SANDEEP NAYAK, Plaintiff.
CGA LAW FIRM, ANNE E. ZERBE, and ZACHARY E. NAHASS, Defendants.
WILLIAM W. CALDWELL, District Judge.
We are considering a motion to dismiss the pro se complaint, filed by Defendants, CGA Law Firm, et al . (Doc. 7). Plaintiff brings six claims arising from a series of alleged wrongdoings that occurred during the course of Defendants' representation of Plaintiff in an employment matter. Plaintiff filed a Complaint and a motion to appoint counsel on October 9, 2013. (Docs. 1, 2). On October 15, 2013, he filed a motion to amend the Complaint to correct typographical errors (Doc. 5). On October 29, 2013, Defendants filed this motion to dismiss the complaint for improper service and failure to state a claim upon which relief can be granted. (Doc. 7). We will dismiss four of the six counts, with prejudice, for failure to state a claim, and will dismiss the remaining two counts for insufficient service of process. We also deny Plaintiff's motions for leave to amend and to appoint counsel.
The following facts are set forth in Plaintiff's complaint and are taken as true, as they must be when considering a motion to dismiss,  Fowler v. UPMC Shadyside , 578 F.3d 203, 210 (3d Cir. 2009): Plaintiff Sandeep Nayak is a citizen of India, presently residing in Texas. In January 2013, Plaintiff retained Defendants to represent him in a harassment/employment discrimination matter. In February 2013, Defendants contacted Plaintiff's employer regarding the harassment. Around March 1, 2013, Defendants began conspiring with Plaintiff's employer and, according to Plaintiff, stopped representing his best interests. Specifically, Defendants helped the employer retaliate against Plaintiff, told Plaintiff that the retaliation was lawful, and suggested that Plaintiff consider an amicable termination rather than returning to work. Defendants also warned Plaintiff that if he is fired, he may be deported.
During the course of the representation, Plaintiff also met with one of the firm's immigration attorneys. Defendants told Plaintiff to limit his discussions with this attorney to immigration issues only. Around April 10, 2013, Plaintiff met with the immigration attorney and Defendants Zerbe and Nahass. At some point during this meeting, Defendants asked the immigration attorney to leave the room.
On approximately April 15, 2013, Defendants advised Plaintiff that his employer had offered a settlement agreement. Under the terms of the agreement, Plaintiff would remain on a paid leave of absence from work until December 31, 2013. Plaintiff understood his employment status after December 31 to be on an "as needed" basis. Defendants advised Plaintiff to accept the offer, and told him that if he rejected it, the employer would likely fire Plaintiff, and he may be deported. The terms of the agreement were not explained to Plaintiff, and Plaintiff was not shown the entire agreement. At this time, Plaintiff was in a fragile state. Plaintiff signed the agreement, relying on Defendants' advice that this was the best course of action. A day later, following multiple requests, Defendants provided Plaintiff with a copy of the full agreement.
In October 2013, Plaintiff's employer testified before the Department of State and the United States Citizen and Immigration Service, stating that "Plaintiff is a highly-skilled professional and delivers a superior performance to many of his peers." (Doc. 1 at 3). Based on this testimony, Plaintiff was permitted to remain in the United States.
A. Standard of Review
Rule 12(b)(6) authorizes dismissal of a complaint for "failure to state a claim upon which relief can be granted." Under Rule 12(b)(6), we must "accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Fowler v. UPMC Shadyside , 578 F.3d 203, 210 (3d Cir. 2009) (quoting Phillips v. County of Allegheny , 515 F.3d 224, 231 (3d Cir. 2008)). While a complaint need only contain "a short and plain statement of the claim, " FED. R. CIV. P. 8(a)(2), and detailed factual allegations are not required, Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 555, (2007), a complaint must plead "enough facts to state a claim to relief that is plausible on its face." Id. at 570. "The plausibility standard is not akin to a probability requirement, ' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (quoting Twombly , 550 U.S. at 556). "[L]abels and conclusions" are not enough, and a court is "not bound to accept as true a legal conclusion couched as a factual allegation.'" Twombly , 550 U.S. at 555 (quoted case omitted).
In resolving a motion to dismiss, we thus "conduct a two-part analysis." Fowler, supra , 578 F.3d at 210. First, we separate the factual elements from the legal elements and disregard the legal conclusions. Id. at 210-11. Second, we "determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a plausible claim for relief.'" Id. at 211 (quoted case omitted).
C. Fraudulent Misrepresentation (Count II)
In Count II, Plaintiff alleges that Defendants "misguided the Plaintiff's efforts to reach out to the EEOC and law enforcement, " in order to procure a settlement agreement and "protect the Plaintiff's employer." (Doc. 1 at 4). "The elements of a common-law claim for fraudulent misrepresentation in Pennsylvania are as follows: (1) a misrepresentation; (2) the fraudulent utterance thereof; (3) an intention by the maker that the recipient will be induced to act; (4) justifiable reliance by the recipient on the misrepresentation; and (5) damage to the recipient as a proximate result of the reliance." Fort Washington Resources, Inc. v. Tannen , 858 F.Supp. 455, 459 (E.D. Pa. 1994). "Fraud is ...