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Wilborn v. Trant

United States District Court, N.D. Alabama, Middle Division

September 13, 2018

DOUGLAS A. TRANT, et al., Defendants.



         Plaintiff Don Mitchell Wilborn (“Wilborn”), a prisoner proceeding pro se, brings this legal malpractice action against Defendants Douglas A. Trant (“Trant”) and Whitt, Cooper, Trant & Hendrick, PA. (the “Firm”). (Doc. 1). Defendants have moved for summary judgment on the basis Wilborn has not provided expert testimony in support of his claim, as required by Alabama law. (Doc. 158). As described below, Wilborn has failed to file a response in opposition to the motion for summary judgment. For the reasons stated below, the motion is GRANTED.

         I. Standard of Review

         Under Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment is proper “if 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.” “Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party bears the initial burden of proving the absence of a genuine issue of material fact. Id. at 323. The burden then shifts to the nonmoving party, who is required to “go beyond the pleadings” to establish that there is a “genuine issue for trial.” Id. at 324. (citation and internal quotation marks omitted). A dispute about a material fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

         The Court must construe the evidence and all reasonable inferences arising from it in the light most favorable to the non-moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970); see also Anderson, 477 U.S. at 255 (all justifiable inferences must be drawn in the non-moving party's favor). Any factual disputes will be resolved in Plaintiff's favor when sufficient competent evidence supports Plaintiff's version of the disputed facts. See Pace v. Capobianco, 283 F.3d 1275, 1276-78 (11th Cir. 2002) (a court is not required to resolve disputes in the non-moving party's favor when that party's version of the events is supported by insufficient evidence). However, “mere conclusions and unsupported factual allegations are legally insufficient to defeat a summary judgment motion.” Ellis v. England, 432 F.3d 1321, 1326 (11th Cir. 2005) (per curiam) (citing Bald Mtn. Park, Ltd. v. Oliver, 836 F.2d 1560, 1563 (11th Cir. 1989)). Moreover, “[a] mere ‘scintilla' of evidence supporting the opposing party's position will not suffice; there must be enough of a showing that the jury could reasonably find for that party.” Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (citing Anderson, 477 U.S. at 252).

         IT. Background[2]

         Wilborn, who is a federal prisoner incarcerated in the Federal Correctional Institution in Estill, South Carolina (“FCI Estill”), filed the complaint in this action on November 16, 2015, [3]alleging Defendants, an attorney and a law firm, committed legal malpractice in representing him in his federal postconviction proceeding under 28 U.S.C. § 2255.[4] (Doc. 1). Wilborn failed to pay the filing fee or file a motion for leave to proceed in forma pauperis, and the undersigned ordered him to correct this deficiency. (Doc. 2). On December 10, 2015, Wilborn filed a motion for leave to proceed in forma pauperis and an amended complaint. (Docs. 3 & 4). The undersigned granted the motion for leave to proceed in forma pauperis and ordered service of the amended complaint on Defendants. (Docs. 5 & 8). Defendants answered the amended complaint on February 29, 2016. (Doc. 15). On April 8, 2016, the undersigned entered a scheduling order setting the deadline for Wilborn's expert disclosures at August 8, 2016, and the dispositive motion deadline at November 8, 2016. (Doc. 23).

         A. Initial Discovery Issues

         On April 8, 2016, at Wilborn's request, the Clerk of Court issued a subpoena directing nonparty Laura Hodge (“Hodge”), an Assistant United States Attorney for the Northern District of Alabama, to produce “All discovery materials in United States v. Wilborn, 4:11-cr-00470-VEH-HGD-1, including but not limited to, audio recordings, video surveillance, statements of codefendants (Form 302s): to be provided in CD/DVD format, accessible in Quick View Plus software, where available.” (Doc. 48 at 4).

         On June 9, 2016, Wilborn filed motions to compel production by nonparties Cullman County Sheriff Matt Gentry (“Gentry”) and Assistant United States Attorney Laura Hodge (“Hodge”). (Docs. 47, 48 & 49). The undersigned entered separate orders to show cause for each of these motions. (Docs. 51, 52 & 53). On June 17, 2016, the Cullman County Sheriff's Office filed a motion to quash the subpoena directed to Gentry. (Doc. 54).

         On June 14, 2016, Wilborn filed a motion to extend the deadlines in the scheduling order. (Doc. 55). The motion was received by the court on June 20, 2016. (See id.). Wilborn's motion specifically requested sixty to ninety days of additional time, and particularly noted his looming expert witness disclosure deadline. (Id. at 6). Because of the pending motions to compel and quash, the undersigned suspended all deadlines during those motions' pendency. (Doc. 57).

         On June 27, 2016, the undersigned denied the motion to compel directed to Hodge without prejudice, as it appeared that Wilborn had not complied with the Department of Justice's regulations in requesting material. (Doc. 60). The other motions remained pending.

         On August 23, 2016, the undersigned held a telephone conference to discuss the pending motions. At that conference, Defendants suggested that, because this legal malpractice action requires Wilborn to offer expert testimony on the standard of care, it would be appropriate to defer ruling on the pending motions until there was some indication that Wilborn would actually be able to retain an expert witness and offer that testimony. The undersigned agreed. Therefore, on August 24, 2016, the undersigned ordered Wilborn to designate an expert on the applicable legal standard of care by September 23, 2016, or show cause why he had not done so. (Doc. 75). The undersigned deferred ruling on the pending discovery motions until Wilborn made this designation. (Id.).

         B. Wilborn's Expert Designation

         Wilborn responded to this order on August 31, 2016, arguing the order was ineffective because all deadlines in the case had been suspended by previous order, and that he could not reasonably submit an expert report without the discovery that was the subject of these motions to compel. (Doc. 77). On September 15, 2016, in an order on several additional discovery motions, the undersigned informed Wilborn he need not submit an expert report, only designate an expert; the undersigned reminded Wilborn the September 23, 2016 deadline was still in effect. (Doc. 84 at 3-4).

         Wilborn submitted two documents on September 23, 2016. The first of these was a status update indicating Wilborn had consulted with two experts and attempted to contact another, but neither of them were able to review materials and provide a report by the deadline; consequently, he requested an additional thirty to forty-five days to make his designation. (Doc. 86). The second was a purported expert designation, which was a list of experts Wilborn designated “subject to their review of all discovery materials and approval, and subject to revision and/or substitution of this designation, ” as well as “any other expert witness identified after this filing.” (Doc. 87). On October 7, 2016, finding the latter document “so non-committal that it cannot reasonably be considered a designation, ” the undersigned struck it. (Doc. 89 at 2). In the same order, the undersigned granted Wilborn an additional thirty days to designate his expert, notwithstanding it did not appear Wilborn had been diligent in seeking out an expert. (Id. at 2-3).

         On November 4, 2016, Wilborn provided another status update. (Doc. 97). In that update, Wilborn submitted a number of attempts to communicate with attorneys, none successfully securing one as an expert witness. (Id.). Wilborn requested an additional thirty days to designate his expert. (Id.). The undersigned granted that request. (Doc. 99).

         On December 16, 2016, Wilborn designated Dennis W. Hartley as an expert witness. (Doc. 100). Wilborn also designated Mark I. Harrison and Scott Harwell, but acknowledged neither had been retained; Harrison could not be retained until Wilborn secured counsel, and Harwell could not be retained until his fee was paid. (Id.). Wilborn attached a letter from Hartley in which Hartley stated he had agreed to provide an expert report. (Doc. 100-1). Wilborn also filed a supplement to his designation on December 21, 2016, in which he attached an additional letter from Hartley dated prior to Wilborn's expert designation deadline and confirming Hartley's agreement to review the discovery concerning Wilborn's former counsel's performance. (Doc. 101).

         On March 6, 2017, in an omnibus order, the undersigned denied Defendants' motion to strike Wilborn's expert designation, (doc. 102). (Doc. 108 at 11-12). In the same order, the undersigned disposed of the pending motions to compel and quash. (Id. at 1-10).

         C. Subsequent Discovery Issues and Appeal

         On March 17, 2017, Wilborn renewed his motion to compel production by Hodge. (Doc. 109). Hodge responded with an additional motion to quash. (Doc. 115). After briefing on the motion, (docs. 117, 118, 119, 120, 121 & 122), and a telephone conference, the undersigned denied Wilborn's motion to compel on June 12, 2017. (Doc. 125). In that order, the undersigned noted that, although Wilborn had premised his need for the information he sought from the U.S. Attorney's Office (i.e., the discovery in his criminal case) on his inability to submit an expert report without it, he had never explained in any way the material's relevance to the allegations in this case, which is premised on postconviction representation by different counsel. (Id. at 9-10).

         Following this order, the undersigned entered a new scheduling order. (Doc. 127). After Wilborn requested on August 7, 2017, the scheduling order be modified due to his inability to review discovery material due to FCI Estill policies, his inability to communicate with his expert due to issues with the facility's copy machine, and closures to the law library and word processing equipment, (see doc. 130), the undersigned modified that scheduling order on October 5, 2017. (Doc. 133). As a result, Wilborn's expert ...

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