Allen Feingold v. Barbara Quinn ( 2014 )

NOT PRECEDENTIAL
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 13-3464
_____________
ALLEN L. FEINGOLD,
Appellant
v.
BARBARA QUINN, Executrix of the Estate of Theresa Thompson, Deceased
v.
LIBERTY MUTUAL AUTOMOBILE INSURANCE CO.
_______________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 2-12-cv-03503)
District Judge: Honorable Harvey Bartle, III
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Submitted Under Third Circuit LAR 34.1(a)
March 6, 2014
Before: AMBRO, JORDAN and ROTH, Circuit Judges.
(Filed: March 10, 2014)
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OPINION
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JORDAN, Circuit Judge.
Allen Feingold, a former attorney appearing pro se, appeals the dismissal of a
third-party complaint filed by the executrix of an estate that Feingold represented against
Liberty Mutual Automobile Insurance Company (“Liberty Mutual”). Feingold also
appeals the District Court’s denial of his motion for recusal. We will affirm.
I. Background
Feingold sued Barbara Quinn, the executrix of the estate of decedent Theresa
Thompson, seeking to recover over $75,000 in attorney’s fees allegedly owed for his
prior representation of Thompson. Quinn then impleaded Liberty Mutual under Rule 14
of the Federal Rules of Civil Procedure, believing that the insurance company could
indemnify the estate.1 Feingold asserted no claims against Liberty Mutual. Liberty
Mutual filed a motion to dismiss, which the Court granted, ruling that no relevant
indemnification agreement existed between the decedent and Liberty Mutual and that,
under Pennsylvania law, third-party contribution is inapplicable to contract disputes.
1
Feingold, Quinn, and Liberty Mutual have been involved in two related cases
based on the same facts, one currently pending before us. In that other case currently on
appeal, Feingold v. Liberty Mutual Group., Nos. 13-1977 to -78 (3d Cir. Filed Apr. 11,
2013), Feingold and Quinn brought a bad-faith action against Liberty Mutual for delay in
paying court-ordered benefits to Thompson that Feingold, through his representation of
Thompson, had obtained. The District Court first dismissed Feingold from the case for
lack of standing, determining that Quinn violated Pennsylvania law prohibiting the
assignment of tort claims when she assigned part of her bad-faith claim to him. Feingold
v. Liberty Mut. Grp., 847 F. Supp. 2d 772, 775-77 (E.D. Pa. 2012). It then granted
summary judgment to Liberty Mutual on Quinn’s claim. Quinn v. Liberty Mut. Grp., No.
11-5364, 2013 WL 842808, at *2 (E.D. Pa. March 7, 2013). In the second case, just after
the Court denied Feingold’s motion for reconsideration of the denial of the third-party
complaint at issue here, Feingold directly sued both Quinn and Liberty Mutual, bringing
essentially identical breach-of-contract, quantum meruit, and bad-faith claims. Feingold
v. Liberty Mut. Grp., No. 13-732, 2013 WL 1733056, at *2 (E.D. Pa. Apr. 22, 2013),
appeal dismissed as untimely, No. 13-3465 (3d Cir. Oct. 21, 2013). The Court dismissed
the claims against Quinn as duplicative of those in this case and the claims against
Liberty Mutual as meritless. Id. at *2-3.
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Feingold then proceeded to a bench trial on his claim against Quinn, although he
introduced no evidence and called no witnesses. The Court accordingly entered
judgment in favor of Quinn on Feingold’s claims. Notably, two days before trial began,
Feingold filed a motion for recusal, which the Court summarily denied as untimely and
without merit.
Feingold has appealed, although he does not argue for review of the entry of
judgment in favor of Quinn.2 Instead, he takes issue with the dismissal of Quinn’s third-
party complaint against Liberty Mutual, which Quinn herself has not appealed, and he
further attacks the denial of his motion to recuse.
2
In the Notice of Appeal, Feingold includes a copy of the Judgment, dated
July 10, 2013, but he does not address any argument about the judgment in his brief. Any
such argument has therefore been waived. See Ethypharm S.A. France v. Abbott
Laboratories, 707 F.3d 223 (3d Cir. 2013) (“We have consistently held that ‘[a]n issue is
waived unless a party raises it in its opening brief, and for those purposes a passing
reference to an issue ... will not suffice to bring that issue before this court.’” (quoting
Laborers’ Int’l Union of N. Am., AFL–CIO v. Foster Wheeler Energy Corp., 26 F.3d 375,
398 (3d Cir.1994))).
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II. Discussion3
Feingold’s appeal is meritless.4 Assuming he properly appealed the order
dismissing the third-party complaint – an assumption that may be doubted, given
ambiguities in his Notice of Appeal – he lacks standing to do so. Although he attempts
to establish standing by including a third-party-beneficiary argument in his brief, he
never asserted a claim against the insurance company in his complaint. He was in no
manner aggrieved by the dismissal, as he retained his claims against Quinn and even
proceeded to trial on them. See, e.g., Pa. Dep’t of Pub. Welfare v. Sebelius, 674 F.3d
139, 155-56 (3d Cir. 2012) (“To establish standing …, a plaintiff has the burden of
establishing ‘an injury in fact’: a harm that is both concrete and particularized, either
actual or imminent, and not conjectural or hypothetical.”). Therefore, he has no standing
to appeal the dismissal of Quinn’s third-party complaint. But even if he did have
3
The District Court had subject matter jurisdiction under 28 U.S.C. § 1332. We
exercise jurisdiction over Feingold’s appeal pursuant to 28 U.S.C. § 1291. We review the
dismissal of a complaint, including a third-party complaint, de novo. See Fed. R. Civ. P.
14(a)(2)(A) (“[T]he ‘third-party defendant’ … must assert any defense against the third-
party plaintiff’s claim under Rule 12 … .”); Ballentine v. United States, 486 F.3d 806,
808 (3d Cir. 2007). We review the denial of a motion for recusal for abuse of discretion.
Securacomm Consulting, Inc. v. Securacom Inc., 224 F.3d 273, 278 (3d Cir. 2000).
4
Feingold is a serial litigant, and the numerous, meritless cases he has brought in
federal and state court led to his disbarment in Pennsylvania. See Feingold v. Graff, 516
F. App’x 223, 226 n.3, 230 (3d Cir. 2013). Nevertheless, he has continued to file
frivolous cases, and on March 22, 2013, after denying yet another of his meritless appeals
and assessing costs against him, we “warn[ed] Feingold that if he continues to file
frivolous civil appeals in this Court, he risks the imposition of sanctions, including being
enjoined from filing future civil appeals.” Id. at 230. This appeal, with its glaring
procedural defect, would certainly qualify as sanctionable. But considering Feingold
brought this action in 2012, prior to our admonition, another warning will suffice.
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standing, and further assuming that the District Court erred in dismissing the third-party
complaint, the adverse judgment that was ultimately rendered against him on his
underlying claim renders any such decision harmless.
Regarding Feingold’s motion to recuse pursuant to 28 U.S.C. §§ 144 and 455, the
Court did not commit an abuse of discretion in denying it for two reasons. First, as the
motion relates to 28 U.S.C. § 144, it was untimely. He waited until practically the eve of
trial to file the motion, providing no justification for his tardiness. See Smith v. Danyo,
585 F.2d 83, 86 (3d Cir. 1978) (“Neither can [the judicial process] tolerate the practice of
waiting until the eve of trial and then resorting to a § 144 affidavit in order to obtain an
adjournment.”). As the motion relates to § 455, he only points to Judge Bartle’s adverse
rulings against him in this case and others. But adverse rulings alone are almost never
proper grounds for recusal, and the rulings here are no exception. See, e.g., United States
v. Wecht, 484 F.3d 194, 218 (3d Cir. 2007) (“‘[Rulings and orders] can only in the rarest
circumstances evidence the degree of favoritism or antagonism required … when no
extrajudicial source is involved. Almost invariably, they are proper grounds for appeal,
not for recusal.’” (second alteration in original) (quoting Liteky v. United States, 510 U.S.
540, 555 (1994))).
III. Conclusion
Accordingly, we will affirm the District Court’s order.
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