United States District Court, D. Oregon
MICHAEL S. EDMONDSON, Plaintiff,
THRIFTY PAYLESS, INC., a foreign Corporation dba RITE AID, Defendant; MICHAEL S. EDMONDSON, Plaintiff,
EDWARD P. FITCH, ATTORNEY, Defendant; THRIFTY PAYLESS, INC., a foreign Corporation dba RITE AID, Third-Party Plaintiff,
LISA D. EDMONDSON, and REDMOND PHARMACY, LLC, an Oregon Limited Liability Company, Third-Party Defendants.
OPINION AND ORDER
Michael J. McShane United States District Judge
Michael S. Edmondson, proceeding pro se, brings this
action for negligence against his attorney, Defendant Edward
P. Fitch, for Fitch's alleged shortcomings in previously
representing Edmondson. Fitch moves for summary judgment (ECF
No. 59). Because there are no genuine issues of material fact
about Fitch's previous representation of Edmondson,
Fitch's summary judgment motion is GRANTED.
owned Redmond Pharmacy & Compounding Center, a pharmacy
in Redmond, Oregon. In October of 2015, he sold the pharmacy
to Rite Aid, remaining at the pharmacy as an employee.
Throughout the sale and employment negotiations, the Oregon
Board of Pharmacy (OBOP) was investigating Edmondson. Fitch
represented Edmondson in both the sale and the OBOP
investigation. SAC ¶¶ 37-38. Due to the OBOP
investigation, on December 21, 2015, Rite Aid terminated
Edmondson. SAC ¶ 19.
originally brought breach of contract and fraudulent
misrepresentation claims against Rite Aid. Edmondson Decl.
¶¶ 2-3; ECF No. In response to Rite Aid's
request for indemnification, Edmondson brought a negligence
claim against Fitch. SAC ¶ 40. In the SAC, Edmondson
alleges Fitch “assisted plaintiff Michael S. Edmondson
in drafting the original complaint against Thrifty Payless
Inc.” ¶ 39. Edmondson alleges Fitch was negligent
in failing to inform him of the “contractual
pitfalls” such as his duty to indemnify Rite Aid for
damages arising from any breach of representation or
warranty, and in failing to ensure Rite Aid continued to
employ Edmondson following the sale.
moves for summary judgment. In support, Fitch submits a sworn
declaration stating he (1) is licensed to practice law in
Oregon and (2) “All of the legal services I have
provided to plaintiff and the action I have undertaken on
behalf of plaintiff in the past have been consistent with the
degree of care, skill and diligence which is used by
ordinarily careful attorneys in the same or similar
circumstances.” Fitch Decl. ¶¶ 2, 5; ECF No.
court must grant summary judgment if there is no genuine
issue of material fact and the moving party is entitled to
judgment as a matter of law. Fed.R.Civ.P. 56(a). An issue is
“genuine” if a reasonable jury could return a
verdict in favor of the non-moving party. Rivera v.
Phillip Morris, Inc., 395 F.3d 1142, 1146 (9th Cir.
2005) (citing Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986)). A fact is “material” if it
could affect the outcome of the case. Id. The court
reviews evidence and draws inferences in the light most
favorable to the non-moving party. Miller v. Glenn Miller
Prods., Inc., 454 F.3d 975, 988 (9th Cir. 2006) (quoting
Hunt v. Cromartie, 526 U.S. 541, 552 (1999)). When
the moving party has met its burden, the non-moving party
must present “specific facts showing that there is a
genuine issue for trial.” Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (quoting
Tiedemann v. Radiation Therapy Consultants, 299 Or.
238 (1985), a patient sued her doctors for negligence. The
defendant doctors were granted summary judgment based on the
affidavit of a defendant doctor declaring that the treatment
patient received “was consistent with the degree of
care, skill and diligence which is used by ordinarily careful
physicians . . . in a same [or] similar circumstance.”
Id. at 241. The patient did not counter the expert
evidence about defendant doctors' treatment. Id.
The Tiedemann court granted summary judgment because
the uncontroverted affidavit factually established the
standard of care was met. Id. at 245.
context of Fitch's uncontradicted declaration is
identical to the doctor's affidavit in
Tiedemann. The defendant doctor in
Tiedemann was qualified to testify on the standard
of care in her field. Id. at 241-43. Similarly, as
an attorney, Fitch is qualified to testify on the standard of
care in his field. Fitch's affidavit is admissible
evidence that he did not breach the standard of care and
skill of attorneys in the same or similar circumstances.
Fitch Decl. ¶¶ 2, 5. Therefore, Fitch met his
burden at summary judgment to demonstrate there exists no
dispute on the standard of care question.
burden shifts to Edmondson, the non-moving party, to present
“specific facts showing that there is a genuine issue
for trial.” Matsushita Elec. Indus. Co., 475
U.S. at 586-87 (quoting Fed.R.Civ.P. 56(e)). Unlike Fitch,
Edmondson does not provide an affidavit from anyone, let
alone someone qualified to testify on the standard of care
for attorneys in the same or similar circumstances. Like the
defendant doctor in Tiedemann, Fitch's unrefuted
expert declaration entitles him to summary judgment.
motion for summary judgment ...