Opinion
2:23-CV-01294-CRE-MJH
01-12-2024
GREGORY JOSEPH PODLUCKY, Plaintiff, v. THE LINDSAY LAW FIRM, P.C., Defendant,
HONORABLE MARILYN J. HORAN, UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION
CYNTHIA REED EDDY, UNITED STATES MAGISTRATE JUDGE.
I. RECOMMENDATION
For the reasons that follow, it is respectfully recommended that Plaintiff Gregory Joseph Podlucky's complaint be dismissed pursuant to 28 U.S.C. §1915(a) with prejudice consistent with this Report and Recommendation.
II. REPORT
Background
Plaintiff brings the present action against Defendant The Lindsay Law Firm, P.C. (“the Law Firm”) for allegedly failing to refund an overpayment made by Plaintiff to the Law Firm in connection with the Law Firm representing Plaintiff in a criminal matter in or around 2011. Compl. (ECF No. 6) at p. 1; ¶¶ 7-8. Plaintiff claims that he paid the Law Firm $450,000 to represent him and alleges that because he pleaded guilty to the charges, he is owed a $300,000 refund pursuant to the terms of the representation agreement. Plaintiff brings causes of action under the American Bar Association and the Pennsylvania Rules of Professional Conduct related to unreasonable attorneys' fees and seeks compensatory and punitive damages. Compl. (ECF No. 6) at ¶¶ 5, 16.
Plaintiff initiated this lawsuit pro se on July 11, 2023 and was granted leave to proceed in forma pauperis.
Notably, Plaintiff's underlying allegations are the subject of another lawsuit in this Court - Podlucky v. The Lindsay Law Firm, P.C., 2:23-cv-00858-CRE (W.D.Pa. 2023) - which was dismissed under the prescreen provisions of 28 U.S.C. §1915(a) and was affirmed by the United States Court of Appeals for the Third Circuit, Podlucky v. The Lindsay Law Firm, P.C., 23-2192 (3d Cir. Jan. 11, 2023) (awaiting mandate). In that case, Plaintiff brought a breach of contract claim and a claim for intentional infliction of emotional distress against the Law Firm in connection with failing to refund an overpayment made by Plaintiff in connection with his legal representation in the 2011 criminal matter, which were dismissed with prejudice for failure to state a claim. See Podlucky, 2:23-cv-00858-CRE (W.D.Pa. 2023) Memo. Op. (ECF No. 13) at 3-6. In this case, Plaintiff simply contends the Law Firm's actions violated professional rules of conduct applicable to lawyers. Notwithstanding any preclusion or statute of limitations issues that may support dismissal of this case, dismissal is recommended simply on the basis that professional rules of conduct do not create legal causes of action and Plaintiff's claims are legally baseless.
Standard of Review
Plaintiff is proceeding pro se and as such, he is entitled to liberal construction of his submissions in federal court. This means that the Court must liberally construe the factual allegations of the complaint because pro se pleadings, “however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” Erikson v. Pardus, 551 U.S. 89, 94 (2007) (internal quotation omitted); Haines v. Kerner, 404 U.S. 519, 520 (1972). In addition, the court should “ ‘apply the applicable law, irrespective of whether a pro se litigant has mentioned it by name.' ” Higgins v. Beyer, 293 F.3d 683, 688 (3d Cir. 2002) (quoting Holley v. Dep't of Veterans Affairs, 165 F.3d 244, 247-48 (3d Cir. 1999)). However, pro se litigants are not free to ignore the Federal Rules of Civil Procedure. Pruden v. Long, Civ. A. No. 3:CV-06-2007, 2006 WL 3325439, *1 (M.D. Pa. Oct. 24, 2006).
Pursuant to 28 U.S.C. §1915(a), because Plaintiff was granted his request to proceed in forma pauperis, his allegations must be reviewed in accordance with the directives provided in 28 U.S.C. §1915(e). Section 1915(e)(2) requires the federal courts to review complaints filed by persons who are proceeding in forma pauperis and to dismiss, at any time, any action that is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. §1915(e)(2)(B). “[A] complaint.. .is frivolous where it lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). Thus, under Section 1915(e)(2)(B), courts are “authorized to dismiss a claim as frivolous where ‘it is based on an indisputable meritless legal theory or where the factual contentions are clearly baseless.' ” O'Neal v. Remus, No. 09-14661, 2010 WL 1463011, at *1 (E.D. Mich. Mar. 17, 2010) (quoting Price v. Heyrman, No. 06-C-632, 2007 WL 188971, at *1 (E.D. Wis. Jan. 22, 2007) (citing Neitzke, 490 U.S. at 327)). A court should sua sponte dismiss frivolous cases because it “discourage[s] the filing of, and waste of judicial and private resources upon baseless lawsuits that paying litigants generally do not initiate because of the costs of bringing suit, and because of the threat of sanctions for bringing vexatious suits under Fed.R.Civ.P. 11.” Neitzke, 490 U.S. at 327.
The obligation to screen a complaint under Section 1915(e)(2) applies to all litigants proceeding in forma pauperis. Atamian v. Burns, 236 Fed.Appx. 753, 754 (3d Cir. 2007) (non-precedential) (citing Grayson v. Mayview State Hosp., 293 F.3d 103, 113 n. 19 (3d Cir. 2002)) (“the provisions of [Section] 1915(e) apply to all in forma pauperis complaints, not simply those filed by prisoners.”).
Dismissal under Section 1915(e)(2) is “often made sua sponte prior to the issuance of process, so as to spare prospective defendants the inconvenience and expense of answering [frivolous] complaints[,]” Neitzke, 490 U.S. at 324, or complaints which fail to state a claim on which relief may be granted.
In determining whether a complaint fails to state a claim upon which relief may be granted for purposes of Section 1915(e)(2)(B), courts apply the same standard applied to motions to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure. D'Agostino v. CECOM RDEC, 436 Fed.Appx. 70, 72 (3d Cir. 2011) (citing Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999)). A complaint must be dismissed pursuant to Rule 12(b)(6) if it does not allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 556 (2007) (rejecting the traditional 12(b)(6) standard set forth in Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). The United States Court of Appeals for the Third Circuit has expounded on this standard in light of its decision in Phillips v. Cnty. of Allegheny, 515 F.3d 224 (3d Cir. 2008) (construing Twombly in a civil rights context), and the Supreme Court's decision in Iqbal:
After Iqbal, it is clear that conclusory or “bare-bones” allegations will no longer survive a motion to dismiss: “threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 129 S.Ct. at 1949. To prevent dismissal, all civil complaints must now set out “sufficient factual matter” to show that the claim is facially plausible. This then “allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 1948. The Supreme Court's ruling in Iqbal emphasizes that a plaintiff must show that the
allegations of his or her complaints are plausible. See Id. at 1949-50; see also Twombly, 505 U.S. at 555, & n. 3.Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). In making this determination, the court must accept as true all allegations of the complaint and all reasonable factual inferences must be viewed in the light most favorable to the plaintiff. Angelastro v. Prudential-Bache Sec., Inc., 764 F.2d 939, 944 (3d Cir. 1985). “To the extent that a complaint filed in forma pauperis which fails to state a claim lacks even an arguable basis in law, Rule 12(b)(6) and §1915([e]) both counsel dismissal.” Neitzke, 490 U.S. at 328 (footnote omitted).
Discussion
Plaintiff's sole claims are that the Law Firm violated American Bar Association Rule 1.5 and Pennsylvania Rule of Professional Conduct 1.5 which provide that a lawyer shall not make an agreement for, charge, or collect an unreasonable amount for expenses.
The Pennsylvania Rules of Professional Conduct's preamble provides that a “[v]iolation of a rule should not give rise to a cause of action nor should it create any presumption that a legal duty has been breached . . . They are not designed to be a basis for civil liability.” PA ST RPC Preamble and Scope at § 19. Moreover, the Pennsylvania Supreme Court has held “that a violation of the Rules of Professional Conduct does not create a cause of action and that ‘simply because a lawyer's conduct may violate the rules of ethics does not mean that the conduct is actionable.' ” P.D. v. Comegno, No. CV 08-1994, 2008 WL 11367520, at *1 (E.D. Pa. July 23, 2008) (quoting Maritrans GP, Inc. v. Pepper Hamilton & Scheetz, 602 A.2d 1277 (Pa. 1992)).
Likewise, the American Bar Association Model Rules of Professional Conduct's preamble states that “violation of a Rule should not itself give rise to a cause of action against a lawyer nor should it create any presumption in such a case that a legal duty has been breached.” Model Rule of Prof'l Conduct pmbl. See also Williams v. Perry & Associates Attorneys at L., No. 1:22-CV-00733-ADA/SKO, 2022 WL 4020134, at *3 (E.D. Cal. Sept. 2, 2022), report and recommendation adopted, No. 1:22-CV-00733-ADA/SKO, 2022 WL 16951320 (E.D. Cal. Nov. 15, 2022) (“The ethical rules prescribed by the ABA do not provide individuals with a cause of action.”); Cost Saver Mgt., LLC v. Napolitano, No. CV 10-2105-JST (CWX), 2011 WL 13119439, at *5 (C.D. Cal. June 7, 2011) (the ABA Model Rules do not create a private cause of action) (collecting cases).
Accordingly, both the Pennsylvania and American Bar Association's Rules of Professional Conduct do not create private causes of action and Plaintiff cannot state a claim thereunder and his claims must be dismissed because there is no legal basis to bring such claims.
It is likewise recommended that Plaintiff's “joinder” of Karla Sue Podlucky, Gregory Jesse Podlucky, Jordan Patrick Podlucky and Jared Daniel Podlucky (ECF No. 7) be denied as moot, as all the claims are frivolous.
Leave to Amend
Courts may permit a pro se plaintiff to amend a complaint where “the facts alleged are simply too vague, and the theories of liability too poorly articulated” to determine whether amendment would be futile, Spell v. Allegheny Cty. Admin., Civ. No. 14-1403, 2015 WL 1321695, at *7 (W.D. Pa. Mar. 24, 2015), or when “justice so requires.” Fed.R.Civ.P. 15. However, a court need not provide leave to amend a complaint where amendment would be futile, meaning that the complaint as amended would fail to state a claim upon which relief could be granted. In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1434 (3d Cir. 1997). Based on the foregoing, it is respectfully recommended that Plaintiff not be granted leave to amend his complaint, as no additional facts could support his claims and his claims fail as a matter of law, making his claims frivolous and amendment futile.
Sanctions
Rule 11 provides:
(b) Representations to the Court. By presenting to the court a pleading, written motion, or other paper--whether by signing, filing, submitting, or later advocating it--an attorney or unrepresented party certifies that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:
(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;
(2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;
(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and
(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.Fed. R. Civ. P. 11(b). If it is determined that Rule 11(b) has been violated, the court may impose an appropriate sanction on the party that violated the rule. The purpose of Rule 11 is to “deter the initiation of frivolous lawsuits and to streamline the administration of the federal courts.” Martin v. Farmers First Bank, 151 F.R.D. 44, 47 (E.D.Pa. 1993) (citing Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 393 (1990)). A plaintiff must “stop, think, investigate and research” before initiating a lawsuit or filing a paper with the court. Gaiardo v. Ethyl Corp., 835 F.2d 479, 482 (3d Cir. 1987).
“The legal standard to be applied when evaluating conduct allegedly violative of Rule 11 is reasonableness under the circumstances.” Ford Motor Co. v. Summit Motor Prods., Inc., 930 F.2d 277, 289 (3d Cir. 1991) (citations omitted). “Reasonableness” is “an objective knowledge or belief at the time of the filing of the challenged paper that the claim was well-grounded in law and fact.” Id. A court may only impose sanctions if “the filing of the Complaint constituted abusive litigation or misuse of the court's process.” Simmerman v. Corino, 27 F.3d 58, 62 (3d Cir. 1994). A plaintiff's status as a pro se litigant does not shield them from sanctions pursuant to Rule 11. See DeNardo v. Murphy, 781 F.2d 1345, 1346 (9th Cir. 1986) (affirming district court's sanctions in form of issuance of an injunction barring pro se plaintiff from relitigating his claim); Taylor v. Messmer, 2010 WL 545892, at *2 (W.D.Pa. 2010) (imposing sanctions on pro se plaintiff for filing a “barrage” of civil and administrative cases against the same defendants raising the same issues); Lai v. District V-C Ethics Committee, 2006 WL 3677933, at *4 (D.N.J. 2006) (imposing sanctions on pro se plaintiff and issuing an injunction barring her from filing future related suits without prior permission of court); Martin v. Farmers First Bank, 151 F.R.D. 44, 49 (E.D.Pa. 1993) (imposing sanctions on pro se plaintiffs for failure to investigate the basis of their claims); Calesnick v. Redevelopment Authority of City of Philadelphia, 696 F.Supp. 1053, 1056 (E.D.Pa. 1988) (imposing sanctions on pro se plaintiffs and issuing an injunction barring them from filing future related suits). But see Syed v. Hercules Inc., 184 F.Supp.2d 395, 402 (D.Del. 2002) (court did not impose sanctions on “borderline frivolous” case brought by pro se plaintiff barred by res judicata).
It is the undersigned's view that the case brought by Plaintiff is clearly frivolous as it has no basis in law. Moreover, this case is one of Plaintiffs' eight lawsuits recently filed based on Plaintiffs' 2011 criminal case, with five of those lawsuits having been filed in the last two months. See Podlucky v. Commissioner of Internal Revenue, 2:20-cv-343-ANB (W.D.Pa. 2020) (dismissed as frivolous and for failure to state a claim and dismissal affirmed by the United States Court of Appeals for the Third Circuit); Podlucky v. The Lindsay Law Firm, P.C., 2:23-cv-00858-CRE (W.D.Pa. 2023) (dismissed with prejudice for failure to state a claim and currently on appeal); Podlucky v. The Lindsay Law Firm, P.C., 2:23-cv-01294-CRE (W.D.Pa. 2023) (recommending dismissal as frivolous); Podlucky v. United States of America, 23-cv-1898-WSS (W.D.Pa. 2023) (FTCA claims against Internal Revenue Service (“IRS”) agents and others for allegedly failing to properly conduct investigations which resulted in the 2011 criminal charges; answer pending); Podlucky v. United States of America, 2:23-cv-1899-CRE (W.D.Pa. 2023) (recommending dismissal with prejudice on immunity grounds); Podlucky v. United States of America, 2:23-cv-2144-NR (W.D.Pa. 2023) (FTCA claims against the Department of Justice for failing to return property under the 2011 plea agreement in Plaintiffs' criminal case; motion for in forma pauperis pending); Podlucky v. United States of America, 2:23-cv-2145-MJH (FTCA claims against IRS agents and others related to tax adjustments and refunds; motion for in forma pauperis pending); Podlucky v. United States of America, 2:23-cv-2146-WSS (FTCA claims against an Assistant United States Attorney for not releasing a lien against Plaintiffs' property in connection with the 2011 criminal charges; motion for in forma pauperis pending). At least two of the cases have been dismissed with prejudice as frivolous or for failure to state a claim, and it is recommended that two other cases, including this one, be dismissed with prejudice as frivolous and on immunity grounds.
While this barrage of lawsuits supports a finding that Plaintiff intends to abuse the judicial process by initiating frivolous actions utilizing his in forma pauperis status, it is not recommended that sanctions be imposed at this time. Plaintiff is on notice, however, that if any future filings regarding this matter are frivolous or brought for the purpose of harassment, the undersigned will recommend that the Court impose the appropriate sanctions at that time. Likewise, the undersigned cautions that should Plaintiff file additional frivolous lawsuits which involve the same issues outlined above, the Court can impose additional sanctions in the form of attorneys' fees or an injunction barring Plaintiff from filing these frivolous actions. See 28 U.S.C. § 1651; Abdul-Akbar v. Watson, 901 F.2d 329, 332 (3d Cir. 1990), cert. denied, 498 U.S. 806 (1990) (holding that Section 1651(a) authorizes district courts to issue an injunction thereby restricting federal court access to parties who repeatedly file frivolous lawsuits). Plaintiff has an obligation to stop, think, investigate and research before initiating a lawsuit or filing a paper with the court, or he will risk future sanctions.
III. CONCLUSION
For the foregoing reasons, it is respectfully recommended that Plaintiff's complaint be dismissed for failure to state a claim and that his complaint be dismissed with prejudice, as amendment would be futile.
Plaintiff is permitted to file Objections to this Report and Recommendation to the assigned United States District Judge. In accordance with 28 U.S.C. § 636(b), Fed.R.Civ.P. 6(d) and 72(b)(2), and LCvR 72.D.2, Plaintiff, because he is an electronically registered party, must file objections to this Report and Recommendation by January 26, 2024. Plaintiff is cautioned that failure to file Objections within this timeframe “will waive the right to appeal.” Brightwell v. Lehman, 637 F.3d 187, 193 n. 7 (3d Cir. 2011).