                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 17a0324n.06

                                          No. 16-3267

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT
                                                                                    FILED
MICHAEL BRAUTIGAM,                                       )                     Jun 09, 2017
                                                         )                 DEBORAH S. HUNT, Clerk
       Plaintiff-Appellant,                              )
v.                                                       )
                                                         )
                                                               ON APPEAL FROM THE
GEOFFREY P. DAMON; DARYL CROSTHWAITE,                    )
                                                               UNITED STATES DISTRICT
                                                         )
                                                               COURT FOR THE SOUTHERN
       Defendants-Appellees,                             )
                                                               DISTRICT OF OHIO
                                                         )
ERIC C. DETERS; ERIC C. DETERS & ASSOC.,                 )
                                                         )
       Defendants.                                       )
                                                         )


       Before: BOGGS, BATCHELDER, and WHITE, Circuit Judges.

       HELENE N. WHITE, Circuit Judge. This diversity action alleging legal malpractice and

several other claims was before us on a prior appeal from a subject-matter-jurisdiction dismissal

for failure to meet the jurisdictional amount-in-controversy requirement. We reversed that

dismissal and remanded for further proceedings. Plaintiff-Appellant Michael Brautigam, an

attorney proceeding pro se, now challenges the district court’s order on remand affirming the

report and recommendation of a magistrate judge. The issues are whether the district court

properly concluded that the law of the case mandated dismissal of Brautigam’s malpractice

claims against Defendant Geoffrey P. Damon on statute-of-limitations grounds; whether the

district court should have granted Brautigam’s motion to file an amended complaint; whether the
No. 16-3267, Brautigam v. Damon et al.


district court erred in dismissing the claims against Defendant Daryl Crosthwaite; and whether

the magistrate judge was biased. We affirm.1

                                                    I.

        This court’s prior opinion explained:

        In September [sic August] 2011, Brautigam sued [attorneys Geoffrey Damon,
        Daryl Crosthwaite, and Eric C. Deters, as well as Eric C. Deters & Assoc.,
        alleging] breach of a fiduciary duty, legal malpractice, unjust enrichment, and
        negligence against all defendants; promissory estoppel against Damon only; and
        conversion against Damon and Crosthwaite . . .
                 Brautigam alleged that he retained attorney Damon, a partner with
        Butkovich & Crosthwaite Co., LPA (“B&C”), to represent him in two actions:
        (1) a legal malpractice action against Paul Hackett and others (“Hackett
        litigation”), and (2) a civil rights action against a judge for “falsely arrest[ing
        Brautigam] and sentenc[ing Brautigam] to six months in jail.” Damon accepted
        both cases on a contingency fee basis. Brautigam, however, paid Damon $16,500
        of which Damon returned $10,000. Damon did not file the civil rights complaint,
        and Brautigam contends that he has lost his right to recover as a result.
        On August 3, 2010, Damon moved to withdraw as Brautigam’s counsel in the
        Hackett litigation. The next day B&C mailed a letter to Brautigam, stating that
        Damon was no longer associated with B&C and asking him to elect whether he
        would like B&C to continue representing him in his “case(s).” According to
        Brautigam, he elected to proceed with B&C. In mid-August, he was advised that
        B&C would not be proceeding with the litigation and would help Brautigam
        transition to a new attorney; but instead, B&C abandoned him as a client. In
        November 2010, Damon’s motion to withdraw was granted. That same month,
        Brautigam contends, he learned that Damon had left B&C and was working for
        Eric C. Deters & Associates.
        The defendants in the Hackett litigation successfully moved for summary
        judgment. Brautigam’s complaint states that had “Damon met the applicable
        standard of care[,] properly conducted discovery[, and] properly responded to
        [defendants’] motion[s] for summary judgment,” defendants’ motions would not
        have been granted. Brautigam unsuccessfully appealed that judgment to the Ohio
        Court of Appeals . . . .


        1
         Brautigam filed an appellate brief that contravenes Fed. R. App. P. 28 by citing no authority or
standards of review and by failing to include: a jurisdictional statement, a statement of the case setting
out relevant facts and relevant procedural history, a table of contents, and a table of authorities.
Brautigam’s brief also violates Sixth Circuit Rule 28 by omitting “[a] designation of relevant documents
from the lower court record.” Defendants did not move to strike Brautigam’s appellate brief and have
responded to his arguments.

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No. 16-3267, Brautigam v. Damon et al.


       In October 2013, Damon filed a motion to dismiss, arguing that the amount-in-
       controversy requirement was not satisfied. See Fed. R. Civ. P. 12(b)(1). A
       magistrate judge recommended granting that motion because Brautigam’s alleged
       damages bore no rational relationship to his legal claims and thus were not
       presented in good faith, and because Brautigam’s malpractice claims were
       valueless. Over Brautigam’s objections, the district court adopted the report and
       recommendation and dismissed the action for lack of subject-matter jurisdiction
       ....
       . . . . Brautigam sought three categories of damages: unreturned legal fees;
       recovery for his lost civil action; and damages for malpractice arising from
       Damon’s handling of the Hackett litigation. The district court concluded that the
       value of Brautigam’s claims was approximately $6,125, which was the
       unrefunded amount Brautigam paid to Damon . . .[, and] determined that
       Brautigam’s claim for the loss of the civil suit was valueless because absolute
       judicial immunity provided a complete defense. Because a defense may not be
       considered in determining whether the plaintiff has satisfied the jurisdictional
       amount, the district court erred in excluding Brautigam’s valuation of these
       damages from consideration. See Kovacs [v. Chesley], 406 F.3d [393,] 396 [(6th
       Cir. 2005)].
       The district court also erred in excluding Brautigam’s malpractice damages from
       consideration. Those damages derived from Damon’s handling of the Hackett
       litigation.    Brautigam maintained that Hackett settled a lawsuit without
       Brautigam’s permission. Damon filed a state-court malpractice action against
       Hackett seeking damages in excess of $75,000. Damon allegedly mishandled that
       suit and withdrew from the litigation, forcing Brautigam to proceed pro se and
       resulting in a judgment in Hackett’s favor. Brautigam appealed, and the state
       court of appeals concluded that because Brautigam never returned his settlement
       payment, Brautigam could not maintain an action attacking that settlement. The
       district court determined that because Damon’s action against Hackett could not
       succeed, Brautigam’s action against Damon was valueless. In his complaint,
       Brautigam alleged that had Damon handled the Hackett litigation appropriately,
       including advising him to return the settlement money, it would have been
       successful.
       In Ohio, a legal malpractice claim has four elements: (1) there was an attorney-
       client relationship giving rise to a duty; (2) the attorney breached that duty; (3) the
       plaintiff suffered damages; and (4) the damages were proximately caused by the
       attorney’s breach. E.B.P., Inc. v. Cozza & Steuer, 694 N.E.2d 1376, 1378 (Ohio
       Ct. App. 1997). “[A] settlement of the underlying action [does not] always
       operate[] as a waiver of a client’s malpractice claim against his attorney.” Id. at
       1379. Thus, Brautigam has stated a claim under Ohio law. Crosthwaite argues
       that Brautigam cannot establish causation. But Brautigam is not required to prove
       causation to satisfy the amount-in-controversy requirement. See Kovacs,
       406 F.3d at 397; Vahila v. Hall, 674 N.E.2d 1164, 1168–69 (Ohio 1997).
       Whether the claim will succeed is a merits assessment. Thus, on the face of

                                                -3-
No. 16-3267, Brautigam v. Damon et al.


       Brautigam’s complaint, it does not appear to a legal certainty that Brautigam has
       not satisfied the jurisdictional amount . . . . the district court should not have
       dismissed this action for lack of subject-matter jurisdiction.
       The district court dismissed Brautigam’s claims against the Deters defendants for
       breach of fiduciary duty, legal malpractice, unjust enrichment, and negligence.
       On appeal, Brautigam argues that his claims should not have been dismissed
       because he continued to receive legal bills from Damon while Damon was
       employed at Eric C. Deters & Associates, and Damon corresponded with him
       using Eric C. Deters & Associates’ stationery. The attorney-client relationship is
       terminated when there is an affirmative act by either party signaling the end of the
       relationship. Flynt v. Brownfield, Bowen & Bally, 882 F.2d 1048, 1051 (6th Cir.
       1989); Duvall v. Manning, No. 2010-L-069, 2011 WL 2119912, at*4 (Ohio Ct.
       App. May 27, 2011). In August 2010 [by letter dated August 4, 2010], B&C
       notified Brautigam that Damon had left B&C, and Brautigam stated that he
       wanted to continue being represented by B&C. That same month [on August 3,
       2010] Damon filed a motion to withdraw as Brautigam’s counsel and mailed a
       copy of that motion to Brautigam. Damon and Brautigam both took affirmative
       acts that terminated the attorney-client relationship. Damon did not start working
       for Eric C. Deters & Associates until September 2010––after Damon and
       Brautigam had severed their relationship. Brautigam does not point to any
       evidence that he entered into an attorney-client relationship with the Deters
       defendants, and there is no basis for finding that the Deters defendants owed a
       duty to Brautigam. The district court properly dismissed Brautigam’s claims
       against the Deters defendants.
       Accordingly, the district court’s judgment is affirmed in part and reversed in part,
       and this action is remanded for further proceedings.
Brautigam v. Damon et al., No. 14-3400, R. 30-1/Order entered 2/25/15 (emphasis added).


       In addition to a claim of legal malpractice, Brautigam’s first amended complaint, filed in

September 2011, alleged claims of breach of fiduciary duty, unjust enrichment, negligence, and

conversion as to Defendants Damon and Crosthwaite, and promissory estoppel as to Damon

alone. The first amended complaint dropped B&C and Joseph Butkovich as defendants. Thus,

only Brautigam’s claims against Damon and Crosthwaite were at issue on remand.


       Damon admitted stealing from B&C in March 2013 and was disbarred in May 2013. In

September 2013, Brautigam sought to file a second amended complaint, which added factual



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No. 16-3267, Brautigam v. Damon et al.


allegations of fraud but did not seek to add a fraud count. The motion was denied as moot due to

the dismissal for lack of subject-matter jurisdiction.


       On remand, Defendants argued, and the magistrate judge agreed, that the opinion of the

court of appeals established the law of the case and compelled the district court to dismiss

Brautigam’s malpractice claims against Damon as barred by Ohio’s one-year statute of

limitations. Ohio Rev. Code § 2305.11. The magistrate judge concluded that Brautigam’s

remaining claims were subsumed under his legal-malpractice claim and recommended those be

dismissed as well. The district court overruled Brautigam’s objections to the magistrate judge’s

recommendation that summary judgment be granted on the legal-malpractice claim on statute-of-

limitations grounds and rejected Brautigam’s argument that Damon’s pre-billing worksheets

established that he continued to represent Brautigam until within a year of Brautigam’s filing this

action. Also on remand, Brautigam sought leave to file a third amended complaint that would

add a fraud count and a gross-negligence count. The magistrate judge recommended that leave

to amend be denied.         The district court adopted the magistrate judge’s Report and

Recommendation in its entirety.


                                                 II.

       We review the district court’s grant of summary judgment on statute-of-limitations

grounds de novo. Smith v. Ameritech, 129 F.3d 857, 863 (6th Cir. 1997). This court’s prior

determination that Brautigam’s legal-malpractice claim against Damon was barred by Ohio’s

one-year statute of limitations is the law of the case; the mandate rule “requires lower courts to

adhere to the commands of a superior court . . . . Accordingly, [u]pon remand of the case for

further proceedings after a decision by the appellate court, the trial court must ‘proceed in

accordance with the mandate and the law of the case as established on appeal.’” Allard Enters.,

                                                 -5-
No. 16-3267, Brautigam v. Damon et al.


Inc. v. Advanced Programming Res., Inc., 249 F.3d 564, 569–70 (6th Cir. 2001) (citations

omitted). It is true that this court on Brautigam’s first appeal determined that his complaint

stated a claim of legal malpractice against Damon and Crosthwaite, but that was solely in the

context of reviewing whether Brautigam met the amount-in-controversy requirement of diversity

jurisdiction. See PID 3002; Brautigam v. Damon et al., No. 14-3400, R. 30-1/Order entered

2/25/15. We ruled definitively that the attorney-client relationship between Brautigam and

Damon was severed when Damon moved to withdraw as Brautigam’s counsel in the Hackett

litigation and Brautigam responded to B&C’s August 4, 2010 letter by electing to be represented

by B&C, rather than Damon. Brautigam does not contest that these events preceded the filing of

his complaint by more than one year. The district court was not free to ignore our ruling on this

matter and thus properly determined that Brautigam’s legal-malpractice claim against Damon

was barred.


       Brautigam presents no argument regarding the dismissal of his remaining claims against

Damon: breach of fiduciary duty, unjust enrichment, negligence, conversion, and promissory

estoppel, and thus has abandoned those claims. See Enertech Elec., Inc. v. Mahoning Cty.

Comm’rs, 85 F.3d 257, 259 (6th Cir. 1996).


                                              III.

       The district court did not abuse its discretion in adopting the magistrate judge’s

recommendation to deny Brautigam’s motion for leave to amend. See Coe v. Bell, 161 F.3d 320,

341 (6th Cir. 1998) (holding that review of denial of motion for leave to amend is for abuse of

discretion).




                                               -6-
No. 16-3267, Brautigam v. Damon et al.


              Brautigam attached to his motion for leave to amend a proposed third amended

complaint, which added a fraud count alleging:


       128. Defendant Damon committed fraud against Plaintiff and others by accepting
       cases he did not intent [sic] to properly prosecute in exchange for whatever
       money he could fleece from clients. Damon “played” his clients along, taking as
       much money as possible for as long as possible, and then seeking to withdraw on
       a pretext, and then hiding behind “a fee dispute” with the client. Defendant
       Crosthwaite committed fraud by allowing this to happen either through willful
       ignorance or acting in concert with Damon to obtain fees that Damon was
       generating, including fees from Plaintiff. Defendant Crosthwaite further
       committed fraud by actively concealing the true facts regarding Damon’s serial
       predation from clients in the 4 August 2010 letter sent to Plaintiff and
       substantially similar letters sent to B&C’s other clients. Crosthwaite intended to
       and did mislead Plaintiff and other B&C clients as to the true facts of Damon’s
       theft, in a fraudulent attempt to induce B&C clients including Plaintiff, to select
       serial predator Damon as their counsel.
       129. Defendant Crosthwaite is also liable for fraud in that, in possession of highly
       credible information indicating that Defendant Damon was a serial predator,
       Defendant Crosthwaite, acting in concert with Defendant Damon, both
       affirmatively represented and deliberately omitted this information so that clients
       of B&C such as Plaintiff were not able to make an informed decision as to who
       should represent them, and how to proceed. Defendant Crosthwaite also directed
       that B&C office manager Pattianne Menden to lie and/or affirmatively mislead
       B&C clients as to the true facts concerning Damon’s serial predation in an
       underhanded attempt to fraudulent [sic] induce B&C’s clients to select known
       serial predator Damon as their counsel, thus shielding B&C and Defendant
       Crosthwaite from liability from their active participation in this ongoing fraud.
       This scheme was in furtherance of their mutual goals of avoiding being named in
       malpractice suits and making payments to clients for the money stolen from them.
       Defendant Crosthwaite was also instrumental in seeing that all restitution
       payments went to B&C; no restitution payments were made to clients of B&C.


PID 2490-91. Brautigam attached as exhibits documents including: Damon’s indictment for

theft of $61,553.98 from B&C spanning from on or about January 1, 2009 through July 31, 2010;

Damon’s guilty plea to fourth-degree felony theft, entered March 11, 2013 in the Hamilton

County Court of Common Pleas; Damon’s suspension from the practice of law in the Southern




                                                 -7-
No. 16-3267, Brautigam v. Damon et al.


District of Ohio on August 1, 2013; and Damon’s disbarment by the Supreme Court of Ohio.

The one-page memorandum Brautigam submitted in support of his motion stated in its entirety:


       Plaintiff filed his complaint on 15 August 2011, his First Amended Complaint on
       12 September 2011, and Motion for Leave to File Second Amended Complaint on
       17 September 2013. Since that time, the case has been overtaken by events, as
       there have been significant developments related to the case, including but not
       limited to Defendant Damon’s felony conviction for his disbarment.
       Additionally, some minimal discovery has taken place, which Plaintiff has
       incorporated into the TAC [Third Amended Complaint]. The Motion for Leave to
       File the Second Amended Complaint, was not acted on, and Magistrate Judge
       Litkovitz directed that a new document be filed, if warranted.
       Neither Defendant Damon nor Defendant Crosthwaite will be prejudiced by the
       Court granting leave to file the SAC [presumably, second amended complaint].
       The SAC removes confusion as to Defendants who are no longer in the case.
PID 2429.

       Both Damon and Crosthwaite opposed Brautigam’s motion for leave to amend. Noting

that the case had been pending for over four years, but acknowledging that Brautigam was not

responsible for “this inordinate delay,” the magistrate judge determined that amendment would

be futile and unduly prejudice Defendants. The district court agreed.

       As the magistrate judge acknowledged, through no fault of his own, Brautigam’s motion

for leave to amend to file a second amended complaint, filed on September 17, 2013, was denied

as moot when the district court dismissed the complaint for lack of subject-matter jurisdiction.

The first appeal to this court then took a year. The order reversing and remanding issued on

April 7, 2015, and Brautigam filed the instant motion for leave to amend soon after, on June 12,

2015. Under these circumstances, in the interest of fairness, we analyze Brautigam’s motion as

if he had filed it on September 17, 2013.


       Brautigam alleged in his initial complaint that he became aware, in or about November

2010, that Damon maintained a separate IOLTA account, in violation of ethics rules, while

                                               -8-
No. 16-3267, Brautigam v. Damon et al.


employed at B&C. PID 8/Complaint filed 8/5/2011. The initial complaint also alleged that in or

about July 2010 B&C fired Damon “for stealing client funds, and other malfeasance.” PID 11;

that on or about April 15, 2011, the Cincinnati Bar Association filed a complaint against Damon

for stealing client funds; and that Damon breached his fiduciary duty to Brautigam by failing to

file actions as he had promised, by failing to vigorously pursue Brautigam’s claims, and by

taking Brautigam’s money for services that were either not completed or did not meet the

applicable standard of care.


        The allegations against Damon in Brautigam’s initial and first amended complaints

largely overlap with those in the proposed third amended complaint; the only real difference is

that the third amended complaint explicitly pleaded a claim of fraud, which is subject to a four-

year limitations period.      See Ohio Rev. Code Ann. § 2305.09.               But Brautigam’s cursory

memorandum in support of his motion for leave to amend failed to explain why the fraud count

against Damon was not subsumed under the prior allegations or why the district court’s

discretion should be exercised in his favor to permit amendment at that point in the litigation.2


        Brautigam’s first amended complaint, filed in September 2011, alleged that Crosthwaite,

through B&C, negligently hired Damon “with actual and constructive knowledge that the thief

Geoffrey P. Damon was, in fact, a thief who was preying on clients.” PID 112. The first

amended complaint further alleged that Crosthwaite had actual and constructive knowledge that

Damon was maintaining a separate IOLTA account, that Crosthwaite knew or should have

known that Damon was stealing from clients and failing to meet the standard of care in his

        2
          Brautigam’s motion to amend failed to satisfy Fed. R. Civ. P. 7, which requires that motions
“state with particularity the grounds for seeking the order.” See 6 Charles Alan Wright, Arthur R. Miller,
and Mary Kay Kane, Federal Practice and Procedure § 1486 p. 691-92 (2010) (“A motion to amend under
Rule 15(a), as is true of motions generally, is subject to the requirements of Rule 7(b), and must set forth
with particularity the relief or order requested and the ground supporting the application.”).

                                                    -9-
No. 16-3267, Brautigam v. Damon et al.


representation, and that Crosthwaite was responsible for the acts and omissions of Damon.

Brautigam’s third amended complaint sought to add allegations regarding B&C’s August 4, 2010

letter to clients regarding their representation preference. As with the allegations against Damon,

the motion to amend did not adequately explain why the fraud claim was not subsumed under a

prior allegation. Additionally, the fraud allegations against Crosthwaite are largely based on an

alleged scheme to mislead clients into choosing to proceed with Damon, rather than with B&C.

However, it is undisputed that Brautigam opted to procced with B&C as counsel. Thus, these

allegations would have been futile if permitted. We find no abuse of discretion in the denial of

leave to file the third amended complaint.3


                                                    IV.


         Without citing authority, Brautigam also asserts that the magistrate judge “is severely

biased” against him and should have ruled on his affidavit of bias and prejudice. Appellant Br.

33-36.       The district court adequately addressed this argument in overruling Brautigam’s

objections to the magistrate judge’s Report and Recommendation:


         Plaintiff’s Affidavit of Bias and Prejudice (Doc. 134) alleges bias and prejudice
         . . . and requests that [the magistrate judge] recuse herself from further
         participation in this case. The Affidavit attaches, and relies wholly upon, a
         Complaint of Judicial Misconduct that Plaintiff filed in the United States Court of
         Appeals for the Sixth Circuit.
         Recusal is only warranted where a “reasonable, objective person, knowing all of
         the circumstances, would have questioned the judge’s impartiality.” See Hughes
         v. United States, 899 F.2d 1495, 1501 (6th Cir. 1990). This is an objective
         standard and it is not based “on the subjective view of a party.” Browning v.
         Foltz, 837 F.2d 276, 279 (6th Cir. 1988) . . . . Plaintiff’s subjective speculation
         alone is insufficient to support his allegation of judicial bias . . . .
         Here, Plaintiff’s allegations of bias relate to the Magistrate Judge’s conclusions in
         the case based on her view of the law, not based on any personal bias. Moreover,

         3
             Brautigam makes no argument regarding the gross negligence claim.

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No. 16-3267, Brautigam v. Damon et al.


        Plaintiff’s allegations are wholly speculative. For example, Plaintiff speculates
        that the Magistrate Judge dismissed his case “to control her calendar and to
        protect then 94 year old Senior Judge Spiegel.” However, he offers no evidence
        in support of his conclusory allegations. Furthermore, the Court of Appeals
        dismissed Plaintiff’s Complaint of [Judicial Misconduct], finding no support for
        his allegations. Specifically, the Court concluded that “[t]he gravamen of the
        complaint is the complainant’s dissatisfaction with the subject judge’s Report and
        Recommendation.” (Order with Supporting Memorandum, Case No. 06-15-
        90035). The Court further concluded “[t]hat part of the complaint that charges the
        subject judge with recommending dismissal of the complaint in order to control
        her calendar, which is based on the date that document was entered on the docket,
        is frivolous and/or lacks sufficient evidence from which an inference that
        misconduct has occurred can be made.” (Id.). Thus, Plaintiff’s argument is not
        well-taken.
PID 3118-20.4

                                               V.

        Brautigam also claims that the district court did not “truly conduct a meaningful de novo

review of the magistrate judge’s Report and Recommendation” and overlooked his theory of the

case that includes fraud. He cites no facts or authority in support of either argument and neither

warrants discussion; the district court’s decision states that it “reviewed the comprehensive

findings of the Magistrate Judge and considers de novo all of the filings in this matter.” PID

3114.


                                               VI.


        Although Brautigam does not explicitly challenge the grant of summary judgment in

Crosthwaite’s favor, Crosthwaite addresses the merits of that ruling.        We agree with the

magistrate judge that summary judgment in Crosthwaite’s favor was proper on the basis that

Brautigam introduced no evidence that he and Crosthwaite had an attorney-client relationship


        4
         We do not address Brautigam’s assertion, unsupported by authority, that he was subject to
“second-class status as a pro se litigant.” See Appellant Br. 30-33.

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No. 16-3267, Brautigam v. Damon et al.


and Crosthwaite could not be held liable for legal malpractice committed by Damon on a

respondeat superior theory:


       Turning to the merits of plaintiff’s legal malpractice claim against defendant
       Crosthwaite, “it is well-settled that the first, and indispensable, element of a direct
       claim for legal malpractice is the existence of an attorney-client relationship.”
       Nat’l Union Fire Ins. Co. v. Pittsburgh, PA v. Wuerth, 540 F. Supp.2d 900, 913
       (S.D. Ohio 2007), aff’d 349 F. App’x 983 (6th Cir. 2009) (citing Krahn v. Kinney,
       538 N.E.2d 1058 (Ohio 1989) . . . To demonstrate this essential element of his
       legal malpractice claim against Crosthwaite, plaintiff relies solely on the Court of
       Appeals’ finding that plaintiff “has stated a claim under Ohio law.” For the
       reasons discussed above, plaintiff cannot rely on the Court of Appeals’ finding
       that he has stated a claim for legal malpractice to satisfy the more demanding
       summary judgment standard . . . .
       Plaintiff has failed to introduce any evidence to demonstrate the existence of an
       attorney-client relationship with Crosthwaite. There is no dispute that plaintiff
       was represented by Damon at all relevant times. Further, plaintiff alleges that
       “[a]t all relevant times [he] was [r]epresented by B&C, [n]ever Damon [a]lone.”
       In support of his position, plaintiff relies on: (1) his deposition testimony that he
       hired B&C and was represented by the firm; (2) a contingency fee agreement
       which plaintiff concededly never signed pursuant to which Damon purportedly
       agreed to take plaintiff’s case “on behalf of B&C”; and (3) the inclusion of the
       firm’s name on pleadings filed in the state court case . . . . This evidence is not
       material to the question of whether Crosthwaite as an individual member of the
       B&C law firm represented plaintiff and had an attorney-client relationship with
       him. Plaintiff has not introduced any other evidence to show that Crosthwaite
       represented him in the Hackett litigation or agreed to represent him in the case
       against Judge Ruehlman. Thus, plaintiff has failed to carry his burden on
       summary judgment to produce sufficient evidence to permit a reasonable
       factfinder to conclude he had an attorney-client relationship with Crosthwaite.
       Plaintiff cannot prevail on his legal malpractice claim against defendant
       Crosthwaite under a direct theory of liability.
       Nor can plaintiff hold defendant Crosthwaite liable for any legal malpractice
       committed by Damon under a theory of vicarious liability or respondeat superior.
       Under this theory of liability, an employer is vicariously or secondarily liable for
       the negligence of its employee, whose liability is primary. [citations omitted]
       “For the wrong of a servant acting within the scope of his authority, the plaintiff
       has a right of action against either the master or the servant, or against both . . .”
       [Taylor v. Belmont Cmty. Hosp., No. 09 BE 30 2010 WL 3328650, at *2 (Ohio
       App. 9th Dist. Aug. 16, 2010)] (quoting Losito v. Kruse, 136 Ohio St. 183, 187,
       24 N.E.2d 705 (1940)) . . . .
       Under Ohio law, a legal professional association is liable upon contract and for
       the torts of an attorney performed within his or her actual or apparent authority.
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No. 16-3267, Brautigam v. Damon et al.


       David v. Schwarzwald, Robiner, Wolf & Rock Co., L.P.A., 607 N.E.2d 1173, 1183
       (Ohio App. 8th Dist. 1992) (citing Reitner v. Kelley, 457 N.E.2d 946, 951 (Ohio
       App. 10th Dist. 1983)). Further, individual shareholders of a legal professional
       association can be held liable for the debts of his association. KMS Energy, Inc.
       v. Titmas, 610 N.E.2d 1080, 1081 (Ohio App. 9th Dist. 1992) (citing Gov. Bar. R.
       III) (each member of a limited liability company “shall be jointly and severally
       liable for any liability of the firm based upon a claim arising from acts and
       omissions in the rendering of legal services while he or she was a member,
       partner, or equity holder . . . .”).
       Plaintiff’s legal malpractice claim against Crosthwaite which is premised on the
       theory of vicarious liability must fail because plaintiff does not seek to hold
       Damon’s employer, B&C, vicariously liable for Damon’s torts. Plaintiff has not
       named B&C as a defendant in this lawsuit and, therefore, the legal professional
       association cannot be held liable in this matter for Damon’s tortious acts and
       omissions. Plaintiff has presented the Court with no authority that Crosthwaite, as
       an individual member of a law firm, may be held vicariously liable under the
       circumstances of this case. Because plaintiff has not brought a claim against
       B&C, there is no basis for imposing vicarious liability on Crosthwaite as an
       individual member of the firm for any torts committed by Damon.
PID 3004-07 (citations omitted).


       We AFFIRM the district court’s adoption of the magistrate judge’s report and

recommendation; but regarding the grant of summary judgment in Crosthwaite’s favor, we

AFFIRM for the reasons stated by the magistrate judge and not on statute-of-limitations

grounds.5




       5
          The district court affirmed the magistrate judge’s Report and Recommendation in its entirety,
including the dismissal of claims against Crosthwaite on statute-of-limitations grounds.

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No. 16-3267, Brautigam v. Damon et al.


       ALICE M. BATCHELDER, Circuit Judge. I concur in the judgment.




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