Baker v. Austin et al

Filing 23

MEMORANDUM re dfts' MOTION to Dismiss 10 (Order to follow as separate docket entry)Signed by Honorable Sylvia H. Rambo on 11/24/14. (ma)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
RAY L. BAKER,
Plaintiff
v.
SARAH AUSTIN;
ROXXANNE GARDNER;
and AUSTIN LAW FIRM,
Defendants

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Civil No. 1:14-cv-1634

Judge Sylvia H. Rambo

MEMORANDUM
In this legal malpractice action, Plaintiff has sued his former attorneys
and the law firm with which they were associated, alleging that Defendants
committed legal malpractice related to their representation of Plaintiff in connection
with claims he sought to bring against his former employer. Presently before the
court is Defendants’ motion to dismiss Plaintiff’s complaint for lack of subject
matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure.
For the following reasons, the motion will be granted.
I.

Background
Plaintiff, proceeding pro se, initiated this action on August 21, 2014.

(Doc. 1.) On November 24, 2014, the court directed the clerk of court to file the
complaint filed by Plaintiff at Docket Number 1:14-cv-2026 as an amended
complaint in the captioned action. (Doc. 21.) A fair reading of Plaintiff’s complaint
leads the court to interpret it as asserting a cause of action for legal malpractice,
wherein Plaintiff alleges that he retained Defendant Austin Law Firm LLC on
November 4, 2008, to represent him in connection with a suit against his former
employer. (Doc. 22, ¶ 3.) Plaintiff alleges that Defendant, whom he identifies only

as Sarah Austin (id. at ¶ 2), “missed the deadlines for filing suit” and conclusively
states that she “failed to know and apply [the] law” (id. at ¶ 3). Although Plaintiff
lists Sarah Austin, Roxxanne [sic] Gardner, and Austin Law Firm as defendants in
the caption, he only identifies Sarah Austin as a defendant in the factual portion of
the complaint. (See id at ¶ 2.)
Based on this allegation, Plaintiff filed the instant complaint asserting
causes of action for: (1) legal malpractice; (2) negligence; (3) misrepresentation; and
(4) improper withdrawal. (Doc. 22, ¶ 1.) On October 1, 2014, Defendants filed a
motion to dismiss pursuant to Rule 12(b)(1) and 12(b)(6) of the Federal Rules of
Civil Procedure due to lack of diversity of citizenship under 28 U.S.C. § 1332 and
failure to state a claim.1 On October 17, 2014, after the time for filing a responsive
brief had closed, Plaintiff filed a motion for an extension of time to file a brief in
opposition (Doc. 15), which the court granted on October 31, 2014, extending the
responsive deadline to November 12, 2014 (Doc. 16). On November 5, 2014, to help
guide Plaintiff in his prosecution of this matter, the court issued an order that, inter

On October 20, 2014, Defendant initiated another civil action at docket number 1:14-CV2026, by filing a nearly identical complaint against the exact same defendants. (Baker v. Austin, Civ.
No. 1:14-cv-2026, Doc. 1, Compl. (M.D. Pa. Oct. 20, 2014).) Indeed, a comparison between the two
documents revealed that the subsequently filed document was a mere photocopy of the first, with the
addition of the words “(Attachment No.3)” in paragraph 3, and the physical attachment of several more
exhibits. (Compare id., with Doc. 1; see also Doc. 22.) The court assumed it was Plaintiff’s intention to
file an amended complaint rather than initiate an entirely new action. Accordingly, on October 23,
2014, the court issued a rule directing the parties to show cause why the action at Docket Number 1:14cv-2026 should not be consolidated at Docket Number 1:14-CV-1634. (Baker, Civ. No. 1:14-cv-2026,
Doc. 6 (M.D. Pa. Oct. 23, 2014).) Defendants filed a response to the Rule on November 6, 2014,
indicating that they have no objection to the consolidation of Civ. No. 1:14-cv-2026 with Civ. No. 1:14cv-1634. (Doc. 11.) On November 24, 2014, having received no response from Plaintiff and finding
good cause to do so, the court ordered the actions be consolidated and the complaint filed at Docket
Number 1:14-cv-2026 be filed by the Clerk of Court at Docket Number 1:14-cv-1634 as an amended
complaint. (Doc. 21.) Thus, the complaint originally filed at Docket Number 1:14-cv-2026 is the
operative document subject to Defendants’ motion to dismiss.
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alia, reiterated the date on which Plaintiff was to file his brief in opposition. (Doc.
17.) The date for responding has since passed and Plaintiff has failed to file an
opposition. Nevertheless, in order to ensure Plaintiff’s claim ensures due
consideration and in light of his pro se status, the court will address Defendants’
motion to dismiss on the merits.
II.

Legal Standard
Defendants bring this motion to dismiss pursuant to Federal Rule of

Civil Procedure 12(b)(1) which directs dismissal of the complaint when the court
“lack[s] subject-matter jurisdiction.” Fed. R. Civ. P. 12(b)(1). In determining
whether the court has subject-matter jurisdiction, the court must decide “whether the
allegations on the face of the complaint, taken as true, allege facts sufficient to
invoke the jurisdiction of the district court.” Taliaferro v. Darby Twp. Zoning Bd.,
458 F.3d 181, 188 (3d Cir. 2006) (citations omitted). Challenges to subject matter
jurisdiction under Rule 12(b)(1) may be facial or factual. Constitution Party of Pa.
v. Aichele, 757 F.3d 347, 358 (3d Cir. 2014). A facial attack serves to contest the
sufficiency of the pleadings, and the trial court must accept the complaint's
allegations as true. Id. Dismissal under a facial challenge is proper only when the
claim appears to be immaterial and made solely for the purpose of obtaining
jurisdiction, or is wholly insubstantial and frivolous. Kehr Packages, Inc. v.
Fidelcor, Inc., 926 F.2d 1406, 1408–09 (3d Cir. 1991). Such an attack can occur
before the moving party has filed an answer or otherwise contested the factual
allegations in the complaint. Aichele, 757 F.3d at 358.

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In contrast, a trial court considering a factual attack, i.e., an attack based
on the sufficiency of a jurisdictional fact, accords a plaintiff's allegations no
presumption of truth. Id. Where subject matter jurisdiction “in fact” is challenged,
the trial court’s very power to hear the case is at issue, and the court is therefore “free
to weigh the evidence and satisfy itself as to the power to hear the case.” Mortensen
v. First Fed. Sav. & Loan Ass’n, 549 F.2d 884, 891 (3d Cir. 1977). In a factual
attack, the court must weigh the evidence relating to jurisdiction, with discretion to
allow affidavits, documents, and even limited evidentiary hearings.” Id.
III.

Discussion
Defendants primarily argue that Plaintiff’s complaint should be

dismissed because the court lacks subject matter jurisdiction. Specifically,
Defendants raise a facial attack and contend that complete diversity of citizenship
does not exist pursuant to 28 U.S.C. § 1332. See Aichele, 757 F.3d at 358 (citing
Mortensen, 549 F.2d at 892 n.17 (“A factual jurisdictional proceeding cannot occur
until [the] plaintiff’s allegations have been controverted.”). Defendants assert that
Plaintiff and “all of the Defendants named in this lawsuit are identified by Plaintiff
as citizens of [Pennsylvania].” (Doc. 11, p. 13 of 23.)
Federal courts, being courts of limited jurisdiction, have a continuing
duty to satisfy themselves of jurisdiction before addressing the merits of a case.
Packard v. Provident Nat’l Bank, 994 F.2d 1039, 1049 (3d Cir. 1993). In the instant
case, Plaintiff’s complaint premises jurisdiction on a federal question. The federal
question statute provides: “The district courts shall have original jurisdiction of all
civil actions arising under the Constitution, laws, or treaties of the United States.” 28
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U.S.C. § 1331. For jurisdiction to exist under this statute, a federal question must be
“presented on the face of the plaintiff’s properly pleaded complaint.” Berne Corp. v.
Government of V.I., 570 F.3d 130, 136 (3d Cir. 2009) (citing Caterpillar Inc. v.
Williams, 482 U.S. 386, 392 (1987)). “To confer federal question jurisdiction,
plaintiffs ‘must assert a claim founded directly upon federal law.’” Chadda v.
Magady, Civ. No. (E.D. Pa. Dec. 20, 2011) (citing Krupnick v. Union Nat’l Bank,
470 F. Supp. 1037, 1038 (W.D. Pa. 1979)).
Plaintiff categorized this action as a “federal question” case; however,
even granting the pleadings the liberal construction allowed to pro se plaintiffs, the
complaint does not present a federal question. Plaintiff’s claims include state law
tort claims for legal malpractice, negligence, misrepresentation, and “improper
withdrawal.” (Doc. 22, ¶ 1.) These are state law causes of action outside the
jurisdiction of Section 1331. The conclusion that Plaintiff’s claims sound in
Pennsylvania – rather than federal – law is bolstered by Plaintiff citation to “Title
552 PA 275,” which the court interprets as a citation to a Pennsylvania Supreme
Court case, Kituskie v. Corbman, 714 A.2d 1027 (1998), that involved a legal
malpractice action brought against an attorney by a former client based on the
attorney’s failure to file a personal injury action within the applicable statute of
limitations period. (Doc. 22, ¶ 1.) None of these claims create a federal cause of
action and, therefore, are not properly within the jurisdiction of this court.
Moreover, Plaintiff’s complaint cannot survive even if interpreted as
invoking jurisdiction premised upon diversity of citizenship. The diversity
jurisdiction statute provides: “The district courts shall have original jurisdiction of all
civil actions where the matter in controversy exceeds the sum or value of $75,000,
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exclusive of interest and costs, and is between citizens of different states.” 28 U.S.C.
§ 1332(a)(1). Section 1332 has consistently been held to require complete diversity
of citizenship, that is, “diversity jurisdiction does not exist unless each defendant is a
citizen of a different State from each plaintiff.” Owen Equip. & Erection Co. v.
Kroger, 437 U.S. 365, 373 (1978) (emphasis in original). The burden is on the
plaintiff to establish that diversity of citizenship exists. See Petruska v. Gannon
Univ., 462 F.3d 294, 301 n.3 (3d Cir. 2006) (stating that “[n]o presumptive
truthfulness attaches to [the] plaintiff’s allegations . . . the plaintiff will have the
burden of proof that jurisdiction does in fact exist”).
The court will assume Plaintiff’s demand for $95,000.00 satisfies the
amount in controversy requirement. Independent Mach. Co. v. International Tray
Pads & Packaging, Inc., 991 F. Supp. 687, 690-91 (D.N.J. 1998) (“Courts will
generally accept a party’s good faith allegation of the amount in controversy.”).
However, complete diversity of citizenship is lacking because Plaintiff and, at least,
Defendants Sarah Austin and Austin Law Firm are each citizens of Pennsylvania.
Indeed, Plaintiff highlights 226 E. Market Street, York, Pennsylvania 17403 as
Defendants’ address. (See Doc. 22, p. 8 of 21.) Accordingly, complete diversity
does not exist.2
To the extent elimination of the non-diverse parties could result in
complete diversity, Plaintiff’s complaint falls far short from demonstrating that Sarah
Austin or Austin Law Firm are dispensable to the action. See Enza Inc. v. We The

Although not alleged by Plaintiff and carefully omitted by Defendants, the court has
reason to believe Roxane Gardner is a citizen of North Carolina. (See Doc. 22, p. 8 of 21.) However,
because the only defendants identified in the factual averments of the complaint are citizens of
Pennsylvania, complete diversity is lacking and the court is without subject matter jurisdiction.
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People Inc., 838 F. Supp. 975, 978 (E.D. Pa. 1993) (stating that the plaintiff has the
burden of demonstrating that a party is dispensable). Indeed, Gardner’s name does
not appear once in the factual averments of Plaintiff’s complaint. (See generally
Doc. 22.) Rather, Plaintiff states that “Plaintiff had trust in [the] Sarah Austin Law
Firm[ ] to handle his claims against his former employer” and that “Defendant,” who
is identified in the complaint only as Sarah Austin, “missed [the] deadline for filing
suit and failed to know and apply to [sic] law.” (Doc. 22, ¶ 3 (emphasis supplied).)
Although the court may infer that Gardner represented Plaintiff at some time and was
employed by Austin Law Firm, the basis for Plaintiff’s action appears to arise from
the conduct of Sarah Austin and the Austin Law Firm, not that of Gardner. Because
the only tortfeasors in this action, according to Plaintiff’s factual averments, are
Sarah Austin and Austin Law Firm, the court cannot conclude that Sarah Austin and
Austin Law Firm are dispensable parties and will not impute tortious conduct unto
Gardner. Thus, the court is precluded from retaining diversity jurisdiction by
dismissing the non-diverse parties. See Publicker Indus. Inc. v. Roman Ceramics
Corp., 603 F.2d 1065, 1069 (3d Cir. 1979) (“[T]he district court is precluded from
retaining diversity jurisdiction by dismissing a non-diverse party, if that party is
indispensable under Fed. R. Civ. P. 19.”).
Furthermore, the court notes that dismissal would not deprive Plaintiff
of a Pennsylvania state forum. Subsequent to dismissal, Plaintiff could transfer the
matter to a Pennsylvania state court by following the statutory prerequisites set forth
in 42 Pa. C.S. § 5103(b). Weaver v. Marine Bank, 683 F.2d 744, 746 (3d Cir. 1982)
(explaining that, “[w]hen a matter is brought in a [federal] court which does not have
jurisdiction . . . the case [may] be transferred to the proper court of the
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Commonwealth . . . [and] the matter “shall be treated as if originally filed in the
(state) court”).
This court’s lack of jurisdiction over the instant action cannot be cured
by amendment. Thus, the court concludes that allowing Plaintiff to amend the
complaint would be futile because re-pleading is futile after dismissal for lack of
subject matter jurisdiction as the “legal inadequacy cannot be solved by providing a
better factual account of the alleged claim.” U.S. ex rel. Atkinson v. PA. Shipbuilding
Co., 473 F.3d 506, 517 (3d Cir. 2007).
IV.

Conclusion
For the foregoing reasons, the court will dismiss Plaintiff’s complaint

pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure for lack of subject
matter jurisdiction and withhold leave to amend. An appropriate order follows.
s/Sylvia H. Rambo
United States District Judge
Dated: November 24, 2014.

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