Peterson v. Gentile

129 F.3d 127, 1997 U.S. App. LEXIS 36933, 1997 WL 697799

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 6, 1997
• Docket: 97-15424
• Status: Unpublished

Opinion

129 F.3d 127

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
David Alan PETERSON, Plaintiff-Appellant,
v.
Dominic P. GENTILE, and his marital community and the Law
Firm of Gentile, Porter & Kelesis; John Doe,
unknown and unnamed Legal Malpractice
Insurer, Defendants-Appellees.

No. 97-15424.

United States Court of Appeals, Ninth Circuit.

Submitted Nov. 4, 1997**
Nov. 6, 1997.

Appeal from the United States District Court for the District of Nevada, D.C. No. CV-93-01037-DWH/RLH; David Warner Hagen, District Judge, Presiding.

Before HUG, Chief Judge, PREGERSON, and BEEZER, Circuit Judges.

MEMORANDUM*

David Alan Peterson appeals pro se the district court's summary judgment for his former civil rights attorney in Peterson's diversity action alleging legal malpractice.1

We have jurisdiction under 28 U.S.C. § 1291. We review a grant of summary judgment de novo, see Bagdadi v. Nazar, 84 F.3d 1194, 1197 (9th Cir.1996), and we affirm.

Because Peterson presented no basis for questioning the impartiality of the district court judge, the judge did not abuse his discretion by denying Peterson's motion for disqualification under 28 U.S.C. § 455(a) or (b) (1993). See Moideen v. Gillespie, 55 F.3d 1478, 1482 (9th Cir.1995).

Because Peterson failed to present expert testimony to establish breach of the duty of care, and the alleged breach was not obvious, Peterson failed to raise a genuine issue of material fact as to legal malpractice. See Allyn v. McDonald, 910 P.2d 263, 266 (Nev.1996) (per curiam) (establishing that expert testimony is required in legal malpractice action unless breach is obvious). Accordingly, the district court properly granted summary judgment for defendants.2 See Bagdadi, 84 F.3d at 1197.

AFFIRMED.

** The panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a); 9th Cir. R. 34-4

* This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3

1 In prior appeal 95-17026, this court reversed in part summary judgment for defendants on the ground that Peterson raised a genuine issue of material fact regarding damages. On remand, the district court granted summary judgment for defendants on the issue of liability, which had not been considered previously by either the district court or this court

2 Because we affirm summary judgment, we do not reach Peterson's contention that the district court abused its discretion by denying his untimely jury demand, initially and upon reconsideration. We have considered Peterson's remaining contentions and find that they are without merit