United States District Court, D. New Jersey
B. SIMANDLE, U.S. DISTRICT JUDGE
action, Plaintiff pro se Louis Mouratidis
(“Plaintiff”) alleges Defendants Nicolas Mourtos,
Esq., Bari Zell Weinberger, Esq., and Aaron Weinberger, Esq.
(collectively, “Defendants”) committed legal
malpractice by failing to obtain dismissal of a final
restraining order within the initial agreed upon $3, 000.00
retainer. Plaintiff claims this Court has federal question
jurisdiction under 28 U.S.C. § 1331. [Docket Item 1-4
(“Compl.”) at p.3.] Pending before the Court are
several motions, including Defendants' motion to dismiss
pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6) [Docket Item
13] and Plaintiff's motions to appoint pro bono counsel
[Docket Item 8], “for relief to dissolve motion to
dismiss for pro bono” [Docket Item 17], “to
enforce federal jurisdiction” [Docket Item 22], and
“to amend/correct.” [Docket Item 26.] For the
reasons discussed below, the Court will grant Defendants'
motion to dismiss for lack of jurisdiction and deny the
remaining motions as moot. The Court finds as follows:
Factual and Procedural
2016, Plaintiff visited the Weinberger Divorce & Family
Law Group (“Weinberger Law Group”) in Mount
Laurel, New Jersey for a free consultation with one of its
attorneys, Defendant Nickolas Mourtos, Esq.
(“Mourtos”). (Compl. at ¶ 12.) According to
the Complaint, Plaintiff was seeking legal advice in a matter
involving a final restraining order that had been entered
against him. (Id. at ¶ 13.) Plaintiff alleges
he informed Defendant Mourtos that he received Social
Security disability income “to show and provide, how
little [he] get[s] on a monthly basis, just in case this
would be costly . . . before signing in to an agreement,
” and that Defendant Mourtos responded “that is
not relevant.” (Id. at ¶ 16.) Plaintiff
further alleges that he was “pressed on time”
because he had been “forced to return to the U.S. from
the Greek Hellenic Armed Forces in Greece, during training
and [was] provided a [two] year leave to resolve this legal
matter or [he] would be penalized under the laws of Hellenic
Armed Forces.” (Id. at ¶ 17.)
Plaintiff alleges Defendant Mourtos told him it would cost
“$3, 000, maybe a few hundred dollars more” to
represent him. (Id. at ¶ 15.) On December 6,
2016, Plaintiff paid the Weinberger Law Group $3, 000.
(Id. at ¶ 18.) “A few months later,
” an unnamed attorney from the Weinberger Law Group
asked Plaintiff for “another $3, 000 dollar refresher
fee, ” which “came as a massive shock” to
him. (Id. at ¶ 19.) In response, Plaintiff
asked to terminate the services of the Weinberger Law Group.
(Id.) “[B]efore the amount of the invoice
increased as it did, [Plaintiff] owed [$100] at the
time.” (Id.) According to Plaintiff,
“[m]onths went by and [he] was getting emails of costs
on a monthly basis, via: E:Mail, still to today's date,
from [$100] to [$800].” (Id. at ¶ 20.)
January 29, 2018, Plaintiff filed this federal action against
Defendants Mourtos, Bari Zell Weinberger, Esq. (the Managing
Attorney at the Weinberger Law Group), and Aaron Weinberger,
Esq. (the Executive Director at the Weinberger Law Group)
challenging the enforceability of his retainer agreement with
the Weinberger Law Group. [Docket Item 1.] To that end,
Plaintiff alleges he was mentally impaired and under duress
at the time the agreement was executed, and that Defendants
breached their “duty of good faith and fair
dealings” under the New Jersey Uniform Commercial Code,
N.J.S.A. § 12A:1-304, by inducing Plaintiff to enter
into the agreement. (Compl. at ¶¶ 21-37.) As
relief, Plaintiff asks the Court: (1) to rescind the contract
with the Weinberger Law Group; (2) to “[v]oid any and
all amount to the invoice to the contract” with the
Weinberger Law Group; (3) reimbursement of the $3, 000
retainer payment; (4) to expedite reimbursement of the $3,
000 retainer payment; (5) compensatory and punitive damages;
and (6) compensation for a €5, 000 penalty and 90-day
incarceration Plaintiff will be subject to by the Hellenic
Armed Forces if he returns to Greece. (Id. at
Standard of Review.
Federal Rule of Civil Procedure 12(b)(1), a party may move to
dismiss a complaint for lack of subject matter jurisdiction.
Because federal courts are courts of limited jurisdiction,
the party seeking to invoke the court's jurisdiction
bears the burden of proving the existence of subject matter
jurisdiction. See Kokkonen v. Guardian Life Ins.
Co., 511 U.S. 375, 377 (1994). Under Fed.R.Civ.P.
12(b)(1), the court's jurisdiction may be challenged
either facially (based on the legal sufficiency of the claim)
or factually (based on the sufficiency of a jurisdictional
fact). Gould Elecs. v. U.S., 220 F.3d 169, 178 (3d
Cir. 2000); see also A.D. v. Haddon Heights Bd. of
Educ., 90 F.Supp.3d 326, 334 (D.N.J. 2015) (explaining
the same distinction). On a facial attack, the Court
considers only the allegations of the complaint and documents
referenced therein, construing them in the light most
favorable to the plaintiff. Pearson v. Chugach Gvt. Svcs.
Inc., 669 F.Supp.2d 467, 469-70 (D. Del. 2009). On a
factual attack, “no presumptive truthfulness attaches
to plaintiff's allegations, and the existence of disputed
material facts will not preclude the trial court from
evaluating for itself the merits of jurisdictional claims.
Moreover, the plaintiff will have the burden of proof that
jurisdiction does in fact exist.” Mortensen v.
First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891
(3d Cir. 1977).
Under Federal Rule of Civil Procedure 12(b)(6), the court
must “accept all factual allegations as true, construe
the Complaint in the light most favorable to the plaintiff,
and determine whether, under any reasonable reading of the
Complaint, the plaintiff may be entitled to relief.”
Fleisher v. Standard Ins. Co., 679 F.3d 116, 120 (3d
Cir. 2012) (internal citations omitted). In applying this
standard to pro se pleadings and other submissions,
as here, the Court must liberally construe the well-pleaded
allegations, and draw all reasonable inferences in favor of
the pro se litigant. Higgs v. Atty. Gen. of the
U.S., 655 F.3d 333, 339 (3d Cir. 2011); Capogrosso
v. The Supreme Court of New Jersey, 588 F.3d 180, 184
(3d Cir. 2009). Despite this liberality, however, a pro
se complaint must still “contain sufficient
factual matter, accepted as true, ” to “state a
[plausible] claim to relief.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see
also Marley v. Donahue, 133 F.Supp.3d 706, 714 (D.N.J.
2015) (explaining the same concept).
motion to dismiss, which the Court addresses first,
Defendants argue that the Complaint fails to state a claim
over which a federal court would have subject matter
jurisdiction. [Docket Item 13-1 at 6-14.] The Court agrees.
heart of Plaintiff's Complaint is a legal malpractice
claim for rescission of a contract, repayment of a $3, 000
retainer fee, injunctive relief to prevent Defendants from
collecting additional fees which, in Plaintiff's view,
are not owed, and compensation for possible penalties
Plaintiff faces if he returns to Greece. As Plaintiff himself
acknowledges by referencing New Jersey statutes, including
N.J.S.A. § 12A:1-304, state law provides the causes of
action arising from the complained-of conduct here,
regardless of whether it is styled as a federal civil rights
claim. For this Court to adjudicate state-law claims, such as
these, the Court must have either diversity jurisdiction or
supplemental jurisdiction flowing from some claim that
involves a federal question. See Kokkonen, 511 U.S.
at 377; Zambelli Fireworks Mfg. Co., Inc. v. Wood,
592 F.3d 412, 418 (3d Cir. 2010).
Federal Question Jurisdiction. Although Plaintiff
alleges that this Court has federal question jurisdiction,
Plaintiff has not properly pleaded any federal claims. In
addition to alleging breach of “duty of good faith and
fair dealings” under N.J.S.A. § 12A:1-304,
Plaintiff cites three civil rights statutes - 42 U.S.C.
§§ 1981, 1983, and 1985 - in the
“Jurisdiction and Venue” section of the
Complaint. (Compl. at p.3.) The Complaint further alleges
Defendants were acting “[u]nder color of state
law.” (Id. at ¶ 6.) The critical question
is, therefore, whether Plaintiff has alleged any factual
basis for the claim that Defendants were acting under color
of state law in taking any of the actions alleged to harm
Plaintiff. The answer is no.
is settled law that an attorney may be entitled to dismissal
of a civil rights action on the ground that a complaint fails
to state a claim because “a lawyer representing a
client is not, by virtue of being an officer of the court, a
state actor ‘under color of state law' within the
meaning of § 1983.” Polk County v.
Dodson, 454 U.S. 312, 318 (1981). Here, Defendants
Mourtos, Bari Zell Weinberger, Esq., and Aaron Weinberger,
Esq. are private attorneys who were retained by Plaintiff to
perform legal services. And Plaintiff has not alleged in any
meaningful way that these private attorneys ever acted on
behalf of the State during ...