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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Case 2:04-cv-02612-NVW Document 308 Filed 08/31/07 Page 1 of 17 1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 Renee Cecala, ) No. CV 04-02612-PHX-NVW ) 9 Plaintiff, ) ORDER ) 10 vs. ) ) 11 ) David. B. Newman; Cooperman Levitt) 12 Winikoff Lester & Newman, P.C., ) ) 13 Defendants. ) ) 14 15 The court has before it Plaintiff Renee Cecala (“Cecala’s”) Motion for 16 Reconsideration and Related Relief (doc. # 283). Cecala’s Motion will be denied. The 17 Response (doc. # 288) has been allowed and treated as a fresh motion for summary judgment 18 and will be granted for the reasons set forth below. 19 I. Background 20 This is another chapter in the long-running legal malpractice dispute between Renee 21 Cecala and her former lawyer, David B. Newman (“Newman”), and her former New York 22 law firm, Cooperman Levitt Winikoff & Newman (“Cooperman Levitt”) (collectively, 23 “Newman”).1 On May 2, 2007, the court granted a defense motion for summary judgment 24 25 1Cecala’s malpractice claims arise out of Newman’s handling of an employment discrimination dispute between Cecala and her former employer, NationsBank. (Doc. # 254 26 at 1-5.) Cecala worked for NationsBank from June 1994 until March 1997. (Id.) Newman 27 represented Cecala in arbitration proceedings against NationsBank from September 1997, until June 21, 1999, when Cecala formally discharged him under disputed circumstances. 28 (Id.) The arbitrators rendered their award on February 10, 2000, finding in favor of Case 2:04-cv-02612-NVW Document 308 Filed 08/31/07 Page 2 of 17 1 disposing of all Cecala’s claims for relief. (Doc. # 254.) The court determined that: 1) 2 Cecala has not made a prima facie case of negligent supervision against Cooperman Levitt 3 (Count IV) because she failed to provide any evidence of a legal duty or injury caused by the 4 breach of that duty; 2) Cecala’s claims for non-litigation breach of fiduciary duty (Count II), 5 and intentional infliction of emotional distress (Count III), are out-of-time under A.R.S. § 12- 6 542, and tolling of the statute of limitations is not available for “unsound mind” or for any 7 other reason; 3) Cecala has not made a prima facie case for attorney negligence (Count I), 8 or litigation-injury fiduciary breach (Count II), because she failed to present any evidence 9 from which a reasonable juror could conclude that, but for Newman’s misconduct, Cecala 10 should have won her arbitration against NationsBank; and 4) Newman’s failure to assert a 11 Title VII retaliation claim during arbitration (Count I) was not negligent, as a matter of law, 12 because Cecala did not suffer economic injury worthy of the expense of litigation, and the 13 loss of an opportunity to assert a theoretically viable but economically futile claim falls short 14 of the damages required by settled legal malpractice claim. (Id.) Final judgment in favor of 15 Newman and Cooperman Levitt was entered on June 1, 2007. (Doc. # 278.) 16 On June 15, 2007, Cecala, appearing pro se, filed a timely “Motion for 17 Reconsideration and Related Relief” in which she alleged many factual and legal errors. 18 (Doc. # 283.) The court deemed Cecala’s Motion for Reconsideration to be a timely motion 19 for a new trial under Rule 59(a) and a Rule 59(e) motion in light of the final, appealable 20 judgment in this case. (Doc. # 284 at 1.) Most of Cecala’s contentions did not call for 21 further response. (Id. at 4.) However, the court in its discretion reopened the proceedings 22 to permit a fresh request for, and opposition to, summary judgment against 1) Cecala’s claim 23 of negligent supervision against Cooperman Levitt and 2) Cecala’s claim of negligent failure 24 25 NationsBank on all claims. Cecala filed a state court action against Newman and Cooperman 26 Levitt in 2003, which case was subsequently dismissed for lack of prosecution. (Id.) Cecala 27 filed anew after retaining counsel in November 2004. (Doc. # 1.) Plaintiff’s counsel was allowed to withdraw from representation for non-payment of fees after the court granted 28 summary judgment on all Cecala’s claims. (Doc. # 271.) - 2 - Case 2:04-cv-02612-NVW Document 308 Filed 08/31/07 Page 3 of 17 1 to plead Title VII retaliation. (Id. at 4.) The court reopened briefing and evidence from both 2 partes on these issues, and set a briefing schedule. (Id. at 4.) The filing deadlines were 3 subsequently extended, on multiple occasions, to accommodate Cecala’s requests. (Doc. ## 4 291, 295, 299.) 5 These proceedings have in effect granted Newman and Cooperman Levitt an 6 opportunity to make, and Cecala the opportunity to respond to, a fresh motion for summary 7 judgment on the issues of negligent supervision and negligent failure to plead. The court 8 now addresses those matters based on the briefing and evidence, including the new evidence. 9 II. Cecala’s Over-Length Reply 10 Cecala’s Reply consists of 38 pages in two documents filed on separate dates. (Doc. 11 ## 300, 301.)2 The court will consider the relevant portions of Cecala’s over-length Reply 12 briefs, and will disregard the sections that attempt to reopen summary judgment proceedings 13 on grounds not authorized by the court.3 Cecala has also submitted a 57-page Statement of 14 Facts together with 162 exhibits in four bound volumes. Most of this evidence is irrelevant 15 and repetitive. Cecala’s Statement of Facts does not comply with Local Rule LRCiv 56.1(a), 16 but is rather an unfocused summary of discovery. 17 III. Summary Judgment Is Warranted on the Claim of Negligent Supervision 18 A. Cecala’s Allegations 19 Cecala alleges that the law firm of Cooperman Levitt “breached its duty of 20 supervision” as well as “applicable attorney ethical rules” by failing to detect Newman’s 21 sexualization of the attorney-client relationship. (Doc. # 67 at 35.) Cecala elaborates upon 22 23 2On August 23, 2007, Cecala filed a 29-page Reply brief addressing the issue of Cooperman Levitt’s negligent supervision. (Doc. # 300.) On August 27, 2007, by 24 permission of the court (doc. # 299), Cecala filed a nine-page Reply addressing the second 25 ground for reopening. (Doc. # 301.) 26 3Cecala’s memoranda (Doc. ## 283, 300, 301) misstate the proceedings on several 27 occasions. The court makes no attempt to correct those misstatements here. Instead, the court focuses only upon the merits of Newman’s and Cooperman Levitt’s fresh motion for 28 summary judgment and the arguments and evidence submitted by Cecala in response thereto. - 3 - Case 2:04-cv-02612-NVW Document 308 Filed 08/31/07 Page 4 of 17 1 the theme in her Rule 59 Motion, contending that Cooperman Levitt “should have acted to 2 detect and investigate warning signs and risks to Cecala of which they were aware and 3 should have been aware.” (Doc. # 300 at 27.) Among the “warning signs” identified by 4 Cecala as sufficient to place the law firm on notice of Newman’s predatory, quid pro quo 5 sexual relationship are 1) Cecala’s unpaid legal fees, which grew from $10,000 to as much 6 as $100,000; 2) a lack of correlation between the amount of time Newman spent on Cecala’s 7 case, including travel and telephone calls, and the number of hours billed to Cecala’s 8 account; 3) Newman’s frequent trips to Arizona to prepare for arbitration when his client 9 maintained a temporary residence in New York City; 4) Newman’s failure to request 10 reimbursement for hotel stays in Arizona; and 5) the filing of a client memo by Newman in 11 which he detailed his client’s psychological distress.4 (Id. at 21-26.) Having been placed 12 on notice of Newman’s improper sexual relationship with a client of the firm, Cecala faults 13 Cooperman Levitt for failing to mitigate the “reasonably foreseeable” results of that 14 relationship, including “emotional distress[,] . incompe[tent] . counsel [and] advocacy, 15 . excessive [client] responsibilities in prosecuting [Cecala’s] arbitration case[,] . and 16 clandestine abuse which . changed Cecala from capable and competent, to helpless and 17 dependent[,] . and will affect Cecala for the rest of her life.” (Id. at 28.) “Cooperman 18 Levitt had notice through at least two of its partners that Cecala was in despair and in legal 19 and personal danger. They wilfully took no action to serve or protect her interests, they 20 remained silent, and served the firm’s interests,” Cecala avers. (Id. at 25.) 21 Cecala seeks to hold Cooperman Levitt liable for the same psychological and 22 litigation injuries that form the basis of her claims against lawyer Newman. Newman 23 allegedly caused Cecala emotional and pecuniary harm by violating the applicable standards 24 of care and conduct. (Doc. # 67 at 23-34.) Cooperman Levitt’s culpability flows not from 25 any affirmative misconduct but rather from its alleged nonfeasance. (Id. at 35.) Faced with 26 27 4Cecala does not support these allegations with any specific evidence from her 28 Statement of Facts or otherwise. - 4 - Case 2:04-cv-02612-NVW Document 308 Filed 08/31/07 Page 5 of 17 1 overwhelming evidence of Newman’s improper relationship, Cecala contends that the law 2 firm closed its eyes to the danger to protect its own interests, thereby facilitating the injuries 3 to Cecala’s emotional well being and to her employment discrimination case.
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