The case of Breitenstein v. Deters, 19 -cv-413 (S.D. Ohio Western Division) is unusual. Plaintiff retained the Defendant lawyers to represent her in a medical malpractice case. The underlying case was dismissed, but the plaintiff appealed that decision. While the appeal was pending, she sued her lawyers for legal malpractice. The court dismissed the legal malpractice case because plaintiff filed the case before her underlying case was resolved. In other words, the plaintiff filed suit too soon. This case was decided in the 6th Circuit, under Ohio law. (In Illinois, the result might have been different.) The discussion by the court notes that plaintiff might win her appeal and thus the dispute with her lawyers is not ripe.
Here, Defendants contend that dismissal for lack of subject matter jurisdiction is proper because Plaintiff’s claim lacks ripeness. The primary basis for Defendant’s argument is that Plaintiff’s 2013 suit is still pending on appeal. As such, Defendants are still representing Plaintiff. (Doc. 3 at 3). Because the appeal is ongoing, Defendants assert that Plaintiff has not yet suffered any ascertainable damages from the underlying lawsuit. Id. at 1. Further, because Defendants have tolled the statute of limitations, Plaintiff may bring her claims, if appropriate, within a year after the appeal is over. Defendants therefore conclude that Plaintiff does not face a threat of future harm that warrants the Court to entertain the matter before it is ripe. (Doc. 7 at 1-2).
In support of their assertions, Defendants heavily rely on the decision in Kovacs v. Chesley to support their arguments for dismissal. Kovacs v. Chesley, 2000 U.S. App. LEXIS 8989 (6th Cir. 2000). The fact pattern in Kovacs is similar to the current matter: Plaintiff sued her attorneys for negligent evaluation of her medical records during Defendant’s representation of Plaintiff in a medical malpractice lawsuit. When Plaintiff brought the lawsuit against her attorneys, the underlying lawsuit was still undergoing settlement processes. Consequentially, the Court of Appeals for the Sixth Circuit upheld this Court’s dismissal of the case for lack of ripeness. (Id. at 2-3).