Opinion
2:21-CV-00521-AJS
12-20-2021
SIMON TUSHA, Plaintiff, v. STANLEY GREENFIELD, Defendant,
SIMON TUSHA PRO SE
SIMON TUSHA PRO SE
REPORT AND RECOMMENDATION
CYNTHIA REED EDDY CHIEF UNITED STATES MAGISTRATE JUDGE
I. Recommendation
This civil action was initiated in this court on July 17, 2020, by pro se Plaintiff Simon Tusha against his former attorney, Defendant Stanley Greenfield. See Compl. (ECF No. 1). Plaintiff asserts state-law causes of action against Defendant stemming from Defendant's legal representation of Plaintiff in obtaining a reduction or change in Plaintiff's sentence due to Plaintiff's medical needs. See id. This court has subject matter jurisdiction over the controversy pursuant to 28 U.S.C. § 1332.
This action was originally filed by Plaintiff, a resident of Maryland, in the United States District Court for the District of Maryland. In that court, Defendant moved to dismiss this action for lack of personal jurisdiction over Defendant, who is a resident of Pennsylvania. (ECF No. 7). On April 19, 2021, the Maryland Court granted the motion to dismiss for lack of jurisdiction and transferred this matter to this Court. (ECF Nos. 12, 13).
Presently before the court are two motions filed by Defendant: 1) a motion to dismiss the Complaint for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) (ECF No. 19); and 2) a motion to strike the Certificate of Merit filed by Plaintiff (ECF No. 26). For the reasons that follow, it is respectfully recommended that Defendant's motion to strike the COM be granted and Defendant's motion to dismiss the complaint be granted in part and denied in part.
FCI Loretto is located in Cambria County, Pennsylvania, in the Western District of Pennsylvania. See Fed. Bureau of Prisons, FCI Loretto, https://www.bop.gov/locations/institutions/lor/ (last visited Apr. 8, 2021).
II. Report
A. Factual and Procedural History
The Maryland District Court provided the following background.
I. BACKGROUND 1
This case involves actions taken by Greenfield in 2019 and 2020 while Plaintiff Simon Tusha was an inmate at the Federal Correctional Institution Loretto (“FCI Loretto”). (Compl. ¶¶ 1-12, ECF No. 1).2 Greenfield is an attorney licensed in the State of Pennsylvania who maintains a law office in Pittsburgh, Pennsylvania. (See Greenfield Decl. ¶¶ 2, 4, ECF No. 7-1).3Tusha alleges that he initially retained Greenfield to represent him in a criminal proceeding in September 2016. (Compl. ¶ 16). In 2018, Tusha was diagnosed with prostate cancer and multiple melanomas requiring immediate surgery and follow-up treatment. (Id. ¶¶ 18-19). In January 2019, Tusha was sentenced to twenty-one months of incarceration at FCI Loretto. (Id. ¶ 17).
1 Unless otherwise noted, the Court takes the following facts from Tusha's Complaint and accepts them as true. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citations omitted).
2 In Pennsylvania, in an action asserting a claim for professional liability, a plaintiff is required to file a Certificate of Merit pursuant (“COM”) pursuant to Pa. Rule Civ. Pro. 1042.1-1042.12. Here, in response to Defendant's motion to dismiss, Plaintiff filed a COM. (ECF No. 22). Defendant then moved to strike this COM, and that is the motion pending before this Court. (ECF No. 26).
3 Because Greenfield's Motion is brought under Federal Rules of Civil Procedure 12(b)(2) and 12(b)(3), the Court may consider evidence outside the pleadings in ruling on the
Motion. See Structural Pres. Sys., LLC v. Andrews, 931 F.Supp.2d 667, 671 (D.Md. 2013) (citations omitted).
Tusha sought Greenfield's services again in or around August 2019, hoping to pursue legal action to remedy inadequate medical care he was receiving during his incarceration. (Id. ¶¶ 1, 5). Between September and October 2019, Tusha met with several health care providers who agreed that he needed “critical and time sensitive medical treatment” relating to a diagnosis of multiple melanomas. (Id. ¶¶ 2, 21). FCI Loretto refused to provide Tusha the medical care he needed. (Id. ¶ 9). Tusha consulted with other inmates at FCI Loretto, conducted his own legal research, and advised Greenfield as to the best way to pursue a remedy for FCI Loretto's wrongful actions. (Id. ¶¶ 3-5). Tusha also provided evidence demonstrating the inadequate care he was receiving at FCI Loretto. (Id. ¶ 8). Among other things, Tusha sought to have his sentence modified so that he could obtain medical treatment at the Johns Hopkins Medical Center in Baltimore, Maryland. (Id.).
On the basis of advice he received from Greenfield, Tusha spent months pursuing administrative remedies within FCI Loretto. (Id. ¶ 6). Tusha alleges that this advice was incorrect and significantly delayed his efforts to obtain a remedy. (Id.). In or around December 2019, Greenfield concluded that Tusha's recommended course of action was correct and “filed a [18 U.S.C. §] 3582 motion with the Federal Court” seeking a remedy on Tusha's behalf. (Id. ¶ 7). The motion, however, failed to include certain relevant details about which Tusha had informed Greenfield. (Id. ¶ 9). Between December 2019 and March 2020. (Id.). Tusha alleges that upon reviewing the pleadings in the case, he discovered that Greenfield had allowed his motion to be wrongly dismissed by the court. (Id. ¶ 11). Moreover, Greenfield ultimately settled the case without Tusha's knowledge or consent. (Id. ¶¶ 7, 12).
Proceeding pro se, Tusha filed a Complaint against Greenfield on July 17, 2020. (ECF No. 1). The six-count Complaint alleges: breach of fiduciary duty (Count I); breach of contract (Count II); fraud upon the court (Count III); legal malpractice (Count IV); intentional infliction of emotional distress and pain (Count V); and negligent infliction of emotional distress and pain (Count VI). (Id. ¶¶ 22-40). Tusha seeks compensatory and punitive damages. (Id. ¶¶ 24, 27, 30, 34, 37, 40).
Memorandum Opinion (ECF No. 12) at 1-3.
In the Maryland District Court, Defendant moved to dismiss the case for lack of personal jurisdiction, and the Court granted that relief and ordered the case be transferred to the Western District of Pennsylvania. Order (ECF No. 13). Thereafter, this case was transferred to this Court and assigned to the undersigned.
Defendant's answer was due on May 3, 2021. On April 30, 2021, Defendant filed a motion requesting an extension of time to file a responsive pleading until such time that Plaintiff filed a COM pursuant to Pa.R.C.P. 1042.3. (ECF No. 17). On May 3, 2021, this Court granted that motion, and ordered Plaintiff to file a COM within 60 days of the filing of the Complaint in this Court, or by June 21, 2021. (ECF No. 18). Plaintiff did not file a COM by that time, and on June 23, 2021, Defendant filed a motion to dismiss and brief in support thereof. (ECF Nos. 19, 20). In that motion, Defendant asserted that several counts implicating legal malpractice should be dismissed for failure to file a COM pursuant to Pa.R.C.P. 1042.3, and that the fraud claim should be dismissed for failure to state a claim. Id.
Specifically, Defendant moved to dismiss Plaintiff's claims for breach of fiduciary duty, breach of contract, legal malpractice, intentional infliction of emotional distress, and negligent infliction of emotional distress. Def.'s Br. (ECF No. 20) at 3.
On June 28, 2021, this Court ordered Plaintiff to file a response to the motion to dismiss. (ECF No. 21). Instead of filing a brief in response, Plaintiff filed a COM. (ECF No. 22). In response, Defendant filed a reply asserting that the COM filed by Plaintiff failed to comply with Pa.R.C.P. 1042.3. (ECF No. 23). This Court then struck that COM and ordered Plaintiff to file a response to the motion to dismiss. (ECF No. 24).
On August 25, 2021, Plaintiff, once again, filed a COM. (ECF No. 25), and Defendant moved to strike that COM. (ECF No. 26). This Court deferred ruling on the motion to strike and concluded it would decide both motions based upon the documents that had been filed in this matter. (ECF No. 28). Thus, this matter is ripe for disposition.
B. Standard of Review
This Court is considering this motion to strike pursuant to Fed. Rule Civ. Pro. 12(f), which provides that a “court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Furthermore, “[w]hile a motion to strike can often be resolved by a magistrate judge without the necessity of a Report and Recommendation, see Singh v. Superintending School Committee of the City of Portland, 593 F.Supp. 1315 (D.Me.1984), in this case where it appears that the motion to strike might [a]ffect claims brought by the parties, we believe that it is more appropriate to address this motion through a Report and Recommendation.” Hoffer v. Grange Ins. Co., 2014 WL 2177589, at *1 (M.D. Pa. May 23, 2014).
“The purpose of a motion to strike is to clean up the pleadings, streamline the litigation, and avoid unnecessary forays into immaterial matters.” Hoffer v. Grange Ins. Co., 2014 WL 2177589, at *2 (M.D. Pa. May 23, 2014) (internal quotation marks omitted). “Thus, while rulings on motions to strike rest in the sound discretion of the court, that discretion is guided by certain basic principles.” Id. (internal citation omitted). “Because striking a pleading is viewed as a drastic remedy, such motions are generally disfavored.” Id. (internal quotation marks omitted). “In deciding the motion, a court should also consider the liberal pleading standards of Rule 8 and the lack of a developed factual record at this early stage of litigation.” Id. at *3.
ii. Motion to Dismiss
To survive dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6), “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) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The reviewing court must “determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief.” Phillips v. Cnty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008). Dismissal under Federal Rule of Civil Procedure 12(b)(6) is proper where the factual allegations of the complaint conceivably fail to raise, directly or inferentially, the material elements necessary to obtain relief under a legal theory of recovery. Twombly, 550 U.S. at 561. Thus, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 (2009) (citing Twombly, 550 U.S. at 555). The factual and legal elements of a claim should be separated, with the court accepting all well-pleaded facts as true and disregarding all legal conclusions. Santiago v. Warminster Twp., 629 F.3d 121, 130-31 (3d Cir. 2010). Under this standard, civil complaints “must contain more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009). A court in making this determination must ask “not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claim.” Twombly, 550 U.S. at 583 (quoting Scheuer v. Rhoads, 416 U.S. 232, 236 (1974) (internal quotations omitted)).
In deciding a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), a court may take into consideration “the allegations contained in the complaint, exhibits attached to the complaint and matters of public record” as well as “undisputedly authentic document[s] that a defendant attaches as an exhibit to a motion to dismiss if the plaintiff's claims are based on the document.” Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993).
iii. Pro Se Pleadings
Because Plaintiff is pro se, this Court is mindful of the following. A pro se pleading is held to a less stringent standard than more formal pleadings drafted by lawyers. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972). In addition, “when a complaint is subject to dismissal under Rule 12(b)(6), the court should permit a curative amendment.” Thompson v. Police Dep't of Philadelphia, 2011 WL 4835831, at *2 (E.D. Pa. Oct. 12, 2011). “However, we need not provide a plaintiff with leave to amend if amendment would be inequitable or futile.” Id. “Where a claim is frivolous, amendment is necessarily futile and, thus, leave to amend is not warranted. A claim is frivolous when it lacks an arguable basis in either law or in fact.” Id. (internal citation and quotation marks omitted).
C. Discussion
i. Pennsylvania COM Requirement
This Court first provides an overview of Pennsylvania's COM requirement.
Pennsylvania law requires a plaintiff alleging medical malpractice, or any other form of professional negligence, to file a certificate of merit, which must attest either that an appropriate licensed professional supplied a written statement that there exists a reasonable probability that the care provided fell outside acceptable professional standards, or that expert testimony of an appropriate licensed professional is unnecessary. Pa.R.Civ.P. 1042.3(a)(1) & (3). [] Ignorance of the rule does not excuse failure to comply, even for a pro se plaintiff. See Hoover v. Davila, 862 A.2d 591, 594 (Pa. Super. Ct. 2004).Turner v. Wetzel, 2018 WL 7253304, at *4 (M.D. Pa. Dec. 28, 2018), report and recommendation adopted, 2019 WL 480484 (M.D. Pa. Feb. 7, 2019) (footnote omitted). Specifically, the COM must certify that “an appropriate licensed professional has supplied a written statement that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm[.]” Pa.R.C.P. 1042.3(a)(1).
Furthermore, “[i]t is required [] that the ‘appropriate licensed professional' who supplies such a statement be an expert with sufficient education, training, knowledge and experience to provide credible, competent testimony, or stated another way, the expert who supplies the statement must have qualifications such that the trial court would find them sufficient to allow that expert to testify at trial.” Id. (note).
In addition, there is a specific regime set forth in Pennsylvania to enforce compliance with this rule. In Pennsylvania state court, “the sanction imposed … for a violation of this rule is entry of a non pros by the prothonotary. Therefore, ‘[i]n Pennsylvania, the prothonotary enters judgment of non pros as soon as the Defendant files a praecipe that complies with the requirements of Rule 1042.7 without court involvement.'” TranSystems Corp. v. Hughes Assocs., Inc., 2014 WL 6674421, at *4 (M.D. Pa. Nov. 24, 2014). Rule 1042.6 provides that “a defendant seeking to enter a judgment of non pros under Rule 1042.7(a) shall file a written notice of intention to file the praecipe and serve it on the party's attorney of record or on the party if unrepresented, no sooner than the thirty-first day after the filing of the complaint.” Moreover, the “Prothonotary may not enter judgment if the certificate of merit has been filed prior to the filing of the praecipe.” Id. (note). Once this praecipe is filed, a plaintiff may then proceed through the procedural rules to remove that judgment of non pros. See Pa.R.C.P. 3051; Womer v. Hilliker, 908 A.2d 269 (Pa .2006) (holding a judgment of non pros entered pursuant to this rule may be opened pursuant to Pa.R.C.P. 3051).
This Rule provides that “[t]he prothonotary, on praecipe of the defendant, shall enter a judgment of non pros against the plaintiff for failure to file a certificate of merit within the required time period” under certain circumstances. Pa.R.C.P. 1042.7.
ii. The COM Requirement in Federal Court
The Third Circuit is clear that Pennsylvania's COM requirement is a substantive rule and applies even where, as here, the claim is brought in federal court. See Liggon-Redding v. Estate of Sugarman, 659 F.3d 258, 264-65 (3d Cir. 2011). However, “[i]n contrast to the substantive clarity of this rule, the procedural aspects of enforcement of Pennsylvania Rule 1042.3 to cases in federal court are somewhat murky.” TranSystems, 2014 WL 6674421, at *4. “Several factors contribute to this procedural uncertainty. Most notably, this confusion is a function of the fact that the procedural mechanisms for ensuring compliance with the dictates of Rule 1042.3 [as set forth supra, ] vary widely between the state and federal courts.” Id. The aforementioned “state procedure has no precise analogue in the federal system.” Id.
“[T]here is no procedural mechanism for a defendant to ask the clerk of court to dismiss a claim. Rather, failure to submit the certificate is a possible ground for dismissal by the district court, when properly presented to the court in a motion to dismiss.” McElwee Grp., LLC v. Mun. Auth. of Borough of Elverson, 476 F.Supp.2d 472, 475 (E.D. Pa. 2007) (internal citation omitted). Adding to this confusion is the application of the state-court notice provisions, which provide a plaintiff with the opportunity to cure the failure to file a COM. “[T]he notice provisions of Rule 1042.6 have been viewed in different ways by the federal courts.” TranSystems, 2014 WL 6674421, at *5. “‘[O]ne of Pennsylvania's conditions precedent to dismissing an action for failure to comply with the COM requirement, fair notice to a plaintiff, is also substantive law,' Schmigel v. Uchal, 800 F.3d 113, 115 (3d Cir. 2015), and, therefore, also must be applied in federal court. Id. at 124.” Layton v. Smyth, 2021 WL 3021976, at *4 (W.D. Pa. July 16, 2021).
iii. Applying Pennsylvania's COM to This Case
Turning to the instant case, the matter was transferred to Pennsylvania from Maryland on April 19, 2021. (ECF No. 14). Accordingly, pursuant to Pa. Rule Civ. Pro. 1042.3(a), Plaintiff was required to file a COM within 60 days, or by June 21, 2021.However, on April 30, 2021, Defendant filed a motion requesting that this Court not require Defendant to file a responsive pleading until Plaintiff filed a COM. (ECF No. 17). This Court granted that relief and gave Plaintiff until June 21, 2021, to file a COM. (ECF No. 18). This order clearly put Plaintiff on notice that a COM was required. Nevertheless, Plaintiff did not file a COM by June 21, 2021, and on June 23, 2021, Defendant filed the instant motion to dismiss, arguing that Plaintiff's complaint should be dismissed for his failing to file a COM as ordered by this Court. (ECF No. 19). This Court set a briefing schedule.
June 19, 2021, was a Saturday.
That order stated the following: “Pursuant to Pennsylvania Rule of Civil Procedure 1042.3(a), a certificate of merit has to be filed with this complaint or within 60 days of its filing. Therefore, Plaintiff shall file a certificate of merit no later than 6/21/2021.” Order (ECF No. 18).
Instead of filing a brief, on July 28, 2021, Plaintiff filed a document entitled “Certificate of Merit, ” authored by Rachael Roberts, Esq., an attorney licensed to practice law in Maryland, which sets forth three points. (ECF No. 22). First, Attorney Roberts stated that Plaintiff has presented meritorious claims. Second, she stated that based upon the Maryland order, Defendant should not be permitted to file a motion to dismiss. Finally, she stated that Plaintiff's claims are not frivolous. Id.
After reviewing this COM, this Court ordered it to be stricken from the record, as it was clearly not in compliance with Pa.R.C.P. 1042.3. This Court ordered Plaintiff to file a brief in response to Defendant's motion to dismiss. (ECF No. 24). On August 25, 2021, Plaintiff, once again, filed a COM. (ECF No. 25). In this document, inter alia, Attorney Roberts set forth her professional opinion, along with her rationale, that Defendant's conduct fell below professional norms. Id. In addition, Attorney Roberts included her resume.
On August 25, 2021, Defendant moved to strike this COM, because it was untimely filed and because Attorney Roberts is not an appropriate licensed professional. (ECF No. 26). In his motion to strike, Defendant contends that this COM should be stricken as either untimely filed or as being deficient. See Motion to Strike (ECF No. 26).
See Berger v. Hahnemann Univ. Hosp., 2017 WL 5570340, at *3 (E.D. Pa. Nov. 17, 2017), aff'd, 765 Fed.Appx. 699 (3d Cir. 2019) (“A challenge to an untimely or deficient COM may[] be addressed through a motion to strike because motions to strike can be filed after the 60-day window required by Rule 1042.3(a), as they were here.”).
Defendant first asserts that Plaintiff's second COM should be stricken as it was not filed in a timely fashion and because Plaintiff did not request leave of court to file it. Motion (ECF No. 26) at ¶ 4. As discussed supra, Pennsylvania's COM rule is clear: a plaintiff must file a COM within 60 days of filing the complaint. Pa.R.C.P. 1042.3(a). Instantly, Plaintiff did not file either a COM or a request for an extension of time to file one by June 21, 2021, despite being on notice to do so through this Court's order. However, he filed a first COM on July 28, 2021. After that notice was stricken by this Court, he filed a second COM on August 25, 2021, in attempt to correct the deficiencies the first COM.
Federal courts have [] applied the two equitable considerations outlined in Womer to determine if an untimely filed COM may be accepted. In Stroud v. Abington Memorial Hospital, Judge Strawbridge observed that Womer “made it clear that the sixty-day deadline for filing a COM will be strictly construed and not lightly excused, while at the same time allowing a late-filing plaintiff to set out certain equitable considerations as would constitute a ‘reasonable explanation or legitimate excuse' for noncompliance under Pa. R. Civ. P. 3051.” 546 F.Supp.2d 238, 250 (E.D. Pa. 2008). See also Walsh v. Consol. Design & Eng'g, Inc., 2007 WL 2844829, at *5 (E.D. Pa. Sept. 28, 2007) (Ditter, J.) (noting that Womer dictates that “a party who fails to timely file a certificate of merit may be relieved from the requirement where the defaulting party provides a reasonable explanation or legitimate excuse”).Ramos v. Quien, 631 F.Supp.2d 601, 611 (E.D. Pa. 2008).
Despite being clearly on notice of the requirement to file a COM by June 21, 2021, Plaintiff has neither offered any rationale about why his COM was filed late nor why he did not request an extension of time from this Court. It is appropriate for a court, even in the case of a pro se litigant, to dismiss a malpractice claim under these circumstances. See Lee v. Abellos, 2014 WL 7271363, at *11 (E.D. Pa. Dec. 19, 2014) (dismissing malpractice claim where pro se “Plaintiff does not argue that he ‘substantially complied' with the Rule; nor, has he offered any explanation for failure to comply”); Berger, 2017 WL 5570340, at *3 (holding that where pro se plaintiff filed a deficient COM late and failed to raise any arguments as to why it was late, it is appropriate to strike the COM and the malpractice claim). Based upon the foregoing, this Court respectfully recommends that Plaintiff's COM be stricken from the record as it was untimely filed.
Defendant also contends that the COM should be stricken because Attorney Roberts is not an “appropriate licensed professional” consistent with the Pa.R.C.P. 1042.3(a)(1). Motion (ECF No. 26). Specifically, the Rule provides that “the ‘appropriate licensed professional' who supplies such a statement be an expert with sufficient education, training, knowledge and experience to provide credible, competent testimony.” Pa.R.C.P. 1042.3(a)(1) (note). Here, it is Defendant's position that Attorney Roberts, who has no experience with federal court criminal practice, is not qualified to offer testimony, and this Court should strike the COM for that reason. Motion (ECF No. 26). However, “[t]here is sparse guidance as to how a court should determine whether a professional supporting a certificate of merit is properly qualified to do so without the benefit of discovery and expert reports that are available in later stages of litigation.” Culver v. Specter, 2014 WL 4717836, at *5 (M.D. Pa. Sept. 22, 2014). In fact, “the COM requirement and its conditions are facts that can form the basis for a motion of summary judgment.” Bellezza v. Duffy, 2019 WL 639058, at *4 (M.D. Pa. Jan. 16, 2019), report and recommendation adopted, 2019 WL 636978 (M.D. Pa. Feb. 14, 2019). Thus, because the COM should be stricken as untimely filed, this Court will not address whether Attorney Roberts is an appropriate licensed professional at this juncture.
iv. Defendant's Motion to Dismiss
Having recommended that the COM should be stricken, this Court now considers Defendant's motion to dismiss the complaint. Defendant first contends that five of the six counts of Plaintiff's Complaint should be dismissed for failure to file a COM. Def.'s Br. (ECF No. 20) at 3-5. Also, Defendant contends that Plaintiff's claim for fraud upon the court should also be dismissed. Id. at 5-7.
a. Failure to File a COM
Defendant first contends that this Court should dismiss Plaintiff's legal malpractice claim because Plaintiff has not provided this Court with a COM. Def.'s Br. (ECF No. 20) at 3-4. There is no question that a COM was indeed required for Plaintiff to proceed with a legal malpractice claim. See Liggon-Redding, 659 F.3d at 260. Therefore, because this Court has stricken Plaintiff's COM, this Court respectfully recommends that Defendant's motion to granted and Plaintiff's legal malpractice claim be dismissed.
“The usual consequence for failing to file a certificate of merit that complies with Rule 1042.3 is dismissal of the claim without prejudice. See Booker v. United States, 366 Fed.Appx. 425, 427 (3d Cir. 2010).” Morrison v. United States, 2021 WL 4192086, at *7 (M.D. Pa. Sept. 15, 2021). “However, dismissal with prejudice is proper when the statute of limitations has run on the claim.” Id. Pennsylvania's statute of limitations for a legal malpractice claims is two years pursuant to 42 Pa.C.S. § 5524(7).
Here, Plaintiff has asserted that some of the conduct giving rise to the filing of the Complaint occurred in 2020. Compl. (ECF No. 1) at ¶ 10. Thus, the statute of limitations may not have run; therefore, it is respectfully recommended that Plaintiff's legal malpractice claim be dismissed without prejudice.
In addition to the legal malpractice claim, Defendant asserts that four other claims should be dismissed. Specifically, Defendant contends that Plaintiff's claims for breach of fiduciary duty, breach of contract, intentional infliction of emotional distress, and negligent infliction of emotional distress should be dismissed here because they all implicate Defendant's conduct allegedly falling below the standard of care. Def.'s Br. (ECF No. 20) at 4.
i. Breach of Fiduciary Duty
In his Complaint, Plaintiff asserts that Defendant's failing to “to complete the 3582 action in he filed in federal court” breached “his fiduciary, legal and ethical duty to Plaintiff.” Compl. (ECF No. 1) at ¶ 23. It is Defendant's position that this claim requires the filing of a COM based on the allegations presented. Def.'s Br. (ECF No. 20) at 4-5.
“The requirement of filing a certificate of merit attaches not by the wording of the complaint, but by the substance of the claim.” Walsh v. Consol. Design & Eng'g, Inc., 2007 WL 2844829, at *7 (E.D. Pa. Sept. 28, 2007). A breach of fiduciary duty claim that alleges an attorney's conduct fell below the standard of care may sound in malpractice and require a COM. Id. Here, Plaintiff's allegations are essentially the same as those set forth in his legal malpractice claim. Accordingly, this Court respectfully recommends that Defendant's motion to dismiss be granted and Plaintiff's breach of fiduciary duty claim be dismissed without prejudice.
ii. Breach of Contract
In his Complaint, Plaintiff asserts that “Defendant breached his contract with Plaintiff by failing to perform his duties and obligations in a timely manner without excuse or otherwise was not in compliance with the obligations placed on Defendant by his Agreement with Plaintiff.” Compl. (ECF No. 1) at ¶ 26. Defendant contends that these allegations implicate a claim for legal malpractice. Def.'s Br. (ECF No. 20) at 4-5.
The failure to file a COM for a breach of contract claim where the claims “are based solely on breach of professional duties” is fatal to the claim. Perez v. Griffin, 304 Fed.Appx. 72, 75 (3d Cir. 2008). Here, Plaintiff allegations clearly implicate the breach of professional duties, and therefore a COM was required. It follows then that this Court's recommendation to strike the COM means that this Court will also respectfully recommend that Defendant's motion to dismiss this claim be granted, and that Plaintiff's claim for breach of contract be dismissed without prejudice.
iii. Intentional and Negligent Infliction of Emotional Distress
In his Complaint, Plaintiff asserts that Defendant's “legal representation” was “intentional or reckless” and caused emotional distress to him. Compl. (ECF No. 1) at ¶ 36. Plaintiff also asserts that Defendant's “legal representation” was “negligent or reckless” and caused emotional distress to him. Id. at ¶ 39. Defendant contends that these allegations implicate a claim for legal malpractice. Def.'s Br. (ECF No. 20) at 4-5.
“[C]ourts applying Pennsylvania law in legal-malpractice actions have agreed that NIED or IIED claims are [] viable.” Morse v. Hare, 2020 WL 836234, at *5 (W.D. Pa. Feb. 19, 2020). However, because this Court has recommended dismissal of the legal malpractice claim without prejudice, it follows it is appropriate to recommend the dismissal of these claims without prejudice as well.
b. Fraud Upon the Court
Finally, Defendant contends that Plaintiff's claim for fraud upon the court be dismissed. Def.'s Br. (ECF No. 20) at 5-7. Plaintiff asserts a claim for fraud upon the court due to Defendant's “submitting false information to Judge Ambrose” stating that the prison “was providing appropriate medical care to Plaintiff when in fact, the Defendant was continually advised to the contrary.” Compl. (ECF No. 1) at ¶ 28.
To establish the “necessarily demanding standard for proof of fraud upon the court, ” a Plaintiff must assert the following: “(1) an intentional fraud; (2) by an officer of the court; (3) which is directed at the court itself; and (4) in fact deceives the court.” Herring v. United States, 424 F.3d 384, 387 (3d Cir. 2005). While the court views the allegations set forth by Plaintiff with skepticism, Plaintiff, viewing the allegations in the light most favorable to him, has sufficiently alleged facts support to the claim that Defendant intentionally deceived the court. Accordingly, it is respectfully recommended that Defendant's motion to dismiss this claim be denied.
D. Conclusion
For all the foregoing reasons, it is respectfully recommended that Defendant's motion to strike Plaintiff's COM be granted. In addition, it is respectfully recommended that Defendant's motion to dismiss be granted in part and denied in part. Specifically, this Court recommends that Defendant's motion to dismiss be granted with respect to Plaintiff's claims for legal malpractice, breach of fiduciary duty, breach of contract, and both negligent and intentional infliction of emotional distress be dismissed without prejudice. Furthermore, it is respectfully recommended that Defendant's motion to dismiss Plaintiff's claim for fraud upon the court be denied.
Plaintiff should note that the filing of an Amended Complaint does not extend the time in which he has to file a COM. See Nuyannes v. Thompson, 2011 WL 5428720, at *2 (E.D. Pa. Nov. 8, 2011) (“[T]he filing of an amended complaint does not afford the plaintiff an additional sixty days in which to file a certificate of merit.”). Thus, to file a timely COM, Plaintiff would have to dismiss this action without prejudice pursuant to Fed. Rule Civ. Pro. 41(a)(1), then file a new action with a COM up its filing or within sixty days thereof. However, Plaintiff should be mindful of the statute of limitations if he chooses to take this route.
Pursuant to the Magistrate Judges Act, 28 U.S.C. § 636(b)(1)(B) and (C), and Rule 72.D.2 of the Local Civil Rules, the Plaintiff, because he is a non-electronically registered party, must file objections to this Report and Recommendation by January 6, 2022, and Defendants are allowed until January 3, 2022, to file objections. Failure to timely file objections will constitute a waiver of any appellate rights. Brightwell v. Lehman, 637 F.3d 187, 193 n. 7 (3d Cir. 2011). Any party opposing objections may file their objections and any response to the initial objections within fourteen (14) days thereafter in accordance with Local Civil Rule 72. Dated: December 20, 2021.
Arthur J. Schwab Judge