Legal Malpractice Claim Against Immigration Attorney Is Dismissed

In Baserva v. Remes, et al, 2009 U.S. Dist. LEXIS 63597 (E.D. Va. 2009), a legal malpractice action, the plaintiff, a non-U.S. citizen, sued his former attorney for damages arising out of the plaintiff's detention by immigration authorities.

Mr. Baserva filed suit in 2008 against his attorney in connection with two separate immigration matters, a 1993 deportation proceeding and a 2005 matter where Baserva was detained by immigration authorities.

Granting Defendant's Motion for Summary Judgment, in part, the U.S. District Court held that Baserva's malpractice claim for the 1993 representation was barred by the three-year statute of limitations. Defendant's representation terminated when he withdrew as counsel in 1993, thereby defeating Baserva's argument that the statute of limitations was tolled due to Defendant's continuous representation.

The Court also dismissed the 2005 fraud count as time barred. Fraud has a two-year statute of limitations in Virginia. The Court then dismissed the 2005 counts for negligence and gross negligence. Even though legal malpractice claims sound in tort, they are actually breach of contract claims.

On the remaining legal malpractice and breach of contract claims, the Court held that a reasonable jury could find that Defendant breached his duty to Baserva by waiting three-months to file the appropriate forms and motions with immigration authorities. However, Baserva's legal expert failed to opine as to whether Defendant's failure to file a motion to re-open the immigration proceedings proximately caused Baserva's detention, leaving a question as to causation. Baserva argued that expert testimony was not necessary. Defendant asserted that expert testimony was required to prove that filing a motion would have prevented Baserva's detention. Defendant further argued that such testimony was unlikely to establish causation since granting any such motion is discretionary, and Immigration might not have granted the motion even if it had been filed.

Ultimately, the Court held that expert testimony was required to prove causation and granted Baserva's request for leave to supplement his expert report provided that he pays all costs since discovery had closed.

In a subsequent ruling, the court granted the defendant's motion for summary judgment on the grounds that the plaintiff had failed to establish that the failure to file the motion was a cause of the plaintiff's arrest. In so ruling, the court noted that the defendant did not "cause" the arrest, as the arrest was an independent decision by the immigration authorities; the plaintiff was aware beforehand that he could be subject to arrest; no evidence was introduced demonstrating that the Department of Homeland Security would have joined in the motion, which would have been necessary to resolve the underlying issue; and no evidence was presented to demonstrate that the motion, if filed, would have prevented the arrest. As the plaintiff could not demonstrate that the alleged failure of the defendant to file the motion was in fact a cause of the plaintiff?s damages, summary judgment was entered for the defendant.