Mary Scott v. Faye Cohen ( 2013 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 12-3940
___________
MARY J. SCOTT,
Appellant
v.
FAYE RIVA COHEN, ESQUIRE; DAVID OH, ESQUIRE; JEFFREY D. SNYDER,
ESQUIRE; BRUCE M. LUDWIG, ESQUIRE; LARRY PITT, ESQUIRE; HOWARD G.
HOPKIRK, DEPUTY ATTORNEY GENERAL; SUE ANN UNGER, SENIOR
DEPUTY ATTORNEY GENERAL; MARY KAY HENRY, SERVICES EMPLOYEES
INTERNATIONAL UNION
____________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Action No. 12-cv-03252)
District Judge: Honorable Jan E. Dubois
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
March 14, 2013
Before: SLOVITER, GREENAWAY, JR. and BARRY, Circuit Judges
(Opinion filed: June 13, 2013)
___________
OPINION
___________
PER CURIAM
1
Pro se appellant Mary Scott filed a complaint in the District Court against her
former counsel, Faye Riva Cohen. Scott had sustained a work-related injury in 1999.
From 2002 to 2003, Cohen represented Scott in related unsuccessful employment
litigation, including a worker‟s compensation claim before the Workers‟ Compensation
Appeals Board. Cohen was also allegedly involved in Scott‟s federal suit against the
Department of Public Welfare (DPW).1 In 2008, Cohen obtained a judgment in
Pennsylvania state court against Scott for unpaid legal fees and, in May 2012, obtained a
writ of execution on that judgment. The underlying complaint appears to allege, inter
alia, that the writ was falsely obtained. In addition to Cohen, it names numerous
defendants who were allegedly involved in various ways in the worker‟s compensation
claim process or resulting litigation including, among others, two Deputy Attorney
Generals who had represented the DPW and the president of the Service Employees
International Union.
The District Court dismissed the complaint against each defendant with prejudice
and Scott appealed. We have jurisdiction under 28 U.S.C. § 1291. We exercise plenary
review over the dismissal of Scott‟s claims. See Ill. Nat‟l Ins. Co. v. Wyndham
Worldwide Operations, Inc., 653 F.3d 225, 230 (3d Cir. 2011).
1
The federal suit was dismissed with prejudice. See Scott v. Pa. Dep‟t of Public Welfare,
(E.D. Pa. Civ. No. 02-3799). The docket indicates that Scott proceeded pro se, but she
claims that Cohen filed the case and seeks relief against Cohen for the “unwarranted
dismissal of [the] federal case.”
2
Scott‟s complaint purports to allege various violations of her rights. As the
District Court noted, the rambling, often incoherent complaint contains few discernible
claims against the defendants. Although pro se pleadings are to be liberally construed,
see Haines v. Kerner, 404 U.S. 519, 520 (1972), they must state a “plausible claim for
relief to survive[ ] a motion to dismiss.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).
Scott‟s complaint presents a threshold problem of jurisdiction. Federal jurisdiction is
determined from the facts as they exist when the complaint is filed. See Nationwide
Mut.Fire Ins. Co. v. T & D Cottage Auto Parts and Serv., Inc., 705 F.2d 685, 688 (3d Cir.
1983). As best can be determined, the complaint sought $1 million dollars against each
of the defendants for claims of legal malpractice and fraud. There appears to be no
diversity jurisdiction to support these state law claims.2 See Zambelli Fireworks Mfg.
Co. v. Wood, 592 F.3d 412, 419 (3d Cir. 2010). Moreover, even if jurisdiction did lie, as
the District Court noted, it is clear that the claims are beyond the statute of limitations.
Under Pennsylvania law, the statute of limitations for a legal malpractice claim is two
years if the claim is grounded in negligence and four years if the claim is premised upon
a breach of contract. See Wachovia Bank, N.A. v. Ferretti, 935 A.2d 565, 571 (Pa.
Super. Ct. 2007). The actions which would give rise to any conceivable malpractice
claim occurred from 2002 to 2003 and are thus time-barred. Also, under Pennsylvania
law, claims for fraud are governed by a two-year statute of limitations. United Nat‟l Ins.
2
Defendant Cohen asserts in her motion to dismiss that, like Scott, she is a resident of
Pennsylvania.
3
Co. v. J.H. France Refractories Co., 668 A.2d 120, 121 (Pa. 1995). Although the writ of
execution appears to have prompted this litigation, it is Cohen‟s actions in 2008 in
obtaining the underlying judgment that were allegedly fraudulent; such a claim would
clearly be time-barred. The remaining defendants‟ involvement, if any, was clearly
outside the statute of limitations.
In her response to Cohen‟s motion to dismiss, Scott alleged several bases for her
claims, including “violations of the First and Fourteenth Amendments, protected through
42 U.S.C. § 1983, and under state law, for breach of contract and tortious interference
with contractual relations, and violating state and federal laws.” Even if these theories of
liability had been included in her complaint, the outcome would be no different. See
Thomason v. Nachtrieb, 888 F.2d 1202, 1205 (7th Cir. 1989) (“It is a basic principle that
the complaint may not be amended by the briefs in opposition to a motion to dismiss.”).
As the District Court noted, there were no factual allegations to support any § 1983
violations by any of the defendants. The facts in the response were no more developed
than the insufficient allegations in the complaint. Furthermore, Scott‟s conclusory
statements were insufficient to enable a court to draw a reasonable inference that the
defendants were indeed liable for any of the misconduct that she alleged. See Iqbal, 556
U.S. at 678 (“„naked assertions‟ devoid of „further factual enhancement‟” do not establish
grounds for relief) (citation omitted). Noting the frivolous nature of the claims, the
District Court properly dismissed the complaint with prejudice. See Grayson v. Mayview
State Hosp., 293 F.3d 103, 108 (3d Cir. 2002).
4
For the foregoing reasons, we will affirm the District Court‟s dismissal of the
complaint. Appellees‟ Henry and Ludwig‟s motion for permission and acceptance to file
separate briefs or, alternatively, to file one brief, and motions to supplement the appendix
are granted.
5