United States District Court, S.D. Mississippi, Southern Division
JOSEPH BUCKLEY as ADMINISTRATOR OF THE ESTATE OF ETHEL LEE BUCKLEY PLAINTIFF
CITRIN LAW FIRM, P.C., ELIZABETH A. CITRIN, ANDREW T. CITRIN, and SAMUEL McCLURKIN, IV DEFENDANTS
AMENDED MEMORANDUM OPINION AND ORDER GRANTING
DEFENDANTS' MOTIONS  FOR SUMMARY
SULEYMAN OZERDEN UNITED STATES DISTRICT JUDGE
THE COURT are the Motion  for Summary Judgment filed by
Defendants Citrin Law Firm, P.C. (“CLF”), Andrew
Citrin (“Mr. Citrin”), and Samuel McClurkin, IV
(“Mr. McClurkin”), and the Motion  for
Summary Judgment filed by Defendant Elizabeth Citrin
(“Ms. Citrin”). These Motions are fully briefed.
After due consideration of the record, the submissions on
file, and relevant legal authority, the Court finds that the
Motions  should be granted. This case will be
dismissed with prejudice.
Defendants' Representation of Ethel Lee Buckley
in October 2006, CLF, Ms. Citrin, Mr. Citrin, and Mr.
McClurkin (collectively, “Defendants”)
represented Ethel Lee Buckley (“Buckley”) in a
slip-and-fall case against Singing River Hospital in the
Circuit Court of Jackson County, Mississippi. Sullivan's
Aff. [41-2] at ¶ 5-6; Compl. [1-2] at 2-3. In that case,
the trial court ultimately granted defendant Singing River
Hospital's motion for summary judgment on April 20, 2011,
and dismissed the case. Defs.' Mem.  at 1; Pl.'s
Mem.  at 1. The trial court's dismissal was based
upon Defendants' failure to properly designate a medical
expert to testify to duty, breach, causation, and damages.
Defs.' Mem.  at 1; Pl.'s Mem.  at 1.
Defendants filed an appeal on behalf of Buckley and the
Mississippi Court of Appeals affirmed on October 2, 2012.
Sullivan's Aff. [41-2] at ¶ 5-6; Pl.'s Answers
to Defs.' 1st Set of Req. for Admis. [28-1] at 1. The
court of appeals' opinion has been a matter of public
record since that date. Pl.'s Answers to Defs.' 1st
Set of Req. for Admis. [28-1] at 1.
November 1, 2012, Ms. Citrin called a meeting with Buckley.
Sullivan's Aff. [41-2] at ¶ 9; Buckley Letter to
Gillis [37-1]. Ms. Citrin provided Buckley with a copy of the
Mississippi Court of Appeals' opinion and advised her
that Defendants could do nothing more to assist with her
case. Sullivan's Aff. [41-2] at ¶ 9; Buckley Letter
to Gillis [37-1]; Pl.'s Answers to Defs.' 1st Set of
Req. for Admis. [28-1] at 2. The next day, Buckley sent a
letter to the Clerk of the Mississippi Court of Appeals,
Kathy Gillis (“Gillis”), asserting that Buckley
needed more time to find new lawyers to represent her in
pursuing her claims against Singing River Hospital. Buckley
Letter to Gillis [37-1]. Buckley wrote that she is
“trying as hard as I can to get my case heard before
the courts, ” but in the “8 years since I fell on
my job, I have never been seen or heard in front of any Court
or any court hearing personally.” Id.
Buckley's Legal Malpractice Claim
November 30, 2012, Buckley met with attorney David Sullivan
(“Sullivan”) to discuss retaining him to
represent her. Sullivan's Aff. [41-2] at ¶ 5.
Buckley informed Sullivan that Defendants previously
represented her in her lawsuit against Singing River
Hospital, id. at ¶ 6, and that the Mississippi
Court of Appeals had affirmed the trial court's dismissal
of her case on October 2, 2012, id. at ¶ 7-8.
Buckley advised Sullivan that she met with Ms. Citrin on
November 1, 2012, that Ms. Citrin informed her of the
Mississippi Court of Appeals decision, and that Ms. Citrin
told Buckley that Defendants could do nothing further to
assist with her case. Id. at ¶ 9.
also told Sullivan of her letter to Gillis, but indicated
that she had received no response to the letter. Id.
at ¶ 10. Sullivan contacted Gillis, who informed
Sullivan that the court of appeals had not received
Buckley's letter. Id. at ¶ 13. On November
30, 2012, Buckley executed a contingency fee contract with
Sullivan to represent her in a legal malpractice claim
against Defendants. Id. at ¶ 14; Contract for
Employment [41-4]. That same day, Sullivan sent
correspondence to Mr. Citrin, Mr. McClurkin, and CLF,
advising of his representation of Buckley, requesting a copy
of her file, and seeking a copy of Defendants'
declarations page of their professional liability insurance
policy. Sullivan Letter to Mr. Citrin [37-3].
later contacted Sullivan, stating that she had received
Buckley's letter, Sullivan's Aff. [41-2] at ¶
16, and on December 11, 2012, the Mississippi Court of
Appeals entered an order treating Buckley's letter as a
pro se request to file an out-of-time motion for
rehearing and extension of time to find new counsel, Dec. 12,
2012 Miss. Court of Appeals Order [41-6].
January 14, 2013, Mr. Citrin, on behalf of Defendants, filed
a Motion to Withdraw as counsel for Buckley, noting that
Sullivan represented Buckley. Mot. to Withdraw [41-7]. On
January 22, 2013, the Mississippi Court of Appeals entered an
order authorizing Buckley to file a motion for rehearing
within fourteen days and granting the Motion to Withdraw
filed by Mr. Citrin. Jan. 22, 2013 Miss. Court of Appeals
February 1, 2013, counsel for CLF, J. Wyatt Hazard
(“Hazard”), sent a letter to Sullivan. Hazard
Letter to Sullivan [41-12] at 1. Hazard stated that
“[t]he purpose of this letter is to advise that Ms.
Buckley has a duty to mitigate her damages and to pursue the
appellate process.” Id. at 2. Hazard took the
position that “it is the duty of Ms. Buckley, and/or
you, to timely file the Motion for Rehearing.”
Id. at 1. On February 5, 2013, Sullivan filed
Buckley's Motion for Rehearing. Sullivan's Aff.
[41-2] at ¶ 29. On October 15, 2013, the Mississippi
Court of Appeals denied rehearing and affirmed the trial
court's decision. Nov. 7, 2013 Miss. Court of Appeals
passed away on March 28, 2015. Pl.'s Answers to
Defs.'s 1st Set of Req. for Admis. [28-1] at 2. Joseph
Buckley opened an estate proceeding on behalf of Ms. Buckley
on August 28, 2015, and was later appointed administrator of
the estate. Mot.  at 2.
The Present Litigation
August 17, 2016, Plaintiff Joseph Buckley, as administrator
of the Estate of Ethel Lee Buckley (“Plaintiff”),
filed a Complaint in the Circuit Court of Jackson County,
Mississippi, against Defendants alleging legal malpractice.
Compl. [1-2]. CLF, Mr. Citrin, and Mr. McClurkin removed the
case to this Court on October 17, 2016. Not. of Removal .
On April 25, 2017, CLF, Mr. Citrin, and Mr. McClurkin filed a
Motion  for Summary Judgment, contending that the
three-year statute of limitations for malpractice actions
bars Plaintiff's claims. Defs.' Mem.  at 3.
Defendants argue that the statute of limitations began to run
on November 1, 2012, when Buckley received of a copy of the
Mississippi Court of Appeals' opinion, and that there was
no requirement under Mississippi law that the underlying
action be terminated prior to the statute of limitations
1, 2017, Ms. Citrin filed her own Motion  for Summary
Judgment. Ms. Citrin also takes the position that the statute
of limitations bars Plaintiff's claims because the latest
possible time for accrual of these claims was no later than
November 30, 2012, when Sullivan sent a letter to Mr. Citrin
advising of his representation and asking that Mr. Citrin
provide information on CLF's liability insurance.
Def.'s Mem  at 4. Ms. Citrin also asserts that there