ACOSTA v. MCMAHON, No. 5:2016cv05131 - Document 4 (E.D. Pa. 2016)
Court Description: MEMORANDUM OPINION. SIGNED BY HONORABLE EDWARD G. SMITH ON 11/9/16. 11/9/16 ENTERED AND COPIES MAILED TO PLAINTIFF, MAILED TO UNREP. (er, )
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ACOSTA v. MCMAHON Doc. 4 N THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA RAMONA ACOSTA, Plaintif, CIVIL ACTION NO. 16-5131 v. JACK MCMAHON, Deendant. MEMOANDUM OPINION Smith, J. November 9, 2016 The prose plaintif, Ramona Acosta, commenced this action on September 26, 2016, by iling n application to proceed in forma pauperis and a complaint. Doc. No. 1. The complaint appears to be a completed version of the orm general complaint available on the court's website. Compare Complaint, Doc. No. 1-2, with Non-Prisoner General Complaint Form, available at https ://ww.paed.uscourts.gov/documents/orms/frmcgen. pdf. In the complaint, the plaintif alleges that in October 2014, she hired the deendant, Jack McMahon, to represent her son in his deense against certain criminal charges. Complaint at 3. Although the plaintif paid the deendant $5,000 or this representation, the deendant allegedly ailed to attend hearings or the plaintiffs son resulting in the court cancelling the hearings and her son remaining in prison or approximately 18 months. I. On October 22, 2015, the plaintif ired the deendant "or not show[ing] up or doing anything or [her] son['s] case." I. Because the deendant ailed to act on her son's behalf, the plaintif is pursuing a legal malpractice claim against him and she seeks the retun of the $5,000 she paid to him. I. at 4. In addition to these allegations against the named deendant, the plaintif states that she also "want[s] to sue Emily Chemiack or raud." I. at 3. The plaintif claims that Ms. Dockets.Justia.com Chemiack was working with the deendant and essentially withheld certain disclosures that she was supposed to review with the plaintiffs son as prt of the criminal case. I. at 3-4. Apparently, a tape was included with those disclosures, and the plaintiffs son did not get to hear the tape until a ew days prior to trial. 1 Id With respect to the court's jurisdiction over this action, the plaintif did not complete the section of the orm complaint requiring her to identify the asserted basis or subject-matter jurisdiction. I. at 2-3. Nonetheless, it appeared that she was attempting to invoke this court's diversity jurisdiction insoar as she was asserting state-law claims or raud and legal malpractice and had indicated that all of the parties had addresses in the Commonwealth of Pennsylvania. I. at 1-4. Because it appeared that the parties were not completely diverse and the amount in controversy did not exceed $75,000, the court entered an order on October 25, 2016, which (1) granted the application to proceed in forma pauperis, and (2) required the plaintif to show cause why the court should not dismiss the action without prejudice or lack of subject-matter jurisdiction. See Order, Doc. No. 2. The order also inormed the plaintif of the court's speciic concen with respect the court lacking subject-matter jurisdiction and required that she had until November 8, 2016, to respond to the order to show cause. I. at 2-3 & n.2. On November 8, 2016, the court received a hndwritten letter rom the plaintif. Regrettably, this letter does not discuss subject-mater jurisdiction at all. 2 Instead, the letter serves as the plaintiffs plea that the court should not dismiss the action because she has a meritorious claim against the deendant. The plaintif also remarks that because the deendant is 1 2 The plaintif does not state what relief she seeks rom Ms. Cherniack. t appears that the clerk of court's oice received the letter on November 7, 2016. Although this document has yet to be entered on ECF, the court has retuned it to the clerk of court or docketing. The court has copied the letter and attached it to this opinion or ease of reerence. 2 a "Top Highly Name Known Lawyer," if the court dismisses her case she would intepret the dismissal as "an act of [b]ias." As previously explained to the plaintif, this court has the authority and the duty to examine the issue of subject-matter jurisdiction sua sponte. See Fed. R. Civ. P. 12(h)(3) ("If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action."); Group Against Smog and Pollution, Inc. v. Shenango, Inc., 810 F.3d 116, 122 n.6 (3d Cir. 2016) (explaining that "an objection to subject matter jurisdiction may be raised at any time [and] a court may raise jurisdictional issues sua sponte"). As also explained to the plaintif, she has the burden to establish ederal jurisdiction in this case because she is the prty "asserting its existence." See Lincoln Ben. Lfe Co. DaimlerChrysler Corp. v. v. AEI Lfe, LLC, 800 F.3d 99, 105 (3d Cir. 2015) (citing Cuno, 547 U.S. 332, 342 n.3 (2006)). Based on the allegations in the complaint, the only possible basis for subject-matter jurisdiction over the plaintiffs state law claims is 28 U.S.C. § 1332(a)(l), which grants a district court subject-matter jurisdiction over a case in which "the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between . .. citizens of diferent States." I. Section 1332(a)(l) requires '"complete diversity between all plaintifs and all defendants,' even though only minimal diversity is constitutionally required. This means that, unless there is some other basis or jurisdiction, 'no plaintif [may] be a citizen of the same state as any deendant."' Lincoln Ben. Life Co., 800 F.3d at 104 (quoting Lincoln Prop. Co. 546 U.S. 81, 89 (2005) and Zambelli Firewors Mfg. Co. v. v. Roche, Wood, 592 F.3d 412, 419 (3d Cir. 2010) (intenal ootnotes omitted)). Regarding the citizenship of the parties in this case, the plaintif alleges that the parties have addresses in the Commonwealth of Pennsylvania. See Complaint at 1-2. Thus, it appears 3 that the parties are not completely diverse. Concening the amount in controversy, the only sought-ater damages in the complaint is the return of the $5,000 that the plaintif paid to the deendant. Thereore, it also appears that the plaintif has not satisfied the amount-in- controversy requirement. Accordingly, as it does not appear that the parties are diverse and the plaintif has not satisied the amount-in-controversy requirement, she has not demonstrated that the court has diversity jurisdiction under section 1332(a)(l). 3 The plaintif has ailed to satisfy her burden of establishing ederal court jurisdiction over this action nd the court must dismiss the action without prejudice. The plaintif may attempt to pursue her claims against the deendant and Ms. Cheniack in an appropriate state court. A separate order ollows. BY THE COURT: : , .·· EDWARD G. SMITH, J. 3 Although the court has analyzed subject-matter jurisdiction under only section 1332(a)(l ), the plaintif does not appear to assert a ederal claim that would coner jurisdiction under 28 U.S.C.§ 1331 or any other ederal statute. To the extent that she is seeking to raise a civil rights claim under 42 U.S.C.§ 1983 (she includes a passing reference to a violation of rights when she discusses the claim against Ms. Chemiack), her claims would ail to state a claim upon which relief could be granted. See 28 U.S.C.§ 1915(e)(2)(B)(ii) (requiring the court to dismiss a complaint ifit ails to state a claim upon which relief could be granted); Ashcrot v. Iqbal, 556 U.S. 662, 678 (2009) (explaining that or a complaint to survive dismissal, it must contain "suficient actual matter, accepted as true, to state a claim to reliefthat is plausible on its ace" (quotations omitted)). In this regard, and ater viewing the complaint liberally because the plaintiff is proceeding pro se, she has not and cnnot assert a section 1983 claim against these deendants because "a suit under§ 1983 requires the wrongdoers to have violated ederal rights of the plaintiff, and that they did so while acting under color ofstate law." Groman v. Townshp ofManalapan, 47 F.3d 628, 638 (3d Cir. 1995). Neither of the deendants re state actors and nothing in the complant provides a basis or concluding that the plaintiffs rights were violated. See Angelico v. Lehigh Valley Hosp., Inc., 184 F.3d 268, 277 (3d Cir. 1999) ("Attoneys perorming their traditional unctions will not be considered state actors solely on the basis of their position as oficers of the court."). Furthermore, to the extent that the plaintiff is asserting that the deendants violated her son's rights, she lacks standing to raise claims based on harm to her son. See Warth v. Seldin, 422 U.S. 490, 499 (1975) ("A ederal court's jurisdiction . . . can be invoked only when the plaintif himself has sufered some threatened or actual injury resulting rom the putatively illegal action." (citation and intenal quotation marks omitted); see also Beauchamp v. Chichester Sch. Dist., No. CIV. A. 05-4141, 2005 WL 3110822, at *2-3 (E.D. Pa. Nov. 17, 2005) (holding, in case involving a minor child, that the parents lacked standing to bring individual claims when only allegations pertained to purported violations of their son's rights). 4 3 . '· '· ,f' \ . '' •. I i · I J \ µ \
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