Ciecka v. Rosen

• Decision Date: 05 November 2012
• Docket Number: Civil No. 12–3043 (JBS/AMD).
• Citation: 908 F.Supp.2d 545
• Parties: Vincent J. CIECKA, et al., Plaintiffs, v. Lance S. ROSEN, et al., Defendants.
• Court: U.S. District Court — District of New Jersey

908 F.Supp.2d 545

Vincent J. CIECKA, et al., Plaintiffs,

v.Lance S. ROSEN, et al., Defendants.

Civil No. 12–3043 (JBS/AMD).

United States District Court, D. New Jersey.

Nov. 5, 2012.

Michael Sussen, Esq., Joseph John Urban, Esq., Pennsauken, NJ, for Plaintiffs.

Jeffrey B. McCarron, Esq., Swartz, Campbell LLC, Philadelphia, PA, for Defendants.

OPINION

SIMANDLE, Chief Judge.

I. Introduction

Before the Court are Plaintiffs' motion to remand [Docket Item 4] and Defendants' motion to dismiss under Fed.R.Civ.P. 12(b)(6) [Docket Item 3].

This case arises from a dispute between two law firms who successively represented a personal injury client on the same matter. Plaintiffs Vincent J. Ciecka and his law firm, the Law Offices of Vincent J. Ciecka, P.C., represented Joseph Conway on a workers' compensation case and a personal injury suit against a third-party tortfeasor, until Conway terminated his relationship with Plaintiffs and retained Defendants Lance Rosen, Esq., and his law firm, Rosen, Moss, Snyder & Bleefeld, LLP, to take over the matters. Defendants settled all of Conway's claims. Plaintiffs now seek an equitable share of the fee paid to Defendants, based on the work that Plaintiffs did in preparing Conway's case. Plaintiffs also allege that Defendants tortiously interfered with their contractual relationship with Conway and tortiously interfered with prospective economic advantage after Conway discharged, and later inquired about rehiring, Plaintiffs.

Defendants removed the case to this Court, and Plaintiffs now seek remand, arguing that less than $75,000.00 is in dispute so that diversity jurisdiction under 28 U.S.C. § 1332 is not present. As explained below, because the action was removed properly and Plaintiffs may not amend their complaint now to defeat federal diversity jurisdiction, the motion to remand will be denied. Moving to the merits of the case, the Court finds that Pennsylvania law applies to the quantum meruit claim, and because Pennsylvania law does not permit such an action between successive law firms, the motion to dismiss that claim will be granted. However, Plaintiffs do state a claim for tortious interference with prospective economic advantage, and thus Defendants' motion to dismiss will be denied in part.

II. BackgroundA. Facts

On February 16, 2007, Joseph Conway, age 35, a New Jersey resident, was struck by a dumpster while working on a construction site at a downtown hotel in Philadelphia and sustained serious personal injuries.¹ [Compl. ¶¶ 6, 27; Docket Item 1.] A month later, Conway contacted Plaintiffs, who are members of the New Jersey bar having their principal office in New Jersey, and entered into a written contingency fee agreement for them to represent him for all claims related to the accident, including the workers' compensation claim. [Compl. ¶ 7.] Plaintiffs performed legal services for Conway over a period of approximately 15 months. [Compl. ¶¶ 9, 21.]

At some point, Conway started to question whether he was satisfied with his representation. His neighbor had previously been a client of Defendant Rosen and, in May 2008, Conway visited Rosen in Philadelphia to get a “second opinion” about his case. [Statement of Conway at 3.] Conway asked if Rosen could help him find someone to oversee his medications and physical therapy, and if Rosen could refer him to a surgeon. [Statement of Conway at 4.] Rosen “promise[d]” to do so. [ Id. at 3, 17.] Conway later asserted that, because of the pain medication he was using, he was not “able to think straight and recognize and know what [he was] doing at or near the time [he] went to Mr. Rosen.” [Statement of Conway at 4.]

Conway decided to discharge Plaintiffs and retain Defendants to handle the rest of his case. Rosen wrote a letter to Plaintiffs advising that he was taking over Conway's case and requested the case file. [Compl. ¶ 11; Compl. Ex. 1.]

Ciecka responded in writing that his firm was asserting an attorney lien for services rendered. [Compl. ¶ 13.] Ciecka wrote a second letter to Rosen and asserted the lien again: “I felt it would be fair to forward these matters to you on a normal one third referral fee basis, based on the time, effort, and expense my office has invested in Mr. Conway's cases ... Please confirm receipt of Mr. Conway's file ....” [Compl. ¶ 15 (first ellipsis in original).]

Defendants settled the workers' compensation portion of Conway's case in November 2008, for sum of $250,000, resulting in an attorneys' fee of $45,000. [Compl. ¶ 18.] On February 12, 2009, Plaintiffs wrote Penn National Insurance Co. and Zurich Insurance Co. to put them on notice that were asserting a lien on the settlements of Conway's claims. [Compl. ¶ 19.]

In October 2009, Defendant Daniel Moss alerted Plaintiffs that the third-party portion of Conway's case settled for $750,000, resulting in an attorneys' fee of $250,000. [Compl. ¶ 20.] Moss offered Plaintiffs $10,000 as a “participatory share,” which Plaintiffs rejected as being in bad faith. [Compl. ¶ 20.] Ciecka proposed that his firm's proper share was one-third of the $295,000 in total fees, or $98,333.34. [Compl. ¶ 24.]

In the end, Plaintiffs represented Conway and performed services for him from March 16, 2007, until June 13, 2008, a period of approximately 15 months. [Compl. ¶ 21.] Defendants represented Conway from June 14, 2008, to September 14, 2009, also a period of approximately 15 months. [Compl. ¶ 21.]

After the third-party portion of Conway's case settled, Plaintiffs' office manager authorized Rosen's firm to distribute settlement funds to Conway, while holding the “fee in abeyance pending the conclusion of our agreement pursuant to our participatory fees from the proceeds of this settlement.” [Compl. ¶ 22.]

Months later, in June 2011, Ciecka received a phone call from Conway, inquiring about suing Rosen, who Conway said took unfair advantage of him while Conway was addicted to Oxycontin. [Compl. ¶ 25.] Plaintiffs learned from Conway that, during the pendency of his case, Conway had wanted to switch his representation back to Plaintiffs, and had asked Rosen whether he could, because he felt the case was “over [Rosen's] head.” [Statement of Conway at 6.] Rosen, on at least six or seven occasions, told Conway that he could not take the case back to Plaintiffs. [ Id.] Conway said that he never contacted Ciecka about switching back to Plaintiffs, because he didn't believe he was “allowed to,” and because Rosen said that everything was under control. [Statement of Conway at 14.]

B. Procedural History

Plaintiffs filed this action in New Jersey Superior Court, and Defendants removed the case pursuant to 28 U.S.C. §§ 1441 & 1446 on the basis of diversity jurisdiction. [Notice of Removal ¶ 1.] Defendants plead that Ciecka is a citizen of New Jersey, and the Law Offices of Vincent J. Ciecka, P.C., is organized, and has its principal place of business, in New Jersey. [ Id. ¶¶ 6–7.] Defendants assert that Rosen, Moss, Snyder & Bleefeld LLP is organized under the laws of Pennsylvania and is a citizen of Pennsylvania [ id. ¶ 8, Notice of Removal, Exh. B. ¶ 2], all Defendants are citizens of Pennsylvania, [Notice of Removal ¶ 12], and the amount in controversy exceeds $75,000. [ Id. ¶ 14.]

In the complaint, Plaintiffs assert two counts for compensation based on the work they performed for Conway, the first for Conway's personal injury claim (“Count I”) and the second for his workers' compensation claim (“Count II”). [Compl. ¶¶ 30–36.] Plaintiffs also assert tortious interference with the contractual relationship between Plaintiffs and Conway (“Count III”). [Compl. ¶ 37.] Plaintiffs have offered to stipulate that they are not seeking a sum of $75,000 or greater, and they would agree to cap damages in a lesser amount so that the case could be remanded to Superior Court.

Oral argument was held on October 23, 2012. [Docket Item 11.] A few days later, Defendants informed the Court that they would not agree to the stipulated damages cap. [Docket Item 12.]

III. Plaintiffs' Motion to RemandA. Arguments

Plaintiffs move to remand. [Docket Item 4.] In an affidavit, Michael Sussen, counsel for Plaintiffs, asserts “that the value of Plaintiffs' claims do not and cannot exceed $75,000.00. I hereby explicitly waive Plaintiffs' right to damages exceeding $75,000.00. I hereby assert that Plaintiffs'[sic] will not accept damages in excess of the Jurisdictional amount, even if awarded.” [ Id. ¶¶ 2–4.] Plaintiffs argue that, by stipulating to a damages cap, they are “clarifying” rather than “amending” their complaint.² [Docket Item 4–1 at 2.]

Defendants decline to stipulate to the damages cap. [Docket Item 12.] They argue that the complaint, fairly read, seeks an amount in controversy in excess of $75,000. [Def. Opp'n at 5.] Because Plaintiffs have not established to a legal certainty that the amount in controversy cannot exceed the statutory minimum, Defendants argue that the motion to remand must be denied. [ Id. at 5–6.]

B. Discussion

If the plaintiff does not specifically aver in the complaint that the amount in controversy is less than the jurisdictional requirement, a two-step analysis applies. Samuel–Bassett v. KIA Motors Am., Inc., 357 F.3d 392, 398 (3d Cir.2004). First, the defendant bears the burden of proof of establishing jurisdiction, and must establish jurisdictional facts by a preponderance of the evidence. Id. at 397–98. If the defendant makes such a showing, then the court looks to whether, to a “legal certainty,” the plaintiff cannot meet the minimum amount in controversy requirement based on the facts as found, and if so, the court must dismiss the case. Id. at 396–97. A plaintiff who wants to litigate in state court is free to limit its claim to avoid federal jurisdiction. See e.g., Morgan v. Gay, 471 F.3d 469, 474 (3d Cir.2006) (discussing the same holding in St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 294, 58 S.Ct. 586, 82 L.Ed. 845 (1938)). However,...