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Kasem v. Catholic Health Initiatives

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

December 16, 2019

JEAN KASEM, Plaintiff,
v.
CATHOLIC HEALTH INITIATIVES, a Colorado corporation doing business as St. Anthony Hospital, Defendant.

          ORDER DENYING PLAINTIFF'S MOTION FOR RELIEF FROM JUDGMENT

          BENJAMIN H. SETTLE UNITED STATES DISTRICT JUDGE

         This matter comes before the Court on Plaintiff Jean Kasem's (“Kasem”) motion for relief from judgment. Dkt. 56. The Court has considered the pleadings filed in support of and in opposition to the motion and the remainder of the file and hereby denies the motion for the reasons stated herein.

         I. PROCEDURAL HISTORY

         On April 20, 2018, Kasem filed a first amended complaint against Defendant Catholic Health Initiatives (“CHI”) asserting claims for wrongful death and loss of care and companionship. Dkt. 39. The complaint was signed by attorney Michael Kelly (“Kelly”). Id. at 10.

         On July 5, 2018, CHI filed a motion for summary judgment. Dkt. 42. On July 30, 2018, Kasem responded, failed to submit any evidence in response, and requested a Rule 56(d) continuance. Dkt. 45. The response was signed by Kelly. Id. at 9. On August 3, 2018, CHI replied. Dkt. 46.

         On September 19, 2019, the Court denied Kasem's request for a continuance and granted CHI's motion. Dkt. 48. In relevant part, the Court denied Kasem's request because she failed to meet both the procedural or substantive requirements of the rule. Procedurally, she failed to submit any affidavit or declaration in support of the motion and failed to conduct any discovery in the year that the matter had been pending. Id. at 10-11. Substantively, she only speculated that she would be able to retain some expert to establish that CHI's actions fell below the standard of care. Id. at 12. On September 20, 2019, the Clerk entered judgment against Kasem. Dkt. 49.

         On September 19, 2019, Kasem filed a notice of appeal. Dkt. 50.

         On July 30, 2019, Kasem filed the instant motion requesting relief from judgment and an indicative ruling that the Court would grant the motion if it was not divested of jurisdiction by the appeal. Dkt. 56. On July 22, 2019, CHI responded. Dkt. 59. On July 26, 2019, Kasem replied. Dkt. 62. On July 31, 2019, the Ninth Circuit granted Kasem's unopposed motion to stay the appeal pending this Court's determination of this motion.

         II. FACTUAL BACKGROUND

         Kasem's motion is based on (1) the undisputed incompetence/negligence of attorney Stanley Davis (“Davis”) and (2) Kelly's declaration in which he states that he essentially only performed local filing for pro hac vice counsel Davis. Dkt. 56-1. The problem with Kelly's story is that the evidence submitted by CHI undermines many of his assertions, and his assertions are almost admissions of malpractice. For example, the relationship began in what appears to have been a possible violation of the Washington Rules of Professional Conduct (“RPC”). Kelly concedes that he knew Davis was not admitted to practice in Wisconsin. Dkt. 56-1, ¶ 9 (“Mr. Davis informed me that he was, at that time, not licensed to practice in his home jurisdiction (Wisconsin), as he had fallen behind in that Bar Association's CLE requirements for renewal.”) Despite this knowledge, Kelly asserts that “[t]his resulted in [Kelly] being listed as sole counsel of record for several months when in fact Davis was performing all substantive work on the case and handling all communication with his client.” Id. Thus, at the very least, Kelly represented to the Court that he represented Kasem while allowing Davis, who was not admitted to practice, to perform all the substantive legal work for the client.

         In October 2017, one month after appearing, Kelly submitted a declaration in support of a motion for extension of time. Kelly stated that “[s]ince filing the Notice of Appearance, Ms. Kasem and I, as well as the three of us, including Mr. Davis, have been in regular communication. Ms. Kasem informs us that she is working diligently on gathering a number of documents and other information necessary for her Initial Disclosures . . . .” Dkt. 15, ¶ 2. This representation to the Court directly conflicts with Kelly's new assertion that Davis handled all communication with his client.

         Further, CHI has submitted numerous emails from Kelly establishing that Kelly at least represented that he was participating in substantive aspects of the case. For example, in November 2017, Kelly sent an email to all counsel stating that Davis was his “co-counsel” and attempted to arrange a joint conference to discuss initial orders. Dkt. 61-1 at 2. Almost two months after appearing, Kelly drafted a letter objecting to CHI's invitation to attend the deposition of its doctors. Id. at 6. CHI extended this invitation because they were involved in a related case and were hoping to streamline discovery in both cases. In response, Kelly wrote that this was his case, that he would be unable to travel to California to attend these depositions, and that, at the appropriate time, he would propound discovery and schedule depositions in the case that he was “actually handling.” Id. This letter also undermines Kelly's statement that Davis was handling all substantive matters.

         CHI's counsel clarified that the depositions would be conducted locally. Id. at 10. Kelly responded that he would be in trial during the scheduled dates and that he did not “envision noting these depositions until March or April, at the earliest.” Id. If Davis was handling all substantive matters, then it is unclear why depositions would need to be scheduled to accommodate Kelly's schedule. More importantly, there is no indication that Davis was included in these communications between Kelly and CHI's counsel.

         In November and December 2017, Kelly worked on the joint status report and Kasem's initial disclosures. In the report, he represented to the Court that he was the only counsel for Kasem. Dkt. 29. Regarding initial disclosures, Kelly wrote to CHI's counsel apologizing for the delay in producing them because he was tied up with other matters. Dkt. 61-1 at ...


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