THOMAS M. BROOKS, Plaintiff,
JOHN R. LEMIEUX, ESQ., and DESMOND & RAND, PA., as respondeat superior for JOHN R. LEMIEUX, ESQ., Defendants.
ORDER ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
LANCE E. WALKER JUSTICE, SUPERIOR COURT.
Before the court is Defendants' motion for summary judgment on Plaintiffs claims for legal malpractice. A hearing on Defendants' motion was held on January 8, 2016. Based on the following, Defendants' motion for summary judgment is granted.
Plaintiff Thomas M. Brooks has brought claims against John R. Lemieux, Esq. and his law firm Desmond & Rand, P.A., as respondeat superior for Lemeiux, for legal malpractice (Count I), breach of fiduciary duty (Count II), and negligent infliction of emotional distress (Count III). (Compl. ¶¶ 34-48.)
Plaintiff was employed by Bath Iron Works ("BIW") from 1979 until his employment was terminated in 2006. (Defs. Supp. S.M.F. ¶ 1; PL Opp. S.M.F. ¶ 1.) From 1985 or 1986 until his termination, Plaintiff was represented by the Local S7, International Association of Machinists and Aerospace Workers (the "Union"). (Id.) Plaintiffs employment was governed by a Collective Bargaining Agreement (the "CBA") between BIW and the Union. (Id. ¶4.)
In April 2004, Plaintiff signed a two-year Last Chance Agreement (the "LCA") with BIW. (Id. ¶ 5.) The LCA was the result of Plaintiff allegedly being observed leaving BIW's facilities while on the clock, which constituted fraud under the CBA. (Id. ¶¶ 4-5.) Under the LCA, any further violations of the rules of conduct for BIW employees would result in Plaintiffs immediate discharge. (Id. ¶ 6.)
According to a 1997 memo promulgated by a BIW executive, BIW considered the unauthorized use of BIW telephones to constitute fraud. (Id. ¶ 7.) Previously, Plaintiffs 2001 performance evaluation stated that Plaintiff should spend less time socializing on the phone. (PI. Opp. S.M.F. ¶ 8.) Plaintiffs 2003 performance evaluation also stated that Plaintiff should minimize personal calls during work hours. (Id.) In March 2004, Plaintiff was informed that his BIW phone was restricted to local calls. (Defs. Supp. S.M.F. ¶ 9; PI. Opp. S.M.F. ¶ 9). Plaintiff was also reminded that BIW phones were for business use only. (Id.)
In 2006, Plaintiffs supervisor received complaints about Plaintiffs use of BIW phones. (Id. ¶ 13.) The Union shop steward was also of the opinion that Plaintiff spent an inordinate amount of time on the phone. (Id.) On June 27, 2006, Plaintiff attended a meeting with Union and BIW representatives. (Id. ¶ 14.) During the meeting, Plaintiff acknowledged making personal calls from work to his girlfriend's home, his girlfriend's cell phone, and a calling card. (Id. ¶ 15.) Plaintiff made 39 personal calls in March 2006 (6.3 hours, 5.6% of Plaintiffs work hours), 61 calls in April 2006 (10.75 hours, 8.7% of Plaintiff s work hours), 66 personal calls in May 2006 (10.95 hours, 7.7% of Plaintiff s work time), and 65 personal calls in June 2006 (5.39 hours, 4.2% of Plaintiff s work hours). (Id.) Twenty-four of those calls exceeded 10 minutes, five of those calls exceeded 25 minutes, and the longest call lasted 54 minutes. (Id.) Following the June 27, 2006 meeting, Plaintiff was suspended pending an investigation. (Id. ¶ 16.) On July 10, 2006, BIW terminated Plaintiffs employment for fraud. (Id.)
Following Plaintiffs termination, Union representatives met with Plaintiff, investigated the situation, and worked with Plaintiff to develop arguments for Plaintiffs grievance hearing. (Id. ¶ 17.) At the grievance hearing, the Union representative argued that Plaintiffs supervisor had authorized calls up to 45 minutes, that Plaintiff was able to work while on the phone, that other employees had engaged in similar conduct without similar consequences, and that Plaintiffs medical condition prompted his behavior. (Id. ¶ 18.) Plaintiff asserts that the Union representative was resistant to Plaintiffs argument that his medical condition prompted his behavior and that the Union representative failed to obtain evidence or present witnesses that Plaintiff had requested in order to support his arguments at the grievance hearing. (PI. Opp. S.M.F. ¶¶ 17-18.) On August 18, 2006, BIW denied Plaintiffs grievance. (Defs. Supp. S.M.F. ¶ 19; PI. Opp. S.M.F. ¶ 19.) The Union Grievance Committee voted unanimously not to arbitrate Plaintiffs grievance. (Id. ¶ 20.)
Plaintiff hired Defendant John R. Lemieux, Esq. of the Defendant law firm Desmond & Rand, P.A. to pursue claims against both BIW and the Union. (Id. ¶ 21.) In January 2007, Lemieux filed discrimination charges against both the Union and BIW on behalf of Plaintiff with the Maine Human Rights Commission (the "MHRC"), the National Labor Relations Board (the "NLRB"), and the Equal Employment Opportunity Commission (the "EEOC"). (Id. ¶¶ 26-28.) On February 27, 2007, Lemieux filed a complaint against BIW and the Union in the United States District Court for the District of Maine. (Id. ¶ 29.) On January 22, 2008, Lemieux filed a motion for leave to amend the complaint. (Id. ¶ 39.) Plaintiffs motion was granted on January 30, 2008. (Id. ¶ 40.) Lemieux did not actually file the amended complaint with the U.S. District Court until August 22, 2008. (Id. ¶ 71.)
The amended complaint asserted the following claims: violation of the duty to fair representation under the Labor Relations Act against the Union (Count I); breach of contract under the Labor Relations Act against BIW (Count II); employment discrimination under 42 U.S.C. § 2000e-2 against BIW (Count III); employment discrimination under 42 U.S.C. § 2000e-2 against the Union (Count IV); and employment discrimination under the Maine Human Rights Act ("MHRA") against BIW (Count V). (PL Opp. S.M.F. ¶ 39A.)
On May 23, 2008, BIW filed a motion for summary judgment with the U.S. District Court. (Defs. Supp. S.M.F. ¶ 54; PI. Opp. S.M.F. ¶ 54.) The Union also filed a motion for summary judgment on June 6, 2008. (Id.) Pursuant to Local Rule 56, each motion for summary judgment was accompanied by a statement of material facts in support of the motion for summary judgment. (Id. ¶ 55.) See D. Me. Local R. 56(b). The U.S. District Court extended the deadline for Lemieux to file Plaintiffs opposition to both motions to July 7, 2008. (Id. ¶ 56.)
On July 7, 2008, Lemieux filed the following with the U.S. District Court: (1) an opposition to BIW's motion for summary judgment, (2) an opposition to the Union's motion for summary judgment, (3) a statement of additional facts in support of Plaintiffs oppositions to both motions for summary judgment, and (4) an affidavit with supporting materials. (Id. ¶¶ 57-58.) On July 8, 2008, one day after the filing deadline, Lemieux filed an opposing statement of facts against the Union. (Id. ¶ 59.) Lemieux filed a motion for enlargement of time to file opposing statements of material facts against both the Union and BIW on August 8, 2008. (Id. ¶ 67.) See D. Me. Local R. 56(c).
On October 3, 2008, the U.S. District Court magistrate judge issued a report and recommended decision. (Id. ¶ 72.) In the recommended decision, the magistrate judge granted Lemieux's motion for enlargement of time to file opposing statements of material fact against the Union that were filed only one day late. (Id. ¶ 73.) The magistrate judge considered Plaintiffs opposing statement of facts against the Union in reaching his recommended decision. (Id.) The magistrate judge denied Lemieux's motion for enlargement of time to file opposing statements of material fact against BIW. (Id. ¶ 74.) Because BIW's statements of material fact were unopposed, the magistrate judge deemed BIW's statements of material fact admitted to the extent that they were properly supported. (Id.) See D. Me. Local R. 56(f). The magistrate judge's recommended decision granted summary judgment to BIW and the Union on all of Plaintiffs claims. (Id. ¶ 72.) Following a de novo review by a district judge, the magistrate judge's recommended decision was affirmed. (Id. ¶ 99.)
On June 27, 2014, Plaintiff filed this present complaint against Defendants Lemieux and Desmond & Rand, P.A., as respondeat superior, alleging legal malpractice, breach of fiduciary duty, and negligent infliction of emotional distress. (Compl. ¶¶ 34-48.) With regard to Plaintiffs malpractice claim, Plaintiff alleges that Lemieux breached the duty of care owed to Plaintiff by the following actions: (1) failing to timely respond to BIW's and the Union's statements of facts filed with their motions for summary judgment; (2) failing to properly cite to the summary judgment record in denying the Union's statements of material facts; (3) failing to obtain affidavits from key witnesses to support Plaintiffs opposition to BIW's and the Union's motions for summary judgment; and, (4) failing to conduct general discovery. (Id. ¶ 36.)
On August 5, 2015, Defendants moved for summary judgment on Plaintiffs claim of legal malpractice. (Defs. Mot. Summ. J. 1.) Following a motion to extend time, Plaintiff filed an opposition to Defendants' motion for summary judgment on September 16, 2015. (PL Opp'n to Defs. Mot. Summ. J. 1.) Following a motion to extend time, Defendants filed a reply to Plaintiffs opposition on September 30, 2015. (Defs. Reply to PI. Opp'n to Defs. Mot. Summ. J. 1.)
II. STANDARD OF REVIEW
Summary judgment is appropriate if, based on the parties' statements of material fact and the cited record, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. M.R. Civ. P. 56(c); Dyer v. Dep 't of Tramp., 2008 ME 106, ¶ 14, 951 A.2d 821. "A material fact is one that can affect the outcome of the case. A genuine issue of material fact exists when the fact finder must choose between competing versions of the truth." Dyer, 2008 ME 106, If 14, 951 A.2d 821 (internal citation and quotation marks omitted). When deciding a motion for summary judgment, the court reviews the evidence in the light most favorable to the non-moving party. Id.
If the moving party's motion for summary judgment is properly supported, the burden shifts to the non-moving party to respond with specific facts indicating a genuine issue for trial in order to avoid summary judgment. M.R. Civ. P. 56(e). When a defendant moves for summary judgment, the plaintiff must respond with evidence establishing a prima facie case for each element of their cause of action. Watt v. UniFirst Corp., 2009 ME 47, ¶ 21, 969 A.2d 897 (internal citation and quotation marks omitted). The evidence proffered by the plaintiff "need not be persuasive at that stage, but the evidence must be sufficient to allow a fact-finder to make a factual determination without speculating." Estate of Smith v. Cumberland Cnty., 2013 ME 13, ¶ 19, 60 A.3d 759. If a plaintiff fails to present sufficient evidence on the essential elements, then the defendant is entitled to a summary judgment. Watt, 2009 ME 47, ¶ 21, 969 A.2d 897.
If the party moving for summary judgment bears the burden of persuasion on the claim or defense, then the moving party must establish the existence of each element of the claim or defense without dispute as to any material fact in the record in order to obtain summary judgment. Cach, LLC v. Kulas, 2011 ME 70, ¶ 9, 21 A.3d 1015. The non-moving plaintiff must then respond with ...