United States District Court, E.D. Oklahoma
OPINION AND ORDER
KIMBERLY E. WEST, UNITED STATES MAGISTRATE JUDGE
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.
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.
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.
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).
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
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 ...