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Fletcher v. Hoeppner Wagner & Evans, LLP

United States District Court, N.D. Indiana

August 10, 2018

HOEPPNER WAGNER & EVANS, LLP, et al., Defendants.



         This matter is before the Court on the: (1) Motion for Summary Judgment, filed by Defendant Hoeppner Wagner & Evans, LLP, on November 28, 2017 [ECF No. 211]; and (2) Motion for Leave to File Surreply to Defendant Hoeppner Wagner & Evans' Reply in Support of Summary Judgment, filed by pro se Plaintiff Paul Fletcher on June 20, 2018 [ECF No. 239]. For the reasons set forth below, the Motion for Leave to File Surreply [ECF No. 239] is DENIED AS MOOT. The Motion for Summary Judgment [ECF No. 211] is GRANTED. The Clerk is ORDERED to dismiss Count I of the First Amended WITH PREJUDICE and to CLOSE this case.


         The Plaintiff who is currently pro se, brought one count of legal malpractice against the Defendant in this action. [ECF No. 38]. The Plaintiff claims that the Defendant negligently represented him in his state court lawsuit, Paul Fletcher v. National Financial Services, LLC d/b/a Fidelity Investments and Mark Zupan, Cause No. 45D02-1405-PL-14, filed in Lake Superior Court on February 24, 2009. [ECF No. 213-1].

         In the underlying state suit, the Plaintiff alleged that his friend, Scott Taylor, named Fletcher as the beneficiary of three of Taylor's retirement accounts with National Financial Services, LLC (“Fidelity”), but a “change of beneficiary form was forged by [Mark] Zupan, ” to fraudulently designate himself as the beneficiary of those accounts. (Id. at ¶ 12.)

         Other counts in the Amended Complaint (II-IV) were alleged against co-Defendant Wayne Golomb, but these claims were previously dismissed by Judge Rudy Lozano in his order granting summary judgment in favor of Defendant Golomb on September 25, 2017. [ECF No. 204]. Because the facts of this case are discussed in detail in Judge Lozano's previous order, this Court will not recite them again here. However, the Court will discuss the facts relevant to this particular count and Defendant.

         The Defendant filed the instant Motion for Summary Judgment on November 28, 2017. [ECF No. 211]. On the same date, it also filed a Notice [ECF No. 214] of summary judgment to the pro se Plaintiff in accordance with Timms v. Frank, 953 F.2d 281, 285 (7th Cir. 1992). The Defendant's main argument is that there can be no malpractice liability because it has shown by uncontradicted expert evidence that it met the established standard of care in representing the Plaintiff. Following five motions for extension of time to respond, the Plaintiff filed a Response [ECF No. 235] on May 23, 2018. The Plaintiff argues, among other things, that he does not need to present expert testimony on the issue of malpractice because the common knowledge exception applies. The Defendant filed a Reply [ECF No. 238] on June 5, 2018. The Plaintiff filed his Motion for Leave to File a Surreply [ECF No. 239] on June 20, 2018; the Defendant filed an Objection [ECF No. 240] on June 26, 2018; and the Plaintiff filed a Reply [ECF No. 241] on July 9, 2018. The instant Motions are fully briefed and ready for adjudication.


         A. Motion for Leave to File Surreply

         The Plaintiff filed a motion for Leave to File a Surreply and attached the proposed surreply memorandum. (See ECF No. 239-1.) Local Rule 7-1 permits parties to file a supporting brief, a response, and a reply, “but does not contemplate the filing of a surreply or response to the reply brief.” Lafayette Life Ins. Co. v. City of Menasha, Wisconsin, No. 4:09 cv 64, 2010 WL 4553667, at *1 (N.D. Ind. Nov. 3, 2010) (denying motion for leave to file surreply where the “surreply is another attempt to point to the weaknesses in the defendant's brief, and ignores that it is the court's duty to weigh the arguments, distinguish cases, and apply the law.”). Courts generally do not permit litigants to file a surreply brief. Id. However, “a surreply brief is occasionally allowed when it raises or responds to some new issue or development in the law.” Id.; see also Hall v. Forest River, Inc., No. 3:04-cv-259, 2008 WL 1774216, at *1 n.1 (N.D. Ind. Apr. 15, 2008). The Court has reviewed the Plaintiff's surreply, and it does not raise or respond to new issues or legal developments; it only reiterates arguments already made. In any event, the Court would come to the same conclusion regarding the Defendant's Motion for Summary Judgment regardless of whether it accepted the Plaintiff's surreply. Thus, the Plaintiff's Motion for Leave to File a Surreply is denied as moot.

         B. Motion for Summary Judgment

         Summary judgment must be granted when “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A genuine dispute of material fact exists when “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). Not every dispute between the parties makes summary judgment inappropriate; “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Id. To determine whether a genuine dispute of material fact exists, the Court must construe all facts in the light most favorable to the non-moving party and draw all reasonable inferences in that party's favor. See Ogden v. Atterholt, 606 F.3d 355, 358 (7th Cir. 2010). However, “a court may not make credibility determinations, weigh the evidence, or decide which inferences to draw from the facts; these are jobs for a factfinder.” Payne v. Pauley, 337 F.3d 767, 770 (7th Cir. 2003) (citations omitted).

         A party opposing a properly supported summary judgment motion may not rely on allegations in his own pleading but rather must “marshal and present the court with the evidence [he] contends will prove [his] case.” Goodman v. Nat'l Sec. Agency, Inc., 621 F.3d 651, 654 (7th Cir. 2010). “[I]nferences relying on mere speculation or conjecture will not suffice.” Stephens v. Erickson, 569 F.3d 779, 786 (7th Cir. 2009) (citation omitted). If the non-moving party fails to establish the existence of an essential element on which he bears the burden of proof at trial, summary judgment is proper. See Massey v. Johnson, 457 F.3d 711, 716 (7th Cir. 2006). Summary judgment is the “put up or shut up moment in a lawsuit, when a party must show what evidence it has that would convince a trier of fact to accept its version of events.” Johnson v. Cambridge Indus., Inc., 325 F.3d 892, 901 (7th Cir. 2003).

         Although pro se plaintiffs are generally entitled to lenient standards, they are required to comply with local procedural rules governing motions for summary judgment. See, e.g., Cady v. Sheahan, 467 F.3d 1057, 1061 (7th Cir. 2006). The Local Rules of the Northern District of Indiana call for the party opposing summary judgment to include a section labeled “Statement of Genuine Disputes” that identifies the material facts the party contends are genuinely disputed. The Court notes that Plaintiff's response has a subheading “Fletcher's Rebuttal of HWE's Statement of Material Facts/Fletcher's Statement of Material Facts” (see Pl. Resp. Br. 1, ECF No. 235) and then numbered paragraphs, but there is not a second heading for legal argument. While some facts have citations to the record, much of the information in the fact section contains improper legal argument, convoluted arguments, and unsupported statements.[1] The Seventh Circuit has reiterated the need for an appropriate factual statement in opposition to a motion for summary judgment: “[t]hese statements are not merely superfluous abstracts of evidence . . . they are intended to alert the court to precisely what factual questions are in dispute and point the ...

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