GUY CARPENTER & COMPANY, INC., Appellant, v. JOHN B. COLLINS ASSOCIATES, INC.; Stephen Underdal; Todd Mockler; Randy Floden; Robert Roehrig; Hannah Kuhn, Appellees.
No. 05-3465
United States Court of Appeals, Eighth Circuit
May 15, 2006
179 Fed. Appx. 982
Before BYE, HEANEY, and MELLOY, Circuit Judges.
We review a district court‘s decision granting a motion to dismiss de novo. Norwood v. Dickey, 409 F.3d 901, 903 (8th Cir. 2005). As the district court noted, under Nebraska law the professional negligence statute of limitations is not tolled during a criminal defendant‘s incarceration. See Gordon v. Connell, 249 Neb. 769, 545 N.W.2d 722, 726 (1996). Trackwell argues, however, that requiring him to file a civil legal malpractice claim during the pendency of his criminal conviction violated his right to equal protection and due process. According to Trackwell, such a rule required him to diagnose his own legal malpractice problem, prepare the pleadings, and seek a stay while his criminal appeal was pending—a series of steps he asserts imposes “an extreme and necessarily unconstitutional burden on criminal defendants who believe their criminal [cases have been] handled negligently.”
As the district court pointed out, however, Trackwell knew that his conviction had been reversed and remanded for a new trial before the two-year statute of limitations had run, but waited nearly a year to file his malpractice claim. The district court held that “[n]o denial of due process is apparent from these facts.” We agree. Under Nebraska law, Trackwell was obligated to file his malpractice complaint “within two years of his attorney‘s last day of service in the matter in which the alleged negligence occurred.” Seevers v. Potter, 248 Neb. 621, 537 N.W.2d 505, 511 (1995). The Nebraska Supreme Court has clearly directed that, when criminal defendants have preserved their claims in this manner, they “can and should seek a stay in the civil suit until the criminal case is resolved.” Id. Because this process comports with constitutional requirements, Trackwell‘s constitutional claims fail.
Trackwell also argues that the district court erred by refusing to allow him to amend his pleadings to offer additional details regarding facts alleged in the complaint. He maintains these additional details would warrant the conclusion that the statute of limitations should be equitably tolled. As the district court observed, however, even if Trackwell added more details to his pleadings, an equitable tolling claim could not be successful.
Having carefully reviewed the record and applicable law, we conclude the district court did not err in its conclusions of law. We therefore affirm for the reasons stated by the district court. See 8th Cir. Rule 47B.
Linda T. Coberly, Matthew M. Wawrzyn, Winston & Strawn, Chicago, IL, Thomas Egekvist Marshall, Laura S. Ferster, Jackson & Lewis, Minneapolis, MN, for Appellant.
J. David Jackson, Elizabeth S. Wright, Marisa A. Hesse, Dorsey & Whitney, Minneapolis, MN, for Appellees.
PER CURIAM.
When four clients followed five employees to a competing firm, Guy Carpenter & Company, Inc. (Carpenter) sued to enforce non-solicitation agreements between two of the former employees, Stephen Underdal and Todd Mockler, and Carpenter‘s predecessor. Carpenter sought to enjoin Underdal and Mockler from soliciting any of Carpenter‘s clients and to prevent all five employees from using or disclosing confidential information they obtained while employed with Carpenter. The district court denied the request for a preliminary injunction concluding Carpenter likely could not enforce the non-solicitation agreements and had failed to show irreparable harm. We affirm in part, vacate the district court‘s order in part, and remand for further proceedings.
Because “the absence of a finding of irreparable injury is alone sufficient ground for [denying a] preliminary injunction,” Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109, 114 n. 9 (8th Cir. 1981), we decline to address whether Carpenter can enforce the non-solicitation agreements Underdal and Mockler signed with Carpenter‘s predecessor. We agree with the district court damages are an adequate remedy for any breach because clients who leave Carpenter can be identified and the damages resulting from the loss of those clients can be calculated. See, e.g., Gelco Corp. v. Coniston Partners, 811 F.2d 414, 420 (8th Cir. 1987) (indicating a party has not shown irreparable harm if its alleged injuries can be remedied in a suit for money damages). The other damages alleged by Carpenter are speculative at this stage, e.g., Minn. Ass‘n of Health Care Facilities, Inc. v. Minn. Dep‘t of Pub. Welfare, 602 F.2d 150, 154 (8th Cir. 1979) (“[T]he speculative nature of the threatened harm support[s] the denial of injunctive relief.“), and thus the district court did not abuse its discretion in denying that part of the request for preliminary injunction which sought to stop Mockler and Underdal from breaching the non-solicitation agreements.
Appellees concede, however, the district court failed to address Carpenter‘s request
PER CURIAM.