Santos v. Sacks
| Decision Date | 30 September 1988 |
| Docket Number | Civ. A. No. 87-2538. |
| Citation | 697 F. Supp. 275 |
| Parties | Manuel B. SANTOS, et al. v. Bernard SACKS, Esquire, et al. |
| Court | U.S. District Court — Eastern District of Louisiana |
Robert E. Winn, Sharon Mize, Sessions, Fishman, Rosenson, Boisfontaine, Nathan & Winn, New Orleans, La., for plaintiffs.
Paul B. Deal, Francis Mulhall, Lemle, Kelleher, Kohlmeyer, Dennery, Hunley, Moss & Frilot, New Orleans, La., for defendants John P. Massicot, Silvestri, Marinaro & Massicot.
ORDER AND REASONS
The motion of defendants, John Massicot and the firm of Silvestri, Marino & Massicot (Silvestri & Massicot), to dismiss and for judgment on the pleadings and the motion of plaintiffs, Judith and Manuel Santos, to transfer were submitted on a prior date. After reviewing the motions, the memoranda of counsel, the record, and the law, the Court will deny plaintiffs' motion to transfer and grant defendants' motion to dismiss. In addition, the Court raises sua sponte the issue of the law applicable to plaintiffs' contract claim for legal malpractice. The Court finds that a Louisiana choice of law analysis weighs in favor of applying Florida law to the contract claim asserted against Bernard Sacks and Sacks & Basch and Louisiana law to the contract claim against John Massicot and Silvestri & Massicot.
This is an action for legal malpractice filed against defendants, Bernard Sacks, the law firm of Sacks & Basch, John Massicot, and the law firm of Silvestri & Massicot, for sub-standard conduct in handling Manuel Santos's maritime personal injury suit. The facts which gave rise to this litigation are as follows. Manuel Santos, a resident of Florida, was injured in the Bahamas aboard a vessel in January, 1983. Santos hired Bernard Sacks, of Philadelphia, Pennsylvania, to prosecute his lawsuit. The employment contract between Santos and Sacks was signed by Santos in Florida. John Massicot of New Orleans, Louisiana also served as counsel for Santos in the personal injury suit. The legal association between Santos and Massicot arose solely by virtue of the acts of Bernard Sacks. Sacks associated Massicot and the Silvestri & Massicot firm to handle the case. The agreement between Sacks and Massicot provided that Massicot would receive forty percent of the net fee obtained from the case, with Sacks to receive sixty percent, and that Sacks would pay and approve all advanced costs. As a further condition of the referral, Sacks was to be consulted before any settlement agreements were perfected and was to maintain all direct contact with the client. In addition, Bernard Sacks's name was to appear on all pleadings as "Of Counsel". The letterhead of Sacks & Basch already listed Silvestri & Massicot as "Of Counsel".
Sacks and Massicot filed the personal injury suit in the Eastern District of Louisiana even though Louisiana had nothing to do with the claim. None of the parties resided in Louisiana and the injury did not occur there. The Court subsequently dismissed Santos's maritime claims against RCA Service Company, AUTEC III, and Landing Craft # 164 for lack of subject matter jurisdiction and against the United States of America for untimeliness. The suit, Manuel Santos v. RCA Service Company, et al., Civil Action No. 83-3927 (E.D. La.), was dismissed with prejudice on October 22, 1985. On October 25, 1985, Massicot sent Santos a letter informing him of the dismissal of the personal injury suit and advising Santos that he may have a claim against Massicot for malpractice.
Manuel Santos and his wife filed this malpractice action on February 18, 1987 in the United Stated District Court for the Eastern District of Pennsylvania. Judge Shapiro of that district found that venue was improper because neither all of the plaintiffs nor all of the defendants resided in the Eastern District of Pennsylvania and the claim did not arise there. Ruling that plaintiffs' cause of action arose in the Eastern District of Louisiana, Judge Shapiro transferred the action to this district pursuant to 28 U.S.C. § 1406(a). Plaintiffs seek a transfer back to the Eastern District of Pennsylvania on the ground that the decision of the Pennsylvania Court was erroneous. Alternatively, plaintiffs seek a transfer under 28 U.S.C. § 1404(a) to the United States District Court for the Middle District of Florida.
When a motion to transfer is granted and the case is transferred to another district, "the transferee-district should accept the ruling on the transfer as the law of the case and should not re-transfer `except under the most impelling and unusual circumstances' or if the transfer order is `manifestly erroneous.'" In Re Cragar Industries, Inc., 706 F.2d 503, 505 (5th Cir.1983), quoting, United States v. Koenig, 290 F.2d 166, 173 n. 11 (5th Cir.1961), aff'd, 396 U.S. 121, 82 S.Ct. 654, 7 L.Ed.2d 614 (1962). Because this Court finds that Judge Shapiro's decision is not manifestly erroneous, it will not transfer this action back to the United States District Court for the Eastern District of Pennsylvania.
Title 28, United States Code, Section 1391(a) provides:
A civil action wherein jurisdiction is founded only on diversity of citizenship may, except as otherwise provided by law, be brought only in the judicial district where all plaintiffs or all defendants reside, or in which the claim arose.
A claim arises in the district where the most substantial contacts relating to the claim occurred. Cheeseman v. Carey, 485 F.Supp. 203, 211 (S.D.N.Y.1980), remanded on other grounds, 623 F.2d 1387 (2nd Cir. 1980). The Supreme Court has recognized that "in the unusual case in which it is not clear that the claim arose in only one specific district, a plaintiff may choose between those two (or conceivably even more) districts that with approximately equal plausibility — in terms of the availability of witnesses, the accessibility of other relevant evidence, and the convenience of the defendant (but not of the plaintiff) — may be assigned as the locus of the claim." Leroy v. Great Western United Corp., 443 U.S. 173, 185, 99 S.Ct. 2710, 2717, 61 L.Ed.2d 464 (1979). The majority of the decisions interpreting Leroy have found that multi-district venue exists "only where the claim had very substantial contacts with, or a close relationship to, each of the districts claimed as potentially appropriate." Cheeseman, 485 F.Supp. at 212.
Plaintiffs urge this Court to hold that this malpractice action arose in the Eastern District of Pennsylvania. That is where Bernard Sacks, the attorney who signed the contract to represent Manuel Santos, lives and works. John Massicot, the attorney Bernard Sacks retained to handle the case with him, had substantial contact with Pennsylvania as he received numerous referrals from the Pennsylvania firm. Bernard Sacks was "Of Counsel" to the Massicot firm and Silvestri & Massicot was "Of Counsel" to the Sacks firm.
These facts illustrate the professional relationship between the defendants regarding the personal injury claim. In contrast, the Eastern District of Louisiana is where Manuel Santos's personal injury claim was filed and where the most significant acts giving rise to the malpractice claim occurred. The Court finds that this district has more substantial contacts to the lawsuit than does the Eastern District of Pennsylvania and, accordingly, will accept the ruling of the transferor court.
Title 28, United States Code, Section 1404(a) provides:
For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.
Before an action can be transferred under this statute, the transferee court must have personal jurisdiction over all parties and venue must be proper in that district. Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction § 3828; Cooper v. Valley Line Company, 320 F.Supp. 483 (W.D.Pa.1970).
In order to pass upon plaintiffs' motion to transfer, the Court requested affidavits regarding the contacts that John Massicot and Silvestri & Massicot (the Massicot defendants) have with Florida.1 After carefully evaluating all of the relevant facts and the applicable law, the Court concludes that the requirements of 28 U.S. C. § 1404(a) are not satisfied because the Massicot defendants are not subject to personal jurisdiction in Florida.
A federal district court in a diversity action may assert personal jurisdiction over a nonresident defendant only to the extent permitted by the laws of the forum. Mack Trucks v. Arrow Aluminum Castings Co., 510 F.2d 1029, 1031 (5th Cir.1975); Arrowsmith v. United Press International, 320 F.2d 219, 222 (2nd Cir.1963). However, "regardless of the breadth of the state statute, the exercise of jurisdiction over a defendant must comport with the ... due process clause of the fourteenth amendment." Gold Kist, Inc. v. Baskin-Robbins Ice Cream, 623 F.2d 375, 377 (5th Cir.1980).
In light of these considerations, this Court will first determine whether the Massicot defendants are amenable to personal jurisdiction under the Florida long-arm statutes. If the requirements of the Florida long-arm statutes are satisfied, federal law will be applied to determine whether the assertion of jurisdiction is consistent with due process.
The Court notes at the outset that Florida has elected not to extend long arm jurisdiction to the full extent permitted by the Constitution. Bloom v. A.H. Pond Co., Inc., 519 F.Supp. 1162, 1165 (S.D.Fla.1981); Pollard v. Steel Systems Construction Co., Inc., 581 F.Supp. 1551, 1552 (S.D.Fla. 1984). Further, plaintiffs, as the party seeking to invoke jurisdiction under the long-arm statute, have the burden to plead...
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