Chicago Legal Malpractice Lawyer Blog
The case of Breitenstein v. Deters, 19 -cv-413 (S.D. Ohio Western Division) is unusual. Plaintiff retained the Defendant lawyers to represent her in a medical malpractice case. The underlying case was dismissed, but the plaintiff appealed that decision. While the appeal was pending, she sued her lawyers for legal malpractice. The court dismissed the legal malpractice case because plaintiff filed the case before her underlying case was resolved. In other words, the plaintiff filed suit too soon. This case was decided in the 6th Circuit, under Ohio law. (In Illinois, the result might have been different.) The discussion by the court notes that plaintiff might win her appeal and thus the dispute with her lawyers is not ripe.
Here, Defendants contend that dismissal for lack of subject matter jurisdiction is proper because Plaintiff’s claim lacks ripeness. The primary basis for Defendant’s argument is that Plaintiff’s 2013 suit is still pending on appeal. As such, Defendants are still representing Plaintiff. (Doc. 3 at 3). Because the appeal is ongoing, Defendants assert that Plaintiff has not yet suffered any ascertainable damages from the underlying lawsuit. Id. at 1. Further, because Defendants have tolled the statute of limitations, Plaintiff may bring her claims, if appropriate, within a year after the appeal is over. Defendants therefore conclude that Plaintiff does not face a threat of future harm that warrants the Court to entertain the matter before it is ripe. (Doc. 7 at 1-2).
In support of their assertions, Defendants heavily rely on the decision in Kovacs v. Chesley to support their arguments for dismissal. Kovacs v. Chesley, 2000 U.S. App. LEXIS 8989 (6th Cir. 2000). The fact pattern in Kovacs is similar to the current matter: Plaintiff sued her attorneys for negligent evaluation of her medical records during Defendant’s representation of Plaintiff in a medical malpractice lawsuit. When Plaintiff brought the lawsuit against her attorneys, the underlying lawsuit was still undergoing settlement processes. Consequentially, the Court of Appeals for the Sixth Circuit upheld this Court’s dismissal of the case for lack of ripeness. (Id. at 2-3).
Plaintiff, however, argues that subject matter jurisdiction exists because diversity jurisdiction exits under 28 U.S.C. §1332(a). Doc 6 at 6. Plaintiff further asserts that her matter is ripe because (1) she will suffer hardship if the court dismisses her case and the statute of limitations bars future claims, and (2) she has already suffered damages from Defendant’s negligent representation. (Doc. 6 at 8-9). In the alternative, Plaintiff further argues that the Court should stay all further proceedings in this case pending disposal of the appeal in the interest of justice.
Upon careful consideration, the undersigned finds that this matter is not ripe for adjudication because Plaintiff’s underlying case is still pending in the Court of Appeals. As such, her damages cannot yet be determined and she has not been responsible for any legal costs. Thus, the instant action is not ripe for adjudication. Accordingly, Defendants’ motions to dismiss are well taken and should be granted. In the alternative, this matter should be stayed pending the outcome of Plaintiff’s appeal.
Comment: The cases on when a legal malpractice claim arises are all over the map. The law in one state can be very different from the law in another state. My advice is to consult a lawyer as soon as possible to determine if you have a claim and when you should sue. If you have any questions concerning a potential legal malpractice claim, do not hesitate to contact us. We are always happy to answer any questions you may have.
Ed Clinton, jr.