MOURATIDIS v. MOURTOS et al
Filing
31
MEMORANDUM OPINION. Signed by Judge Jerome B. Simandle on 11/19/2018. (rtm, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
LOUIS MOURATIDIS,
Plaintiff,
HONORABLE JEROME B. SIMANDLE
v.
NICKLOLAS MOURTOS, BARI ZELL
WEINBERGER and AARON
WEINBERGER,
Civil Action No.
18-1176 (JBS/JS)
MEMORANDUM OPINION
Defendants.
SIMANDLE, District Judge:
In this action, Plaintiff pro se Louis Mouratidis
(“Plaintiff”) alleges Defendants Nicolas Mourtos, Esq., Bari
Zell Weinberger, Esq., and Aaron Weinberger, Esq. (collectively,
“Defendants”) committed legal malpractice by failing to obtain
dismissal of a final restraining order within the initial agreed
upon $3,000.00 retainer. Plaintiff claims this Court has federal
question jurisdiction under 28 U.S.C. § 1331. [Docket Item 1-4
(“Compl.”) at p.3.] Pending before the Court are several
motions, including Defendants’ motion to dismiss pursuant to
Fed. R. Civ. P. 12(b)(1) and 12(b)(6) [Docket Item 13] and
Plaintiff’s motions to appoint pro bono counsel [Docket Item 8],
“for relief to dissolve motion to dismiss for pro bono” [Docket
Item 17], “to enforce federal jurisdiction” [Docket Item 22],
and “to amend/correct.” [Docket Item 26.] For the reasons
discussed below, the Court will grant Defendants’ motion to
dismiss for lack of jurisdiction and deny the remaining motions
as moot. The Court finds as follows:
1.
Factual and Procedural Background.1 In late 2016,
Plaintiff visited the Weinberger Divorce & Family Law Group
(“Weinberger Law Group”) in Mount Laurel, New Jersey for a free
consultation with one of its attorneys, Defendant Nickolas
Mourtos, Esq. (“Mourtos”). (Compl. at ¶ 12.) According to the
Complaint, Plaintiff was seeking legal advice in a matter
involving a final restraining order that had been entered
against him. (Id. at ¶ 13.) Plaintiff alleges he informed
Defendant Mourtos that he received Social Security disability
income “to show and provide, how little [he] get[s] on a monthly
basis, just in case this would be costly . . . before signing in
to an agreement,” and that Defendant Mourtos responded “that is
not relevant.” (Id. at ¶ 16.) Plaintiff further alleges that he
was “pressed on time” because he had been “forced to return to
the U.S. from the Greek Hellenic Armed Forces in Greece, during
training and [was] provided a [two] year leave to resolve this
1
The facts alleged are drawn from the Complaint, from public
court documents, and from undisputedly authentic documents upon
which Plaintiff explicitly relies in his Complaint. See In re
Rockefeller Ctr. Props., Inc., Sec. Litig., 184 F.3d 280, 287
(3d Cir. 1999).
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legal matter or [he] would be penalized under the laws of
Hellenic Armed Forces.” (Id. at ¶ 17.)
2.
Plaintiff alleges Defendant Mourtos told him it would
cost “$3,000, maybe a few hundred dollars more” to represent
him. (Id. at ¶ 15.) On December 6, 2016, Plaintiff paid the
Weinberger Law Group $3,000. (Id. at ¶ 18.) “A few months
later,” an unnamed attorney from the Weinberger Law Group asked
Plaintiff for “another $3,000 dollar refresher fee,” which “came
as a massive shock” to him. (Id. at ¶ 19.) In response,
Plaintiff asked to terminate the services of the Weinberger Law
Group. (Id.) “[B]efore the amount of the invoice increased as it
did, [Plaintiff] owed [$100] at the time.” (Id.) According to
Plaintiff, “[m]onths went by and [he] was getting emails of
costs on a monthly basis, via: E:Mail, still to today’s date,
from [$100] to [$800].” (Id. at ¶ 20.)
3.
On January 29, 2018, Plaintiff filed this federal
action against Defendants Mourtos, Bari Zell Weinberger, Esq.
(the Managing Attorney at the Weinberger Law Group), and Aaron
Weinberger, Esq. (the Executive Director at the Weinberger Law
Group) challenging the enforceability of his retainer agreement
with the Weinberger Law Group. [Docket Item 1.] To that end,
Plaintiff alleges he was mentally impaired and under duress at
the time the agreement was executed, and that Defendants
breached their “duty of good faith and fair dealings” under the
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New Jersey Uniform Commercial Code, N.J.S.A. § 12A:1-304, by
inducing Plaintiff to enter into the agreement. (Compl. at ¶¶
21-37.) As relief, Plaintiff asks the Court: (1) to rescind the
contract with the Weinberger Law Group; (2) to “[v]oid any and
all amount to the invoice to the contract” with the Weinberger
Law Group; (3) reimbursement of the $3,000 retainer payment; (4)
to expedite reimbursement of the $3,000 retainer payment; (5)
compensatory and punitive damages; and (6) compensation for a
€5,000 penalty and 90-day incarceration Plaintiff will be
subject to by the Hellenic Armed Forces if he returns to Greece.
(Id. at ¶¶ 44-49.)
4.
Standard of Review. Under Federal Rule of Civil
Procedure 12(b)(1), a party may move to dismiss a complaint for
lack of subject matter jurisdiction. Because federal courts are
courts of limited jurisdiction, the party seeking to invoke the
court’s jurisdiction bears the burden of proving the existence
of subject matter jurisdiction. See Kokkonen v. Guardian Life
Ins. Co., 511 U.S. 375, 377 (1994). Under Fed. R. Civ. P.
12(b)(1), the court’s jurisdiction may be challenged either
facially (based on the legal sufficiency of the claim) or
factually (based on the sufficiency of a jurisdictional fact).
Gould Elecs. v. U.S., 220 F.3d 169, 178 (3d Cir. 2000); see also
A.D. v. Haddon Heights Bd. of Educ., 90 F. Supp. 3d 326, 334
(D.N.J. 2015) (explaining the same distinction). On a facial
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attack, the Court considers only the allegations of the
complaint and documents referenced therein, construing them in
the light most favorable to the plaintiff. Pearson v. Chugach
Gvt. Svcs. Inc., 669 F. Supp. 2d 467, 469–70 (D. Del. 2009). On
a factual attack, “no presumptive truthfulness attaches to
plaintiff’s allegations, and the existence of disputed material
facts will not preclude the trial court from evaluating for
itself the merits of jurisdictional claims. Moreover, the
plaintiff will have the burden of proof that jurisdiction does
in fact exist.” Mortensen v. First Fed. Sav. & Loan Ass’n, 549
F.2d 884, 891 (3d Cir. 1977).
5.
Under Federal Rule of Civil Procedure 12(b)(6), the
court must “accept all factual allegations as true, construe the
Complaint in the light most favorable to the plaintiff, and
determine whether, under any reasonable reading of the
Complaint, the plaintiff may be entitled to relief.” Fleisher v.
Standard Ins. Co., 679 F.3d 116, 120 (3d Cir. 2012) (internal
citations omitted). In applying this standard to pro se
pleadings and other submissions, as here, the Court must
liberally construe the well-pleaded allegations, and draw all
reasonable inferences in favor of the pro se litigant. Higgs v.
Atty. Gen. of the U.S., 655 F.3d 333, 339 (3d Cir. 2011);
Capogrosso v. The Supreme Court of New Jersey, 588 F.3d 180, 184
(3d Cir. 2009). Despite this liberality, however, a pro se
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complaint must still “contain sufficient factual matter,
accepted as true,” to “state a [plausible] claim to relief.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Marley v.
Donahue, 133 F. Supp. 3d 706, 714 (D.N.J. 2015) (explaining the
same concept).
6.
Discussion. In the motion to dismiss, which the Court
addresses first, Defendants argue that the Complaint fails to
state a claim over which a federal court would have subject
matter jurisdiction. [Docket Item 13-1 at 6-14.] The Court
agrees.
7.
The heart of Plaintiff’s Complaint is a legal
malpractice claim for rescission of a contract, repayment of a
$3,000 retainer fee, injunctive relief to prevent Defendants
from collecting additional fees which, in Plaintiff’s view, are
not owed, and compensation for possible penalties Plaintiff
faces if he returns to Greece. As Plaintiff himself acknowledges
by referencing New Jersey statutes, including N.J.S.A. § 12A:1304, state law provides the causes of action arising from the
complained-of conduct here, regardless of whether it is styled
as a federal civil rights claim. For this Court to adjudicate
state-law claims, such as these, the Court must have either
diversity jurisdiction or supplemental jurisdiction flowing from
some claim that involves a federal question. See Kokkonen, 511
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U.S. at 377; Zambelli Fireworks Mfg. Co., Inc. v. Wood, 592 F.3d
412, 418 (3d Cir. 2010).
8.
Federal Question Jurisdiction. Although Plaintiff
alleges that this Court has federal question jurisdiction,
Plaintiff has not properly pleaded any federal claims. In
addition to alleging breach of “duty of good faith and fair
dealings” under N.J.S.A. § 12A:1-304, Plaintiff cites three
civil rights statutes - 42 U.S.C. §§ 1981, 1983, and 1985 - in
the “Jurisdiction and Venue” section of the Complaint. (Compl.
at p.3.) The Complaint further alleges Defendants were acting
“[u]nder color of state law.” (Id. at ¶ 6.) The critical
question is, therefore, whether Plaintiff has alleged any
factual basis for the claim that Defendants were acting under
color of state law in taking any of the actions alleged to harm
Plaintiff. The answer is no.
9.
It is settled law that an attorney may be entitled to
dismissal of a civil rights action on the ground that a
complaint fails to state a claim because “a lawyer representing
a client is not, by virtue of being an officer of the court,
a state actor ‘under color of state law’ within the meaning of §
1983.” Polk County v. Dodson, 454 U.S. 312, 318 (1981). Here,
Defendants Mourtos, Bari Zell Weinberger, Esq., and Aaron
Weinberger, Esq. are private attorneys who were retained by
Plaintiff to perform legal services. And Plaintiff has not
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alleged in any meaningful way that these private attorneys ever
acted on behalf of the State during their representation of him
or otherwise. They are not, therefore, “state actors” and
Plaintiff’s claims against them must fail under Sections 1981,
1983, and 1985.
10.
Diversity Jurisdiction. Although Plaintiff asserts
only federal question jurisdiction in the Complaint (see Compl.
at p.3), the Court has also considered whether there is
diversity jurisdiction in this case. Under 28 U.S.C. § 1332(a) a
federal court has jurisdiction over actions between citizens of
different states where the amount in dispute exceeds $75,000,
exclusive of interest and costs.
11.
As an initial matter, Plaintiff cannot establish
diversity jurisdiction because the contested $3,000 retainer
fee, the few hundred dollars in unpaid invoices, and €5,000
(approximately $5,664.53 at the current exchange rate) for
Plaintiff’s anticipated penalties amount to about $9,000 in
damages. This is well below the jurisdictional threshold of
$75,000, exclusive of interest and costs, and there is nothing
else in the pleadings that suggests there is a “reasonable
probability” that the amount in controversy could possibly
exceed $75,000. See Columbia Gas Transmission Corp. v. Tarbuck,
62 F.3d 538, 541 (3d Cir. 1995).
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12.
Even if Plaintiff could meet the $75,000 threshold,
which the Court has determined to a legal certainty he cannot,
the Complaint does not allege diversity of citizenship because
Plaintiff and Defendants are citizens of the same state, New
Jersey. For purposes of diversity jurisdiction, a natural person
is considered a citizen of the state in which that person is
domiciled. Piero v. Kugel, 386 F. App’x 308, 309 (3d Cir. 2010).
13.
The Court infers that Plaintiff is domiciled in New
Jersey for several reasons. On the Civil Cover Sheet affixed to
the Complaint, Plaintiff states he is a citizen of New Jersey,
as well as “another state” and “a foreign country,” presumably
Greece. [Docket Item 1-1.] Additional evidence supports that
Plaintiff is domiciled in New Jersey: Plaintiff’s Social
Security documentation attached to the Complaint indicates he
resided in Stratford, New Jersey as of March 2011 [Docket Item
1-5 at 7]; Lexis searches performed on May 8, 2018 indicate that
Plaintiff resided in Stratford, New Jersey as of that date
[Docket Item 13-3 at 3-9]; Plaintiff is registered to vote in
New Jersey and his voter status is “active” [Docket Item 13-2 at
2]; Plaintiff was issued a New Jersey’s drivers license [id.];
and Plaintiff filed for bankruptcy in the U.S. District Court
for the District of New Jersey in 2015. [Id.] Plaintiff has also
filed other cases in this Court listing Stratford, New Jersey as
his address. See, e.g., Mouratidis v. Taylor, et al., No. 10-cv9
2964-JBS-JS (D.N.J. filed on June 1, 2010). All of these facts
suggest Plaintiff is domiciled in New Jersey.
14.
The Court additionally notes that, while Plaintiff
lists himself as having a Philadelphia, Pennsylvania address on
the Civil Cover Sheet [Docket Item 1-1], “one can reside in one
place and be domiciled in another.” Orozco-Barajas v.
Zickefoose, 2012 WL 1435556, at *4 (D.N.J. Apr. 24, 2012). And,
according to the Affidavit of April T. Villaverde, Esq., the
Philadelphia address listed in the Complaint is a commercial,
not residential, address. [Docket Item 13-2 at ¶ 4.] Moreover,
the Third Circuit has held that a plaintiff who is a dual United
States and foreign citizen may not assert diversity or alienage
jurisdiction under 28 U.S.C. § 1332, even if that plaintiff is
domiciled abroad. Frett-Smith v. Vanterpool, 511 F.3d 396, 40203 (3d Cir. 2008). Accordingly, that Plaintiff may also be a
citizen of Greece is of no moment here. He is a New Jersey
citizen and cannot establish diversity vis-à-vis Defendants who
are also New Jersey citizens.
15.
Conclusion. For the foregoing reasons, the Court lacks
subject matter jurisdiction over this matter and must dismiss
the case pursuant to Fed. R. Civ. P. 12(b)(1). Dismissal of the
Complaint will be without prejudice to Plaintiff’s right to file
a complaint in a State court of competent jurisdiction. The
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remaining motions will be denied as moot.2 An accompanying Order
shall be entered.
November 19, 2018
s/ Jerome B. Simandle
JEROME B. SIMANDLE
U.S. District Judge
2
The remaining motions by Plaintiff are “moot,” that is, they do
not present a matter that remains to be adjudicated because this
Court’s finding of lack of jurisdiction also means it lacks the
power to decide the other motions in this case.
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