United States District Court, E.D. Pennsylvania
DORETTA FLEMING, et al.
DREW WARREN, ESQ. and JEFFREY KILLINO, ESQ.
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.
Jersey citizen Doretta Fleming is the Administratrix of her
brother Leroy H. Garcia's Estate. Along with Stephen Garcia of
Texas and Deron Hancock of Pennsylvania, she is also an
intestate heir to Leroy Garcia's Estate. Pennsylvania
Attorney Drew Warren represented Ms.
"in her capacity as Administratrix, " 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." They both worked for The Killino Firm
based in Philadelphia.
failed to notify the intestate heirs of liens on the
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. 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. 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
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]." 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." 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."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."
Fleming, Mr. Garcia, and Mr. Hancock's claims against
Attorneys Warren and Killino.
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. 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." 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. 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" and "pursuant to a
state mandated conflict of interest."
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."
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
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.
We initially enjoy subject matter jurisdiction as Ms.
Fleming, Mr. Garcia, and Mr. Hancock plead a federal
Warren and Killino argue Ms. Fleming, Mr. Garcia, and Mr.
Hancock plead "no legitimate federal question,"
depriving us of subject matter jurisdiction. We disagree.
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.'" "Generally, the reference to a
federal question in the complaint precludes dismissal for
lack of subject matter jurisdiction." We "have
original jurisdiction of all civil actions arising under the
Constitution, laws, or treaties of the United
States." 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, " our Court of Appeals
emphasizes the importance of holding pro se
litigants "to a lesser pleading standard than other
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. 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.
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. 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. As Ms.
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.
Ms. Fleming, Mr. Garcia, and Mr. Hancock fail to plead due
process claims against Attorneys Warren and Killino, as they
are not state actors.
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.
Process Clause of the Fourteenth Amendment provides: "No
State shall . . . deprive any person of life, liberty, or
property, without due process of law." "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.'" In Zinermon v,
Burch, the Supreme Court outlined the circumstances
giving rise to constitutional due process
claims. 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., "[ ...