Tagayun v. Lever & Stolzenberg , 239 F. App'x 708 ( 2007 )

Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
3-15-2007
Tagayun v. Lever Stolzenberg
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-3238
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Recommended Citation
"Tagayun v. Lever Stolzenberg" (2007). 2007 Decisions. Paper 1464.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 06-3238
________________
MYRNA TAGAYUN;
ROBERT S. MANDELL,
Husband of Myrna B. Tagayun,
Appellants
v.
LEVER & STOLZENBERG, ATTORNEYS AT LAW;
DAVID B. LEVER, ATTORNEY AT LAW
____________________________________
On Appeal From the United States District Court
For the District of New Jersey
(D.C. No. 05-cv-04101)
District Judge: Honorable Joseph A. Greenaway, Jr.
_______________________________________
Submitted Under Third Circuit LAR 34.1(a)
March 9, 2007
Before: FISHER, ALDISERT AND WEIS, CIRCUIT JUDGES
(Filed March 15, 2007 )
_______________________
OPINION
_______________________
PER CURIAM
Appellants Myrna Tagayun, M.D., and Robert Mandell appeal pro se from the
order dismissing their complaint with prejudice entered by the United States District
Court for the District of New Jersey. For the following reasons, we will vacate the order
of dismissal and remand with instructions to the District Court to consider in the first
instance whether it had subject matter jurisdiction and personal jurisdiction to consider
Appellants’ claims.
The parties are familiar with the facts; thus, we will only briefly summarize them
here. After Tagayun submitted a medical report to the law firm of Lever & Stolzenberg
(hereinafter L & S), Mandell, Tagayun’s husband and practice manger, submitted a bill
for the report which the law firm refused to pay. Tagayun and Mandell allege that in the
course of this fee dispute, defendant David Lever made a telephone call to a former
colleague of Tagayun’s (Dr. Christine Sapka). Tagayun and Mandell further allege that,
during this telephone call, Lever made two slanderous and defamatory statements: (1)
Lever would “‘file a complaint with the board of medical ethics (or examiners) against
plaintiff Myrna B. Tagayun;’” and (2) Lever would “‘make life unbearable’” for Tagayun.
Tagayun and Mandell proceeded to file a complaint in the United States District
Court for the District of New Jersey alleging that Lever, acting on behalf of his law firm,
had committed slander per se and defamation per se. Tagayun and Mandell contended
that the District Court had diversity jurisdiction over their claims because Tagayun and
Mandell were residents of the State of New Jersey and defendants were residents of the
2
State of New York. They also asserted that the relief sought would “exceed seventy-five
thousand dollars.” The Appellees, L&S and Lever, answered the complaint and asserted
that the District Court lacked subject matter jurisdiction. L&S and Lever also filed an
amended answer to the complaint adding lack of personal jurisdiction as an affirmative
defense. L&S and Lever then filed a motion to dismiss contending that the District Court
lacked personal jurisdiction over them and that Tagayun and Mandell had failed to state a
claim.
A Magistrate Judge issued an order to show cause why the action should not be
dismissed for “lack of subject matter jurisdiction ($75,000 jurisdictional amount).”
Tagayun and Mandell thereafter filed a brief stating they did not know whether the matter
would attain the jurisdictional minimum, but they thought “it should and more.” The
Magistrate Judge concluded that, even assuming the statements were defamatory, the
threshold jurisdictional amount had not been established, and recommended dismissal on
that “basis alone.” The Magistrate Judge also concluded that there was no personal
jurisdiction over L&S and Lever, in part because L&S was a New York law firm, Lever
himself was not a New Jersey resident, and the expert report was solicited in connection
with a New York lawsuit. The Magistrate Judge found that the only connection to New
Jersey was the alleged telephone call made by Lever from New York to New Jersey, and
that this lone telephone call was insufficient to confer personal jurisdiction. The
Magistrate Judge further recommended dismissal on the ground that Tagayun and
3
Mandell had failed to state a claim for defamation.
Appellants objected to the Magistrate Judge’s recommendation, arguing that “the
Magistrate Judge . . . has exceeded authority granted to Magistrate Judges . . . in
particular 28 United States Code 636(b)(1)(A) [which] prohibits Magistrate Judges from
taking dispositive action in civil matters . . . without consent of the parties.” 1 The District
Court observed that the record did not show that Tagayun and Mandell had consented to
review by a Magistrate Judge or that the District Court had referred the matter to the
Magistrate Judge. The District Court nonetheless concluded that the Magistrate Judge’s
handling of the case “at most” constituted a harmless error because the District Court was
going to review the parties’ claims de novo. After reviewing the merits of the parties’
claims, the District Court granted the pending motion to dismiss, concluding that Tagayun
and Mandell had failed to state valid claims for slander and defamation under New Jersey
law.2 The District Court did not address in the first instance whether it had both subject
matter and personal jurisdiction over Tagayun and Mandell’s claims. Tagayun and
Mandell timely appealed to this Court. We have jurisdiction over this appeal under 28
1
This argument misconstrues 28 U.S.C. § 636(b)(1)(A) and the actions of the
Magistrate Judge. Section 636(b)(1)(B) provides that a judge may designate a magistrate
judge to submit to a judge of the court proposed findings of fact and recommendations for
motions to dismiss for failure to state a claim upon which relief can be granted. Here, no
dispositive action on the motion to dismiss was taken by the Magistrate Judge; the
Magistrate Judge submitted a Report and Recommendation to the District Court. The
parties’ consent was not required under these circumstances.
2
The District Court declined to award attorneys’ fees and costs to L&S and Lever.
4
U.S.C. § 1291.
The United States Supreme Court has rejected the practice of assuming
“hypothetical jurisdiction” and resolving a case on the merits. See Steel Co. v. Citizens
for a Better Env’t, 523 U.S. 83, 94-95 (1998). An actual determination must be made
whether subject matter jurisdiction exists before a court may turn to the merits of a case.
Malaysia Int’l Shipping Corp. v. Sinochem Int’l. Co., 436 F.3d 349, 358 (3d Cir. 2006),
cert. granted, 127 S. Ct. 36 (U.S. Sept. 26, 2006) (No. 06-102). Personal jurisdiction is
also “an essential element of the jurisdiction of a district . . . court, without which the
court is powerless to proceed to an adjudication.” Id. (quoting Ruhrgas AG v. Marathon
Oil Co., 526 U.S. 574, 584 (1999)).
Here, as noted above, the District Court proceeded to adjudicate the merits of this
case without analyzing whether it had either subject matter or personal jurisdiction over
the Appellees.3 We therefore will vacate the District Court’s order dismissing
Appellants’ claims and remand this case to the District Court for a determination of
whether it had jurisdiction. As part of this jurisdictional analysis, the District Court shall
examine whether Mandell has standing to assert claims for slander and defamation based
on statements made regarding his wife. See Interfaith Cmty. Org. v. Honeywell Int’l, 399
3
On appeal, Appellees contend that the “District Court properly dismissed
Appellants’ action for failure to satisfy the personal jurisdiction and subject matter
jurisdiction requirements.” However, the District Court’s opinion did not resolve these
threshold jurisdictional issues. Appellees’ statement appears to reflect a
misunderstanding of the import of the Magistrate Judge’s Report and Recommendation.
5
F.3d 248, 254 (3d Cir. 2005) (describing standing as an element of the Article III case or
controversy requirement). In the event the District Court determines that it does have
jurisdiction in this case, the District Court shall engage in the choice of law analysis we
recently outlined in Warriner v. Stanton, 2007 WL 110890 (3d Cir. January 18, 2007),
before evaluating the merits of Appellants’ claims.