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Feingold v. Cummins

July 16, 2009

ALLEN FEINGOLD
v.
NICHOLAS CUMMINS, ET AL.



The opinion of the court was delivered by: McLaughlin, J.

MEMORANDUM

Allen Feingold filed a civil complaint on May 18, 2009. At the center of this complaint is a separate case, Alston v. Walker, No. 06-cv-5203, which remains pending before this Court. Compl., ¶ 77. Feingold's wife, Dora Garcia, was originally counsel for the plaintiff in Alston, but ceased to represent that plaintiff when she was suspended by the Disciplinary Board of the Supreme Court of Pennsylvania. The complaint in this case alleges that numerous actors involved in the Alston lawsuit conspired to deprive Mr. Alston of adequate discovery and otherwise abused the litigation process to Feingold's personal detriment.

Each of the defendants named in the complaint is related in some manner to the Alston defense. Defendant Terrence Walker was the defendant in Alston. Defendant Bennett, Bricklin & Saltzburg, LLP, was the law firm that defended Mr. Walker; defendants Nicholas Cummins and Warren Sperling are attorneys at that firm. Defendants David Pashman and Andrew Shaer were retained by the defendant in Alston to provide expert medical opinions regarding Mr. Alston's injuries. Pashman is an employee of defendant Orthopedic Associates, P.C.; Shaer is an owner of defendant Shaer-Padilla Medical Imagining Consultants, LLC. Defendant State Farm Mutual Automobile Insurance Company allegedly provided counsel for the defense of Mr. Walker.

The complaint includes five numbered, but untitled, counts. The complaint alleges a form of civil conspiracy to commit certain intentional torts. Count one appears to be a claim for defamation or "false light." Count three (the complaint contains no "count two") appears to be a statement of damages. Count four is a claim of "abuse and misuse of the judicial process." Count six (the complaint contains no "count five") appears to be a claim of intentional infliction of emotional distress. Finally, count seven claims a violation of 42 U.S.C. § 1983 and 42 U.S.C. § 1985; the count does not specify the federal law on which this claim is based, but it appears to be premised on a violation of the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States.

The defendants have moved to dismiss the complaint on the basis of res judicata, estoppel, lack of standing, lis pendens, and failure to state claims on which relief can be granted. The final count of the complaint is the sole basis for federal subject matter jurisdiction. Because the plaintiff provides no facts to suggest that any defendant was acting under the color of law, the Court shall dismiss the plaintiff's claims to the extent they arise under 42 U.S.C. § 1983 and § 1985. Without the federal claim in the case, the Court does not possess subject matter jurisdiction over the balance of the plaintiff's claims and will therefore dismiss the suit in its entirety.

I. Allegations of the Complaint

Feingold has connections to three separate lawsuits involving the current defendants. The first was Alston v. Walker, which was a personal injury case filed in state court and removed to this Court. Alston v. Walker, No. 06-cv-5203. Feingold did not personally act as the attorney for Mr. Alston in that suit, although his wife, who worked for the firm of Feingold, Feingold and Garcia, did act as Mr. Alston's attorney until her suspension. Alston remains pending before this Court; neither Feingold nor Garcia are currently acting as counsel for Mr. Alston. The second suit involved Feingold and Mr. Alston as plaintiffs in state court alleging essentially the same facts as are presented in this case. Feingold v. Cummins, No. 081204752 (Phila. Ct. Com. Pl., 2008). The third case is the present matter. Feingold is the sole plaintiff in this suit.

Difficulties in performing discovery in Alston are at the center of this case, as they were in the prior state court action involving Feingold as a plaintiff. In fact, much of the complaint in this case appears to be a photocopy of that earlier complaint. Feingold has inserted "Alston" by hand in place of "the plaintiff" throughout the first half of his complaint in an effort to adapt the pleadings to the circumstances of this case.

Ronald Alston and Terrence Walker collided in their cars while driving in Philadelphia. Mr. Alston sued Mr. Walker in state court and the defendant removed to federal court on diversity grounds. Feingold alleges that throughout discovery in the Alston matter, the defendant, his attorneys, his expert witnesses and his insurance company withheld evidence that would have supported Mr. Alston's case. Id., ¶¶ 3-14, 17-26, 36-42. The complaint alleges that the defendants asserted improper privileges and made unsubstantiated objections to discovery requests in the Alston matter. Id., ¶¶ 23-26. Feingold alleges that the defendants' discovery requests in the Alston matter were designed to harass Feingold and his wife's client Mr. Alston.

Id., ¶¶ 27-28. Feingold alleges that defense counsel in the Alston action improperly delayed the production of an expert report and that Mr. Walker's medical experts were involved in those delays in an unspecified capacity. Id., ¶¶ 30-33.

The complaint includes the following allegations concerning state and federal actors. The complaint states that this Court, upon review of the deposition of Terrence Walker, should have granted summary judgment in favor of Mr. Alston.

Id., ¶ 16. The complaint states that "over the years, plaintiff, Allen Feingold upset various attorneys and judges, as well as attorneys who later became judges, and suffered great loss and injury to himself and his clients and prior clients like the plaintiff, Alston [sic]." Id., ¶ 77. The complaint then states that:

These attorneys and/or judges stated and did numerous improper, wrong, false, unethical, illegal, fraudulent, untrue, wanton, willful, and reckless, statements and acts, but because Allen Feingold, his client or an attorney working with one of his clients, was involved, these attorneys and judges ...


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