Feingold v. Graff

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______
No. 12-2999
______
ALLEN L. FEINGOLD,
Appellant
v.
PAM GRAFF; ROBERTA HARRIS; MICHELLE PUNTURI; MARC MANZIONE;
PENNSYLVANIA ORTHOPEDIC ASSOCIATES, INC.; GIANT FOOD STORES,
LLC; CHRISTOPHER WENK; MAC RISK MANAGEMENT, INC.; MARSHALL,
DENNEHEY, WARNER, COLEMAN, AND GOGGIN
______
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil No. 2:12-cv-01090-JD)
District Judge: Honorable Jan E. Dubois
______
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
March 19, 2013
Before: SMITH, GREENAWAY, JR. and VAN ANTWERPEN, Circuit Judges.
(Opinion Filed: March 22, 2013 )
______
OPINION OF THE COURT
______
PER CURIAM
Allen L. Feingold (“Feingold”), a former attorney, filed a pro se complaint against
Pam Graff, Christopher Wenk, MAC Risk Management (“MAC”), Giant Food Stores
(“Giant”), Roberta Harris, Marc Manzione, Pennsylvania Orthopedic Associates
(“POA”), Michelle Punturi, and Marshall, Dennehey, Warner, Coleman & Goggin
(“MDWCG”). The District Court interpreted Feingold‟s complaint as seeking quantum
meruit from Harris for his work as her attorney in workers‟ compensation litigation, and
as alleging fraud, abuse of process, and civil conspiracy against the other Appellees. The
District Court granted the motions to dismiss of all Appellees, and sua sponte dismissed
the claims against Harris.1 For the reasons that follow, we will affirm, and award
appellate fees, costs, and expenses to certain Appellees.
I.
The events giving rise to this appeal began on September 18, 2003 when Harris
injured herself while working as an employee of Giant. Feingold agreed to represent
Harris in her workers‟ compensation litigation on a contingency fee basis. Feingold
alleges that during the workers‟ compensation litigation, Giant and MAC, Giant‟s
insurance company, “played games” to make it difficult for Harris to be examined by
Giant‟s medical expert. On February 9, 2010, Giant prevailed before a Workers‟
Compensation Judge. The matter was appealed to the Workers‟ Compensation Appeal
Board, which remanded the matter back to the Workers‟ Compensation Judge. Feingold
does not explain what happened after the remand.
Feingold alleges, without identifying any specific instances or actions, that Giant
and MAC devised a scheme to hire medical experts who would only present favorable
testimony so they need not pay legitimately injured workers, even if they knew such
1
Neither Harris, nor an attorney on her behalf, entered an appearance before the District
Court. Feingold v. Graff, No. 12-1090, 2012 WL 2400998, *6 (E.D. Pa. June 26, 2012).
Similarly, a brief has not been filed to this Court on her behalf.
2
testimony was false and that the workers were entitled to workers‟ compensation
benefits. Feingold alleges that Manzione and Pennsylvania Orthopedics were the medical
experts who agreed to provide false testimony favorable to Giant and MAC. Feingold
alleges Giant and MAC retained MDWCG because the firm was willing to aid in their
conspiracy.2 Feingold also requests punitive damages due to the allegedly intentional,
wanton, or reckless nature of Appellees‟ fraudulent and improper actions.
Feingold admits that his involvement in Harris‟ workers‟ compensation litigation
ended in 2007. Though Feingold‟s complaint fails to provide a clear timeline of the
workers‟ compensation proceedings, it is obvious that much of the litigation occurred
after 2007, and after Feingold ceased his involvement in Harris‟ case.
The District Court dismissed all of Feingold‟s claims with prejudice, finding that
they were time-barred by statutes of limitations and that, on the merits, Feingold failed to
state a claim. In so doing, the District Court took judicial notice of the fact that
Feingold‟s license to practice law was suspended prior to 2007, indicating Feingold was
unable to represent Harris after that point. Feingold timely appealed. Feingold alleges
the District Court erred in taking judicial notice of his disciplinary history, and that the
District Court erred in finding that his complaint failed to state a claim. On appeal,
Appellees Punturi, MDWCG, Graff, Wenk, MAC, and Giant filed motions for costs and
fees pursuant to Federal Rule of Appellate Procedure 38 and 28 U.S.C. § 1927.
2
As the District Court noted, “The Complaint asserts that defendants Graff, Wenk, and
Punturi share business addresses with Giant, MAC, and MDWCG respectively, . . . , but
it alleges nothing more about their involvement in the case.” Feingold v. Graff, 2012 WL
2400998 at *1.
3
II.
The District Court had jurisdiction pursuant to 28 U.S.C. § 1332(a), and we have
jurisdiction pursuant to 28 U.S.C. § 1291. We review a district court‟s decision to take
judicial notice of a fact for abuse of discretion. United States v. Mitchell, 365 F.3d 215,
251 (3d Cir. 2004). We exercise plenary review over a district court‟s order dismissing a
complaint, and we accept all factual allegations as true and construe the complaint in the
light most favorable to the plaintiff. R & J Holding Co. v. Redevelopment Auth. of Cnty.
of Montgomery, 670 F.3d 420, 424 (3d Cir. 2011).
A. Judicial Notice
Feingold alleges that the District Court improperly took judicial notice of his
disciplinary history. Feingold also argues that even if the taking of judicial notice was
proper, the District Court failed to provide notice to the parties that it was converting the
motion to dismiss into a motion for summary judgment. This claim fails.
A court may take judicial notice of “a fact that is not subject to reasonable dispute
because it . . . can be accurately and readily determined from sources whose accuracy
cannot reasonably be questioned.” FED. R. EVID. 201(b). A court may consider
judicially noticeable facts without converting a motion to dismiss into a motion for
summary judgment. See Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 323
(2007) (noting courts “ordinarily examine . . . matters of which [they] may take judicial
notice” when ruling on Rule 12(b)(6) motions to dismiss).
The fact of Feingold‟s suspension is “readily determin[able] from sources whose
accuracy cannot reasonably be questioned,” as the Disciplinary Board of the Supreme
4
Court of Pennsylvania provides the public with free access to disciplinary records,
including the form of discipline imposed, the date it was imposed, and the reasoning
underlying the imposition of discipline.3 As such, the District Court did not abuse its
discretion by taking judicial notice of Feingold‟s disciplinary history.
B. The Motion to Dismiss
“[A] complaint must contain sufficient factual matter, accepted as true, to state a
claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(internal quotation marks omitted). “Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.” Id.When alleging fraudulent conduct, the complaint must satisfy the heightened
standard in FED. R. CIV. P. 9(b): “In alleging fraud or mistake a party must state with
particularity the circumstances constituting fraud or mistake.” To satisfy the particularity
standard, “the plaintiff must plead or allege the date, time and place of the alleged fraud
or otherwise inject precision or some measure of substantiation into a fraud allegation.”
Frederico v. Home Depot, 507 F.3d 188, 200 (3d Cir. 2007).
1. Claim Against Harris
3
This information is publicly available, without cost to the viewer, at: Disciplinary Board
of the Supreme Court of Pennsylvania, PA Attorney Public Information: Allen L.
Feingold, http://www.padisciplinaryboard.org/look-up/pa-attorney-
public.php?id=3892&attname=Feingold%2C+Allen+L.+&violations=0. According to
this site, Feingold had his license suspended for three years on March 3, 2006, and then
again for two years, consecutive to the earlier suspension, on August 26, 2006. On
August 28, 2008, Feingold was disbarred.
5
Feingold alleges he is entitled to at least quantum meruit for his work on Harris‟
behalf, and that if Harris succeeds in her workers‟ compensation litigation, he is entitled
to legal fees and reimbursement of expenses.
In Pennsylvania, actions based on contract are subject to a four-year statute of
limitations. 42 PA. CONS. STAT. § 5525 (2012). A quantum meruit action is subject to
this limitation, and the cause of action accrues at the time the attorney ceases representing
the client. Fowkes v. Shoemaker, 661 A.2d 877, 880 (Pa. Super. Ct. 1995). An action to
recover legal fees and expenses is subject to the same statute of limitations. 42 PA.
CONS. STAT. § 5525.
Feingold filed the instant complaint on February 29, 2012. He was first suspended
from the practice of law on March 3, 2006, and so ceased representing Harris as of that
date. Any potential cause of action related to his representation of Harris accrued at that
time, Fowkes, 661 A.2d at 880, roughly six years prior to his filing of the instant
complaint. If Feingold did not cease representing Harris immediately after his March 3,
2006 suspension, he concedes in his complaint that his representation of Harris
terminated “in 2007.” Even if “in 2007” means 11:59 p.m. on December 31, 2007,
Feingold‟s complaint was still filed more than four years after the cause of action
accrued. Therefore the claim is time-barred, and the District Court did not err in
dismissing it.
2. Claim for Fraud
6
Feingold brings a claim for common law fraud against the remaining Appellees.4
In Pennsylvania, a plaintiff must establish the following for a claim of fraud: “(1) a
representation; (2) which is material to the transaction at hand; (3) made falsely, with
knowledge of its falsity or recklessness as to whether it is true or false; (4) with the intent
of misleading another into relying on it; (5) justifiable reliance on the misrepresentation;
and (6) the resulting injury was proximately caused by the reliance.” Gibbs v. Ernst, 647
A.2d 882, 889 (Pa. 1994). “„The successful maintenance of a cause of action for fraud
includes, inter alia, a showing that the plaintiff acted in reliance on the defendant‟s
misrepresentations.‟” Debbs v. Chrysler Corp., 810 A.2d 137, 155 (Pa. Super. Ct. 2002)
(quoting Klemow v. Time, Inc., 352 A.2d 12, 16 n.17 (Pa. 1976)).
Feingold does not allege that he relied on any of the statements made by
defendants. At most, he alleges, albeit unclearly, that a Workers‟ Compensation Judge
relied on Appellees‟ alleged misrepresentations. Since Appellant cannot satisfy the
“reliance” element, he failed to state a claim for fraud. Furthermore, Feingold did not
meet Rule 9(b)‟s heightened pleading standard. He does not allege any specific acts,
statements, or instances of misrepresentation or fraud, and so fails to “inject precision or
some measure of substantiation into [the] fraud allegation.” Frederico, 507 F.3d at 200.
The District Court did not err in dismissing this claim.
4
This claim was also barred by the statute of limitations. In Pennsylvania, fraud claims
are subject to a two-year statute of limitations. 42 PA. CONS. STAT. § 5524(7). The
alleged fraud occurred before 2007, when Feingold‟s involvement in Harris‟ litigation
ceased. Therefore the cause of action arose more than two years prior to Feingold‟s filing
of the complaint. However, the District Court did not dispose of the claim on this
ground, and instead dismissed it on the merits.
7
3. Abuse of Process
The District Court interpreted Feingold‟s complaint as raising an “abuse of
process” claim against Appellees. Such claims are subject to a two-year statute of
limitations. 42 PA. CONS. STAT. § 5524(1). The only prior “process” alleged in this
matter was Harris‟ workers‟ compensation litigation. As noted above, Feingold‟s
involvement in that case ended, at the latest, in 2007, over four years prior to his filing of
the complaint. The District Court properly found this claim to be time-barred.
4. Civil Conspiracy
Feingold also alleges civil conspiracy. An action for civil conspiracy may only be
maintained if the substantive claims of unlawful conduct which underlie the conspiracy
claim survive; dismissal or summary judgment of the underlying claims results in
dismissal or summary judgment of the civil conspiracy claim. Phillips v. Selig, 959 A.2d
420, 437 (Pa. Super. Ct. 2008); Pelagatti v. Cohen, 536 A.2d 1337, 1341-42, 1344 (Pa.
Super. Ct. 1987). Since the District Court properly dismissed all of Feingold‟s
substantive claims, it properly dismissed his civil conspiracy claim.5
C. Appellees’ Motions for Fees and Costs
Appellees MDWCG and Michelle Punturi filed a motion seeking costs and fees
under Federal Rule of Appellate Procedure 38 and 28 U.S.C. § 1927. Appellees Graff,
5
The same holds true for Feingold‟s claim for punitive damages. Pioneer Commercial
Funding Corp. v. Amer. Fin. Mortg. Corp., 855 A.2d 818, 833 n.33 (Pa. 2004) (citing
Kirkbride v. Lisbon Contractors, Inc., 555 A.2d 800, 802 (Pa. 1989) (“„If no cause of
action exists, then no independent action exists for a claim of punitive damages since
punitive damages [are] only an element of damages.‟”)).
8
Wenk, MAC, and Giant filed an identical motion. For the remainder of the opinion, we
will refer to these individuals collectively as “Fee Appellees.”6
Fee Appellees allege that Feingold has filed nearly identical claims against these
same parties in the past, which were all dismissed with prejudice.7 Fee Appellees also
claim Feingold habitually files frivolous state and federal complaints, consisting of vague
allegations of fraud, abuse of process, and civil conspiracy against parties who prevailed
against him in prior litigation, as well as their counsel, insurers, and medical experts.
Feingold filed an Answer to Fee Appellees‟ motions, in which he denied Fee Appellees‟
averments as irrelevant, or as conclusions of law which do not require responsive
pleading. Despite the opportunity to contest the merits of Appellees‟ allegations,
Feingold did not do so.
The Superior Court of Pennsylvania agreed with Fee Appellees‟ allegations in a
prior case involving Feingold. In Feingold v. Hendrzak, the court
note[d] with displeasure that [Feingold] has filed nearly identical
lawsuits against other defendants, along with their attorneys,
insurance companies, and medical experts. In each case,
[Feingold] claims all parties conspired to withhold discovery and
abused the legal process to [Feingold’s] detriment, intending to
deprive him of counsel fees and to cause him emotional distress.
This Court has affirmed the dismissal of these mirror lawsuits for
6
Appellees request “sanctions” under these provisions. However, Rule 38 and § 1927 do
not concern “sanctions,” but rather deal solely with fees and costs, and so we will limit
our discussion to those items. Prosser v. Prosser, 186 F.3d 403, 407 (3d Cir. 1999).
7
Feingold v. Punturi, No. 4823, 2009 Phila. Ct. Com. Pl. LEXIS 219 (Phila. Ct. Com.
Pl., October 13, 2009). The only difference is that, in that case, Harris was allegedly a
“plaintiff,” and not a defendant; though the Common Pleas Court noted that Harris did
not seem to be involved in the case. Id. at *6 n.4. This decision was affirmed by the
Superior Court of Pennsylvania. Feingold v. Punturi, 4 A.3d 678 (Pa. Super. Ct. 2010).
9
Appellant‟s failure to plead any material facts, . . . . In disregard of
this Court‟s [prior] ruling, [Feingold] has continued his pattern of
vexatious litigation against other defendants, but none of his
complaints have survived preliminary objections to their legal
insufficiency.8
15 A.3d 937, 942-43 (Pa. Super. Ct. 2011) (emphasis added). The court noted that as of
its February 22, 2011 decision, Feingold had filed six separate state court complaints and
one federal complaint, making nearly identical allegations, and none of which “survived
preliminary objections to their legal sufficiency.” Id. at 943. Similarly, the District Court
noted, in its June 26, 2012 decision, that Feingold “has made a practice of asserting such
claims against former clients, opposing counsel, medical experts, and others who were
involved in litigation in which he did not prevail,” and cited five other federal district
court cases as examples. Feingold v. Graff, No. 12-1090, 2012 WL 2400998, *1 n.1
(E.D. Pa. June 26, 2012). In Hendrzak, the Superior Court, sua sponte, ordered Feingold
to pay counsel fees, finding that “it is blatantly clear that [Feingold] filed this frivolous
lawsuit and subsequent appeal to vex Appellees with complete disregard for our court
system, our rules of civil procedure, and the legal profession.” 15 A.3d at 943.
1. Rule 38 Damages
Under Federal Rule of Appellate Procedure 38, “[i]f a court of appeals determines
that an appeal is frivolous, it may, after a separately filed motion or notice from the court
8
Though Feingold did not allege emotional distress in the complaint, we note that he did
attempt to allege infliction of emotional distress, just as the Hendrzak court noted, in his
response to Appellees‟ motions to dismiss. Feingold v. Graff, No. 12-1090, 2012 WL
2400998, *1 n.2 (E.D. Pa. June 26, 2012).
10
and reasonable opportunity to respond, award just damages and single or double costs to
the appellee.”
“The purpose of an award of attorneys‟ fees under Rule 38 is to compensate
appellees who are forced to defend judgments awarded them in the trial court from
appeals that are wholly without merit, and to preserve the appellate calendar for cases
worthy of consideration.” Kerchner v. Obama, 612 F.3d 204, 209 (3d Cir. 2010)
(internal quotation marks omitted). “This court employs an objective standard to
determine whether or not an appeal is frivolous which focuses on the merits of the appeal
regardless of good or bad faith.” Id. (internal quotation marks omitted). “[A]n appeal
from a frivolous claim is likewise frivolous.” Id. (internal quotation marks omitted). In
assessing whether appellants had notice of the frivolity of their claims, we may consider
the fact that similar claims have been held frivolous in both this jurisdiction and in others.
Id. We may also consider whether “other courts have imposed sanctions for similar
reasons.” Id. at 210.
Prior to filing this complaint on February 29, 2012, and his notice of appeal on
July 18, 2012, Feingold was, or should have been, fully aware of the frivolous nature of
his claims. He had filed several cases alleging civil conspiracy, fraud, abuse of process,
and other, similar state law claims, as well as federal claims predicated on the alleged
commission of those torts. Hendrzak, 15 A.3d at 943 n.3 (collecting cases); Feingold v.
Graff, 2012 WL 2400998, at *1 n.1 (same). These cases were disposed of on their
merits, due to the legal insufficiency of the claims. Hendrzak, 15 A.3d at 943.
Additionally, not only have “other courts . . . imposed sanctions for similar reasons,”
11
Kerchner, 612 F.3d at 210, but other courts have imposed sanctions for identical reasons,
against this same litigant. Hendrzak, 15 A.3d at 943.
Despite his awareness that several state and federal courts had, on multiple
occasions, found these claims without merit, and despite the Pennsylvania Superior
Court‟s prior determination that these claims are so frivolous as to justify sua sponte
sanctions, Feingold filed the instant complaint, and then this appeal. Feingold‟s conduct
shows an utter lack of respect for the judiciary and the legal process, and maliciously
exposes numerous individuals to frivolous litigation and its attendant aggravations and
expenses. Given the nature of Feingold‟s conduct, we find full payment of Fee
Appellees‟ appellate costs, expenses, and attorneys‟ fees to be “just damages” for
Feingold‟s frivolous litigation.9
2. Enforcement of the Order
Appellees Punturi and MDWCG request that we impose conditions on Feingold
that will ensure his compliance with our order to pay fees and costs, while also protecting
the legal process, and other potential defendants, from the time, aggravation, and
expenses involved with having crossed Feingold‟s path in the past. Appellees direct our
9
We find it unnecessary to address Fee Appellees request for fees and costs under 28
U.S.C. § 1927, which provides, “Any attorney or other person admitted to conduct cases
in any court of the United States . . . who so multiplies the proceedings in any case
unreasonably and vexatiously may be required by the court to satisfy personally the
excess costs, expenses, and attorneys‟ fees reasonably incurred because of such conduct.”
As we have already decided to award Fee Appellees their appellate costs and attorneys‟
fees, we need not decide whether to award them “excess costs, expenses, and attorneys‟
fees.” Furthermore, we express doubt as to whether 28 U.S.C. § 1927 may be applied to
non-lawyer, pro se litigants, see Sassower v. Field, 973 F.2d 75, 80 (2d Cir. 1992), and
we need not decide this difficult issue now.
12
attention to cases from other Courts of Appeals which have barred litigants from filing
appeals with the court until Rule 38 fees and costs have been paid, or a district judge
certifies that the claim is not frivolous. Autry v. Woods, 106 F.3d 61, 63 (4th Cir. 1997)
(per curiam); Smith v, McCleod, 946 F.2d 417, 418 (5th Cir. 1991); see also Jones v. Abc-
Tv, 516 U.S. 363, 363 (1996) (per curiam) (directing Clerk of Supreme Court not to
accept further petitions from petitioner in noncriminal matters until payment of fees
under Rule 38).
Given Feingold‟s demonstrated lack of respect for the judicial process, and his
continual filing of frivolous lawsuits even after his disbarment, we warn 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.
III.
For the foregoing reasons, we will affirm the District Court‟s order granting
Appellees‟ motions for dismissal, and we will grant Fee Appellees‟ motions for fees and
costs. This matter is remanded to the District Court for the limited purpose of assessing
damages and enforcing payment of the same. This remand is not for the purpose of
relitigating issues already decided by the District Court and affirmed by this Court.
Damages shall consist of attorneys‟ fees, costs, and expenses associated with responding
to this appeal, pursuant to Federal Rules of Appellate Procedure 38 and 39. Within such
time period following remand as the District Court may set, Appellees Punturi,
MDWCG, Graff, Wenk, MAC, and Giant shall file itemized lists of damages consistent
with our remand.
13