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26 ORDER- 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

BULENT ERTUR,

Plaintiff,

v.

CAROL L. EDWARD, et al.,

Defendants.

 NO. C05-1532JLR

 ORDER

 

I. INTRODUCTION

This matter comes before the court on Defendants’ motion for summary judgment

(Dkt. # 10). Neither party has requested oral argument, and the court finds this motion

suitable for disposition based on the parties’ briefing and accompanying declarations. For the

reasons stated below, the court GRANTS Defendants’ motion for summary judgment and

directs the clerk to DISMISS this action.

II. BACKGROUND

The following description of Mr. Ertur’s case is intended merely to provide a backdrop

for the court’s ultimate resolution of the motion. The court describes the evidence (or

absence of evidence) on which it ultimately decides the motion in Section III, infra. 

Plaintiff Bulent Ertur is a citizen of Germany. He resided in the United States for

many years until his deportation in June 2005. For purposes of this motion, Mr. Ertur’s

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26 ORDER- 2

immigration odyssey began in November 2001, when an immigration judge (“IJ”) in Seattle

entered an order of removal against him. Mr. Ertur had applied to adjust his immigration

status based on his marriage to Pam Farrel, a United States citizen. Ms. Farrel ultimately

withdrew her support from the petition, which led to the IJ’s finding that he was subject to

removal.

The IJ’s removal order granted Mr. Ertur 60 days in which to voluntarily depart the

United States. Mr. Ertur had until December 17, 2001 to appeal his removal. His attorney,

William Frick, did not file an appeal until December 18, 2001. On February 5, 2002, the

Board of Immigration Appeals (“BIA”) dismissed the untimely appeal, effectively finalizing

the order of removal against Mr. Ertur. Mr. Ertur had one year from February 5, 2002 to

appeal his removal order.

In March 2002, a warrant of removal issued against Mr. Ertur, setting a March 19,

2002 date for him to report for removal. Mr. Ertur did not report. He was arrested on April

5, 2002. The same day, Mr. Ertur filed a writ of habeas corpus in this district (Case No. 02-

747Z). 

In May 2002, Defendant Carol Edward, an experienced Seattle immigration attorney,

began representing Mr. Ertur. According to Ms. Edward, she determined upon reviewing Mr.

Ertur’s case that he had no realistic legal options other than accepting voluntary departure

from the United States. She pursued remedies in both the habeas proceeding and the

immigration court to effect this option. In her first filing in the habeas proceeding, Ms.

Edward added a claim of ineffective assistance of counsel against Mr. Frick. The Honorable

Thomas S. Zilly struck the filing, ruling that Mr. Ertur could raise an ineffective assistance

claim only by amending his habeas petition.

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On July 4, 2002, Mr. Ertur informed Ms. Edward that he wished to re-retain Mr. Frick

to assist with the pending habeas petition. By this time, Mr. Ertur and Ms. Edward’s

attorney-client relationship had eroded substantially. Ms. Edward was alarmed that Mr. Ertur

had not disclosed to her that Ms. Farrel had obtained an order of protection against him, and

that Mr. Ertur had been subject to protective orders from other women in the past. She was

also concerned that Mr. Ertur was not paying her for her services. She moved to withdraw as

Mr. Edward’s counsel in the habeas proceeding on July 8, 2002. Judge Zilly denied the

motion, noting that to grant it would leave Mr. Ertur in the odd position of being represented

by Mr. Frick, the attorney that he had previously indicated provided him ineffective

assistance. 

On August 27, 2002, Ms. Edward filed an amended habeas petition, and moved again

for leave to withdraw as counsel. Judge Zilly granted her request to withdraw on September

9, 2002.

Mr. Ertur continued to pursue a remedy in his habeas petition and through the

immigration courts. At times, he represented himself. On other occasions, he enlisted the

services of at least two other attorneys, including Ahmet Chabuk, counsel of record in this

matter. Ultimately, Mr. Ertur’s efforts were unsuccessful. He was deported in June 2005. 

He has now sued Ms. Edward for malpractice.

III. DISCUSSION

At the outset, the court notes that it treats Ms. Edward’s motion as one for summary

judgment under Fed. R. Civ. P. 56. Ms. Edward has not answered the complaint in this

action, and thus brought this motion for relief under both Fed. R. Civ. P. 12(b)(6) and Fed. R.

Civ. P. 56. Ms. Edward acknowledges that her motion depends on evidence outside the

pleadings, and thus relief under Rule 12(b)(6) is inappropriate. The court therefore treats this

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26 ORDER- 4

motion as a pre-answer summary judgment motion. See Fuller v. Frank, 916 F.2d 558, 563

(9th Cir. 1990) (“[A] motion to dismiss is a proper response to a complaint, as is a motion for

summary judgment.”). 

In examining Ms. Edward’s summary judgment motion, the court must draw all

inferences from the evidence in the light most favorable to the non-moving party. Addisu v.

Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000). Summary judgment is proper where

there is no genuine issue of material fact and the moving party is entitled to judgment as a

matter of law. Fed. R. Civ. P. 56(c). The moving party bears the initial burden to

demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477

U.S. 317, 323 (1986). If the moving party meets its burden, the opposing party must show

that there is a genuine issue of fact. Matsushita Elect. Indus. Co. v. Zenith Radio Corp., 475

U.S. 574, 586-87 (1986). The opposing party must present significant and probative evidence

to support its claim or defense. Intel Corp. v. Hartford Accident & Indem. Co., 952 F.2d

1551, 1558 (9th Cir. 1991). For purely legal questions, summary judgment is appropriate

without deference to the non-moving party.

In order to prevail at trial on his malpractice claim, Mr. Ertur would have to prove four

elements by a preponderance of evidence:

(1) The existence of an attorney-client relationship which gives rise to a duty of

care on the part of the attorney to the client; (2) an act or omission by the

attorney in breach of the duty of care; (3) damage to the client; and (4)

proximate causation between the attorney’s breach of the duty and the damage

incurred.

Hizey v. Carpenter, 830 P.2d 646, 651 (Wash. 1992). To prove proximate cause, Mr. Ertur

would have to prove that he would have fared better but for Ms. Edward’s negligence. E.g.,

Daugert v. Pappas, 704 P.2d 600, 603 (Wash. 1985); Lavigne v. Chase, Haskell, Hayes &

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Kalamon, P.S., 50 P.3d 306, 309 (Wash. Ct. App. 2002); Aubin v. Barton, 98 P.3d 126, 134

(Wash. Ct. App. 2004).

To decide this motion, the court need not look beyond the proximate cause element of

Mr. Ertur’s malpractice claim. First, it must determine if Ms. Edward has met her burden to

demonstrate the absence of a material issue of fact regarding whether Mr. Ertur would have

fared better but for her alleged malpractice.

Mr. Ertur’s malpractice claim is based on his allegation that Ms. Edward failed to

raise, or advise him to raise, a claim for relief under the Violence Against Women Act

(“VAWA”). One provision of VAWA, 8 U.S.C. § 1186a(c)(4)(C), permits an alien who was

“battered by or was the subject of extreme cruelty perpetrated by his or her spouse” to obtain

exceptions from the laws governing adjustment of immigration status. Mr. Ertur claims that

he could have raised a VAWA claim in the one-year period following the BIA’s February 5,

2002 dismissal of his appeal of the IJ’s removal order, and that Ms. Edward was negligent in

failing to raise the claim, or at least advise him to raise the claim. 

Ms. Edward provides evidence that she considered a VAWA claim on Mr. Ertur’s

behalf. She has experience bringing VAWA claims on behalf of both male and female

immigration clients. Edward Decl. at ¶ 1. She determined that Mr. Ertur had provided no

evidence to support a claim that he had been “battered by” or the “subject of extreme cruelty

perpetrated by” his spouse, Ms. Farrel. Id. at ¶¶ 15-16. She also believed that a VAWA

claim was unlikely to succeed because other women, including Ms. Farrel, had obtained

restraining orders against Mr. Ertur. The court finds this evidence sufficient to shift the

burden to Mr. Ertur to demonstrate the existence of a genuine issue of material fact over

whether he would have fared better but for Ms. Edwards’ failure to raise a VAWA claim.

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26 ORDER- 6

Mr. Ertur provides no evidence that he would have fared better had Ms. Edward

brought a VAWA claim on his behalf. Indeed, he makes no effort to explain how he might

have obtained a better result by pursuing a VAWA claim. Instead, he focuses on the fact that

the Honorable William L. Downing of the King County Superior Court declined to enter a

restraining order against Mr. Ertur when he dissolved his marriage to Ms. Farrel. In his order,

Judge Downing noted that Ms. Farrel’s allegations that Mr. Ertur had a violent temper lacked

credibility, and that her allegation that he was “stalking” or “harassing” her because their cars

happened to pass each other was “transparently incredible.” Chabuk Decl. Ex. I (August 8,

2003 order). While this evidence supports an inference that Mr. Ertur was not acting

inappropriately toward his wife, it does not support an inference that his wife was battering

him or subjecting him to extreme cruelty. There is no such evidence in the record. In

declarations, Mr. Ertur’s current attorney claims that he has “lots of evidence to indicate that

Ertur was [a VAWA] victim.” Ex. K at 2. He has not, however, shared any of that evidence

with the court. He points to a November 2002 letter from the Northwest Immigrant Rights

Project, which he calls a “professional opinion . . . that Ertur should be eligible for relief

under the VAWA.” Pltf.’s Opp’n at 3. In actuality, the letter is no more than advice to Mr.

Ertur about the procedural maneuvers necessary to bring a VAWA claim. Edward Decl. Ex.

S. The letter makes no comment on the merits of his claim. See id. In a complaint to the

Washington State Bar Association, Mr. Ertur alleged that his wife was paranoid, and that at

some point in their marriage “she began to harass and control” him. Chabuk Decl. Ex. D. He

also claims that she made false statements to the INS. Id. He does not, however, allege that

his wife was ever violent toward him. The court has scoured the remainder of the record and

finds no evidence of violence or “extreme cruelty.” Without such evidence, Mr. Edward

cannot show that he would have obtained a more favorable result in his immigration

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proceedings. He therefore has not demonstrated a triable issue of fact over whether he would

have fared better but for Ms. Edward’s failure to bring a VAWA claim.

The only other basis for Mr. Ertur’s malpractice claim is his allegation that Ms.

Edward refused to cooperate with his new attorneys and other organizations after she

withdrew her representation. Again, Mr. Ertur has not supported his claim with evidence. 

Ms. Edward, on the other hand, shows that she merely required one or more attorneys to

provide confirmation that they were representing Mr. Ertur before she released his file to

them. Edward Decl. Ex. P. Even if Mr. Ertur could characterize Ms. Edward’s decision to

protect his confidences as negligence, he has not shown that he would have obtained a more

favorable result in any proceeding had Ms. Edward transferred his file faster.

Ms. Edward has provided sufficient evidence to shift the burden to Mr. Ertur to

demonstrate that he would have fared better but for her alleged malpractice. Because he has

not met his burden, summary judgment is appropriate. The court notes that the parties raised

numerous additional factual and legal issues. The court declines to reach them, as they are

not necessary to the disposition of the motion before the court.

IV. CONCLUSION

 For the reasons stated above, the court GRANTS Defendants’ motion for summary

judgment (Dkt. # 10). The court directs the clerk to enter judgment for Defendants in

accordance with this order.

Dated this 27th day of February, 2006.

A 

JAMES L. ROBART

United States District Judge

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