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Fleming v. Warren

United States District Court, E.D. Pennsylvania

October 10, 2019

DORETTA FLEMING, et al.
v.
DREW WARREN, ESQ. and JEFFREY KILLINO, ESQ.

          MEMORANDUM

          KEARNEY, J.

          Persons retaining lawyers to assist them in administering a family member's estate can fairly expect their lawyers will advise of liens against the estate and developments in the representation in state court. Disappointed in counsel's failure to notify them, they may seek to sue for relief claiming they waived certain rights in the state court because of the lawyer's negligence, breach of contract or fraud. But they cannot convert their disappointment into a federal case simply because their private lawyers participate in a state court process. The private lawyers' alleged failures in representing clients in the Pennsylvania court do not rise to the level of a denial of due process and allow the clients to pursue a civil rights claim against their private lawyers in this Court. Absent a federal question, and lacking diversity in a dispute involving at least one Pennsylvania client against Pennsylvania lawyers, we decline to exercise supplemental jurisdiction. We grant the private lawyers' motion to dismiss in the accompanying Order without prejudice to the clients timely seeking relief in a state court.

         I. Alleged facts

         New Jersey citizen Doretta Fleming is the Administratrix of her brother Leroy H. Garcia's Estate.[1] Along with Stephen Garcia of Texas and Deron Hancock of Pennsylvania, she is also an intestate heir to Leroy Garcia's Estate.[2] Pennsylvania Attorney Drew Warren represented Ms.

         Fleming "in her capacity as Administratrix, "[3] and Pennsylvania Attorney Jeffrey Killino "employed or formed an association or partnership with [Attorney] Warren, and approved or assigned him to represent the Estate through [Ms.] Fleming."[4] They both worked for The Killino Firm based in Philadelphia.[5]

         Attorneys failed to notify the intestate heirs of liens on the Estate.

         On September 19, 2016, Attorney Warren filed a "Petition to Settle on a Survival Action" in state court seeking approval to settle a survival case for $750, 000, resulting in a $440, 000 payment to the Estate after payment of attorneys' fees.[6] Ms. Fleming, Mr. Garcia, and Mr. Hancock received a copy of the Petition but the Attorneys did not notify them in the Petition, or any time before the settlement approval, of the Pennsylvania Department of Human Services' $808, 000 lien against the Estate.[7] Although Ms. Fleming, Mr. Garcia, and Mr. Hancock met the conditions under Pennsylvania law for the settlement funds' release, including those conditions "imposed by the directive or correspondence of the Department dated November 4, 2016, and the [Court order] by the Settlement Judge dated December 1, 2016," The Killino Firm failed to release the entire amount to them "to administer the Estate under Pennsylvania Law."[8]

         Attorney Warren "caused [Ms. Fleming] to sign a General Release and Settlement Agreement which fraudulently represented that there were no liens against [Leroy's] Estate known to [Attorney Warren]."[9] Attorney Warren failed to notify (1) "Plaintiffs individually, prior to settlement approval, that the Department held a claim against the Estate in excess of $800, 000"; and, (2) "the Settlement Judge of the amount of the Department's claim."[10] Attorney Killino "left the Estate on its own to probate the Estate, and to figure out on its own how to pursue a 'lien reduction' after notifying the Estate of the [Department's lien amount] six months after settlement approval."[11]The Killino Firm, a non-party to this case, is now withholding the settlement funds- "empowered by Pennsylvania law to do so, albeit without authority to do so"-from the Estate's use, and "acting under Pennsylvania mandates to 'protect the interests of the Department,' which are in conflict with [those] of the Estate."[12]

         Ms. Fleming, Mr. Garcia, and Mr. Hancock's claims against Attorneys Warren and Killino.

         Ms. Fleming, Mr. Garcia, and Mr. Hancock now sue Attorneys Warren and Killino for violating their civil rights under the Due Process Clause of the Fourteenth Amendment and violating Pennsylvania state law through fraud, malpractice, and breach of contract. They allege Attorney Warren "committed fraud and malpractice against the Estate under Pennsylvania Law" by telling them there were no liens on Leroy Garcia's Estate.[13] They claim Attorney Warren's statement injured them by "inducing them not to object to the settlement proposal," and his "action and inaction were also in breach of contract."[14] They also allege Attorney Warren violated their right to procedural due process and committed malpractice "under Pennsylvania Law" by misleading them as to the amount of reimbursement [the Pennsylvania Department of Human Services] claimed and failing to notify them of the reimbursement amount [the Pennsylvania Department of Human Services] claimed.[15] Ms. Fleming, Mr. Garcia, and Mr. Hancock allege non-party The Killino Firm violated their rights to due process and committed malpractice "under Pennsylvania Law" by withholding their ability to use, possess, and control the Estate's settlement funds "without authority of law"[16] and "pursuant to a state mandated conflict of interest."[17]

         II. Analysis

         Attorneys Warren and Killino now move to dismiss, arguing Ms. Fleming, Mr. Garcia, and Mr. Hancock's amended Complaint and the current action are "frivolous" and we lack jurisdiction over the case because "there is no diversity and no legitimate federal question, regarding a claim they have now settled in full with the Pennsylvania Department of Human Services."[18]

         Ms. Fleming, Mr. Garcia, and Mr. Hancock plead a federal question on the face of their Complaint under the civil rights laws. Under the liberal pleading standard afforded to pro se parties, we decline to dismiss these claims for lack of subject matter jurisdiction. But we dismiss their civil rights claims against Attorneys Warren and Killino as private actors.

         As we dismiss the federal claim providing us with federal question jurisdiction, we may only retain jurisdiction if Ms. Fleming, Mr. Garcia, and Mr. Hancock satisfy diversity jurisdiction, or we permit supplemental jurisdiction over the remaining state law claims of fraud, malpractice, and breach of contract. We cannot exercise jurisdiction over these claims based on diversity jurisdiction where the parties lack complete diversity. We deny jurisdiction based on diversity. We decline to exercise supplemental jurisdiction over Ms. Fleming, Mr. Garcia, and Mr. Hancock's fraud, malpractice, and breach of contract claims.

         A. We initially enjoy subject matter jurisdiction as Ms. Fleming, Mr. Garcia, and Mr. Hancock plead a federal question.

         Attorneys Warren and Killino argue Ms. Fleming, Mr. Garcia, and Mr. Hancock plead "no legitimate federal question," depriving us of subject matter jurisdiction. We disagree.

         When faced with a 12(b)(6) motion, "as a general rule, the proper procedure is to consider dismissal on the jurisdictional ground first, 'for the obvious reason that if the court lacks jurisdiction to hear the case then a fortiori it lacks jurisdiction to rule on the merits.'"[19] "Generally, the reference to a federal question in the complaint precludes dismissal for lack of subject matter jurisdiction."[20] We "have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States."[21] Though "the presence or absence of federal-question jurisdiction is governed by the 'well-pleaded complaint rule,' which provides that federal question jurisdiction exists only when a federal question is presented on the face of the plaintiffs properly pleaded complaint, "[22] our Court of Appeals emphasizes the importance of holding pro se litigants "to a lesser pleading standard than other parties."[23]

         In Bell v. Pleasantville Housing Authority, Mr. Bell pro se alleged the Pleasantville Housing Authority violated his due process rights by evicting him without holding a grievance hearing, citing federal question jurisdiction.[24] Our Court of Appeals held Mr. Bell's claim arose under the Constitution as he "believe[d] his Fourteenth Amendment due process rights, and certain [United States Department of Housing and Urban Development] regulations, were violated when he was evicted without a grievance hearing first being held," and concluded the district court erred by dismissing Mr. BeWspro se claim for lack of subject matter jurisdiction.[25]

         As with Mr. Bell, Ms. Fleming, Mr. Garcia, and Mr. Hancock pro se allege Attorney Warren violated their procedural due process rights when he misled them as to the amount of reimbursement the Pennsylvania Department of Human Services claimed and when he failed to give them notice as to the amount of reimbursement the Pennsylvania Department of Human Services claimed.[26] They also plead non-party The Killino Firm denied them due process by withholding the use, possession, and control of the Estate's settlement funds from them.[27] As Ms.

         Fleming, Mr. Garcia, and Mr. Hancock presented a federal question on the face of their Complaint based on the Due Process Clause, and under the liberal pleading standard afforded to pro se parties, we retain subject matter jurisdiction.

         B. Ms. Fleming, Mr. Garcia, and Mr. Hancock fail to plead due process claims against Attorneys Warren and Killino, as they are not state actors.

         Attorneys Warren and Killino argue Ms. Fleming, Mr. Garcia, and Mr. Hancock cannot pursue civil rights claims against them, as Attorneys Warren and Killino are not state actors. We agree.

         The Due Process Clause of the Fourteenth Amendment provides: "No State shall . . . deprive any person of life, liberty, or property, without due process of law."[28] "But nothing in the language of the Due Process Clause itself requires the State to protect the life, liberty, and property of its citizens against invasion by private actors.'"[29] In Zinermon v, Burch, the Supreme Court outlined the circumstances giving rise to constitutional due process claims.[30] The Supreme Court emphasized how "[i]n procedural due process claims, the deprivation by state action of a constitutionally protected interest in 'life, liberty, or property' is not in itself unconstitutional; what is unconstitutional is the deprivation of such an interest without due process of law., "[ ...


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