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Plonka v. Deluca

United States District Court, M.D. Pennsylvania

April 12, 2019

ANDREAS PLONKA, et al., Plaintiffs,
v.
TULLIO DELUCA ESQ., Defendant.

          CAPUTO, J.

          REPORT AND RECOMMENDATION

          JOSEPH F. SAPORITO, JR. UNITED STATES MAGISTRATE JUDGE.

         This is a legal malpractice action, brought by the pro se plaintiffs, Andreas and Caroline Plonka, against the defendant, Tullio DeLuca, Esq., who previously represented them in an underlying federal civil rights action before this Court. See generally Plonka v. Borough of Susquehanna, Civil Action No. 3:17-CV-00262, 2017 WL 1250792 (M.D. Pa. Apr. 5, 2017) (dismissing amended complaint with leave to file second amended complaint); Plonka v. Borough of Susquehanna, Civil Action No. 3:17-CV-00262, 2017 WL 1036478 (M.D. Pa. Mar. 17, 2017) (partially dismissing original complaint with leave to file amended complaint). The plaintiffs have been granted leave to proceed in forma pauperis in this action.

         For the reasons stated herein, we recommend that this action be dismissed sua sponte for lack of subject matter jurisdiction.

         I. Background

         On February 10, 2017, Attorney DeLuca filed a federal civil rights complaint against various municipal entities and officials on behalf of his clients, the plaintiffs, together with a motion for leave to proceed in forma pauperis in that underlying action. The civil rights complaint asserted a § 1983 excessive force claim based on an incident that occurred on January 15, 2015. On March 17, 2017, the Court granted the motion for leave to proceed in forma pauperis and partially dismissed the original complaint in the underlying federal civil rights action pursuant to 28 U.S.C. § 1915(e)(2)(B). See Plonka, 2017 WL 1036478.

         On March 29, 2017, Attorney DeLuca filed an amended complaint in the underlying civil rights action, which was dismissed in its entirety by the Court on April 5, 2017, pursuant to 28 U.S.C. § 1915(e)(2)(B). See Plonka, 2017 WL 1250792.

         On April 20, 2017, Attorney DeLuca filed a second amended complaint against a single defendant in the underlying civil rights action. On May 2, 2017, a second attorney, Benjamin Stanton, Esq., entered his appearance as co-counsel representing the plaintiffs.

         The civil rights defendant, Susquehanna Borough Police Chief Robert Sweet, appeared through counsel and moved to dismiss the underlying civil rights action on May 12, 2017. Sweet interposed a statute-of-limitations defense, noting that the original complaint had been filed more than two years after the alleged use of excessive force on January 15, 2015.

         On June 4, 2017, Attorney DeLuca filed a Rule 41 notice of voluntary dismissal. On July 12, 2017, the Plonkas filed a pro se brief in opposition to the defendant's motion to dismiss, in which they advised the Court that they had “dropped” their counsel and would be proceeding pro se thereafter. On July 20, 2017, Attorney DeLuca filed a motion for leave to withdraw as counsel, which was granted by the Court on July 21, 2017.

         On July 27, 2017, the Court entered a memorandum order noting that, under Rule 41 of the Federal Rules of Civil Procedure, the plaintiff's timely notice of voluntary dismissal effected a unilateral dismissal of the action and deprived the district court of jurisdiction to decide the merits of the case. See Plonka v. Borough of Susquehanna, Civil Action No. 3:17-CV-00262 (M.D. Pa. dismissed July 27, 2007) (memorandum order) (citing Fed.R.Civ.P. 41(a)(1)(A)(i) and In re Bath & Kitchen Fixtures Antitrust Litig., 535 F.3d 161, 165-66 (3d Cir. 2008)). The Court ordered the action dismissed without prejudice and the case marked as closed.

         On August 2, 2017, Attorney Stanton filed a motion for leave to withdraw as counsel for the plaintiffs. On August 7, 2017, the plaintiffs filed a pro se motion for reconsideration of its dismissal order. An evidentiary hearing on the motion for reconsideration was held on October 19, 2017, at which the Court received testimony from Caroline Plonka, Attorney Stanton, [1] and Attorney DeLuca. Mrs. Plonka testified that she and her husband had not consented to the voluntary dismissal notice filed by Attorney DeLuca. On October 23, 2017, the Court entered an order denying the motion for reconsideration on the ground that mere legal malpractice does not justify relief under Rule 60(b) of the Federal Rules of Civil Procedure. See Plonka v. Borough of Susquehanna, Civil Action No. 3:17-CV-00262 (M.D. Pa. Oct. 23, 2017) (order denying reconsideration) (citing Fed.R.Civ.P. 60(b), Adams v. Cty. of Erie, No. 1:07-cv-316-SJM, 2012 WL 4483429, at *4 (W.D. Pa. Sept. 27, 2012), and Harris v. United States, 367 F.3d 74, 81 (2d Cir. 2004)). The Court also denied Attorney Stanton's motion to withdraw as moot.

         On January 2, 2019, the plaintiffs submitted the instant pro se complaint against Attorney DeLuca. The complaint asserts state-law legal malpractice claims only.[2]

         II. ...


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