Lee v. Thompson ( 2006 )

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
1-23-2006
Lee v. Thompson
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-4006
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"Lee v. Thompson" (2006). 2006 Decisions. Paper 1732.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 04-4006
_______________________________
REGINALD L. LEE,
Appellant
v.
RONALD B. THOMPSON, P.A.
___________________________________
On Appeal From the United States District Court
For the District of New Jersey
(D.C. Civ. No. 02-cv-05114)
District Judge: Honorable Robert B. Kugler
______________________________________
Submitted Under Third Circuit LAR 34.1(a)
January 11, 2006
BEFORE: FISHER, ALDISERT AND WEIS, CIRCUIT JUDGES
(Filed: January 23, 2006)
_______________________
OPINION
_______________________
PER CURIAM.
In 2002, Reginald Lee submitted the underlying complaint in the United
States District Court for the District of New Jersey asserting jurisdiction on the basis of
diversity of citizenship. See 28 U.S.C. § 1332(a). In his complaint, Lee alleged a claim
of legal malpractice against Ronald Thompson, Esquire, stemming from his
representation of Lee in a 2000 civil matter. Thompson answered the complaint and
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asserted a counterclaim against Lee on March 3, 2003, subsequently amending his answer
on March 10, 2003. Approximately nine months later, on December 2, 2003, Thompson
moved for summary judgment on the ground Lee had failed to provide an affidavit of
merit within the 60 days following Thompson’s answer as required by the New Jersey
Affidavit of Merit Statute. See N.J. Stat. Ann. § 2A:53A-27. By order entered
September 27, 2004, the District Court granted Thompson’s motion and dismissed his
counterclaim. Lee timely appealed.
We have jurisdiction pursuant to 28 U.S.C. § 1291. This Court exercises
plenary review over the District Court’s order granting summary judgment. McLeod v.
Hartford Life & Acc. Ins. Co., 372 F.3d 618, 623 (3d Cir. 2004). After a careful review
of record, and consideration of Lee’s arguments on appeal, we will affirm the District
Court’s order.
The New Jersey Affidavit of Merit Statute requires the plaintiff in a
malpractice action to provide the defendant, within 60 days after the answer is filed, with
an affidavit of “an appropriate licensed person that there exists a reasonable probability”
that the care which is the subject of the complaint falls outside acceptable professional
standards. N.J. Stat. Ann. § 2A:53A-27. In lieu of an affidavit, the plaintiff may provide
a sworn, written statement that, after written request, the defendant failed to provide the
plaintiff with records that have a substantial bearing on the preparation of the affidavit.
N.J. Stat. Ann. § 2A:53A-28. Failure to provide either the affidavit or the sworn
statement within 60 days, or 120 days if the court grants an extension for good cause,
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results in dismissal “for failure to state a cause of action.” N.J. Stat. Ann. § 2A:53A-29;
see also Burns v. Belafsky, 766 A.2d 1095, 1099-1101 (N.J. 2001) (holding that one 60-
day extension may be granted for good cause shown provided that the plaintiff applies for
the extension and files the affidavit within 120 days of the answer being filed). We have
held that a District Court’s application of the New Jersey Affidavit of Merit Statute does
not conflict with the Federal Rules of Civil Procedure and is enforceable in the District
Courts when New Jersey law applies. Chamberlain v. Giampapa, 210 F.3d 154 (3d Cir.
2000); see also Snyder v. Pascack Valley Hosp., 303 F.3d 271, 273 (3d Cir. 2002). Here,
the District Court correctly determined that Thompson was entitled to summary judgment
because Lee failed to submit an affidavit of merit as required by New Jersey law.
Lee argues on appeal that the District Court erroneously concluded that an
expert’s affidavit was required because common knowledge makes apparent the merits of
his claim. See Hubbard v. Reed, 774 A.2d 495, 499-500 (N.J. 2001) (holding that no
affidavit of merit need be filed in “common knowledge” malpractice cases); Natale v.
Camden County Correctional Facility, 318 F.3d 575 (3d Cir. 2003) (applying Hubbard).
For the reasons fully explained by the District Court, however, because Thompson’s
alleged negligence is not “readily apparent to anyone of average intelligence and ordinary
experience,” the common knowledge exception does not apply. Natale, 318 F.3d 579
(citations and quotations omitted). We also reject Lee’s argument that, because he was
proceeding pro se in the District Court, he was not required to obtain an affidavit of merit.
In short, although we have an obligation to liberally construe a pro se litigant’s pleadings,
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“ignorance of the law or failure to seek legal advice will not excuse failure to meet the
filing deadline.” Hyman Zamft and Manard v. Cornell, 707 A.2d 1068, 1071 (N.J. Super.
App. Div.1999); see also Chamberlain, 210 F.3d at 162 (noting that neither an “attorney’s
mere carelessness [n]or lack of proper diligence” will constitute “extraordinary
circumstances” sufficient to excuse affidavit requirement) (citations and quotations
omitted); Taylor v. Plousis, 101 F. Supp. 2d 255, 270 (D. N.J. 2000).
For the foregoing reasons, we will grant the appellee’s motion and
summarily affirm the District Court’s September 27, 2004, order.
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