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Heck-Dance v. Cardona-Jimenez , 102 F. App'x 171 ( 2004 )


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  •                Not For Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 03-1747
RUBLE HECK-DANCE,
Plaintiff, Appellant,
v.
JOSE F. CARDONA-JIMENEZ,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Salvador E. Casellas, U.S. District Judge]
Before
Torruella, Circuit Judge,
Stahl, Senior Circuit Judge,
and Lynch, Circuit Judge.
Ruble L. Heck on brief pro se.
Jose O. Ramos Gonzalez and Ramos Gonzalez & Toyos Olascoaga
on brief for appellee.
June 15, 2004
PER CURIAM.       Pro se plaintiff-appellant Ruble Heck-Dance
("Heck")    appeals     the   grant   of   summary     judgment    in     favor   of
defendant-appellee Jose F. Cardona-Jimenez ("Cardona").                   We review
the grant     of   summary     judgment    de novo,    examining     the    record
independently and drawing any factual inferences in the light most
favorable to the non-movant.          Gu v. Boston Police Dep't,
    312 F.3d 6
    , 10 (1st Cir. 2002).            After carefully reviewing the parties'
briefs and the record, we affirm the grant of summary judgment
substantially for the reasons stated in the district court's
opinion and order entered on February 5, 2003.                   We add only the
following comments.
We agree with Heck that diversity of citizenship appears
to    be   lacking    in   this    case,     and    that   the    lower    court's
characterization of this case as a diversity action appears to have
been in error.       We are satisfied, however, that the district court
had subject matter jurisdiction over this case pursuant to
    28 U.S.C. § 1334
    (b) because Heck's legal malpractice claim is based on
the   defendant      attorney's    handling    of   Heck's   bankruptcy      case.
Grausz v. Englander,
    321 F.3d 467
    , 471-72 (4th Cir. 2003) (holding
that debtors' legal malpractice claim was a claim "arising in"
Title 11 for purposes of federal jurisdiction since the proceeding
would have no practical existence but for the bankruptcy).
Heck's other claimed errors lack merit.                     First, the
district court did not err in applying Puerto Rico's one-year
-2-
statute of limitations for tort actions to Heck's legal malpractice
case.   Colon Prieto v. Geigel,
    115 D.P.R. 232
    , 236 & n.4,
    115 P.R. Offic. Trans. 313
    , 318 & n.4 (1984).    Further, the district court
did not err in ruling that Heck's legal malpractice case was time-
barred.    We agree with the lower court that Heck's June 19, 2000
article in the San Juan Star demonstrated Heck's awareness of his
legal malpractice claim against Cardona, and that his malpractice
action - filed at the earliest on July 18, 2001 in bankruptcy court
- was untimely.
Heck's attempt to toll the statute of limitations by
invoking various bankruptcy laws is to no avail.        First, Heck
cannot rely on the automatic stay provision in
    11 U.S.C. § 362
    (a)
because it applies only to actions "against" the debtor. Heck's
reliance on Simon v. Navon,
    116 F.3d 1
     (1st Cir. 1997), is
misplaced.    In that case, we held that section 362 stays appellate
proceedings in actions originally brought "against" the debtor,
even when it is the debtor who files the appeal.    Simon,
    116 F.3d at 4
    .     Second, Heck was not entitled to an extension of time to
file his malpractice action pursuant to
    11 U.S.C. § 108
    (a).   By its
terms section 108(a) applies only to extend time for actions which
the debtor had on the date of filing the bankruptcy petition.   See
    11 U.S.C. § 108
    (a) ("If applicable law . . . fixes a period within
which the debtor may commence an action, and such period has not
expired before the date of the filing of the petition . . .")
-3-
(emphasis   added).    In   this   action,   Heck   claims   that   Cardona
mishandled his bankruptcy case.      Obviously, the claim arose post-
petition.    Therefore, section 108(a) is inapplicable.         Matter of
Phillip,
    948 F.2d 985
    , 987 (5th Cir. 1991) (noting that causes of
action acquired post-petition are not protected by section 108).
Finally, even assuming that Heck could not bring this action until
the bankruptcy trustee abandoned the claim, Heck does not assert
that he sought to have the trustee abandon the claim prior to the
running of the limitations period.       In re Price,
    173 B.R. 434
    , 443
(Bankr. N.D. Ga. 1994) (noting that, to extent timing is important,
debtor may move for order requiring trustee to abandon claim).
Thus, there is no basis to toll the limitations period.
The judgment of the district court is affirmed.         See 1st
Cir. R. 27(c).
-4-