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Allen L. Feingold v. Unitrin Direct

June 14, 2012


The opinion of the court was delivered by: O'neill, J.


Plaintiff Allen L. Feingold filed this action against defendants Unitrin Direct, Kemper Auto & Home Insurance Co., John Blumenthal, Andrew Moore, Moore & Reimenschneider, LLC., Robert Moraux, Cindy Brenner and Devon Brenner seeking damages for claims arising out of the alleged failure of defendants to compensate Feingold for his legal contribution to a personal injury case in which each of the defendants was involved. Feingold asserts claims of fraud, negligent misrepresentation, abuse of process, civil conspiracy and infliction of emotional distress. Now before me are the motions to dismiss of John Blumenthal, Andrew Moore and Moore & Reimenschneider, LLC. and Unitrin and Kemper. For the reasons that follow I will dismiss Feingold's Amended Complaint but allow him to amend the fraud, negligent misrepresentation, civil conspiracy and infliction of emotional distress claims.


The facts of the instant case viewed in the light most favorable to Feingold are as follows. Feingold asserts that his claims arise out of an automobile accident in which Cindy Brenner and her daughter Devon Brenner suffered personal injuries and property damage to the vehicle. Am. Compl. ¶14-15. The Brenners collided with Claire Guiranna, who was insured by Unitrin and Kemper, and the Brenners commenced a lawsuit against Guiranna in the Philadelphia Court of Common Pleas on June 10, 2005 which was subsequently transferred to the Bucks County Court of Common Pleas on May 13, 2006. Id. at ¶ 16; Dkt. No. 11 at 22-32 (Philadelphia and Bucks Cty. Ct. Com. Pl. Dockets for the Brenner litigation).*fn1 The Brenners hired Feingold to assist them in this litigation and Feingold relied on an unwritten agreement that he would be compensated for his work, costs and investment of time following the disposition of that case. Am. Compl. ¶ 23. Unitrin and Kemper hired Andrew Moore and his firm Moore & Reimenschneider to represent Guiranna. Id. at ¶ 18.

Subsequently, the Brenners dissolved their relationship with Feingold due to a change in family circumstances but the Brenners were unable to honor their unwritten compensation agreement at that time because their lawsuit remained unresolved. Id. at ¶ 24-25. To ensure future compensation for his work in the motor vehicle matter, Feingold gave notice to certain unnamed defendants that he maintained a claim to a portion of the monies that would potentially flow from the Brenner's settlement, award, verdict or closing check. Id. at ¶ 26. Moore promised to include Feingold's name on "any settlement, award, verdict or closing check."Id.

Unbeknownst to Feingold, the Brenner's litigation ultimately concluded with an arbitration awards of $30,000 to Cindy Brenner and $7,500 to Devon Brenner on March 17, 2010. Dkt. No. 11 at 31-32. Feingold alleges that the arbitration award came about and/or was assisted by the years of work he provided, but none of the defendants have made an effort to compensate Feingold and they continue to ignore his requests.Am. Compl. ¶ 28-30.

Beyond the legal fees allegedly owed to him for his representation of the Brenners, Feingold also avers that he provided legal services to Robert Moraux, the step-father of Cindy Brenner and step-grandfather of Devon Brenner. Id. at ¶ 20. Feingold does not, however, allege that Moraux had agreed to pay Feingold for his legal services. Feingold only alleges that Moraux's debt was somehow coupled with the Brenners' debt after Feingold was hired to represent the Brenners in their auto accident case.Id. at ¶ 23.


Federal Rule of Civil Procedure 12(b)(6) permits a court to dismiss all or part of an action for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). Typically, "a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations," though plaintiff's obligation to state the grounds of entitlement to relief "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). "Factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all of the allegations in the complaint are true (even if doubtful in fact)." Id. (citations omitted). The complaint must state "'enough facts to raise a reasonable expectation that discovery will reveal evidence of' the necessary element." Wilkerson v. New Media Tech. Charter Sch. Inc., 522 F.3d 315, 321 (3d Cir. 2008), quoting Twombly, 550 U.S. at 556. The Court of Appeals has made clear that after Ashcroft v. Iqbal, 129 S. Ct. 1937, 1955 (2009), "conclusory or 'bare-bones' allegations will no longer survive a motion to dismiss: 'threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.' To prevent dismissal, all civil complaints must now set out 'sufficient factual matter' to show that the claim is facially plausible." Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009), quoting Iqbal, 129 S. Ct. at 1949. The Court also set forth a two part-analysis for reviewing motions to dismiss in light of Twombly and Iqbal: "First, the factual and legal elements of a claim should be separated. The District Court must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions. Second, a District Court must then determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a 'plausible claim for relief.'" Id. at 210-11, quoting Iqbal, 129 S. Ct. at 1950. The Court explained, "a complaint must do more than allege the plaintiff's entitlement to relief. A complaint has to 'show' such an entitlement with its facts." Id., citing Phillips v. Cnty. of Allegheny, 515 F.3d 224, 234-35 (3d Cir. 2008). "Where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged--but it has not 'show[n]'--'that the pleader is entitled to relief.'" Iqbal, 129 S. Ct. at 1949.

Additionally, pleadings that are pro se must be held to "less stringent standards than formal pleadings drafted by lawyers." Dickerson v. Brooks, No. 06-289, 2007 WL 4689001, at *2 (W.D. Pa. Oct. 31, 2007), citing Haines v. Kerner, 404 U.S. 519, 520-521 (1972); United States ex rel. Montgomery v. Brierley, 144 F.2d 552, 555 (3d Cir. 1969) (noting that a petition prepared by a prisoner "may be inartfully drawn and should therefore be read with a measure of tolerance") (internal quotation marks omitted). However, "[p]ro se attorneys-or in Plaintiff's case, apro se disbarred attorney-typically cannot claim the special consideration which the courts customarily grant to pro se parties." Allegrino v. Conway E & S, Inc., No. 09-1507, 2010 WL 2035658, at *2 (W.D. Pa. May 18, 2010) (internal quotations omitted).


I) Standing

Blumenthal asserts that Feingold lacks standing because he has entered into a bankruptcy proceeding in the Southern District of Florida and a bankruptcy trustee has been assigned to his estate. The entirety of a bankrupt individual's estate including potential causes of action arising out of unlawful damage to his property shall be vested in the bankruptcy estate. Riverside Mem'l Mausoleum, Inc. v. Umet Trust, 469 F.Supp. 643, 644 (E.D. Pa. 1979). But "[i]f a trustee chooses to abandon a claim or is ordered to do so, the debtor may assert title to the cause of action and bring suit upon it." Krank v. Utica Mut. Ins. Co., 109 B.R. 668, 669 (E.D. Pa. 1990), aff'd, 908 F.2d 962 (3d Cir. 1990). Feingold's bankruptcy estate trustee, Drew Dillworth, has abandoned Feingold's "unliquidated claims of every nature" including "Files, Cases, Fees, Costs". Dkt. Nos. 16 at 16, 18 at 7. Blumenthal avers that this letter of abandonment does not include the instant cause of action. He argues that this suit "does not in fact ...

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