Abreu Gonzalez v. Medina-Arana ( 1995 )

USCA1 Opinion

          January 30, 1995      [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
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        No. 94-2059

                          DR. NELSON ABREU GONZALEZ, ET AL.,

                               Plaintiffs, Appellants,

                                          v.

                           ANGEL LUIS MEDINA ARANA, ET AL.,

                                Defendants, Appellees.


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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF PUERTO RICO


                    [Hon. Hector M. Laffitte, U.S. District Judge]
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                                        Before

                                Torruella, Chief Judge,
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                            Cyr and Stahl, Circuit Judges.
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            Nydia Maria Diaz-Buxo on brief for appellants.
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            Manuel A. Segarra-Vazquez on brief for appellees.
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                      Per  Curiam.  Defendants-appellees move for summary
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            affirmance of the district court's dismissal of this suit for

            lack of  subject matter jurisdiction.   The complaint alleges

            that jurisdiction  exists under 28 U.S.C.    1331, because it

            "arises under" federal law.  The sole claim pleaded, however,

            is a cause of action in tort for legal malpractice.  

                      It   appears   that  defendants   once   served  as

            plaintiffs'  counsel  in  an  unsuccessful  adversary  action

            initiated by  plaintiffs as chapter 13  debtors.  Plaintiffs'

            appeal from  the bankruptcy court judgment  was dismissed for

            failure  to  timely  perfect  the  appeal.    Allegations  of

            attorney  misfeasance  made  at  that  time  to  explain  the

            appellate processing  delay, were referred to  the bankruptcy

            court for investigation.  In  this separate lawsuit, begun in

            the  district  court  some  months   later,  plaintiffs  seek

            $600,000 in damages  allegedly sustained as  a result of  the

            malpractice.     The   district  court   granted  defendants'

            unopposed  motion to  dismiss  because the  tort of  attorney

            malpractice  is  a  state-created   claim  and  there  is  no

            diversity of citizenship between the parties. 

                      Without explaining their  lack of opposition below,

            plaintiffs here insist  that their  complaint "arises  under"

            federal law because the legal  malpractice is alleged to have

            occurred in the context of a federal proceeding  and included

            a disregard of a federally-created procedural rule.



















                      There is  no general  federal common law  of torts,

            however.   See  O'Melveny & Myers  v. FDIC, 114  S. Ct. 2048,
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            2052 (1994); Erie R.R.  v. Tompkins, 304 U.S. 64,  78 (1938).
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            In the absence of a specific statute creating a federal cause

            of  action,  the  traditional   right  to  relief  for  legal

            malpractice is rooted in  state law.  See O'Melveny  & Myers,
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            114 S. Ct. at 2055.   While federal courts  have the inherent

            power to  regulate the conduct of  attorneys appearing before

            them, plaintiffs' assumption that violation of a federal rule

            or  ethical norm  automatically  creates a  federal cause  of

            action for damages is inconsistent with the provisions of the

            Rules Enabling Act.   See 28 U.S.C.   2075  (bankruptcy rules
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            shall  not  "abridge,  modify   or  enlarge  any  substantive

            right").  This is not an extraordinary case in which reliance

            on  state tort  law as the  rule of  decision might  create a

            conflict with  a substantial  federal policy.   See generally
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            O'Melveny  &  Myers,  114  S.  Ct.  at 2053-55;  Merrell  Dow
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            Pharmaceuticals, Inc. v. Thompson,  478 U.S. 804, 808 (1986).
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            Any federal question in this suit would likely emerge only as

            an intermediate step in  resolving the pivotal tort questions

            of duty, breach, causation and damages.  

                      Plaintiffs  do  not predicate  jurisdiction  on the

            authority of  28 U.S.C.    1334,  and the  abbreviated record

            before  us  reveals  no  reason  to  require  an exercise  of

            jurisdiction  under  that  statute.    No  substantial  issue



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            appearing, appellees' motion is  granted, and the judgment of
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            the district court dismissing the complaint without prejudice

            is affirmed.
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