City of Greensburg v. Wisneski

• Citation: 75 F.Supp.3d 688
• Decision Date: 08 January 2015
• Docket Number: Civil Action No. 14–1345.
• Parties: CITY OF GREENSBURG, Plaintiff, v. Edward WISNESKI et al., Defendants.
• Court: U.S. District Court — Western District of Pennsylvania

75 F.Supp.3d 688

CITY OF GREENSBURG, Plaintiff

v.Edward WISNESKI et al., Defendants.

Civil Action No. 14–1345.

United States District Court, W.D. Pennsylvania.

Signed Jan. 8, 2015.

Bernard T. McArdle, Stewart, McArdle, Sorice, Whalen, Farrell, Finoli & Cavanaugh, LLC, Greensburg, PA, for Plaintiff.

Robert M. Owsiany, Attorney at Law, Pittsburgh, PA, for Defendants.

Robert M. Owsiany, Pittsburgh, PA, pro se.

MEMORANDUM OPINION

JOY FLOWERS CONTI, Chief Judge.

I. Introduction

This memorandum opinion addresses the motion to remand to state court (ECF No. 8) filed by plaintiff City of Greensburg (“Greensburg”). Greensburg filed a three-count complaint in state court against defendants Edward Wisneski (“Wisneski”) and his counsel, Robert M. Owsiany (“Owsiany” and together with Wisneski “Defendants”). That lawsuit was timely removed by Defendants to this court. Greensburg asserts three state-law claims relating to an unsuccessful lawsuit brought by Wisneski against Greensburg in this court. The state-law claims are abuse of process (count 1); wrongful use of civil proceedings under 42 Pa. Cons.Stat. §§ 8351 –54, sometimes called the Dragonetti Act (count 2); and civil conspiracy (count 3). In the unsuccessful federal lawsuit, Wisneski asserted only federal civil rights claims against Greensburg. Wisneski v. Denning, Civil No. 12–864. Wisneski had sued Greensburg and individual Greensburg police officers for excessive use of force and for failure to adequately train police officers. Owsiany represented Wisneski in that federal lawsuit. The federal district court granted a motion for summary judgment filed by Greensburg and the other defendants and entered judgment for them and against Wisneski. In this case, Greensburg asserts, among other things, that the underlying lawsuit was frivolous and brought for the improper purpose of “intimidating” Greensburg and seeking a “ransom” settlement. (Compl. ¶¶ 45–46.) Greensburg seeks money damages including the recovery of attorney's fees and costs expended defending the underlying suit.

Greensburg moved to remand the case to state court. On December 9, 2014, the court held a hearing on this motion.

II. Legal Standards for Removal and Remand

A defendant may remove a civil action from state court to federal district court when the federal court has original jurisdiction over the action and removal is not expressly prohibited by statute. 28 U.S.C. § 1441. The removing party has the “heavy burden of showing that at all stages of the litigation the case is properly before the federal court.” Brown v. Jevic, 575 F.3d 322, 326 (3d Cir.2009). “If at any time before final judgment it appears that the district court lacks subject matter jurisdiction,” the court must remand the case to state court. 28 U.S.C. § 1447(c). “Removal statutes are to be strictly construed, with all doubts to be resolved in favor of remand.” Brown, 575 F.3d at 326.

III. Discussion

The parties agree that the court cannot exercise diversity jurisdiction over this case. Defendants claim federal-question jurisdiction as the basis for removal. District courts have federal-question jurisdiction over “all civil actions arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. Under § 1331, a civil action can “aris[e] under” federal law in two ways. Primarily, “a case arises under federal law when federal law creates the cause of action asserted.” Gunn v. Minton, –––U.S. ––––, 133 S.Ct. 1059, 1064, 185 L.Ed.2d 72 (2013). The “vast bulk” of federal-question suits fall under this rule. Id. The Supreme Court has also identified a “slim category” of state-law causes of action that nevertheless give rise to federal-question jurisdiction. Id. at 1065.

In determining whether a case arises under federal law for the purpose of removal, courts follow the “ ‘well-pleaded complaint’ rule.” Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 9, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983). Under this doctrine, “a defendant may not remove a case to federal court unless the plaintiff's complaint establishes that the case ‘arises under’ federal law.” Id. at 10, 103 S.Ct. 2841. In this case, the three claims in Greensburg's complaint arise under state law. The abuse of process and civil conspiracy claims are raised under Pennsylvania common law. The Dragonetti Act count is a Pennsylvania statutory claim. On the face of the complaint, there are no claims created by federal law.

Whether this case falls into the “slim category” of state-law claims that give rise to federal jurisdiction is a difficult question. The Supreme Court acknowledged a lack of clarity about this issue and compared the relevant case law to a Jackson Pollock painting. Gunn, 133 S.Ct. at 1065. The two most recent Supreme Court decisions addressing this issue, Grable & Sons Metal Products, Inc. v. Darue Engineering & Manufacturing, 545 U.S. 308, 125 S.Ct. 2363, 162 L.Ed.2d 257 (2005), and Gunn, have brought more definition to the contours of this category. For federal jurisdiction to lie over a state-law cause of action, the state-law claim must “necessarily raise a stated federal issue, actually disputed and substantial, which a federal forum may entertain without disturbing any congressionally approved balance of federal and state judicial responsibilities.” Grable, 545 U.S. at 314, 125 S.Ct. 2363. This means that “federal jurisdiction over a state law claim will lie if a federal issue is: (1) necessarily raised, (2) actually disputed, (3) substantial, and (4) capable of resolution in federal court without disrupting the federal-state balance approved by Congress.” Gunn, 133 S.Ct. at 1065. These factors will be addressed in turn.

A. Necessarily Raised

A federal issue is necessarily raised “where the vindication of a right under state law necessarily turn[s] on some construction of federal law.” Franchise Tax Bd., 463 U.S. at 9, 103 S.Ct. 2841. In Gunn, the Supreme Court found that a state-law legal malpractice claim necessarily raised a federal issue. Gunn, 133 S.Ct. at 1065. The underlying suit was a federal patent infringement case. In order to prevail in the malpractice suit, the plaintiff had to prove that the attorney's breach was the proximate cause of the plaintiff's injury. This “case within a case” analysis would require the application of federal patent law to determine whether the plaintiff would have prevailed in the patent infringement case had the attorney not breached a duty owed to the plaintiff. Id.

The Court of Appeals for the Third Circuit analyzed the “necessarily raised” factor in a recent precedential decision, Manning v. Merrill Lynch Pierce Fenner & Smith, Inc., 772 F.3d 158 (3d Cir.2014). In that case, the plaintiffs filed a ten-count complaint in New Jersey state court alleging that the defendants manipulated the share price of a stock by engaging in abusive short selling practices. Id. at 160. All ten claims were asserted under New Jersey law, but the complaint repeatedly invoked the requirements of SEC Regulation SHO, 17 C.F.R. §§ 242.200 –.204, which regulates short sales. Manning, 772 F.3d at 161 (“There is no question that Plaintiffs assert in their Amended Complaint, both expressly and by implication, that Defendants repeatedly violated federal law.”). The defendants removed the case to federal court, and the district court denied the plaintiffs' motion to remand.

The Third Circuit Court of Appeals reversed, finding no necessarily raised federal issue. The district court found that the state-law claims were predicated on a violation of Regulation SHO. The court of appeals “conclude[d] it was improper for the District Court to foreclose the possibility that particular state causes of action could permit recovery solely under state law.” Id. at 163. Regulation SHO was not an element of any of the plaintiffs' claims. Id. Even if the plaintiffs' claims “were partially predicated on federal law, federal law would still not be necessarily raised.” Id. at 164. “ ‘[A] claim supported by alternative theories in the complaint may not form the basis for [federal] jurisdiction unless [federal] law is essential to each.’ ” Id. (alterations in original) (quoting Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 810, 108 S.Ct. 2166, 100 L.Ed.2d 811 (1988) ).

Under the analysis set forth in Gunn and Manning, the court must look at the elements of the state-law causes of action. As noted, there are three state-law claims asserted in Greensburg's complaint: wrongful use of civil proceedings, abuse of process, and civil conspiracy.

1. Wrongful Use of Civil Proceedings

To establish the wrongful use of civil proceedings, a plaintiff must prove that (1) the underlying proceedings were terminated in the plaintiff's favor, (2) the defendant caused the proceeding to be instituted without probable cause, and (3) the proceedings were instituted primarily for an improper cause. Sabella v. Estate of Milides, 992 A.2d 180, 188 (Pa.Super.Ct.2010) ; see 42 Pa. Cons.Stat. § 8354. Probable cause is defined by statute.

A person who takes part in the procurement, initiation or continuation of civil proceedings against another has probable cause for doing so if he reasonably believes in the existence of the facts upon which the claim is based, and either:

(1) reasonably believes that under those facts the claim may be valid under the existing or developing law;

(2) believes to this effect in reliance upon the advice of counsel, sought in good faith and given after full disclosure of all relevant facts within his knowledge and information; or

(3) believes as an attorney of record, in good faith that his procurement, initiation or continuation of a civil cause is not intended to merely harass or maliciously injure the opposite party.

42 Pa. Cons.Stat. § 8352. As applied to this case, the second and third subdivisions in the probable cause statute do not implicate federal law, but the first subdivision does. For a plaintiff to prevail on a claim...