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Ferguson v. Waid

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

June 12, 2018




         This matter comes before the Court on Plaintiff Sandra L. Ferguson's Motion for Partial Summary Judgment on Defendant Brian J. Waid's Civil Harassment Counterclaim. Dkt. #71. For the reasons stated below, the Court DENIES this Motion.

         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 [sic] 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.

         Ms. Ferguson's claims in this matter have been dismissed with prejudice as meritless. Dkt. #39. This Court has also granted Rule 11 sanctions against Ms. Ferguson for filing this case. Dkt. #40. Ms. Ferguson has pursued three prior lawsuits against Defendant Waid. See Dkt. #50 in Caruso et al. v. Washington State Bar Association, et al., No. 2:17-cv-00003 (Ms. Ferguson failed in her attempt to add Mr. Waid as a defendant); Dkt. #87-1 (October 2014 Complaint filed in King County Superior Court); Dkt. #87-2 (December 2015 Complaint filed in King County Superior Court with a new case number). Plaintiff's claims in Caruso against Defendant Waid were found to be procedurally improper and likely meritless. Dkt. #57 in Caruso, No. 2:17-cv-00003. The first of Ms. Ferguson's state actions resulted in dismissal with prejudice of a majority of Plaintiff's claims on summary judgment, and the remainder were dismissed when Plaintiff failed to appear prepared for trial. See Dkts. #74-1 and #74-2. Plaintiff subsequently appealed the dismissal of her claims and that appeal was dismissed for Plaintiff's failure to file an opening brief. See Dkt. #74-3. The second state court action, filed immediately after her claims were dismissed without prejudice in the first state court action, is currently stayed pending the outcome of an appeal.

         Defendant Waid has asserted counterclaims of defamation and civil harassment in this case. Dkt. #6. The Court previously declined to dismiss the claim of defamation on summary judgment, and that claim is currently proceeding to trial. See Dkt. #85. The civil harassment counterclaim now before the Court, brought under RCW 10.14, seeks relief in the form of an injunction preventing Plaintiff and others at her direction from engaging in further harassment. See Dkt. #6.


         A. Legal Standard for Summary Judgment

         Summary judgment is appropriate where “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). Material facts are those which might affect the outcome of the suit under governing law. Anderson, 477 U.S. at 248. In ruling on summary judgment, a court does not weigh evidence to determine the truth of the matter, but “only determine[s] whether there is a genuine issue for trial.” Crane v. Conoco, Inc., 41 F.3d 547, 549 (9th Cir. 1994) (citing Federal Deposit Ins. Corp. v. O'Melveny & Meyers, 969 F.2d 744, 747 (9th Cir. 1992)).

         On a motion for summary judgment, the court views the evidence and draws inferences in the light most favorable to the non-moving party. Anderson, 477 U.S. at 255; Sullivan v. U.S. Dep't of the Navy, 365 F.3d 827, 832 (9th Cir. 2004). The Court must draw all reasonable inferences in favor of the non-moving party. See O'Melveny & Meyers, 969 F.2d at 747, rev'd on other grounds, 512 U.S. 79 (1994). However, the nonmoving party must make a “sufficient showing on an essential element of her case with respect to which she has the burden of proof” to survive summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

         B. Civil ...

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