Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Phyllis Giannini and Joseph Robert Giannini v. Barry W. Rosenberg and and John M. Palm

June 8, 2012

PHYLLIS GIANNINI AND JOSEPH ROBERT GIANNINI,
PLAINTIFFS,
v.
BARRY W. ROSENBERG AND AND JOHN M. PALM, DEFENDANTS.



The opinion of the court was delivered by: Hillman, District Judge

OPINION

Plaintiffs Phyllis Giannini and her brother, a New Jersey licensed attorney, Joseph Giannini, claim that defendant Barry W. Rosenberg committed legal malpractice in his representation of the Mara Court Homeowners Association, of which Ms. Giannini was a member and past president. On behalf of the homeowners association, Rosenberg filed a New Jersey state court action against Ms. Giannini and two other past presidents for the reimbursement of payments to them that had not been sanctioned by the association's by-laws. Mr. Giannini represented his sister in that case. Plaintiffs claim that Rosenberg had a 25-year attorney/client relationship with Ms. Giannini, because through his representation of the association, he also represented her. Plaintiffs allege that Rosenberg committed malpractice by suing his own client - Ms. Giannini. Plaintiffs also contend that Rosenberg suborned perjured testimony by the association's current president, and committed fraud on the court.

Plaintiffs also claim that Rosenberg conspired with defendant John M. Palm, Secretary of the District IV Ethics Committee for the New Jersey Office of Attorney Ethics, to violate plaintiffs' constitutional rights when Rosenberg filed an ethics complaint against Mr. Giannini. After a bench trial in the association's state court action to recoup fees from Ms. Giannini, the state court judge found in favor of the association, and ordered Ms. Giannini to repay the association. The judge also awarded counsel fees to the association. As Rosenberg attempted to collect on the judgment entered against Ms. Giannini, Mr. Giannini filed motions to set aside the judgment. Related to Mr. Giannini's efforts to set aside the judgment, Rosenberg filed an ethics complaint against Mr. Giannini with the New Jersey Office of Attorney Ethics. Mr. Giannini then filed an ethics complaint against Rosenberg.

Plaintiffs claim that the ethics complaint filed by Rosenberg against Mr. Giannini was a sham in order to cover up his obstruction of justice and fraud on the court. Because Rosenberg's wife is a New Jersey Superior Court judge, and he feels he is shielded by his wife's robe, plaintiffs contend that Rosenberg conspired with Palm to inappropriately pursue the investigation into Mr. Giannini's conduct, and to inappropriately delay Mr. Giannini's complaint against Rosenberg. Plaintiffs allege that this conduct violated their due process and equal protection rights. The ethics complaint against Mr. Giannini has not reached its ultimate resolution.*fn1

Defendants have moved to dismiss plaintiffs' claims against them on various bases.*fn2 Rosenberg has also filed a motion for sanctions against plaintiffs for filing a frivolous lawsuit. Plaintiffs have opposed both motions. For the reasons expressed below, the Court will abstain from considering plaintiffs' claims regarding defendants' alleged conspiracy, deny the motion for sanctions, and decline to exercise supplemental jurisdiction over plaintiffs' state law legal malpractice claims.

DISCUSSION

A. Jurisdiction

Plaintiffs have brought their claims pursuant to 42 U.S.C. §§ 1983, 1985(2) and 1986, as well as pursuant to New Jersey state law. This Court has jurisdiction over plaintiffs' federal claims under 28 U.S.C. § 1331, and supplemental jurisdiction to hear plaintiffs' state law claims under 28 U.S.C. § 1367.*fn3

B. Motion to Dismiss Standard

When considering a motion to dismiss a complaint for failure to state a claim upon which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6), a court must accept all well-pleaded allegations in the complaint as true and view them in the light most favorable to the plaintiff. Evancho v. Fisher, 423 F.3d 347, 351 (3d Cir. 2005). It is well settled that a pleading is sufficient if it contains "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). Under the liberal federal pleading rules, it is not necessary to plead evidence, and it is not necessary to plead all the facts that serve as a basis for the claim. Bogosian v. Gulf Oil Corp., 562 F.2d 434, 446 (3d Cir. 1977). However, "[a]lthough the Federal Rules of Civil Procedure do not require a claimant to set forth an intricately detailed description of the asserted basis for relief, they do require that the pleadings give defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147, 149-50 n.3 (1984) (quotation and citation omitted).

A district court, in weighing a motion to dismiss, asks "'not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claim.'" Bell Atlantic v. Twombly, 127 S. Ct. 1955, 1969 n.8 (2007) (quoting Scheuer v. Rhoades, 416 U.S. 232, 236 (1974)); see also Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) ("Our decision in Twombly expounded the pleading standard for 'all civil actions' . . . ."); Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) ("Iqbal . . . provides the final nail-in-the-coffin for the 'no set of facts' standard that applied to federal complaints before Twombly.").

Following the Twombly/Iqbal standard, the Third Circuit has instructed a two-part analysis in reviewing a complaint under Rule 12(b)(6). First, the factual and legal elements of a claim should be separated; a district court must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions. Fowler, 578 F.3d at 210 (citing Iqbal, 129 S. Ct. at 1950). Second, a district court must then determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a "'plausible claim for relief.'" Id. (quoting Iqbal, 129 S. Ct. at 1950). A complaint must do more than allege the plaintiff's entitlement to relief. Id.; see also Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (stating that the "Supreme Court's Twombly formulation of the pleading standard can be summed up thus: 'stating . . . a claim requires a complaint with enough factual matter (taken as true) to suggest' the required element. This 'does not impose a probability requirement at the pleading stage,' but instead 'simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of' the necessary element").

A court need not credit either "bald assertions" or "legal conclusions" in a complaint when deciding a motion to dismiss.

In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1429-30 (3d Cir. 1997). The defendant bears the burden of showing that no claim has been presented. Hedges v. U.S., 404 F.3d 744, 750 (3d Cir. 2005) (citing Kehr Packages, ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.