Beruflich Dokumente
Kultur Dokumente
____________________
No. 95-1135
CAMERON K. WEHRINGER,
Plaintiff, Appellant,
v.
Defendant, Appellee.
____________________
____________________
Before
____________________
Martin, Magnuson,
_________________
____________________
____________________
Per Curiam.
___________
Plaintiff-appellant,
Cameron
K.
pursuant
to
Fed. R.
Civ.
"without
prejudice to
P.
refiling,
12(b)(6) of
if,
underlying lawsuit,
plaintiff is able
legal malpractice."
He
motion
summary judgment
for partial
as
his
complaint,
a result
to state a
of
claim for
and from
the
of his
the district
We
affirm
on the
basis of
the district
court's well-reasoned
I.
premature in that it
determined.
allegedly tape
recorded Wehringer's
voice
in violation
of
court.
Powers
representing
was
granted
leave
to
withdraw
on April 21,
1989.
from
New
counsel
entered
district
court
an
appearance
ruled
that,
on
even
April
23,
assuming
1993.
The
negligence,
Such
-3-
proof
could
not be
offered until
the underlying
suit was
completed.
On appeal,
even before
the
as a result
of Powers' negligence.
is as
barred
by
the
statute
Brannigan,
previously
voluntarily
of
defendant
limitations)
against
whom
all
dismissed;
2)
Powers'
the
hired by Powers in
underlying litigation.
billing
of
the case,
represent him in
address each
allegation of
harm separately.
A.
were
April 1993, to
We
Audrey
claims
counsel
against
______________________________________
Wehringer
Powers'
argues on
negligence in failing
feasibility of
amending the
the opportunity
to pursue
("Brannigan"),
as
to
it is not
liberal
as
that as
a result
complaint, he has
forever lost
a claim against
the
Audrey Brannigan
statute
of
limitations
a defendant.
policy allowing
of
to even discuss
which
at all clear
Brannigan
appeal
"Massachusetts
of the statute
of
complaint to add
has
-4-
First,
long had
or substitute
v.
Clark Equipment Co., 401 Mass. 554, 556 (1988); see Mass.
___________________
___
R. Civ. P.
not
15(c).
Wehringer has
amend
the running of
the statute of
the
claim
probably
would
have
succeeded.
Until
proof.
the
such
B.
because in its
Wehringer
withdraw.
Therefore, any
have
existed
in
this
potential claim
regard
is now
of harm
moot.
that may
Wehringer's
and other
against
costs of bringing
Powers' attempt
to collect fees
for time
to protect
spent on
-5-
C.
This
appeal.
were
argument
The complaint
incurred
Wehringer's
Wehringer
as
is raised
for
the
first time
result
Opposition
to
of
Powers'
Powers'
legal costs
negligence.
Motion
on
to
In
Dismiss,
Lawyers
are
plaintiff
engage
is
just
too
without
counsel.
This
expensive,
and
the resources
to
is true
in
the
Appellant's Appendix,
not
presented
his
p. 62 (emphasis in
legal
fees
as
harm
original).
Having
argument
below,
See
___
(1st Cir.), cert. denied, __ U.S. __, 115 S. Ct. 2247 (1995).
_____ ______
Even
the
if we were to
form of legal
Massachusetts law,
has no merit.
Under
of action for
legal malpractice
are incurred as a
result of
a cause
of harm in
the alleged
malpractice, notwithstanding
that an
F.2d 551, 554 (1st Cir. 1984) (applying Massachusetts law and
holding
attorney
that
legal
malpractice
cause
of
action
against
-6-
to ameliorate
Cantu
_____
harm
caused by
defendant attorney's
malpractice
cause
of
Mass.
action
fees incurred
53, 57
accrued
(1987)
while
error);
(legal
underlying
negligence in failing to
timely
the
notify
excess
insurer
394
of
underlying
claim);
malpractice
when
plaintiffs
incurred
substantial
legal
conduct
of
their
attorneys,
notwithstanding
that
the
This
case
above, however, by
legal
Powers'
expenses
alleged
is distinguished
the failure of
were incurred
negligence.
as
from the
cases cited
Wehringer to allege
the
After
pro se.
___ __
proximate result
Powers'
that
of
withdrawal,
Replacement counsel
did
not enter an
April,
1993.
appearance in the
In his
argues that he
This harm,
-7-
however, is
for
pursuit of
the
underlying litigation
incurred by Wehringer
by
Powers.
would have
been
any negligence
II.
Default Judgment
________________
Wehringer's motion
for default
judgment on the
Powers failed to
file an
Wehringer served
1991.
answer to the
ground that
complaint on
time.
on September 27,
12(b)(5).
judgment
time.
an answer to
default
the complaint on
filing
an answer had
12(a)(4)(A)
(service of
motion
See Fed.
___
under Fed.
for filing
R. Civ. P.
R.
an answer
Civ. P.
until 10
12
days
denied
referred.
As
authority to
Wehringer freely
admits,
there
is no
legal
-8-
court
committed
no
error in
failing
to
enter a
default
judgment.
action is affirmed.
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