Blue William s’ negligence, MB Industries would require Travelers to prove causation by showing the result would have been different in the underlying case but for Blue William s’ m alpractice, m eaning that Travelers m ore likely than not would have prevailed at the Marable trial had it been able to use its rebuttal experts. Travelers has no adm issible evidence to show how J udge Griffin would have ruled on the m otion to strike. Even assum ing J udge Griffin would have struck the experts, Travelers has put forward scant, if any, eviden ce dem onstrating how J udge Griffin’s ruling would have im pacted the outcom e of the case. For instance, even had J udge Griffin taken the “draconian” m easure of precluding the Em pire rebuttal experts from testifying at trial, it is not clear on the record that replacem ent counsel for Travelers would have been unable to defeat the credibility of Miller’s testim ony through cross-exam ination. The sum m ary judgm ent evidence presented by Travelers falls far short of dem onstrating that Travelers could m eet its causation burden of proof at trial. Travelers apparently recognizes this because it has filed two separate m otions 97 to am end its witness and 97 See R. Doc. 197 & 218. 23 exhibit lists well after the deadline passed. 98 Even were the Court to perm it the am endm ents, Travelers has not com e forward with adequate sum m ary judgm ent eviden ce to dem onstrate it will be able to establish causation at trial. The Court therefore concludes that, as a m atter of law, Travelers will not be able to show causation at trial thus entitling Blue William s to sum m ary judgm ent that it did not com m it m alpractice. Before proceeding to Travelers’ rem aining claim s, the Court quickly addresses Travelers central argum ent regarding causation. In its m em oranda and m ore explicitly at oral argum ent, counsel for Travelers has put forward the argum ent that its causation burden is to show that the Marables’ m otion to strike was the cause of Travelers settling for an am ount greater than it would have had the m otion not been filed as a result of Blue William s’ alleged negligence. Seem ing to conflate the applicable standard for m itigation of dam ages and/ or equitable estoppel with the applicable burden of proof of causation, Travelers has also repeatedly insisted that the key inquiry is whether Travelers was reasonable to settle in light of the m otion to strike being filed, though not heard or ruled upon. 99 Such an understanding of Travelers’ causation burden relies heavily on Braud v. N ew England Insurance Co.. CA-8487 (La. App. 4 Cir. 10 / 11/ 88); 534 So.2d 13. In Braud, the defendant attorney in the underlying state court litigation obtained a default judgm ent for the m alpractice plaintiff. Id. at 14. When the defendant attorney attem pted 98 R. Doc. 196 at 12– 15. The Court notes that an exam in ation of Travelers’ tim ely filed witness list does not support the conclusion that Travelers was prepared to call the fact witnesses and experts who would have testified as to the events an d circum stances underlyin g the Marable litigation. See R. Doc. 131. Other than attorneys and claim s handlers in volved in the Marable litigation, the witn ess list includes only three individuals associated with “Em pire Truck Sales” and a broad designation for “[a]ny and all other individuals involved in the underlying m atter form ing the basis of this litigation.” See id. at 2. A “catch-all” reference is not a sufficien t identification of witnesses for purposes of the Court’s pretrial instructions. Travelers’ argum ent is further belied by the fact that it filed two untim ely requests to supplem ent its witness and exhibit list to add these witnesses in volved in the underlying Marable suit. 99 See, e.g., R. Doc. 173 at 2. 24 to collect on the default judgm ent in federal court, the default judgm ent was challenged as deficient and the m alpractice plaintiff elected to settle the case for an am ount less than the default judgm ent rather than see through a ruling on the deficiency challenge. Id. The Braud court found that there was a triable issue as to whether the attorney’s alleged m alpractice caused the m alpractice plaintiff to settle. Id. The court reasoned that it “begs the question to argue that the settlem ent rather than the attorney’s negligence caused the loss when that sam e negligence is allegedly the only reason that the Brauds were put in the position of having to consider settlem ent. Id. at 15. The Court has trouble fitting Braud, decided in 1988 by an interm ediate state court of appeals rather than the Louisiana Suprem e Court, into the m ainstream of Louisiana m alpractice case law and there is reason to question the authority of the decision given the case’s long and winding procedural posture. 10 0 Nonetheless, at m ost Braud supports the conclusion that a m alpractice plaintiff in a situation like Travelers’ can succeed by showing that Blue William s’ alleged negligen ce was the sole reason Travelers was in a position of having to consider settlem ent. In the underlying Marable litigation, there is no dispute that Travelers was facing an im m in ent jury trial in which the plaintiffs were seeking dam ages for Mrs. Marable’s severe injuries in an am ount far exceeding the settlem ent am ount. Blue William s had previously recom m ended that Travelers pursue settlem ent, albeit at a lower value possibly because the recom m endation did not take into account the m uch higher price tag of the Marables’ am ended life care plan. Travelers scheduled the m ediation with the Marables that resulted in settlem ent before the 10 0 The m alpractice action returned to the Fourth Circuit followin g rem and to the trial court (apparently without defendant first filing a writ to the Louisiana Suprem e Court) and was ultim ately dism issed on prescription grounds by the Louisiana Suprem e Court. See 89-CA-1876 (La. App. 4 Cir. 5/ 31/ 90 ); 562 So.2d 1116; see also 90 -C-1358 (La. 3/ 11/ 91); 576 So.2d 466. 25 Marables even filed their m otion to strike. 10 1 Sim ply put, Travelers clearly was considering settlem ent even before the tim eliness of the rebuttal expert reports was raised, m ean ing that, unlike Braud, Blue William s’ alleged n egligence was not the only reason Travelers was in the position of having to consider settlem ent. With regard to Travelers’ repeated assertion that a key inquiry regarding causation is Travelers’ reasonableness in settling, such a reasonableness inquiry applies only where there is a dispute as to m itigation of dam ages or equitable estoppel. Recent state-court decisions have addressed a m alpractice’s plaintiff’s reasonableness in deciding to settle a case; however, these decisions have occurred in the context of a m alpractice plaintiff first having a final adverse judgm ent rendered against it and then deciding to bring a m alpractice action rather than pursue an appeal of the adverse judgm ent. See, e.g., MB Indus., at 1179– 80 . 10 2 The Court is therefore not persuaded that Travelers’ reasonablen ess in settling is relevant to its causation burden in this case. In sum m ary, the Court concludes Travelers has not raised any disputed issues of fact and, on the fact, there is no basis in Louisiana law to conclude that Travelers can m eet its burden of establishing causation at trial. Because Travelers will not be able to establish all three prongs of the m alpractice analysis, sum m ary judgm ent for Blue William s on the m alpractice claim is appropriate. 10 1 See R. Docs. 111-1 & 117-2; see also R. Docs. 111-20 & 111-22. See also Colonial Freight, 524 Fed.Appx. at 142 (before m alpractice suit initiated, request for jury trial denied and bench trial com pleted); W alker v. Harris, 20 11 CA 0 141R (La. App. 1 Cir. 11/ 7/ 12) (unpublished) (before m alpractice suit in itiated, trial court issued adverse interlocutory judgm en t cutting off m alpractice plaintiff’s right to raise certain claim s in underlying suit); Brassette v. Exnicios, 20 11-1439 (La. App. 1 Cir. 5/ 14/ 12); 92 So.3d 10 77, 10 79 (before m alpractice suit initiated, trial court granted adverse m otion to lim it dam ages as unopposed an d m alpractice defendant attorney unilaterally settled m alpractice plaintiff’s claim s in underlying suit); Am er. Reliable Ins. Co. v . N avratil, 445 F.3d 40 2, 40 6 (5th Cir. 20 0 6) (before m alpractice suit in itiated, “large jury verdict” rendered against m alpractice plaintiff); cf. Saussy v. Bonin, 20 12-1755 (La. App. 4 Cir. 9/ 4/ 13); 125 So.3d 1, 6 (without articulating “requisite burden of proof,” Saussy court concluded m alpractice plaintiff estopped from provin g causation by settlin g before court ruled on issue that was only m eans of establishin g dam ages). 10 2 26 B. Did Blue William s Com m it Malpractice by Failing to Pursue Arbitration? For m ost all of the sam e reasons stated above, the Court concludes that Travelers has also failed to show that it can establish causation on its arbitration claim . 10 3 Again, the parties have failed to com e forward with an applicable standard of care; however, even so, the Court is highly dubious of Travelers’ unsupported contention that the service ticket’s arbitration clause could actually have allowed Travelers to force the entirety of the Marable litigation into arbitration or that Blue William s breached an applicable stan dard of care by not inform in g Em pire or Travelers of its determ ination that the clause was not binding. 10 4 Though broad in scope, the arbitration clause in the service ticket at m ost indicates it would cover disputes between the custom er (“KLLM – Wayne Marable”) and Em pire, not a claim by Wayne Marable’s wife against Em pire in her individual capacity. 10 5 Travelers has not com e forward with evidence or argum ent that would lead the Court to think otherwise. Travelers has not com e forward with sufficient evidence to establish that J udge Griffin would have com pelled arbitration based on the service ticket or that Blue William s’ 10 3 The Court notes that the parties dedicated the m ajority of the argum ents on this claim to the issue of perem ption and Rule 15(c) relation back. By focusing on the relation back issue, the parties seem ingly agree that a one-year perem ption period would apply to Travelers’ failure to arbitrate claim . See R. Docs. 111-2 at 28 & 117 at 28. The Court is not so sure. The very standard quoted by Blue William s in its initial sum m ary judgm ent m em orandum in dicates that a three-year perem ption period applies “from the date of the act, neglect, or om ission w hen the m alpractice is discovered after the date of the act, neglect, or om ission.” R. Doc. 111-2 at 28 (citing Jen kins v. Starns, 20 11-1170 (La. 1/ 24/ 12), 85 So.3d 612, 626) (em phasis added). While Travelers’ does not apparently dispute that a on e-year perem ption period applies, both the record and Travelers’ underlying allegation that Blue William s was negligent because it did not com m unicate the possibility of arbitration to Travelers support the conclusion that Travelers did not and likely could not have discovered Blue William s’ alleged negligence at least until it term inated Blue William s and brought on replacem ent counsel. See R. Docs. 111-2 at 27– 29 & 117 at 26– 28; R. Doc. 117-9 at 37. Accordingly, it appears to the Court that a three-year perem ption period likely applies to Travelers’ failure to arbitrate claim . Given that Blue William s was not hired by Travelers until Novem ber 22, 20 12 and that Travelers raised its failure to arbitrate claim on J anuary 22, 20 15, Travelers brought the claim within three years of the date of the alleged m isconduct. Furtherm ore, and given that the Court finds other grounds to dispose of Travelers’ failure to arbitrate claim on sum m ary judgm ent, at the very least the relation-back dispute is m oot. 10 4 See R. Doc. 117-33 at 3; R. Doc. 117 at 27 (citing R. Doc. 117-9 at 37 & 53). 10 5 See R. Doc. 117-33 at 3. 27 alleged failure to pursue the possibility of arbitration was the cause of Travelers having to consider settlem ent. As such, the Court grants sum m ary judgm ent for Blue William s on Travelers’ failure to arbitrate claim . C. Did Blue William s Breach its Contract with Travelers? The Court sum m arily rejects Travelers’ claim for breach of contract. The case law is clear that a breach of legal representation contract claim can stand over and above a general negligent representation claim only where the attorney expressly contracts for a specific result or does nothing after entering an attorney-client relationship. See Matthew s v. Stolier, Civ. A. No. 13-6638, 20 14 WL 5214738 at *9 n.41 & 42 (E.D.La. Oct. 14, 20 14) (Milazzo, J .); see also B. Sw irsky & Co., Inc. v. Bott, 91– CA-1889 (La. App. 4 Cir. 4/ 30 / 92); 598 So.2d 1281, 1282– 83. The record is clear that Blue William s did actually represent Travelers until term ination, m eaning Blue William s m ay only be liable to Travelers for breach of contract if Blue William s failed to satisfy an express warranty as to a specific result. Even assum ing the contract cited by Travelers is valid, 10 6 it does not contain the sort of express warranty by Blue William s that, if breached, could give rise to a contract action under Louisiana law. The cited contract states standards, not warranties, as to how and when Blue William s should com m unicate with Travelers regarding newly produced docum ents and status updates. 10 7 Blue William s’ decision not to attack this claim at the m otion to dism iss phase has no bearing on the Court’s current determ ination that Travelers cannot state a claim for breach of contract as a m atter of law. 10 8 10 6 The agreem ent is unsign ed. R. Doc. 117-34. See id. at 7– 8. 10 8 Travelers’ contention that Blue William s som ehow “lost” the ability to challenge Travelers’ breach of contract claim by failin g to raise a “failure to state a claim defense” or a 12(b)(6) m otion to dism iss is unsupported by the record and the case law. Blue William s undeniably did raise the defense in its answer that Travelers com plaint fails to state a claim . See Rec. Doc. 11 at 1. And the case Hill v. Hunt case cited by Travelers only supports the conclusion that a defendant m ay lose its ability to file a 12(b)(6) m otion to 10 7 28 Accordingly, IT IS ORD ERED that Blue William s’ m otion for sum m ary judgm ent 10 9 is GRAN TED and the instant action is D ISMISSED W ITH PREJU D ICE. IT IS FU RTH ER ORD ERED that Blue William s’ second m otion for sum m ary judgm ent 110 is D EN IED AS MOOT. IT IS FU RTH ER ORD ERED that all pending m otions in lim ine 111 are D ISMISSED AS MOOT. IT IS FU RTH ER ORD ERED that the pending m otion to seal 112 is D ISMISSED AS MOOT. IT IS FU RTH ER ORD ERED that the parties’ m otions for leave to file supplem ental and am ended exhibit lists 113 are D ISMISSED AS MOOT. N e w Orle an s , Lo u is ian a, th is 2 6 th d ay o f Ju ly, 2 0 16 . ______ ______________________ SU SIE MORGAN U N ITED S TATES D ISTRICT J U D GE dism iss by answerin g a com plaint before presenting the defen se. See Civ. A. No. 0 7-20 20 , 20 10 WL 54756 at *2 (N.D. Tex. J an 4. 20 10 )). 10 9 R. Doc. 111. 110 R. Doc. 171. 111 R. Docs. 164, 178 – 81, 183– 84, & 186. 112 R. Doc. 18 2. 113 R. Docs. 197, 20 9, & 218 . 29

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