Case Information
*1 Before: SMITH, GREENAWAY, JR. and VAN ANTWERPEN, Circuit Judges . (Opinion Filed: March 22, 2013 )
______
OPINION OF THE COURT
______
PER CURIAM
Allеn 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 *2 (“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‟ compensatiоn 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. 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 schеme to hire medical experts who would only present favorable testimony so they need not pay legitimately injured workers, even if they knew such *3 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. 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 а 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 filеd motions for costs and fees pursuant to Federal Rule of Appellate Procedure 38 and 28 U.S.C. § 1927.
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
,
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.” F ED . R. E VID . 201(b). A court may consider
judicially noticeable facts without converting а motion to dismiss into a motion for
summary judgment.
See Tellabs, Inc. v. Makor Issues & Rights, Ltd.
,
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 *5 Court of Pennsylvania provides the public with free access to disсiplinary records, including the form of discipline imposed, the date it was imposed, and the reasoning underlying the imposition of discipline. 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
,
When alleging fraudulent conduct, the complaint must satisfy the heightened
standard in F ED . R. C IV . 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
,
1. Claim Against Harris
*6 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 P A . C ONS . S TAT . § 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
,
Feingold filed the instant complaint on February 29, 2012. He was first suspended
from the practice of law on March 3, 2006, аnd so ceased representing Harris as of that
date. Any potential cause of action related to his representation of Harris accrued at that
time,
Fowkes
,
2. Claim for Fraud
Feingold brings a claim for common law fraud against the remaining Appellees. In Pennsylvania, a plaintiff must establish the following for a claim of fraud: “(1) a
representation; (2) which is material to the transactiоn 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 defеndant‟s
misrepresentations.‟”
Debbs v. Chrysler Corp.
,
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
meеt 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
,
3. Abuse of Process
The District Court interpreted Feingold‟s complaint as raising an “abuse of process” claim against Appelleеs. Such claims are subject to a two-year statute of limitations. 42 P A . C ONS . S TAT . § 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 аction 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
,
C. Appellees’ Motions for Fees and Costs
Appellees MDWCG and Michelle Punturi filed a motiоn seeking costs and fees under Federal Rule of Appellate Procedure 38 and 28 U.S.C. § 1927. Appellees Graff, *9 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 *10 Appellant‟s failure to рlead 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.
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 *11 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 dеfend 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
,
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
,
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‟ aрpellate costs, expenses, and attorneys‟ fees to be “just damages” for Feingold‟s frivolous litigation.
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
*13
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
,
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.
Notes
[1] Neither Harris, nor an attorney on her behalf, entered an appearance before the District
Court.
Feingold v. Graff
, No. 12-1090,
[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] 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/pа-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.
[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 P A . C ONS . S TAT . § 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.
[5] The same holds true for Feingold‟s claim for punitive damages.
Pioneer Commercial
Funding Corp. v. Amer. Fin. Mortg. Corp.
,
[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
,
[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).
[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).
[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, expеnses, 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
,