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Bibiano v. Law Office of Amy E. Harrison, P.L.L.C.

United States District Court, E.D. Oklahoma

August 30, 2017

CARLOS BIBIANO, Plaintiff,
v.
THE LAW OFFICE OF AMY E. HARRISON, P.L.L.C. and AMY HARRISON, Individually, Defendants.

          OPINION AND ORDER

          KIMBERLY E. WEST, UNITED STATES MAGISTRATE JUDGE

         This matter comes before the Court on Defendants' Motion to Dismiss Plaintiff's Amended Complaint (Docket Entry #30). Plaintiff initiated this action on August 1, 2016, seeking recovery for professional negligence against Defendants. The case was originally filed in the United States District Court for the Western District of Arkansas, Texarkana Division but was transferred to this District on January 20, 2017. The parties consented to the undersigned on February 24, 2017.

         On March 15, 2017, Plaintiff filed an Amended Complaint which included the professional negligence claim and added claims for breach of contract and fraud. The allegations generally arise from the alleged solicitation of Defendants' representation of Plaintiff in relation to a claim stemming from a vehicle accident involving Plaintiff which occurred on June 4, 2013. Plaintiff contends that Defendant Amy Harrison, an attorney, entered into an attorney/client agreement with him to assert his cause of action for personal injury. He further alleges that Defendant Harrison failed to timely file the personal injury action such that the claims were time-barred as outside of the statute of limitations but filed a Petition to assert the claim on June 11, 2015.

         Defendants first contend that Plaintiff failed to comply with Okla. Stat. tit. 12 § 19.1 by failing to include a written opinion from a qualified expert otherwise known as an affidavit of merit with the Amended Complaint. Oklahoma law in this regard provides:

A. 1. In any civil action for negligence wherein the plaintiff shall be required to present the testimony of an expert witness to establish breach of the relevant standard of care and that such breach of duty resulted in harm to the plaintiff, except as provided in subsection B of this section, the plaintiff shall attach to the petition an affidavit attesting that:
a. the plaintiff has consulted and reviewed the facts of the claim with a qualified expert,
b. the plaintiff has obtained a written opinion from a qualified expert that clearly identifies the plaintiff and includes the determination of the expert that, based upon a review of the available material including, but not limited to, applicable records, facts or other relevant material, a reasonable interpretation of the facts supports a finding that the acts or omissions of the defendant against whom the action is brought constituted negligence, and
c. on the basis of the review and consultation of the qualified expert, the plaintiff has concluded that the claim is meritorious and based on good cause.

         2. If the civil action for negligence is filed:

a. without an affidavit being attached to the petition, as required in paragraph 1 of this subsection, and
b. no extension of time is subsequently granted by the court, pursuant to subsection B of this section, the court shall, upon motion of the defendant, dismiss the action without prejudice to its refiling.

Okla. Stat. Ann. tit. 12, § 19.1 (West).

         While the Tenth Circuit has not specifically ruled upon this requirement under Oklahoma law, this Court finds the reasoning persuasive as set forth in the case of Ipock v. Manor Care of Tulsa, OK, LLC, 2017 WL 1289865 (N.D. Okla.). Judge Eagan recognized the split in authority among the federal courts in Oklahoma as to whether § 19.1 applies to federal diversity actions. Ultimately, she concluded that the prerequisites of § 19.1 directly conflicted with Fed.R.Civ.P. 8 and 9 when it imposes additional pleading requirements than set forth in these rules. Id. at *3. As such is the case, Plaintiff was not required to comply with the affidavit of merit in filing this action.

         Defendants next contend that the actions for breach of contract and negligence are essentially premature because action which was ultimately filed has not been dismissed as time-barred. In response, Plaintiff produced a dismissal court minute dated September 2, 2016 from the District Court in and ...


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