Holle v. Leonard

Full title: RON D. HOLLE, Plaintiff, v. CHARLES F. LEONARD, Defendant

Court: United States District Court, N.D. Indiana, Fort Wayne Division

Date published: Sep 7, 2007

NO. 1:07-CV-224 (N.D. Ind. Sep. 7, 2007)

Opinion

NO. 1:07-CV-224.

September 7, 2007

OPINION AND ORDER

RUDY LOZANO, District Judge

This matter is before the Court on the: (1) complaint; and (2) Application to Proceed Without Prepayment of Fees and Affidavit, both submitted by Plaintiff, Ron D. Holle, on August 13, 2007. For the reasons set forth below, the Court DENIES Holle leave to proceed in forma pauperis and DISMISSES this case pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).

BACKGROUND

DISCUSSION

pro se in forma pauperis

The statute of limitation for a claim of legal malpractice is two years. Further, legal malpractice actions are subject to the "discovery rule," which provides that the statute of limitations does not begin to run until such time as the plaintiff knows, or in the exercise of ordinary diligence could have discovered, that he had sustained an injury as the result of the tortious act of another. For a cause of action to accrue, it is not necessary that the full extent of damage be known or even ascertainable, but only that some ascertainable damage has occurred.

Another panel of this court has applied the discovery rule to a criminal defendant's legal malpractice action against his former defense attorney. In [that case], we held that the criminal defendant's malpractice action was barred by the statute of limitations because it was not commenced within two years of his discovery of the alleged malpractice.

Silvers v. Brodeur,682 N.E.2d 811813-14

Giving Holle the benefit of the "discovery rule", he had until May 14, 2007¹ to file this legal malpractice claim, but it was not filed until August 13, 2007. Therefore this claim is barred by the statute of limitations.

1 May 13, 2007 was a Sunday, therefore he had until Monday, May 14, 2007. See FED. R. CIV. P. 6(a).

Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . the action . . . fails to state a claim on which relief may be granted.

28 U.S.C. § 1915(e)(2)(B)(ii).

CONCLUSION

For the reasons set forth above, the court DENIES Holle leave to proceed in forma pauperis and DISMISSES this case pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).