Enrique DIAZ, Plaintiff-Appellant, v. William J. SHEPPARD, Defendant-Appellee.
No. 94-3308
United States Court of Appeals, Eleventh Circuit.
June 25, 1996.
E. Did the Motive For the Override Violate the Equal Protection Clause?
Petitioner argues that the Alabama Supreme Court‘s mention of the number of white defendants on death row in Alabama for the killing of blacks (zero) indicates an intention to “balance the books” by considering the petitioner‘s race in determining sentence, in violation of his right to equal protection. But, this mention was only part of an extended discussion of elements favoring the imposition of the death penalty. These elements were Hays‘s moral depravity, the shocking nature of the crime, and the inability to explain the jury‘s sentence. And, even if the Alabama Supreme Court did look at historical statistics, it might just as well not have been to “balance the books” but to find some motivation to explain the jury‘s failure to impose the death penalty. That is, the Alabama Supreme Court was attributing a racial motive to the jury‘s decision, rather than setting out a racial motive for its own decision to reinstate the sentence imposed by the trial judge. See, e.g., Ex parte Hays, 518 So.2d at 776-77 (noting that “[t]he jury‘s recommendation of life imprisonment in this case is unquestionably a bizarre result,” and recalling that in previous cases “the death penalty had likely been imposed in an arbitrary or capricious manner based upon racial discrimination“). By setting out this historical background, the Alabama court was merely suggesting a possible reason for a sentence that it would have reversed regardless of the jury‘s underlying methodology. Because Hays has failed to meet his burden of showing a decision-maker acted with a discriminatory purpose, his equal protection argument fails. McCleskey v. Kemp, 481 U.S. 279, 296-97, 107 S.Ct. 1756, 1769, 95 L.Ed.2d 262 (1987).
In conclusion, Petitioner‘s conviction did not violate constitutional rights. The decision of the district court is AFFIRMED. The petition for the writ of habeas corpus is DENIED.
Todd Pittenger, John A. Reed, Jr., Lowndes, Drosdick, Doster, Kantor & Reed, PA, Orlando, FL, for appellant.
William J. Sheppard, Jacksonville, FL, pro se.
D. Gray Thomas, Elizabeth White, Jacksonville, FL, for appellee.
* Honorable James K. Logan, Senior U.S. Circuit Judge for the Tenth Circuit, sitting by designation.
EDMONDSON, Circuit Judge:
This appeal is about a lawyer‘s professional responsibility and about federal jurisdiction. Plaintiff Enrique Diaz, a Florida prisoner, appeals the district court‘s denial of his motion for remand to state court and dismissal of his case for failure to state a claim. Because the federal court lacked jurisdiction to hear this case, we reverse and remand with instructions to the district court to remand this case to state court.
Background
For the facts we look to the complaint‘s allegations. Diaz was a member of the class in a class action suit filed by inmates of the Florida Department of Corrections (“DOC“) in the United States District Court for the Middle District of Florida challenging the DOC‘s physical and mental health care delivery system. The case was known as Celestineo and Costello v. Singletary, 147 F.R.D. 258 (M.D.Fla.1993) (“Costello“). The class was represented by Defendant William Sheppard.1
In 1992, the Costello court issued a notice of proposed stipulated final judgment which proposed closing the case based on findings that the DOC had a constitutionally adequate system of delivering physical and mental health care. The court ordered notification of the proposed judgment to class members and established a time for class members to file comments or objections. Diaz wrote Sheppard a letter “begging” him not to agree to the proposed final judgment because it did not provide for one hour of outdoor exercise per day; nor did it prevent CM inmates from being placed on the Yard Suspension List (“YSL“). Sheppard, however, did not contest the lack of outdoor exercise. After reviewing the objections during a hearing, the district court entered a final judgment closing the Costello case.
In 1994, Diaz sued Sheppard in Florida state court alleging (1) legal malpractice, (2) negligence, and (3) breach of contract. Diaz claims that in agreeing to the stipulated final judgment upholding just two hours per week of CM out-of-cell exercise, Sheppard, in effect, negligently settled too cheaply. Diaz says Sheppard ignored (1) a “large body of case law” that requires prison administrators to provide all CM inmates with at least one hour of out-of-cell exercise per day: a mistake about the legal strength of the prisoners’ claim and (2) the opinions in the Costello case of the district court‘s “own appointed medical experts:” a mistake about the evidentiary strength of the prisoners’ claim.
Sheppard‘s motion to remove Diaz‘s case to federal court pursuant to
Discussion
Sheppard claims that jurisdiction is proper in the district court because Diaz is attempting to relitigate matters determined in Costello. Sheppard claims that Diaz had the opportunity to object to the proposed final judgment in Costello and that the malpractice action is just an untimely objection to the settlement in Costello.2 In addition, Sheppard says this case arises under federal law because resolution of Diaz‘s claims necessarily turns on the construction of federal law, that is, the Eighth Amendment to the United States Constitution. See Franchise Tax Board v. Construction Laborers Vacation Trust, 463 U.S. 1, 8-10, 103 S.Ct. 2841, 2846, 77 L.Ed.2d 420 (1983).
Diaz says he is seeking not outdoor exercise or declaration of some constitutional right, but only money damages for Sheppard‘s malpractice. Diaz contends that even if a court must, in deciding a case, interpret federal law, that fact does not necessarily mean the claim is sufficient to confer federal
Diaz basically argues that no interpretation of federal law is necessary to adjudicate his state law claims: the fundamental legal standards are substantially undisputed. He says that, in the light of well-settled federal case law, Sheppard ignored the Costello court‘s appointed experts who recommended one hour of exercise per day. Briefly stated, Diaz charges that Sheppard unreasonably underestimated the strength of the prisoners’ case and, as a result, stipulated to a judgment that was too unfavorable.
On a motion to remand, the removing party bears the burden of establishing jurisdiction. See Tapscott v. MS Dealer Serv. Corp., 77 F.3d 1353, 1356 (11th Cir. 1996). The removal statute should be construed narrowly with doubt construed against removal. See Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 107-09, 61 S.Ct. 868, 872, 85 L.Ed. 1214 (1941). We look at the complaint. As a general rule, a case arises under federal law only if it is federal law that creates the cause of action. See Franchise Tax Board, 463 U.S. at 8-10, 103 S.Ct. at 2846. The case, however, may arise under federal law “if a well-pleaded complaint established that [the] right to relief under state law requires resolution of a substantial question of federal law in dispute between the parties.” Id. at 13, 103 S.Ct. at 2848. But, the “mere presence of a federal issue in a state cause of action does not automatically confer federal-question jurisdiction.” Merrell Dow, 478 U.S. at 813, 106 S.Ct. at 3234. See also Moore v. Chesapeake & Ohio Ry. Co., 291 U.S. 205, 212-15, 54 S.Ct. 402, 405–06, 78 L.Ed. 755 (1934) (that part of state statutory scheme requires some analysis of federal law is insufficient to invoke federal jurisdiction).3
The district court erred in denying Diaz‘s motion to remand. The nature of Diaz‘s complaint is that Sheppard is guilty of malpractice, negligence and breach of contract under Florida law. (We do not hint that Diaz‘s claim has merit or even that he has stated a claim upon which relief can be granted under Florida law). No substantial question of federal law must be answered to determine plaintiff‘s claims, and federal jurisdiction is lacking. See Ray v. Tennessee Valley Authority, 677 F.2d 818, 825-26 (11th Cir.1982) (holding, pre-Franchise Tax Board, that district court had no federal jurisdiction to hear malpractice case arising from defendant attorney‘s representation, per appointment by court, of plaintiff in
Whether Sheppard in Costello misread or disregarded federal law in such an unreasonable way so as to constitute legal malpractice in Florida is ultimately a question of state law. In the complaint, the Eighth Amendment is mentioned only to support an element of Diaz‘s state law claim. Cf. Hill v. Marston, 13 F.3d 1548, 1550 (11th Cir.1994) (complaint alleging violations by defendant lawyer of state securities registration statutes did not arise under federal law for purposes of federal question jurisdiction, even
If the pertinent Eighth Amendment law was debatable, to decide whether Sheppard‘s understanding of the applicable law in Costello was within the range of the reasonable will require no precise determination of what the pertinent federal law was in reality; so no substantial question of federal law needs to be decided. If the pertinent Eighth Amendment law truly was clearly settled before the stipulated judgment was entered in Costello, no substantial question of federal law is presented: the question has already been answered. We have no doubt that a state court can, if need be, resolve matters of federal constitutional law to the point necessary to determine whether Sheppard‘s understanding of the law was unreasonable.
More important, because Diaz contends that Sheppard wrongfully ignored the opinion evidence of the court-appointed experts, the professional responsibility claims in the complaint do not hinge on the substance of the Eighth Amendment (whatever it may be exactly and about which there may be no controversy). Instead, they hinge on his lawyer‘s alleged negligence in evaluating the prisoners’ case and in basically agreeing to an inadequate settlement given all the circumstances in the Costello case—including the expert opinions supporting the need for more exercise and the status, in fact, of the law (uncertain or debatable or settled) at the time.4 See Hudson Ins. Co. v. American Elec. Corp., 957 F.2d 826, 829 (11th Cir.1992) (no federal jurisdiction in declaratory judgment action to determine insurer‘s liability because right to relief did not depend on resolution of CERCLA).
The district court lacked subject-matter jurisdiction over Diaz‘s complaint.5 We vacate and remand to the district court with instructions to remand the case to state court.
VACATED AND REMANDED.
LOGAN, Senior Circuit Judge, dissenting:
If I could view this as simply a case of a client suing his lawyer, a resident of the same state, for malpractice I would concur in the majority opinion. But the malpractice action here is by a member of a class certified under
In contrast, Laskey v. UAW, 638 F.2d 954 (6th Cir.1981), rejected a legal malpractice claim against the UAW, which represented plaintiffs in a federal class action, in the following words:
Since appellants had the opportunity to object to the legal representation at the prior settlement hearing and since a finding that the class was adequately represented is necessary for finding the settlement was fair and reasonable, which in turn was essential to approving the settlement, appellants are collaterally estopped from now asserting that the legal representation was not adequate and that the UAW committed legal malpractice.
Id. at 957 (citation omitted). In McNeil v. Guthrie, 945 F.2d 1163 (10th Cir.1991), the court held that a plaintiff prisoner dissatisfied with actions of class counsel has two options: to “seek to intervene in the class action” or to “file a collateral suit alleging that class counsel is not adequately representing the class.” Id. at 1167. These were regarded as the only available remedies because of the potential for abuse of class counsel. “Class counsel is entitled to be free from harassment by class members.” Id.
Although no Eleventh Circuit cases have involved a suit against class counsel, Eleventh Circuit precedent is consistent with McNeil. In fact, McNeil cited Guthrie v. Evans, 815 F.2d 626 (11th Cir.1987), in which a dissatisfied class member sought to appeal a district court‘s judgment in a prison conditions class action. The court ruled that the class member lacked standing, stating that “[t]he procedures for class actions are carefully set forth in Fed.R.Civ.P. 23.” Id. at 628. It held the class member (who could not opt out of the class) had only two available avenues of relief: a motion to intervene or a collateral proceeding to challenge the adequacy of the representation. Nonrecognition of a malpractice action against class counsel would also seem compelled by the following oft-cited comments of the Fifth Circuit, binding in the Eleventh Circuit, in Adams Extract Co. v. Pleasure Hours, Inc. (In re Corrugated Container Antitrust Litigation), 643 F.2d 195, 212 (5th Cir.1981):
It is, ultimately, in the settlement terms that the class representatives’ judgment and the adequacy of their representation is either vindicated or found wanting. If the terms themselves are fair, reasonable and adequate, the district court may fairly assume that they were negotiated by competent and adequate counsel; in such cases, whether another team of negotiators might have accomplished a better settlement is a matter equally comprised of conjecture and irrelevance.
Despite the general rule that federal rules of procedure do not create causes of action, clearly whether a class member may sue class counsel for malpractice arising out of a federal court-approved settlement is a federal question. The one court that has explicitly recognized the possibility of a malpractice suit against class counsel indicates that “the bounds of a class counsel‘s fiduciary duty with respect to notice are determined in large part by due process and Rule 23 requirements.” Zimmer Paper Products, 758 F.2d at 91. One commentator who favors such an action states that “the class action court‘s responsibility under Federal Rule of Civil Procedure 23 to assess the adequacy of class counsel makes it unlikely that the court will use malpractice actions as a means of enforcing class counsels’ obligations.” Koniak at 15. In arguing for recognition that author indicates a malpractice action must be based upon an interpretation of the require-
Thus, I would hold that the complaint in the instant case is a claim derived from federal law and that the case was properly removed to federal court. I would affirm the district court‘s dismissal of the action for the reason that we would not recognize a malpractice claim against class counsel.
For these reasons I respectfully dissent.
John D. PURCELL, et al., Plaintiffs-Appellees, v. BANKATLANTIC FINANCIAL CORPORATION, a Florida corporation, et al., Defendants-Appellees. William A. SMITH, et al., Plaintiffs-Appellees, v. BANKATLANTIC FINANCIAL CORPORATION, a Florida corporation, et al., Defendants-Appellees. Timothy J. CHELLING, Plaintiff-Appellee, v. BANKATLANTIC FINANCIAL CORPORATION, a Florida corporation, et al., Defendants-Appellees. American Broadcasting Companies, Inc., William H. Wilson, Appellants.
Nos. 94-4831, 94-5079.
United States Court of Appeals, Eleventh Circuit.
June 25, 1996.