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REYNOLDS v. Bruce D. Baker, Esq. Defendant.* (2020)

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United States Court of Appeals, Second Circuit.

Jacqueline D. REYNOLDS., Plaintiff-Appellant, v. Elizabeth DEMAS, Esq, Defendant-Appellee, Bruce D. Baker, Esq. Defendant.*


Decided: December 21, 2020

PRESENT: José A. Cabranes, Michael H. Park, William J. Nardini, Circuit Judges. FOR PLAINTIFF-APPELLANT: Jacqueline D. Reynolds, pro se, Hempstead, TX. FOR DEFENDANT-APPELLEE: William L. Gagnon, Heilmann, Ekman, Cooley & Gagnon, Inc., Burlington, VT.


Plaintiff-appellant Jaqueline D. Reynolds (“Reynolds”), proceeding pro se, appeals the District Court's September 25, 2019 judgment granting summary judgment to defendant-appellee Elizabeth Demas (“Demas”) and defendant Bruce Baker 1 and dismissing her complaint alleging legal malpractice and negligence. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

We review a grant of summary judgment de novo, “resolv[ing] all ambiguities and draw[ing] all inferences against the moving party.” Garcia v. Hartford Police Dep't, 706 F.3d 120, 126–27 (2d Cir. 2013) (per curiam). “Summary judgment is proper only when, construing the evidence in the light most favorable to the non-movant, ‘there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.’ ” Doninger v. Niehoff, 642 F.3d 334, 344 (2d Cir. 2011) (quoting Fed. R. Civ. P. 56(a)).

Because federal jurisdiction was based on diversity and the parties assert no contractual obligation to the contrary, we apply the substantive law of the forum state. Gen. Star Nat'l Ins. Co. v. Universal Fabricators, Inc., 585 F.3d 662, 669 (2d Cir. 2009). “To establish legal malpractice [in Vermont], a plaintiff must prove that (1) the attorney owed a professional duty of care to the client; (2) the attorney breached the duty; (3) the attorney's act was a proximate cause of the client's injury; (4) and ․ the client suffered damages as a result of the injury.” Sachs v. Downs Rachlin Martin PLLC, 206 Vt. 157, 179 A.3d 182, 186—87 (2017).

An expert opinion is generally required to establish negligence but, “[w]here a professional's lack of care is so apparent that only common knowledge and experience are needed to comprehend it, expert testimony is not required to assist the trier of fact in finding the elements of negligence.” Estate of Fleming v. Nicholson, 168 Vt. 495, 724 A.2d 1026, 1028 (1998). Reynolds did not submit an expert opinion, and Demas's representation of her was not so clearly negligent that only common knowledge and experience are needed to comprehend it. Reynolds failed to establish the value of her state-court claims, did not provide an estimate of the costs of pursuing further litigation, and did not dispute that an expert she had retained had concluded that one of the documents supporting her claims was fraudulent. Under the circumstances, an expert opinion was required to determine whether Demas acted unreasonably in negotiating the settlement Reynolds signed.

Reynolds also challenges the District Court's denial of an extension of time to obtain an expert, a decision which we review for abuse of discretion. Davidson v. Keenan, 740 F.2d 129, 132 (2d Cir. 1984). We find no abuse of discretion in denying an extension because Reynolds's request came after the agreed-to deadline for submission of an expert report, and after Demas moved for summary judgment. See id. (finding no abuse of discretion where the appellant did not request an extension to respond to a summary judgment motion until after the deadline had passed); see also Paddington Partners v. Bouchard, 34 F.3d 1132, 1139 (2d Cir. 1994) (“Requests for discovery in the face of motions for summary judgment put forth by parties who were dilatory in pursuing discovery are disfavored[.]”)


We have reviewed all of the arguments raised by Reynolds on appeal and find them to be without merit. For the foregoing reasons, we AFFIRM the September 25, 2019 judgment of the District Court.


1.   Although Reynolds's complaint named both Demas and Baker as defendants, her opening brief on appeal expressly waives any claims against Baker. Consequently, we treat Demas as the sole appellee.

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