Son v. City of Philadelphia et al

MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM

E.D. Pa.August 31, 2016

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA _____________________________________ : YONG CHUL SON : : Plaintiff, : : v. : NO. 16-4011 : CITY OF PHILADELPHIA, SEPTA, : JACK M. BERNARD, ESQ., GARY : BROWNSTEIN,ESQ. and MONTGOMERY : COUNTY, PA : : Defendants. : : DEFENDANT, SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY’S MOTION TO DISMISS PLAINTIFF’S CLAIMS AGAINST IT PURSUANT TO FED. R. CIV. P. 12(B)(6) Pursuant to Federal Rule of Civil Procedure 12(b)(6), Defendant Southeastern Pennsylvania Transportation Authority hereby moves to dismiss any Claims against SEPTA with prejudice. In support of said Motion, moving defendant incorporates by reference the attached Memorandum of Law as though set forth in full herein. Respectfully submitted, /s/ William H. Pillsbury Mark E. Gottlieb, Esquire (ID. No. 26595) William H. Pillsbury, Esq. (ID. No. 93734) Brian M. Collins, Esq. (ID No. 208159) OFFIT KURMAN Ten Penn Center, Suite 2300 1801 Market Street Philadelphia, PA 19103 (267) 338-1319 (Phone) (267) 338-1335 (Facsimile) Joshua D. Groff GREEN, SILVERSTEIN & GROFF, LLC 215 S. Broad Street, Suite 500 Case 2:16-cv-04011-MSG Document 3 Filed 08/31/16 Page 1 of 8 2 Philadelphia, PA 19107 (215) 972-5520 (Phone) (215) 972-5544 (Facsimile) Attorneys for Defendant SEPTA Case 2:16-cv-04011-MSG Document 3 Filed 08/31/16 Page 2 of 8 3 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA _____________________________________ : YONG CHUL SON : : Plaintiff, : : v. : NO. 16-4011 : CITY OF PHILADELPHIA, SEPTA, : JACK M. BERNARD, ESQ., GARY : BROWNSTEIN,ESQ. and MONTGOMERY : COUNTY, PA : : Defendants. : : DEFENDANT, SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY’S MEMORANDUM OF LAW IN SUPPORT OF ITS MOTION TO DISMISS PLAINTIFF’S CLAIMS AGAINST IT PURSUANT TO FED. R. CIV. P. 12(B)(6) Defendant, Southeastern Pennsylvania Transportation Authority, incorrectly named in the Complaint as SEPTA Transportation (“SEPTA”), files this Memorandum of Law in Support of its Motion to Dismiss Plaintiff, Yong Chul Son’s (“Plaintiff”) Claims against SEPTA pursuant to Fed. R. Civ. P. 12(b)(6). I. INTRODUCTION Plaintiff’s Complaint alleges claims against City of Philadelphia Mayor’s Office, SEPTA, Jack M. Bernard, Esquire, Gary Brownstein, Esquire, and the Montgomery County Court of Common Pleas. See Plaintiff’s Complaint, p. 1. The “Basis for Jurisdiction” set forth in the Complaint are various Rules of Professional Conduct. Id., p. 2. The underlying basis for the claim appears to be a motor vehicle accident that occurred in 1987. Id., p. 2. Plaintiff claims that his mother slipped and fell under a SEPTA bus, resulting in her death. Id., p. 3. Plaintiff claims Case 2:16-cv-04011-MSG Document 3 Filed 08/31/16 Page 3 of 8 4 that he hired Co-Defendant attorneys Jack Bernard, Esquire and Gary Brownstein, Esquire, to represent his interest, as the administrator of this mother’s estate. Id., pp. 3-4. Ultimately, the Montgomery County Court of Common Pleas approved settlement of $50,000.00 for a claim brought by Plaintiff, represented by Co-Defendant Brownstein, against Co-Defendant Bernard arising from Bernard’s failure to commence any action relating to the 1987 accident within the applicable statute of limitations. See Exhibit E to Plaintiff’s Complaint. Thus, the gist of Plaintiff’s Complaint appears to be some dissatisfaction with the resolution of Plaintiff’s malpractice claim, and allegation that some violation of the Rules of Professional Conduct and dissatisfaction with the handling of his legal matter(s). Plaintiff’s Complaint fails to articulate any facts that could conceivably support liability against SEPTA and for that reason must be dismissed. II. ARGUMENT A. The Legal Standard. The United States Court of Appeals for the Third Circuit has stated the following standard for dismissal under Fed. R. Civ. P. 12(b)(6) for a failure to state a claim upon which relief may be granted: 1) The court must accept all factual allegations in the complaint as true, construe the complaint in the light favorable to the plaintiff, and ultimately determine whether plaintiff may be entitled to relief under any reasonable reading of the complaint. In order to withstand a motion to dismiss, a complaint’s factual allegations must be enough to raise a right to relief above the speculative level. This requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. 2) A court is not required to accept legal conclusions alleged in the complaint. Case 2:16-cv-04011-MSG Document 3 Filed 08/31/16 Page 4 of 8 5 3) The pleading must contain sufficient factual allegations so as to state a facially plausible claim for relief. A claim possesses such plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. 4) In deciding a 12(b)(6) motion, a court must consider only the complaint, exhibits attached to the complaint, matters of public record, as well as undisputedly authentic documents if the complainant’s claims are based upon these documents. Mayer v. Belichick, 605 F.3d 223 (3d Cir. N.J. 2010) (emphasis added). Furthermore, “In determining the sufficiency of a pro se complaint, the Court must be mindful to construe it liberally in favor of the plaintiff.” See Erickson v. Pardus, 551 U.S. 89, 93- 94 (2007)(following Estelle v. Gamble, 429 U.S. 97, 106 (1976) and Haines v. Kerner, 404 U.S. 519 (1972). See also United States v. Day, 969 F.2d 39, 42 (3d Cir. 1992). Although the standard is less stringent for pro se litigants, the complaint must still set forth facts which, taken as true, state a claim as a matter of law. King v. Cuyler, 541 F. Supp. 1230 (E.D. Pa. 1982)(citing Guy v. Swift & Co., 612 F.2d 383 (8th Cir. 1980)). The Court need not credit a pro se plaintiff's "bald assertions" or "legal conclusions." Morse v. Lower Merion School Dist., 132 F.3d 902, 906 (3d Cir. 1997). B. The Complaint Fails To State A Claim Against SEPTA Plaintiff’s Complaint fails to assert any theory or set forth any facts which could support a claim against SEPTA. While Plaintiff does complain about the underlying bus accident, he offers no theory or facts which could support a claim against SEPTA when the cause of action would have started to accrue nearly thirty years ago. Case 2:16-cv-04011-MSG Document 3 Filed 08/31/16 Page 5 of 8 6 While courts may hold pro se litigants to less stringent standards in their pleadings, even pro se parties are required to conform to the most basic pleading requirements in stating a claim. See Rhett v. New Jersey State Superior Court, 260 Fed. Appx. 513 (3rd Cir. 2008) (reviewing whether a pro se complaint complied with the pleading requirements of Fed. R. Civ. P. 8(a) and 8(e), and affirming dismissal because the facts indicated that any further amendment of plaintiff’s "rambling pleadings" would have been futile). See also Erickson v. Pardus, 551 U.S. 89 (2007) (in a pro se prisoner civil rights complaint, the Court reviewed whether the complaint complied with the pleading requirements of Fed. R. Civ. P. 8(a)(2)). In the present case, even under the most liberal reading, Plaintiff’s Complaint does not, and cannot, state a claim against SEPTA given the passage of time. Indeed, it was the passage of time, and the expiration of the two-year statute of limitation for personal injury claims (42 Pa. Consol. Stat. § 5524(2)), which gave rise in the first place to Plaintiff’s retention of Co- Defendant Brownstein in the 1991 malpractice suit against Co-Defendant Bernard in the Montgomery County Court of Common Pleas. This history is set forth in Exhibit E to Plaintiff’s Complaint. Thus, clearly, the gravamen of Plaintiff’s Complaint is his dissatisfaction with legal services and the subsequent settlement of the estate claim (which was Court approved). As a result, Plaintiff’s claims against SEPTA should be dismissed as there is no conceivable theory that Plaintiff could assert against SEPTA twenty-nine years after the bus accident. Case 2:16-cv-04011-MSG Document 3 Filed 08/31/16 Page 6 of 8 7 III. CONCLUSION For the above reasons, SEPTA respectfully requests that the Court grant an Order dismissing any claims against it with prejudice, pursuant to Fed. R. Civ. P. 12(b)(6), on the grounds that it fails to state a claim upon which relief can be granted. Respectfully submitted, /s/ William H. Pillsbury Mark E. Gottlieb, Esquire (ID. No. 26595) William H. Pillsbury, Esq. (ID. No. 93734) Brian M. Collins, Esq. (ID No. 208159) OFFIT KURMAN Ten Penn Center, Suite 2300 1801 Market Street Philadelphia, PA 19103 (267) 338-1319 (Phone) (267) 338-1335 (Facsimile) Joshua D. Groff GREEN, SILVERSTEIN & GROFF, LLC 215 S. Broad Street, Suite 500 Philadelphia, PA 19107 (215) 972-5520 (Phone) (215) 972-5544 (Facsimile) Attorneys for Defendant SEPTA Case 2:16-cv-04011-MSG Document 3 Filed 08/31/16 Page 7 of 8 CERTIFICATE OF SERVICE I, Brian M. Collins, Esquire, hereby certify that a true and correct copy of the foregoing Motion to Dismiss, Memorandum of Law and proposed Order were served as indicated below: VIA U.S. MAIL Yong Chul Son 50 Delia Boulevard 2nd Floor Palisades Park, NJ 07650 VIA U.S. MAIL City of Philadelphia Law Department 1515 Arch Street 14th Floor Philadelphia, PA 19102 VIA U.S. MAIL Montgomery County Court of Common Pleas Office of the Prothonotary Swede & Airy Streets Norristown, PA 19404 VIA U.S. MAIL Jack Bernard, Esquire Land Title Building 100 S. Broad Street, Suite 930 Philadelphia, PA 19107 VIA ELECTRONIC FILING Gary Brownstein, Esquire __/s/ Brian M. Collins Dated: August 31, 2016 Case 2:16-cv-04011-MSG Document 3 Filed 08/31/16 Page 8 of 8