Legal Malpractice

A Frivolous Legal Malpractice Case

By (Andrew Lavoott Bluestone)

Legal Malpractice cases are dismissed upon a motions on the pleadings.  It happens not infrequently.  It seems that legal malpractice actions are more scrupulously examined for the "but for" portion of the matter than might occur in other aras of the law.

Here is a case in which not only was the case dismissed at pleadings, but it was ruled frivolous as a matter of law.  ACOSTA,, -against- BARRY M. FALLICK & ROCHMAN, PLATZER, FALLICK & STERNHEIM, LLP, 05 Civ. 8254 (KTD);  UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK;  2009 U.S. Dist. LEXIS 70878; August 11, 2009, Decided
 

"Plaintiff alleges violations of 41 U.S.C. § 37 and 28 U.S.C. § 1927, but neither of these statutes provide a legal basis for his claims. First, 41 U.S.C. § 37 authorizes the Comptroller General of the United States to distribute to certain government agencies lists of persons who have breached public contracts. See 41 U.S.C. § 37. The fee agreement in this case is not a public contract, so it is not covered under the statute. Further, the statute does not authorize a private right of action or money damages at all.

Second, 28 U.S.C. § 1927 provides that an "attorney . . . who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys' fees reasonably incurred because of such conduct." 28 U.S.C. § 1927. In this case, Plaintiff alleges facts opposite to the evil that the statute seeks to prevent--unreasonable and vexatious expansion of litigation. See id. Plaintiff [*5] alleges that his attorney minimized his criminal proceedings allegedly in violation of the fee agreement by failing to file several motions and inducing Plaintiff to sign a plea agreement.

It is true that when a plaintiff proceeds pro se, I must construe his complaint broadly. See Livingston, 141 F.3d at 437. However, Plaintiff's complaint in this case, broadly construed, alleges only facts most closely resembling state law breach of contract and legal malpractice claims over which this Court does not have subject matter jurisdiction. As Defendants point out, complete diversity is lacking and Plaintiff does not claim more than $ 75,000 in damages, so 28 U.S.C. § 1332(a) cannot provide a basis for jurisdiction. Therefore, as Acosta's complaint lacks any basis in law and is consequently frivolous under 28 U.S.C. 1915 (e) (2) (B) (i), I must dismiss it.

Accordingly, Plaintiff's claims are DISMISSED. "

Full post as published by New York Attorney Malpractice Blog on August 18, 2009 (boomark / email).