United States District Court, N.D. Alabama, Middle Division
MEMORANDUM OPINION 
H. ENGLAND, III UNITED STATES MAGISTRATE JUDGE.
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.
Standard of Review
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
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).
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, 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. (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).
Initial Discovery Issues
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
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).
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.
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.
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.
Wilborn's Expert Designation
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).
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).
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.
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).
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).
Subsequent Discovery Issues and Appeal
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).
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 ...