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BANGERT v. HARRIS

December 14, 1982

A. C. BANGERT, Plaintiff,
v.
James W. HARRIS and William H. Proctor, Defendants.



The opinion of the court was delivered by: CALDWELL

 CALDWELL, District Judge.

 I. Background

 Before us are the following related motions in this diversity action brought pursuant to 28 U.S.C. ยง 1332: defendant Harris' motions to dismiss and for a more specific pleading, plaintiff's motion to strike, and defendant Proctor's motions for an extension of time and to join in defendant Harris' motion. Plaintiff, proceeding pro se, filed his amended complaint on June 11, 1982 pursuant to the court's order and memorandum of June 24 and on Harris, on June 29. Essentially plaintiff's cause of action is for breach of contract and negligence by defendants, whom plaintiff contends he retained as his attorneys in suits brought in the United States District Court for the Southern District of New York and the District of Connecticut and the Court of Common Pleas, York County, Pennsylvania. Plaintiff has also sought redress for emotional distress, which claims we shall address hereinafter.

 Defendant Harris' motions to dismiss and for a more specific pleading were filed on July 16, 1982, together with a supporting memorandum. On August 5 plaintiff filed a motion to strike Harris' motions. Plaintiff also filed on the same date a document that purported to be a brief but which actually raised only trivialities. *fn1" Harris filed a timely brief in opposition, and we are persuaded that plaintiff is not entitled to the relief he seeks, particularly in light of defendant Harris' immediate filing of amended motions on August 9 and of plaintiff's noncompliance with the mandate of Local Rule 401.1 regarding certification of concurrence or nonconcurrence. *fn2" Harris' motions, therefore, remain before us for consideration.

 II. Defendant Proctor's Motions

 Before addressing the merits of these motions, however, we turn to the issue of whether defendant Proctor will be permitted to join in them. Proctor moved for an extension of time pursuant to Federal Rule of Civil Procedure 6(b)(2) after plaintiff had requested entry of a default. The "excusable neglect" showing was sufficient to permit an extension since it appears that originally Proctor had expected Harris' counsel to represent both defendants. Furthermore, plaintiff has filed no opposition and pursuant to Local Rule 401.7, Proctor's motion is deemed unopposed. It is unnecessary to delineate the amount of time for which the extension is granted since Proctor has already filed a motion and memorandum to join Harris' motions. In fact the extension motion was discussed at the pretrial discovery conference held on October 15, 1982, and was at least informally granted. Although Proctor's counsel should have acted more promptly in filing his motion (filed November 15, 1982) to join in Harris' motions, no deadline was established by the court at the conference. Our accompanying order, however, establishes clear and compulsory deadlines for further proceedings in this case.

 Although plaintiff appears to be attempting to oppose the motion of Proctor filed on November 25 (rather than November 11 as plaintiff states) as untimely, such opposition is directed largely to Proctor's failure to attach to the motion a copy of defendant Harris' amended motion and memorandum of August 9, 1982. We know of no requirement for doing so. *fn3" Also plaintiff has completely misread Federal Rule of Civil Procedure 11 as requiring counsel to read and understand another party's pleading. Although a desirable practice, it is not within the ambit of Rule 11, which addresses the responsibilities attendant to signing one's own pleadings.

 Under the circumstances and in view of the considerable delay already occasioned in this case, we are permitting Proctor to join in Harris' motions to dismiss and for a more definite statement. In the interest of fairness to plaintiff, however, who has not been responsible for the lack of expeditiousness, we are excusing his failure to file a proper opposing brief (see n. 1 supra and accompanying text) and will consider the motions on their merits rather than deeming as unopposed all parts of those motions which plaintiff has failed to address. Were we to follow the latter course of action, the motions would be granted in their entirety.

 III. The Complaint and Motions to Dismiss and for a More Definite Statement

 The motions we now address are grounded in the following issues: whether plaintiff has set forth claims upon which relief can be granted and whether recovery of treble damages and exemplary damages is proper under applicable Pennsylvania law. Plaintiff's complaint consists of seven counts. Counts I, II, and III are directed to the representation of plaintiff by defendants in the federal court civil action filed in New York. Count I alleges breach of contract; Count II alleges "intentional legal malpractice;" and Count III alleges "vindictive and intentional infliction of mental distress." Count IV is a breach of contract claim with respect to the federal court civil action filed in Connecticut. Counts V, VI, and VII are directed to the Pennsylvania county court action. The counts are essentially identical to Counts I, II, and III.

 IV. The Legal Malpractice Claims

 Defendants have moved to dismiss Counts II and VI in their entirety pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. Their motion is based on the failure of Pennsylvania law to recognize " intentional legal malpractice" as a cause of action. (emphasis supplied) Although defendants are technically correct, it certainly cannot be argued that malpractice by attorneys, whether intentional or negligent, has provided anything but fertile ground for litigation for many years. *fn4" Our research has shown that negligent conduct is generally alleged by clients seeking redress for malpractice. It logically follows, however, that if a client alleges intentional actions by an attorney, which actions are not in the client's ...


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