United States District Court, D. Rhode Island
MEMORANDUM AND ORDER
J. MCCONNELL, JR., UNITED STATES DISTRICT JUDGE
Furtado has sued Attorney Amy Page Oberg and the law firm of
DarrowEverett LLP for legal malpractice, breach of fiduciary
duty, and misrepresentation, alleging that they failed to
properly advise and represent him in the formation of Total
Fitness LLC. Defendants have moved for summary judgment. ECF
No. 76. The defining inquiry in his case is whether the
parties had an attorney-client relationship. Finding that
there are no material facts in dispute over this question and
that no such relationship formed, the Court GRANTS
to a resolution of this dispute has taken a wandering path,
including two lawsuits and two different courts, hindered by
Ms. Oberg's unavailability and spotty records. Leveling
its focus on the facts material to the question at hand, the
Court recites only the pertinent undisputed facts as the
parties have ably laid out.
Dreier and Jay Furtado decided to open a gym together in 2008
in the name of Total Fitness LLC. Ms. Dreier invested the
money to get the gym started and Mr. Furtado's investment
was to be $25, 000, which Ms. Dreier would front, and he
would pay her back on an amortization schedule prepared by
Ms. Dreier's brother, an investment banker. ECF No. 83-2
at ¶¶ 139-140. Ms. Dreier sent the payback schedule
to Mr. Furtado by email' Mr. Furtado did not receive
it-he was unsure if he was using the email address and did
not recall agreeing to the loan. Id. at ¶ 141.
That said, there is no dispute that Mr. Furtado knew about
Ms. Dreier's expectation that he would invest $25, 000
but did not pay the money back. Id. At ¶ 142.
Oberg was Ms. Dreier's long-time friend and attorney so
Ms. Dreier engaged her to provide legal services in forming
that limited liability company. ECF No. 78 at ¶¶ 16-17.
Ms. Dreier told Mr. Furtado that Attorney Oberg intended to
represent the three owners of the gym. ECF No. 83-2 at ¶
96. Attorney Oberg did not supply a written engagement letter
or engagement agreement to Ms. Dreier or to Mr. Furtado about
her representation or the formation of the gym. Id.
at ¶95. Attorney Oberg never talked to Mr. Furtado about
any conflict of interest issues and never asked him to sign a
waiver. Id. At ¶ 102.
did, however, draw up an Operating Agreement (OA) governing
the formation of the LLC. The OA specified that the LLC
members had to execute and deliver an Amended Operating
Agreement (AOA) no later than four days later, on August 25,
2008 and that if a member did not execute and deliver that
AOA, he or she would cease to be a member of the LLC. ECF No.
78 at ¶ 34. Ms. Dreier, Mr. Furtado, and Mr. Powell all
signed the OA. Id. at ¶36. Shortly thereafter,
they agreed to extend the deadline to sign the AOA until
September 3, 2008. Id. At ¶ 39. Ms. Dreier
distributed an email from Attorney Oberg, showing the
agreement to extend to Mr, Furtado and Mr. Powell for them to
sign. Id., at ¶¶ 40, 43. They all
acknowledged the new deadline when they signed the email.
Id. at ¶44. Ms. Dreier timely signed the AOA.
Id. at ¶46. Mr. Furtado never signed the AOA
even though Attorney Oberg discussed with him the
consequences if he did not sign it. Id. At
¶¶ 37, 49. He testified that he never saw the AOA
yet never followed up with either Ms. Dreier or Attorney
Oberg. Id. At ¶ 49. The invoices for legal
services for the LLC went to Ms. Dreier's home, addressed
to the LLC, and she paid them out of the LLC's account
that she funded. Id. At ¶ 25.
the same time the parties formed the LLC, Mr. Furtado talked
to Attorney Oberg about an unrelated legal complaint (the
Farina matter). ECF No. 83-2 at ¶¶ 124-125. She
agreed to help him with that legal issue and they met on
three separate occasions to discuss the case. Id. at
¶¶ 125-126. Attorney Oberg did not have Mr. Furtado
sign an engagement agreement. Id. at ¶ 127. She
settled the case and did not charge Mr. Furtado any fees,
Id. at ¶¶128-129. During her interactions
about this unrelated legal matter, Attorney Oberg asked Mr.
Furtado if she could provide any help related to the LLC, but
never talked about the AOA (which he had not signed) and the
fact that his failure to sign the AOA meant that he was not
an owner. Mat H ¶130-131.
Fitness operated from October 2008 until January 2014, but it
never generated a profit. Mr. Furtado asked Ms. Dreier if he
could review the gym's financials in 2012, but she
refused, telling him that he was not an owner. ECF No. 78 at
¶ 60. The gym closed in 2014, but not before Mr. Furtado
sued Ms. Dreier in 2013 in state court seeking a declaration
that he was an owner of Total Fitness. ECF No. 83-2 at
¶ 180. That case settled, but this malpractice suit
against the attorney and firm followed.
Furtado brings three claims against Defendants-Legal
Malpractice (Count 1), Breach of Fiduciary Duty (Count 2),
and Misrepresentation (Count 3). Mr. Furtado alleges in his
complaint that Attorney Oberg failed to give him the AOA,
failed to let him know that Ms. Dreier signed the AOA, failed
to let him know later that the LLC's charter was being
revoked, and then helped DarrowEverett cover up these
failures and their prior representation of Mr. Furtado. ECF
STANDARD OF REVIEW
Court can grant summary judgment only when it finds that no
genuine dispute as to the material facts of the case exists
and that the undisputed issues support an entitlement to
judgment as a matter of law. See Wilson v. Moulison N.
Corp., 639 F.3d 1, 6 (1st Cir. 2011). The Court should
and will view evidence in the light most favorable to the
non-moving party and draw all reasonable inferences in his
Legal Malpractice and ...