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Perez v. Griffin

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA


June 9, 2008

MIKE PEREZ, PLAINTIFF
v.
JOHN J. GRIFFIN AND LAW OFFICE OF JOHN J. GRIFFIN, DEFENDANTS

The opinion of the court was delivered by: Judge Conner

MEMORANDUM

This is a legal malpractice and civil rights lawsuit brought in forma pauperis by pro se plaintiff Mike Perez ("Perez") against defendants, attorney John J. Griffin and the Law Office of John J. Griffin (collectively "Griffin").*fn1 (See Docs. 1, 10.) Perez, an inmate housed by the Federal Bureau of Prisons, alleges that he retained Griffin to prosecute an action against prison officials for inadequate medical care. He contends that Griffin failed to do so and that this omissions constitutes legal malpractice, fraud, breach of contract and violation of Perez's civil rights. Griffin filed a motion for judgment on the pleadings*fn2 (Doc. 59), arguing that Perez's civil rights claim is not actionable because Griffin is not a state actor and that the malpractice, fraud, and contract claims fail because Perez has not provided a certificate of merit as required by the Pennsylvania Rules of Civil Procedure. For the reasons that follow, the motion will be granted.

I. Statement of Facts*fn3

In August 2003, Perez, then incarcerated at the Federal Correctional Institution, Schuylkill, suffered a severe asthma attack for which he alleges he received inadequate treatment. (See Doc. 1 ¶¶ 9-35 in No. 1:04-CV-1944 (M.D. Pa) [hereinafter "No. 04-1944"]).*fn4 Perez allegedly retained Griffin during July 2004 to pursue a claim against federal prison officials for the medical treatment administered during the incident. (Doc. 1 ¶ 4.) On September 1, 2004, Perez commenced the underlying suit pro se. (See Doc. 1 in No. 04-1944.) Griffin never entered an appearance in that matter. Griffin paid Perez on several visits during the following months to discuss legal matters associated with the case. (Doc. 1 ¶¶ 7, 9, 17.) The defendants filed a motion for summary judgment in early 2005, and Perez sent Griffin the summary judgment briefs and other documents to enable him to prepare a response. (Id. ¶¶ 10-11; Doc. 22 in No. 04-1944.) Griffin never opposed the motion, and the court extended the opposition period. (Doc. 1 ¶ 12-13; see also Docs. 28, 65, 96, 98 in No. 04-1944.) Perez contacted Griffin on several occasions and sent him additional documents, but Griffin remained unresponsive. (Doc. 1 ¶¶ 12-20.) Perez eventually prepared and filed opposition documents without Griffin's assistance. (Id. ¶ 21.) On November 7, 2006, the court entered summary judgment against Perez.*fn5 (Docs. 133, 134 in No. 04-1944.) Griffin allegedly continues to retain Perez's legal file containing the numerous documents that Perez sent to him. (Doc. 1 ¶ 22.)

Perez commenced the instant action on July 28, 2006 alleging that Griffin's actions constitute legal malpractice, breach of contract, and fraud. He also alleges that Griffin's retention of his documents hindered his prosecution of the underlying action, thereby violating his First Amendment right to petition the government for redress of grievances, his due process right of access to the courts, and his right to counsel. Griffin has filed a motion for judgment on the pleadings alleging that Perez's malpractice, fraud, and contract claims rest upon an alleged breach of Griffin's professional duties and require a certificate of merit pursuant to Rule 1042.3 of the Pennsylvania Rules of Civil Procedure. Perez has not filed a certificate, which Griffin contends requires dismissal of these claims. Griffin also alleges that he is not a state actor and therefore cannot be held liable for the alleged constitutional violations. The parties have fully briefed these issues, which are now ripe for disposition.

II. Standard of Review

A motion for judgment on the pleadings is a procedural hybrid of a motion to dismiss and a motion for summary judgment. Rule 12(c) of the Federal Rules of Civil Procedure provides: "After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings." FED. R. CIV. P. 12(c). To succeed on a motion under Rule 12(c), "the movant [must] clearly establish[] that no material issue of fact remains to be resolved and that he is entitled to judgment as a matter of law." Hayes v. Cmty. Gen. Osteopathic Hosp., 940 F.2d 54, 56 (3d Cir. 1991); see also 5A CHARLES A. WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 1368, at 519 (2d ed.1990). When deciding a motion for judgment on the pleadings, the court is directed to view "the facts presented in the pleadings and the inferences to be drawn therefrom in the light most favorable to the nonmoving party." Hayes, 940 F.2d at 56.

III. Discussion

Perez seeks recovery for alleged acts of legal malpractice, fraud, and breach of contract by Griffin. He also seeks recovery under 42 U.S.C. § 1983 for deprivation of his constitutional rights. The court will address these issues seriatim.

A. Legal Malpractice

Perez advances a legal malpractice claim against Griffin based upon Griffin's alleged failure to file summary judgment documents and upon his retention of Perez's legal file. Under Pennsylvania law, a legal malpractice action requires the plaintiff to establish that: (1) the plaintiff employed the attorney or that another basis for a duty exists between the two, (2) the attorney failed to "exercise ordinary skill and knowledge" when handling the plaintiff's matter, and (3) the negligence of the attorney proximately caused the plaintiff's injury. Nat'l Grange Mut. Ins. Co. v. Goldstein, Heslop, Steel, Clapper, Oswalt & Stoehr, 142 F. App'x 117, 120 (3d Cir. 2005) (citing Kituskie v. Corbman, 714 A.2d 1027, 1029 (Pa. 1998)). Rule 1042.3 of the Pennsylvania Rules of Civil Procedure further requires that a plaintiff alleging a breach of a professional duty produce a certificate of merit attesting to the colorable merit of the plaintiff's claim. The rule provides, in pertinent part:

(a) In any action based upon an allegation that a licensed professional deviated from an acceptable professional standard, the attorney for the plaintiff, or the plaintiff if not represented, shall file with the complaint or within sixty days after the filing of the complaint, a certificate of merit signed by the attorney or party that either (1) an appropriate licensed professional has supplied a written statement that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm, or*fn6

(3) expert testimony of an appropriate licensed professional is unnecessary for prosecution of the claim.

(d) The court, upon good cause shown, shall extend the time for filing a certificate of merit for a period not to exceed sixty days. The motion to extend the time for filing a certificate of merit must be filed on or before the filing date that the plaintiff seeks to extend. . . .

PA. R. CIV. P. 1042.3. The rule applies to pro se and represented plaintiffs alike and constitutes a rule of substantive state law with which plaintiffs in federal court must comply. See Iwanejko v. Cohen & Grigsby, P.C., 249 F. App'x 938, 944 (3d Cir. 2007) (holding that district courts must "appl[y] Rule 1042.3 as substantive state law"); Maruca v. Hynick, No. 3:06-CV-00689, 2007 WL 675038, at * (M.D. Pa. Feb. 27, 2007) ("[T]he language of Rule 1042.3(a)-i.e., "or the plaintiff if not represented . . . shall file . . . a certificate of merit"-expressly requires that a pro se plaintiff must file a certificate of merit.").

Failure to file either a certificate of merit under Rule 1042.3(a) or a motion for extension under Rule 1042.3(d) is fatal unless the plaintiff demonstrates that his or her failure to comply is justified by a "reasonable excuse." Womer v. Hilliker, 908 A.2d 269, 279-80 (Pa. 2006) (holding that a court may reconsider judgment entered for failure to comply with Rule 1042.3 if the plaintiff demonstrates a "reasonable excuse" for the noncompliance); see also PA. R. CIV. P. 1042.6 (authorizing entry of non pros judgment if a malpractice plaintiff fails to comply with Rule 1042.3); Walsh v. Consol. Design & Eng'g, Inc., No. Civ. A. 05-2001, 2007 WL 2844829, at *5 (E.D. Pa. Sept. 28, 2007) ("Rule 1042.3 is subject to equitable considerations and a party who fails to timely file a certificate of merit may be relieved from the requirement where the defaulting party provides a reasonable explanation or legitimate excuse.").

Perez filed his complaint in the instant matter on July 28, 2006. The sixty-day period for the filing of a certificate of merit or a motion for extension expired on September 26, 2006. Perez failed to file either document prior to the deadline.*fn7

This failure invalidates his malpractice claim unless he demonstrates a "reasonable excuse" for his omission. See Womer v. Hilliker, 908 A.2d at 280.

Perez asserts that Griffin's actions qualify as fraudulent conduct, which Perez claims excuses Rule 1042.3's certificate of merit requirement. He cites McElwee Group v. Municipal Authority of the Borough of Eleverson, 476 F. Supp. 2d 472 (E.D. Pa. 2007), in support of this proposition. McElwee Group involved an action brought by a contractor against a municipality that retained the contractor to construct a water treatment facility and the engineering firm that designed it. Id. at 474. The contractor argued that the municipality and the engineering firm made fraudulent representations of fact to induce the contractor to enter the construction agreement. Id. The engineering firm defended against the fraud claim on the ground that the contractor had failed to file a certificate of merit under Rule 1042.3. Id. at 474-75. The court rejected this challenge, holding that a certificate of merit is required only for professional negligence claims and is inapplicable to common law fraud actions, which do not rest upon breach of a professional duty of care. Id. at 475. McElwee Group has no effect on a claim-such as that advanced by Perez-for breach of Griffin's professional duty. Hence, Perez's allegations of fraud cannot serve as a reasonable excuse for his failure to file a certificate of merit.*fn8 The motion for judgment on the pleadings will be granted in favor of Griffin on the malpractice claim.

B. Breach of Contract and Fraud Claims

Perez also seeks recovery for breach of contract and fraud, which he alleges arise from the same conduct as his malpractice claim. (Doc. 66 at 1-2, 4-5.) He contends that "where fraud [and] breach of contract . . . [are] involved, a certificate of merit is not a requirement." (Id. at 7.) Rule 1042.3, however, applies to "any action based upon an allegation that a licensed professional deviated from an acceptable professional standard." PA. R. CIV. P. 1042.3(a) (emphasis added); see also Krauss v. Claar, 879 A.2d 302, 307 (Pa. Super Ct. 2005) (holding that a certificate of merit is required only in "professional liability claims"). "The filing of a certificate of merit attaches not by the wording of the complaint, but by the substance of the claim." See Walsh, 2007 WL 2844829, at *7. A claim implicates a professional duty if (1) "the claim pertains to an action that occurred within the course of a professional relationship" and (2) "the claim raises questions of professional judgment beyond the realm of common knowledge and experience." Merlini ex rel. Merlini v. Gallitzin Water Auth., 934 A.2d 100, 105 (Pa. Super. Ct. 2007); see also Varner v. Classic Cmtys. Corp., 890 A.2d 1068, 1075 (Pa. Super. Ct. 2006). Hence, a plaintiff may not avoid the obligations imposed by Rule 1042.3 by cloaking a claim based on breach of professional duty in the language of ordinary negligence, breach of contract, or fraudulent misrepresentation. See id.; see also Varner, 890 A.2d at 1073-74 (holding that a complaint, which facially alleged only ordinary negligence claims, required a certificate of merit because its substance was premised on the breach of a professional duty).

In the instant matter, Perez's contract and fraud claims arise from Griffin's alleged failure to oppose the summary judgment motion and return Perez's legal file. Both of these actions implicate the professional duties that Griffin owed to Perez. First, Griffin's acts and omissions occurred "within the course of a professional relationship." Merlini, 934 A.2d at 105. The filing of litigation documents constitutes a quintessential function that an attorney performs on behalf of a client. The retention of client files enables the lawyer to compile legal information, provide advice to the client, and handle litigation in accordance with the lawyer's professional judgment. Second, Griffin's alleged conduct is "beyond the realm of common knowledge and experience" of laypeople. Id.; Varner, 890 A.2d at 1075. The filing of documents and the retention of client files are governed by judicial decisions, the Federal Rules of Civil Procedure, the Pennsylvania Rules of Professional Conduct,*fn9 and the Code of Professional Conduct adopted by the United States District Court for the Middle District of Pennsylvania.*fn10 Conduct such as that from which Perez's claims arise implicates an attorney's professional judgment regarding matters such as when to file documents, how to maintain files, which documents to retain, and how best to comply with statutory and judicial rules. See Varner, 890 A.2d at 1075 (holding that an architectural malpractice defendant's failure to comply with applicable statutory codes was outside the reach of common experience). These obligations are not within the common experience of laypeople and raise "questions of professional judgment beyond the realm of common knowledge and experience." Merlini, 934 A.2d at 105.

Perez's allegations of fraud and breach of contract therefore implicate Griffin's professional duties.*fn11 An action averring breach of these duties requires that the plaintiff file a certificate of merit regardless of whether the plaintiff styles the claim as a malpractice action or as one for fraud*fn12 or breach of contract. Perez's failure to supply a certificate of merit vitiates his contract and fraud claims. Griffin's motion for judgment on the pleadings will be granted with respect to these claims.

C. Section 1983 Claims

Perez also advances § 1983 claims against Griffin for violation of his constitutional rights. He contends that Griffin's retention of his legal file and failure to oppose the summary judgment motion deprived him of his rights to counsel, to meaningful access to court, and to petition the government for redress of grievances. Section 1983 offers private citizens a means to redress violations of federal law committed by state officials. See 42 U.S.C. § 1983. The statute provides, in pertinent part, as follows:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . .

Id. Section 1983 is not a source of substantive rights and instead provides a method for vindicating rights secured elsewhere in federal law. Gonzaga Univ. v. Doe, 536 U.S. 273, 284-85 (2002); Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996). A § 1983 plaintiff must demonstrate that the defendant, while acting under the color of state law, deprived the plaintiff of a federal constitutional or statutory right. Kaucher v. County of Bucks, 455 F.3d 418, 423 (3d Cir. 2006). The purpose of the requirement that a § 1983 defendant act under the "color of state law" is to ensure that civil rights protections are applied only against government actors, who can be held liable for infringing them. This requirement prevents a private entity from becoming subject to § 1983 liability unless it engages in conduct that may be fairly attributed to the state. Mauro v. Beil, 213 F. App'x 131, 132 (3d Cir. 2007).

In the present matter, Perez's complaint fails to allege that Griffin engaged in any action under color of state law. The complaint recounts a purely private transaction in which Perez "retained the legal services of the defendant[]" to pursue "medical negligence claims" on his behalf. (Doc. 1 ¶ 4.) Perez's § 1983 claim arises exclusively from Griffin's conduct during the course of representation. Perez has not alleged that Griffin acted on behalf of a government entity or engaged in any conduct "fairly attributable to the state." Mauro, 213 F. App'x at 132. Purely private transactions between attorneys and clients are incapable of supporting a claim for redress under § 1983. See, e.g., Flagg Bros. v. Brooks, 436 U.S. 149, 164-66 (1978) (holding that private business transactions do not qualify as state action regardless of whether state statutes expressly authorize them); Rosquist v. Jarrat Const. Corp., 570 F. Supp. 1206, 1211 (D.N.J. 1983) ("[T]he actions taken by private attorneys in representing their clients do not constitute state action."). The motion for judgment on the pleadings will therefore be granted with respect to Perez's § 1983 claims.

IV. Conclusion

Perez's legal malpractice, fraud, and contract claims arise from the alleged breach of Griffin's professional duties and require a certificate of merit pursuant to Rule 1042.3 of the Pennsylvania Rules of Civil Procedure. These claims fail as a result of Griffin's non-compliance with the rule. His § 1983 claims are unavailing because Griffin is not a state actor. Accordingly, the motion for judgment on the pleadings will be granted in all respects.

An appropriate order is attached.

CHRISTOPHER C. CONNER United States District Judge

ORDER

AND NOW, this 9th day of June, 2008, upon consideration of the motion to dismiss (Doc. 59), and for the reasons set forth in the accompanying memorandum, it is hereby ORDERED that:

1. The motion to dismiss (Doc. 59) is CONSTRUED as a motion for judgment on the pleadings. The motion is GRANTED as so construed.

2. The Clerk of Court is instructed to enter JUDGMENT in favor of defendants John J. Griffin and the Law Office of John J. Griffin and against plaintiff Mike Perez on all counts.

3. The Clerk of Court is instructed to CLOSE this case.

4. Any appeal from this order is DEEMED frivolous and not in good faith. See 28 U.S.C. § 1915(a)(3).


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