United States District Court, W.D. Washington, Tacoma
ORDER DENYING PLAINTIFF'S MOTION FOR RELIEF FROM
BENJAMIN H. SETTLE UNITED STATES DISTRICT JUDGE
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
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.
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.
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.
September 19, 2019, Kasem filed a notice of appeal. Dkt. 50.
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
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
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.
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
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.
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 ...