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INGEMI v. PELINO & LENTZ

November 3, 1994

ANNA MARIE INGEMI, TRUSTEE OF THE JOSEPH INGEMI TRUST dated 11/4/80, Plaintiff,
v.
PELINO & LENTZ, JEANNE SCHUBERT BARNUM, ESQ., MARTIN R. LENTZ, ESQ., JOHN W. PELINO, ESQ., HOWARD A. ROSENTHAL, ESQ., and PELINO & LENTZ, P.C., Defendants. PELINO & LENTZ, P.C. and HOWARD ROSENTHAL, Third Party Plaintiffs, v. GARY J. MCCARTHY, Third Party Defendant.



The opinion of the court was delivered by: STANLEY S. BROTMAN

 BROTMAN, DISTRICT JUDGE:

 Presently before the court are plaintiff's motion to remand this matter to the state court of original jurisdiction pursuant to 28 U.S.C. § 1447(c), and defendants' motions to confirm this court's subject matter jurisdiction, to dismiss or, in the alternative, for partial summary judgment. In addition, the third party defendant has moved to dismiss the third party amended complaint. For the reasons set forth below, plaintiff's motion to remand is granted and defendants' motions are denied without prejudice. Similarly, since the third party amended complaint does not present independent grounds for this court to exercise subject matter jurisdiction over the third party action, the third party defendant's motion to dismiss is granted. The third party complaint is dismissed without prejudice.

 I. FACTUAL AND PROCEDURAL BACKGROUND

 In September 1990, plaintiff Anna Marie Ingemi, Trustee of the Joseph S. Ingemi Trust and a citizen of New Jersey, contacted a New Jersey attorney, Maury B. Reiter *fn1" , to pursue a claim for pension benefits on behalf of her son and herself. During a meeting with Reiter, she expressed her desire to retain New Jersey counsel who could handle the matter which involved her husband's estate, trust and pension distributions, and tax issues. He referred her to third party defendant Gary J. McCarthy *fn2" , who Reiter knew as an attorney at Pelino & Lentz, a New Jersey law firm. Plaintiff met McCarthy for the first time at Reiter's New Jersey law office and reiterated that she was seeking New Jersey counsel. She asserts that it was her understanding that McCarthy was a licensed New Jersey attorney and was a New Jersey resident. *fn3" During this meeting, McCarthy informed her that although he was not a litigator, Pelino & Lentz could represent her. Plaintiff maintains that if she had been made aware that the matter would not be handled by a "bona fide" New Jersey law firm, she would have selected another New Jersey firm.

 In 1994, plaintiff sued defendants for legal malpractice *fn4" alleging that they mishandled the underlying litigation. Plaintiff instituted suit in the Superior Court of New Jersey against the New Jersey law firm of Pelino & Lentz (operating as a general partnership and exclusively conducting business in New Jersey) *fn5" and its managing attorney, Jeanne Schubert Barnum, both citizens of New Jersey (the "New Jersey defendants"). Plaintiff also sued the Pennsylvania law firm of Pelino & Lentz, P.C. (a Pennsylvania professional corporation) ("P.C.") and several members of the firm including Howard Rosenthal and named directors John Pelino and Martin Lentz, all citizens of Pennsylvania.

 The New Jersey defendants removed plaintiff's suit to this court and now seek dismissal or summary judgment contending that no cause of action could be established against them and that they were fraudulently joined. In effect, the New Jersey defendants argue that their citizenship should be disregarded for purposes of determining diversity and removal jurisdiction.

 Plaintiff filed a timely petition for remand to the Superior Court of New Jersey. Plaintiff also seeks costs and reasonable attorney fees associated with the motion to remand pursuant to 28 U.S.C. § 1447(c).

 The crux of the parties' dispute over jurisdiction involves determining the scope of plaintiff's engagement of Pelino & Lentz and its attorneys. The New Jersey Defendants contend that Pelino & Lentz had nothing to do with the litigation, and that plaintiff knew she was represented by P.C. alone. In support, defendants aver the following:

 
1. Plaintiff engaged P.C., not Pelino & Lentz;
 
2. Plaintiff was billed by P.C., not Pelino & Lentz;
 
3. The only defendant who gave advice and acted on the judgmental and strategic issues was Howard Rosenthal, a P.C. lawyer; and
 
4. Pelino & Lentz merely served as local counsel, performed ministerial tasks, and pursued discovery and motion practice in a manner which did not require making judgments or giving advice regarding prejudgment remedies or settlements.

 Plaintiff, in support of her motion to remand, counters that she was under the impression that Pelino & Lentz and Pelino & Lentz, P.C. were one and the same entity, and that Pelino & Lentz were her lawyers, in part because:

 
1. Her initial contacts with Pelino & Lentz attorney McCarthy were in New Jersey.
 
2. All defendants represented themselves as agents of the New Jersey firm.
 
3. She met with defendants at Pelino & Lentz offices;
 
4. She called defendants at the New Jersey offices;
 
5. She discussed the strategy and status of the case with at least two Pelino & Lentz attorneys, Richard Coe and James Miller;
 
6. She responded to interrogatories with the assistance of Mr. Coe at the New Jersey office;
 
7. The New Jersey defendants drafted, reviewed, filed and mailed all pleadings;
 
8. Correspondence and pleadings were sent to the New Jersey defendants at the ...

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