OKPOR v. BENEDETTO

Filing 12

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE HARVEY BARTLE, III ON 11/18/22. 11/18/22 ENTERED AND COPIES E-MAILED.(mbh)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
MICHAEL OKPOR
V.
CONRAD J. BENEDETTO

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CIVIL ACTION

NO. 22-906

MEMORANDUM
Bartle, J.

November 18, 2022
Plaintiff Michael Okpor, proceeding pro se, brought

this legal malpractice and breach-of-contract action against his
former attorney, defendant Conrad J. Benedetto.

Earlier this

year, the court dismissed Okpor’s complaint pursuant to 28
U.S.C. § 1915(e)(2)(B)(ii) for lack of subject matter
jurisdiction.

See Okpor v. Benedetto, No. 22-CV-0906,

2022 WL 1121415 (E.D. Pa. Apr. 13, 2022).

Before the court is

the motion of Okpor to amend his complaint.
Okpor commenced this action suit to recover damages
arising from Benedetto’s allegedly deficient representation in a
civil lawsuit he initiated in the Superior Court of New Jersey:
Okpor contends that in late 2014,
he sustained “very serious injuries”
following a physical assault by “Roberto
Lobonavaro.” Okpor filed a civil complaint
in the Superior Court of New Jersey against
Lobonavaro and avers that Lobonavaro
“default[ed] on the case.” Okpor contends
that “Judge Anthony M. Pugliese schedule[d]
default judgement hearing three times [and
his] lawyer, Mr. Conrad Benedito [sic] Esq.
decline[d] to appear in court” which

resulted in Okpor’s complaint being
dismissed on January 20, 2017.
Okpor avers that Benedetto misled
him and caused him “to settle with second
defendant on the case for only $1000 and
later gave $640.”
Okpor, 2022 WL 1121415, at *1 (citations omitted).
Okpor initially asserted a civil rights claim under 42
U.S.C. § 1983 as well as state-law claims for legal malpractice
and breach of contract.

As noted above, the court dismissed his

action for lack of subject-matter jurisdiction.

First, Okpor

failed to state a § 1983 claim because Benedetto is not a state
actor.

Second, the court held that it lacked diversity

jurisdiction over Okpor’s state-law claims because Okpor had
failed to allege Benedetto’s citizenship.

Third, the court

further declined to exercise supplemental jurisdiction over
Okpor’s state-law claims under 28 U.S.C. § 1367(c).
Okpor has now filed the instant motion for leave to
file an amended complaint.

Okpor reiterates his claims for

legal malpractice and breach of contract but does not assert a
§ 1983 claim. Rather, the only new allegation is that of
Benedetto’s Pennsylvania citizenship, presumably included to
cure the jurisdictional defect in his state-law claims.
Rule 15(a) of the Federal Rules of Civil Procedure
generally permits a plaintiff to seek leave to amend a complaint
vulnerable to dismissal before a responsive pleading is filed.
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However, a plaintiff is not entitled to such leave if the
proposed amendment to the complaint would be futile.

Grayson v.

Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002).

Leave to

amend is futile when the proposed amended complaint states
claims that based on the face of the complaint are apparently
time-barred.

E.g., Love v. Alfacell Corp., Civ. A. No. 09-5199,

2010 WL 11570268, at *2 (D.N.J. Sept. 22, 2010) (citing In re
NAHC, Inc., Sec. Litig., 306 F.3d 1314, 1332 (3d Cir. 2002)).
The court applies the choice-of-law rules of
Pennsylvania, the forum state, to diversity jurisdiction
actions.

Frankentek Residential Sys., LLC v. Buerger, 15 F.

Supp. 3d 574, 580 (E.D. Pa. 2014).

This includes the rules that

Pennsylvania courts use to determine the proper statute of
limitations to apply to a claim that accrues in another state.
Id.

Specifically, Pennsylvania has enacted a so-called

borrowing statute: “The period of limitation applicable to a
claim accruing outside this Commonwealth shall be either that
provided or prescribed by the law of the place where the claim
accrued or by the law of this Commonwealth, whichever first bars
the claim.”

42 Pa. Cons. Stat. § 5521(b).

Pennsylvania has a two-year statute of limitations for
tortious conduct such as legal malpractice and a four-year
statute of limitations for breach-of-contract actions.
Cons. Stat. §§ 5524, 5525.

42 Pa.

The statute of limitations for both
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claims under New Jersey law is six years.
§ 2A:14-1.

N.J. Stat. Ann.

Pennsylvania’s borrowing statute requires the court

to apply whichever state’s limitations period “first bars the
claim.”

§ 5521(b).

Thus, the court must apply the Pennsylvania

limitations periods to Okpor’s claims because they are shorter
than their New Jersey counterparts.
The claims that Okpor asserts in his amended complaint
are clearly barred by Pennsylvania’s statute of limitations.
Okpor’s legal malpractice and breach-of-contract claims accrued
no later than January 20, 2017, when his New Jersey state-court
complaint was dismissed.

Okpor commenced this suit on March 8,

2022, well beyond Pennsylvania’s two-year limitations period for
legal malpractice claims and four-year limitations period for
breach of contract claims.
tolling these time periods.

Okpor does not allege any basis for
Accordingly, Okpor’s claims are

time-barred, and the motion of Okpor to amend his complaint will
be denied as futile.

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