Brice et al v. Hoffert et al

MOTION to Dismiss for Lack of Jurisdiction

E.D. Pa.July 27, 2016

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA _____________________________________________________________________________ KENNETH BRICE and CHRISTINE BRICE, h/w, : CIVIL ACTION : Plaintiffs, : No. 15-4020 v. : : KIM BAUER, JOHN HOFFERT, ESQUIRE, : THOMAS L. KLONIS, ESQUIRE and HOFFERT : & KLONIS, P.C., : : Defendants. : _____________________________________________________________________________ MOTION OF DEFENDANTS, JOHN HOFFERT, ESQUIRE, THOMAS L. KLONIS, ESQUIRE AND HOFFERT & KLONIS, P.C. TO DISMISS THE REMAINING STATE LAW CLAIMS AGAINST THEM FOR LACK OF SUBJECT MATTER JURISDICTION Defendants, John Hoffert, Esquire, Thomas L. Klonis, Esquire and Hoffert & Klonis, P.C. (“Attorney Defendants”) move this Court for an order dismissing the plaintiffs’ remaining state law claims against Attorney Defendants for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(h)(3). For the reasons set forth in the accompanying brief, all of the claims against the Attorney Defendants which formed the basis for the Court’s original jurisdiction have been withdrawn and there are no extraordinary circumstances warranting the Court’s exercise of supplemental jurisdiction over plaintiffs’ remaining state law claims against the Attorney Defendants. Therefore, under Third Circuit precedent, the Court must decline to exercise supplemental jurisdiction over the remaining state law claims and the claims must be dismissed. Case 5:15-cv-04020-JFL Document 148 Filed 07/27/16 Page 1 of 2 2 WHEREFORE, defendants, John Hoffert, Esquire, Thomas L. Klonis, Esquire and Hoffert & Klonis, P.C. request that the Court enter an order dismissing the remaining state law claims (Counts V, VI and VII) against them for lack of jurisdiction. Respectfully submitted, /s/Kathleen M. Carson Jeffrey B. McCarron Kathleen M. Carson SWARTZ CAMPBELL LLC Two Liberty Place, 28 th Floor 50 South 16 th Street Philadelphia, PA 19102 Telephone (215) 564-5190 Fax (215) 299-4301 jmccarron@swartzcampbell.com kcarson@swartzcampbell.com Dated: July 27, 2016 Case 5:15-cv-04020-JFL Document 148 Filed 07/27/16 Page 2 of 2 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA _____________________________________________________________________________ KENNETH BRICE and CHRISTINE BRICE, h/w, : CIVIL ACTION : Plaintiffs, : No. 15-4020 v. : : KIM BAUER, JOHN HOFFERT, ESQUIRE, : THOMAS L. KLONIS, ESQUIRE and HOFFERT : & KLONIS, P.C., : : Defendants. : _____________________________________________________________________________ ORDER AND NOW, this day of , 2016, the Motion of Defendants, John Hoffert, Esquire, Thomas L. Klonis, Esquire and Hoffert & Klonis, P.C. to dismiss plaintiffs’ remaining state law claims against them for lack of jurisdiction is GRANTED. Counts V, VI and VII of the Amended Complaint are dismissed. BY THE COURT: ____________________________________ J. Case 5:15-cv-04020-JFL Document 148-1 Filed 07/27/16 Page 1 of 1 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA _____________________________________________________________________________ KENNETH BRICE and CHRISTINE BRICE, h/w, : CIVIL ACTION : Plaintiffs, : No. 15-4020 v. : : KIM BAUER, JOHN HOFFERT, ESQUIRE, : THOMAS L. KLONIS, ESQUIRE and HOFFERT : & KLONIS, P.C., : : Defendants. : _____________________________________________________________________________ BRIEF OF DEFENDANTS, JOHN HOFFERT, ESQUIRE, THOMAS L. KLONIS, ESQUIRE AND HOFFERT & KLONIS, P.C., IN SUPPORT OF THEIR MOTION TO DISMISS THE REMAINING STATE LAW CLAIMS AGAINST THEM FOR LACK OF SUBJECT MATTER JURISDICTION Defendants, John Hoffert, Esquire, Thomas L. Klonis, Esquire and Hoffert & Klonis, P.C. (“Attorney Defendants”), submit this brief in support of their motion to dismiss plaintiffs’ remaining claims against Attorney Defendants for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(h)(3). I. Statement of Questions Involved A. Whether the Court should exercise jurisdiction over the remaining state law claims against Attorney Defendants where plaintiffs have withdrawn the federal claims against Attorney Defendants on which this Court’s original jurisdiction was based? Suggested Response: No. II. Factual Background This action was commenced by plaintiffs, Kenneth and Christine Brice, against Attorney Defendants and the Brice’s daughter Kim Bauer on July 21, 2015. An amended complaint was filed against the parties on August 3, 2015. The claims asserted in the amended complaint against the Attorney Defendants which formed the basis for federal jurisdiction were claims for Case 5:15-cv-04020-JFL Document 148-2 Filed 07/27/16 Page 1 of 4 2 alleged violations of RICO, 18 U.S.C. §1962(b), (c) and (d). Plaintiffs also asserted certain state law claims against Attorney Defendants, including claims for breach of contract, negligence, breach of fiduciary duty, fraud and conspiracy. See Amended Complaint. On July 21, 2016, plaintiffs, by stipulation approved by this Court, withdrew their federal RICO claims against Attorney Defendants. See July 21, 2016 Order and Stipulation that Counts I, II, III, VIII And XVI and Certain Averments Only as to John Hoffert, Esquire, Individually, Thomas L. Klonis, Esquire, Individually and Hoffert & Klonis, P.C. are Withdrawn from the First Amended Complaint (ECF Document # 133). Accordingly, there no longer are any federal claims pursuant to which this Court has original jurisdiction over the Attorney Defendants. III. Summary of Argument The claims against the Attorney Defendants over which this Court has original jurisdiction have been withdrawn by plaintiffs. Where the claim over which the district court has original jurisdiction is dismissed before trial, under established Third Circuit precedent, the district court must decline to decide the pendent state claims unless considerations of judicial economy, convenience, and fairness to the parties provide an affirmative justification for doing so. There are no considerations of judicial economy, convenience or fairness to the parties to justify the Court’s retention of jurisdiction over the remaining state law claims against the Attorney Defendants. Accordingly, the Court must dismiss the remaining state law claims for breach of contract, negligence and breach of fiduciary duty against Attorney Defendants. IV. Argument A district court has discretion to “decline to exercise supplemental jurisdiction over a claim . . . if . . . [it] has dismissed all claims over which it has original jurisdiction . . . .” 28 U.S.C. §1367(c)(3). However, in the Third Circuit, when the federal claim has been, dismissed, Case 5:15-cv-04020-JFL Document 148-2 Filed 07/27/16 Page 2 of 4 3 “the court should ordinarily refrain from exercising [supplemental] jurisdiction in the absence of extraordinary circumstances.” Tully v. Mott Supermarkets, Inc., 540 F.2d 187, 196 (3d Cir. 1976); see also Univ. of Md. v. Peat, Marwick, Main & Co., 996 F.2d 1534, 1540 (3d Cir. 1993); Angeloni v. Diocese of Scranton, 135 Fed. Appx. 510, 514-15 (3d Cir. 2005); Bright v. Westmoreland County, 380 F.3d 729, 751 (3d Cir. 2004) (“[A]bsent extraordinary circumstances, where the federal causes of action are dismissed the district court should . . . refrain from exercising [supplemental] jurisdiction.”); Shaffer v. Bd. of Sch. Dirs. of Albert Gallatin Area Sch. Dist., 730 F.2d 910, 912 (3d Cir. 1984) (“We have held that pendent jurisdiction should be declined where the federal claims are no longer viable, absent ‘'extraordinary circumstances.’”). According to the Third Circuit, “where the claim over which the district court has original jurisdiction is dismissed before trial, the district court must decline to decide the pendent state claims unless considerations of judicial economy, convenience, and fairness to the parties provide an affirmative justification for doing so.” Hedges v. Musco, 204 F.3d 109, 123 (3d Cir. 2000) (quoting Borough of W. Mifflin v. Lancaster, 45 F.3d 780, 788 (3d Cir. 1995). There are no considerations of judicial economy and convenience which warrant the Court’s exercise of supplemental jurisdiction over the remaining state law claims against Attorney Defendants. The time already invested in litigating a state cause of action is an insufficient reason for the exercise of pendent jurisdiction where the federal claims have been dismissed. Cooley v. Pennsylvania Hous. Fin. Agency, 830 F.2d 469, 475-76 (3d Cir. 1987). See also, Shaffer v. Board of Sch. Directors of Albert Gallatin Area Sch. Dist., 730 F.2d at 912 (that some investment of time has already been made should not be given dispositive weight). There is no serious prejudice or unfairness to plaintiffs if the remaining state law claims against the Attorney Defendants are dismissed. Declining to exercise supplemental jurisdiction over Case 5:15-cv-04020-JFL Document 148-2 Filed 07/27/16 Page 3 of 4 4 plaintiffs’ remaining state law claims against Attorney Defendants is not unfair because plaintiffs knowingly risked dismissal of their pendent claims when they filed suit in federal district court and invoked the Court’s discretionary supplemental jurisdiction power. See Elias v. Twp. of Cheltenham, 2015 U.S. Dist. LEXIS 147993, *13 (E.D. Pa. Oct. 27, 2015). There is no significant prejudice to plaintiffs because plaintiffs can litigate their claims for breach of contract, negligence and breach of fiduciary duty against Attorney Defendants in state court. To the extent the parties have taken discovery, they will be able to use the information obtained in discovery in the state court proceedings. As such, there is no basis to believe dismissal of the state law claims will result in significant additional expense to plaintiffs. Moreover, comity favors allowing the appropriate state court to hear the state law claims in this matter. See Shaffer v. Board of Sch. Directors of Albert Gallatin Area Sch. Dist., 730 F.2d at 913. V. Conclusion The Court should decline to exercise supplemental jurisdiction over plaintiffs’ remaining state law claims against the Attorney Defendants and dismiss those claims. Respectfully submitted, /s/Kathleen M. Carson Jeffrey B. McCarron Kathleen M. Carson SWARTZ CAMPBELL LLC Two Liberty Place, 28 th Floor 50 South 16 th Street Philadelphia, PA 19102 Telephone (215) 564-5190 Fax (215) 299-4301 jmccarron@swartzcampbell.com kcarson@swartzcampbell.com Dated: July 27, 2016 Case 5:15-cv-04020-JFL Document 148-2 Filed 07/27/16 Page 4 of 4 3 CERTIFICATE OF SERVICE Kathleen M. Carson certifies that the foregoing Motion of Defendants, John Hoffert, Esquire, Thomas L. Klonis, Esquire and Hoffert & Klonis, P.C., to Dismiss the Remaining State Law Claims Against Them for Lack of Subject Matter Jurisdiction was served on counsel listed below via the ECF System on July 27, 2016. Alan L. Frank, Esquire Samantha Millrood, Esquire Alan Frank Law Associates, P.C. 135 Old York Road Jenkintown, PA 19046 afrank@alflaw.net smillrood@alflaw.net Ronald Williams, Esquire Stephanie Deviney, Esquire Danielle Ryan, Esquire Eagleview Corporate Center 747 Constitution Drive, Suite 100 P.O. Box 673 Exton, PA 19341-0673 rwilliams@foxrothschild.com sdeviney@foxrothschild.com dryan@foxrothschild.com /s/Kathleen M. Carson Kathleen M. Carson Case 5:15-cv-04020-JFL Document 148-3 Filed 07/27/16 Page 1 of 1