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Ferguson v. Waid

United States District Court, W.D. Washington, Seattle

May 11, 2018




         This matter comes before the Court on the parties' Motions for Partial Summary Judgment on Defendant Brian J. Waid's Defamation Counterclaim. Dkts. #58 and #77. For the reasons stated below, the Court has reached certain rulings on legal issues related to this claim, but DENIES both Motions.

         I. BACKGROUND[1]

         Plaintiff Sandra L. Ferguson and Defendant Waid are both licensed attorneys in the state of Washington. See Dkt. #1. In July of 2017, Ms. Ferguson published a “client review” of Mr. Waid on the attorney-rating website Ms. Ferguson's review stated, in part:

I am an attorney. However, the opinions expressed in this review are based on my personal experience as a former client of this attorney, Brian J. Waid. I consulted and retained Brian Waid in April 2011 regarding a contact dispute matter. He represented me until December 10, 2012, the date he abandoned me on a false pretext while an important motion was pending. Let me state it unequivocally: Brian J. Waid is a PREDATOR and a FRAUD. He should be prosecuted as a white collar criminal. However, this decision is not within my control. But I can write this review to warn and hopefully, prevent others from becoming future victims of Attorney Waid. I am not Waid's only victim. I assisted one of his other clients to find capable counsel. We have both filed civil suits against Waid for malpractice, false and deceptive business practices, and fraud. . . . Here is what Waid did to me: (1) he failed to enforce my priority lien over the money that was in dispute; (2) he advised me to file a lawsuit instead of using a more cost-effect [sic] procedure that was available, so that he could fraudulently charge, bill and collect fees from me for his worthless legal services; (3) he concealed and failed to disclose to me that he had a conflict of interest; (4) he deposited and left $265, 000 of my money in the court registry. . . he [] abandoned me, lying to the court so that he would be allowed to withdraw over my objections. . . . By similar methods, Waid's other client-victim was bilked of hundreds of thousands of dollars by Waid and his co-counsel.

Dkt. #6-2.

         Ms. Ferguson repeated these statements in a second internet posting on August 11, 2017, that was titled “This Lawyer Reported for Fraud.” Dkt. #6-3. In addition to the above statements, the second posting also stated that Mr. Waid “violated the professional ethics rules, ” and had been reported by her “to the Washington State Bar Association and to law enforcement authorities for engaging in criminal conduct (fraud).” Id.

         This case was filed on November 9, 2017. Dkt. #1. Although Plaintiff Ferguson's claims have since been dismissed, see Dkt. #39, Defendant Waid has asserted counterclaims, including a claim of defamation, see Dkt. #6. On March 29, 2018, Ms. Ferguson moved for summary judgment dismissal of the defamation counterclaim. Dkt. #58. On April 20, 2018, Mr. Waid moved for summary judgment in favor of this counterclaim. Dkt. #77.


         A. Plaintiff's 88-Page Declaration

         As an initial matter, the Court will address Ms. Ferguson's 88-page “Facts Declaration” attached to her Motion. Dkt. #58-1. This declaration is filed in addition to three other declarations setting forth dozens of exhibits. See Dkts. #59-61. Mr. Waid argues that “in her 88-page declaration, Plaintiff improperly attempts to circumvent the 24-page limit for a summary judgment motion; improperly includes arguments; improperly testifies to facts on which she has no personal knowledge; [and] improperly testifies to third-parties' hearsay. . .” Dkt. #73 at 3. The Court has reviewed the declaration and agrees with each of these points. Ms. Ferguson has previously struggled to file this Motion within the required 24-page limit, see Dkts. #38 and #41. The Court issued an Order denying her request for over-length briefing. Dkt. #57. Ms. Ferguson has violated this Order by attaching a declaration with additional pages of argument.

         The Court further notes that Ms. Ferguson, in her briefing, improperly cites to this declaration (and her exhibits) as a whole rather than pointing to specific pages. See, e.g., Dkt. #58 at 7 n.14 (to support the statement “[h]e lied to the court, and he lied to his client, ” Ms. Ferguson cites to “Ferguson Decl., ¶¶ 14-69, Exhibits A-Z, Ex. 1-9.”); id. at 8 n.16 (citing “Ferguson Decl., ¶¶ 157-169, Exs. J-O, see also, Ex. F”). Mr. Waid requests that the Court strike portions of this declaration. Dkt. #73 at 4.

         Pursuant to the Local Civil Rules, parties must support factual assertions with a citation to the record, including a pin cite to the relevant page or pages. See LCR 10(e)(6) (“In all cases where the court is to review the proceedings of an administrative agency, transcripts, deposition testimony, etc., the parties shall, insofar as possible, cite the page and line of any part of the transcript or record to which their pleadings, motions[, ] or other filings refer.”); see also Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1030-1031 (9th Cir. 2001) (“The district court need not examine the entire file for evidence establishing a genuine issue of fact, where the evidence is not set forth in the opposing papers with adequate references so that it could conveniently be found.”); Jaurequi v. Carter Mfg. Co., 173 F.3d 1076, 1085 (8th Cir. 1999) (“[A] district court is not ‘obligated to wade through and search the entire record for some specific facts which might support the nonmoving party's claim.'”) (internal citation omitted); Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998) (“‘Rule 56 does not impose upon the district court a duty to sift through the record in search of evidence to support a party's opposition to summary judgment.'”) (internal citation omitted); United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) (“Judges are not like pigs, hunting for truffles buried in briefs.”).

         Given all of the above, the Court finds that it need not rely on the contents of this Declaration for purposes of ruling on this Motion, but has reviewed it in the interest of justice and declines to strike any portion of Ms. Ferguson's Declaration at this time. The Court warns Ms. Ferguson not to repeat the above procedural mistakes in future filings, and that any further violations of the ...

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