MOURATIDIS v. SHORE

Filing 3

MEMORANDUM OPINION. Signed by Chief Judge Jerome B. Simandle on 8/20/2014. (nz, )n.m.

NOT FOR PUBLICATION

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

LOUIE MOURATIDIS,

HONORABLE JEROME B. SIMANDLE

Plaintiff,
Civil Action
No. 14-4141 (JBS/AMD)

v.
ERIC SHORE LAW OFFICE,

MEMORANDUM OPINION
Defendant.

SIMANDLE, Chief Judge:
Plaintiff Louie Mouratidis, pro se, brings this action
alleging that a law office that agreed to assist him in an
effort to obtain federal disability benefits, but which
ultimately did not provide him any legal services, is harassing
him for payment of a fee in excess of $5,400. Because Plaintiff
seeks to bring this action in forma pauperis, the Court has an
obligation to screen the Complaint under 28 U.S.C. § 1915(e)(2).
The Court finds as follows:
1.

Because Plaintiff’s application discloses that he is

indigent, the Court will permit the Complaint to be filed
without prepayment of fees, pursuant to 28 U.S.C. § 1915, and
order the Clerk of Court to file the Complaint.

2.

Section 1915(e)(2)(B) requires the Court to screen the

complaint and to dismiss any claim that is frivolous or
malicious, fails to state a claim, or seeks monetary relief
against a defendant who is immune from such relief. The Court
also has a “continuing obligation to assess its subject matter
jurisdiction” and may “dismiss a suit sua sponte for lack of
subject matter jurisdiction at any stage in the proceeding.
Zambelli Fireworks Mfg. Co., Inc. v. Wood, 592 F.3d 412, 420 (3d
Cir. 2010). The Court draws the facts of this case from the
Complaint and exhibits attached thereto and, for the purposes of
this screening, accepts the factual allegations as true.
3.

Plaintiff alleges that in 2008 he went to the “Eric

Shore Law Office” in Cherry Hill, N.J. (Compl. at 4.) He alleges
that “[a]round 2009-2010, I signed an agreement paper for Eric
Shore to represent my case” to apply for disability benefits.
[Docket Item 1 at 12.] The attorney-client relationship was
rocky from the start. [Id. at 13.] Plaintiff asserts that
although he brought all of his documents to the law office, the
lawyers in the office did not provide legal services to him.
Plaintiff and his counsel argued about the handling of his case.
[Id.] Eventually, Plaintiff filed a grievance against the law
office and retained another lawyer, “Andrew J. Leibovits,” to
“handle[] the issue completely.” [Id. at 14-15.]

2

4.

Eric Shore filed a petition with the Social Security

Administration for authorization to charge and collect fees for
work related to Plaintiff’s case. (Compl. at 4.) Plaintiff filed
a “Motion to Strike & Motion to Vacate.” (Id.) Administrative
Law Judge (“ALJ”) Louis McAfoos III signed an order approving a
fee agreement between Eric Shore and Plaintiff in 2011, and,
later, a petition to collect the same fee. [Docket Item 1 at
23.] However, the Regional Chief ALJ later reversed the order
approving the fee petition, because of the prior fee agreement.
The Regional Chief wrote:
There are two alternative, mutually exclusive processes
by which a representative may seek SSA’s authorization
for any fee he/she wants to charge and collect: the fee
agreement process or the fee petition process. Since the
fee agreement had been approved and not yet invalidated,
Judge McAfoos’ authorization of a fee under the fee
petition process was erroneous. As such, any fee
petition authorized in this case before the issuance of
my determination invalidating the fee agreement is
hereby rescinded. In addition, any fee awarded to Mr.
Leibovitz under the fee agreement process is also
rescinded.
[Docket Item 1 at 23-24.] It does not appear that the Regional
Chief invalidated the approval of the original fee agreement,
only the authorization of the fee petition.
5.

Plaintiff’s Complaint is, at times, hard to decipher.

He states that he “is a claimant under the ADA, 42: U.S.C. Sec.
12102(2)(a), 527 U.S. 471 & under Sec. 504 of the Rehabilitation
Act of 1937, W.B. v. Matula 67 F.3d 494, See, 20 C.F.R.

3

416.920(b).” (Compl. at 3.) 1 Substantively, Plaintiff complains
of harassment by Eric Shore and seeks an order “demanding that
the defendants stop their wrongful conduct,” meaning the effort
to collect a $5,443.73 fee related to Plaintiff’s disability
claims. (Id. at 4.) Plaintiff references N.J.S.A. 2C:33-4, a
criminal harassment statute, and N.J.S.A. 2C:25-19(a)(13), which
defines the term “domestic violence” in the criminal code. (Id.
at 5.) Plaintiff also uses language sounding in Equal
Protection:
In an illegal attempt to collect an unlawful dept. the
violation discriminated by it’s disruptive impact
against the Plaintiff/Clement & was & in is still being
deprived (directly) of Equal Protections of all law,
injured in his persons & deprived of forms of envisions
by unlawful acts by such firm, by using soviet & nazi
costopa methods.

1

It does not appear that any of these citations are related to
the present controversy. Section 12102(2)(a), 42 U.S.C., defines
“major life activities” as it relates to disability. Sutton v.
United Air Lines, Inc., 527 U.S. 471 (1999) concerned minimum
vision requirements for global pilots, and was later overturned
by statute. Section 504 of the Rehabilitation Act of 1973,
codified at 29 U.S.C. § 794, concerns nondiscrimination under
federal grants and programs, and was amended by the Workforce
Innovation & Opportunity Act, P.L. 113-128 (2014). W.B. v.
Matula, 67 F.3d 484 (3d Cir. 1995) concerned violations of the
Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C.
§ 1400 et seq., and was abrogated by A.W. v. Jersey City Pub.
Sch., 486 F.3d 791 (3d Cir. 2007). The cited federal regulation
describes the evaluation process to determine whether an adult
is disabled. See 20 C.F.R. 416.920(b). None of these statutes,
regulations, or cases speak to the fee controversy described in
the Complaint.
4

(Id. at 5.) Plaintiff states that he seeks to enjoin Defendant
from collecting any fee and to restrain Defendant “from
contacting any office of disability for the illegal collection
of fees & furthermore to put an end to Eric shores (nazi
costapo) methods.” (Id. at 6.)
6.

The Court will dismiss the Complaint for lack of

subject matter jurisdiction. The Third Circuit has held that the
Social Security Administration’s “determination of a reasonable
fee for services during the administrative process could not be
appealed to the district court.” Guido v. Schweiker, 775 F.2d
107, 108 (3d Cir. 1985) (summarizing Chernock v. Gardner, 360
F.2d 257 (3d Cir. 1966)). The Third Circuit held that Congress
“committed that decision to the discretion of the Secretary, and
therefore, § 10 of the Administrative Procedure Act, 5 U.S.C. §
1009, preclude[s] judicial review.” Id.; see also Pepe v.
Schweiker, 565 F. Supp. 97, 98 (E.D. Pa. 1983) (holding that
“this Court lacks jurisdiction under § 205(g) [42 U.S.C. §
405(g)] to review the agency’s determination as to the
reasonableness of the fee” because the determination was made
without a hearing, and § 205(g) permits judicial review only for
final decisions of the Secretary made after a hearing) (citing
Califano v. Sanders, 430 U.S. 99, 97 (1977), and Penner v.
Schweiker, 701 F.2d 256, 260 (3d Cir. 1983)). To the extent
Plaintiff seeks to vacate the Social Security Administration’s
5

approval of his fee agreement with Defendant, this Court is
without jurisdiction to do so.
7.

The heart of Plaintiff’s Complaint is a claim for

injunctive relief to prevent further harassment by Defendant.
Plaintiff seeks to prevent Defendant from collecting a fee that,
in his view, is not owed. As Plaintiff himself acknowledges by
referencing New Jersey statutes, state law provides the causes
of action arising from the complained-of conduct here, whether
it is styled as a civil harassment claim, 2 or a claim for
intentional infliction of emotional distress, 3 or for breach of
contract.
8.

For this Court to adjudicate state-law claims, the

Court must have either diversity jurisdiction or supplemental
jurisdiction flowing from some claim that involves a federal
question. Diversity jurisdiction does not exist in this case
because the contested fee is less than $5,500, well below the
jurisdictional threshold of more than $75,000, and Plaintiff has
supplied no other method of calculating the value of the object

2

See Aly v. Garcia, 333 N.J. Super. 195, 203 (App. Div. 2000)
(expressing no view on whether a civil cause of action for
harassment exists under New Jersey law or what remedy is
available).
3

See Juzwiak v. Doe, 415 N.J. Super 442, 454-55 (App. Div. 2010)
(stating that a claim for damages for harassment “is ‘akin’ to a
claim for damages for intentional infliction of emotional
distress”).
6

to be gained by the Plaintiff with an injunction. See 28 U.S.C.
§ 1332(a); Columbia Gas Transmission Corp. v. Tarbuck, 62 F.3d
538, 541-43 (3d Cir. 1995) (stating that the amount in
controversy when injunctive relief is sought is “the value of
the object of litigation” to the plaintiff and discussing how
the value of an injunction could exceed the transactional costs
or contested sums of money in a case). Here, Plaintiff does not
argue that diversity jurisdiction exists; he asserts only
federal question jurisdiction under the ADA. Nothing in the
pleadings suggests that there is a “reasonable probability” that
the amount in controversy exceeds $75,000. See Columbia Gas
Transmission Corp., 62 F.3d at 541. Therefore, in order for this
Court to have jurisdiction over Plaintiff’s claims, Plaintiff
needs to allege a claim involving a federal question under 28
U.S.C. § 1331.
9.

Plaintiff has not properly pleaded any federal claims.

Although Plaintiff asserts that he qualifies as “disabled” under
federal law, he does not assert facts that substantiate a claim
arising under the Americans with Disabilities Act (“ADA”), 42
U.S.C. § 121001, et seq. The ADA addresses three kinds of
discrimination against persons with disabilities: employment,
public services, and public accommodations and services operated
by private entities. Defendant here was not Plaintiff’s employer
or a provider of public services or a private entity providing
7

public accommodations. Plaintiff does not even assert that
Defendant discriminated against him because of his disability
and treated others without disabilities in a more favorable
manner. Therefore, Plaintiff does not seek to enforce rights
created by the ADA when he complains that Defendant is harassing
him to collect a fee related to legal services or that Defendant
breached a contract. Simply because federal law might qualify
Plaintiff as disabled, or that this action tangentially is
related to an administrative proceeding in the Social Security
Administration, does not mean that any lawsuit filed by
Plaintiff necessarily raises a federal question.
10.

Nor does Plaintiff state a claim for an Equal

Protection violation under the Fourteenth Amendment of U.S.
Constitution, as he does not allege discriminatory conduct by
state actors. See Bd. of Trustees of Univ. of Ala. v. Garrett,
531 U.S. 356, 368 (2001) (“the result of Cleburne [City of
Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985)] is that
States are not required by the Fourteenth Amendment to make
special accommodations for the disabled, so long as their
actions toward such individuals are rational”). Again, Plaintiff
does not assert that his status as a disabled person motivated
any discrimination by Defendant, nor that the Defendant is an

8

employee or agent of the state, 4 both of which are required
elements for an equal protection claim under the constitution.
11.

Thus, the Court fails to apprehend that Plaintiff’s

causes of action arise under any federal law, or that any
federal rights are implicated by the contract or harassment
claims outlined in the Complaint. Because the amount in
controversy in actions seeking injunctive relief “is often not
readily determinable,” Columbia Gas Transmission Corp., 62 F.3d
at 541, and because Plaintiff did not address diversity
jurisdiction in his Complaint, the Court will dismiss the
Complaint without prejudice. Plaintiff may file an Amended
Complaint consistent with this Opinion and not merely repeating
the same deficient allegations, but instead clarifying the
causes of action he seeks to advance, as well as the

4

Indeed, the U.S. Supreme Court has held that a private attorney
does not act under color of state law when representing a
private party in court. See Edmonson v. Leesville Concrete Co.,
Inc., 500 U.S. 614, 643 (1991) (“It is antithetical to the
nature of our adversarial process, however, to say that a
private attorney acting on behalf of a private client represents
the government for constitutional purposes”); Henderson v.
Fisher, 631 F.2d 1115, 1119 (3d Cir. 1980) (“Participation in a
highly regulated profession does not convert a lawyer’s every
action into an act of the State or an act under color of state
law”) (citing Jackson v. Metro. Edison Co., 419 U.S. 345, 355
(1974), and Cuyler v. Sullivan, 446 U.S. 335 (1980)); accord
Polk Cnty. v. Dodson, 454 U.S. 312, 325 (1981) (“a public
defender does not act under color of state law when performing a
lawyer’s traditional functions as counsel to a defendant in a
criminal proceeding”).
9

jurisdictional basis for his suit, no later than fourteen (14)
days after the entry of this Opinion and Order.
12.

An accompanying Order will be entered.

August 20, 2014
Date

s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge

10