Date: 07-26-2024

Case Style:

Denver Ward v. Dr. Laura Fisher, et al.

Case Number: 4:23-CV-554

Judge: John F. Heil, III

Court: United States District Court for the Northern District of Oklahoma (Tulsa County)

Plaintiff's Attorney:

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Defendant's Attorney: James Keith Secrest, II and Edward John Main for Dr. Fisher

Bruce Alvin McKenna for Carol L. Swenson

Andrew M. Bowman and Larry D. Ottaway for Brady Gundy

Description:

Tulsa, Oklahoma civil rights lawyers represented the Plaintiff, individually and as the parent and guardian of H.A.B., a minor child, who sued on a civil rights violation theory.

This case was filed in the District Court in and for Tulsa County, Oklahoma, Case Number: CJ-2023-4033, and was removed to federal court by the Defendants.

"According to Ward, Billingsly inflicted systematic sexual, physical, emotional, and mental abuse on H.A.B. through Munchausen syndrome by proxy. He alleges all three Defendants “negligently delayed their pursuit of this matter causing further delay and harm to the minor child” and brings claims for breach of contract and negligence against all Defendants, as well as violation of the Eighth and/or Fourteenth Amendment against Fisher and Swenson. Fisher and Swenson filed motions to dismiss on the basis that they are immune from suit in their court-appointed roles. Grundy filed a motion to dismiss on the basis that Ward's claims against him are time-barred."

"Ward brings negligence and breach of contract claims against Grundy based on Grundy's legal representation of Ward in the paternity action against Billingsly. Dkt. No. 2-2. Grundy asserts both claims are time-barred. Dkt. No. 22. Ward concedes the negligence claim is time-barred but argues that the breach of contract claim was timely filed within a longer statute of limitations."

"In Oklahoma, actions based on torts such as negligence are subject to a two-year statute of limitations, those based on oral contracts are subject to a three-year statute, and those based on written contracts are subject to a five-year statute. 12 O.S. § 95. Although Ward couches his second cause of action against Grundy as a breach of contract claim, Grundy asserts it is subject to the two-year tort window, or at most the three-year oral contract window, because it is fundamentally a basic legal malpractice claim. "

“Oklahoma law has long recognized that an action for breach of contract and an action in tort may arise from the same set of facts.” Flint Ridge Dev. Co. v. Benham-Blair & Affiliates, Inc., 775 P.2d 797, 799 (Okla. 1989). In the professional malpractice context, “if the alleged contract of employment merely incorporates by reference or by implication a general standard of skill or care which a defendant would be bound independent of the contract a tort case is presented governed by the tort limitation period.” Great Plains Fed. Sav. & Loan Ass'n v. Dabney, 846 P.2d 1088, 1092 (Okla. 1993) (emphasis omitted). “However, where the parties have spelled out the performance promised by defendant and defendant commits to the performance without reference to and irrespective of any general standard, a contract theory would be viable, regardless of any negligence on the part of a professional defendant.”

The longest possible statute of limitations is the three-year oral contract window. Ward does not assert that his claim would be timely if a three-year statute were applied. Dkt. No. 37. “Courts routinely deem an issue ‘waived' when a party fails to respond to a movant's substantive argument.” Northcutt v. Fulton, No. CIV-20-885-R, 2020 WL 7380967, at *2 (W.D. Okla. Dec. 15, 2020) (collecting cases). See also Cole v. New Mexico, 58 Fed.Appx. 825, 829 (10th Cir. 2003) (argument waived when not raised in initial response to motion to dismiss); Hinsdale v. City of Liberal, Kan., 19 Fed.Appx. 749, 768 (10th Cir. 2001) (plaintiff abandoned claim by failing to respond to arguments made in support of summary judgment). Ward makes no defensible argument that his suit against Grundy is timely under a three-year statute and the Court sees none.

Outcome: Motion to stay denied.

Motion to dismiss granted.

Notice of appeal.

Plaintiff's Experts:

Defendant's Experts:

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