Ogilvie v. Pa. Lawyers Fund for Client Sec.

MARIAMA OGILVIE, Plaintiff v. PENNSYLVANIA LAWYERS FUNDFOR CLIENT SECURITY, et al., Defendants

CIVIL ACTION NO. 1:13-CV-3007

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

September 30, 2015

(Chief Judge Conner)

MEMORANDUM

Presently before the court in the above-captioned matter are three motions (Docs. 26, 38, 59) to dismiss the amended complaint (Doc. 24) filed by pro se plaintiff Mariama Ogilvie ("Ogilvie"). Ogilvie brings civil rights claims pursuant to 42 U.S.C. § 1983 and the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., against the Pennsylvania Lawyers Fund for Client Security ("Fund") and the following Fund board members and staff, in their individual and official capacities: Kathryn J. Peifer, Edwin H. Bleacher, III, Grace R. Schuyler, Robert A. Graci, Bishop Keith W. Reed, Sr., Lewis F. Gould, Jr., and Stefanie J. Salavantis (collectively, "Fund officials"). Further, Ogilvie challenges the constitutionality of certain Pennsylvania disciplinary enforcement rules pursuant to 42 U.S.C. § 1983, asserting claims against Kathleen Kane, Attorney General for the Commonwealth of Pennsylvania ("the Attorney General"), and the Pennsylvania Supreme Court. Finally, Ogilvie advances state law claims of misrepresentation, fraud, false statement, and theft against three former clients, arising from complaints filed with the Fund. Additionally before the court is Ogilvie's motion (Doc. 63) for leave to filea second amended complaint.¹ For the reasons that follow, the court will grant the motions to dismiss and deny Ogilvie's motion for leave to file a second amended complaint.

I. Factual Background & Procedural History²

The provenance and substance of the instant matter inheres in the policies and procedures which govern the Fund. The Fund is an account established by the Pennsylvania Supreme Court "to aid in ameliorating the losses caused to clients and others by defalcating members of the Bar acting as attorney or fiduciary." PA. RULES OF DISCIPLINARY ENFORCEMENT ("PA. R.D.E.") 502(a). Discretionary disbursements may be made therefrom at the direction of either the Pennsylvania Supreme Court or a quorum of the Fund's board. PA. R.D.E. 502(a), 503(d). The Pennsylvania Supreme Court appoints members of the board, and contributions from the state bar are pooled to finance the Fund. PA. R.D.E. 502(a), 503(a). The Fund routinely submits to the Pennsylvania Supreme Court a list of attorneys whose misconduct has occasioned the reimbursement of a former client's claim. PA. R.D.E. 531. No such attorney is eligible for reinstatement to active status until the Fund is repaid for the disbursement made on the attorney's behalf. Id.

Ogilvie is an attorney formerly admitted to practice law in Pennsylvania. (Doc. 24 ¶ 29). On or around September 2009, Ogilvie was involved in a car accident whereupon she lost consciousness and suffered a concussion. (Id. ¶ 71). Ogilvie continues to experience physical and psychological infirmities, including head trauma, as a result of the accident. (Id. ¶¶ 22-23, 32). In May 2010, the Pennsylvania Supreme Court issued an order ("the 2010 order") placing Ogilvie on inactive disabled status and directing "that all adversarial hearing[s] . . . be held in abeyance until further order of the Court." (Id. ¶¶ 29, 72).

In 2010 or early 2011, sometime after Ogilvie transitioned to inactive status, the Fund contacted her regarding a complaint filed by her former client Herbert Simpson ("Mr. Simpson"). (Id. ¶ 73). Ogilvie petitioned the Fund, via telephone and letter, for a continuance based upon the 2010 order. (Id. ¶¶ 75-76). The Fund denied Ogilvie's request by letter, informing her that proceedings pertaining to Mr. Simpson's complaint would not be suspended. (Id. ¶ 77). Ogilvie subsequently spoke with Executive Director Kathryn J. Peifer ("Ms. Peifer"), who explained that upon consideration of Ogilvie's request for a continuance, the board had determined that the Fund was not subject to the 2010 order. (Id. ¶ 78). Thereafter, the Fund held a hearing regarding Mr. Simpson's complaint. (Id. ¶ 79). The Board ultimately reimbursed Mr. Simpson for the $5000 he claimed in losses due to Ogilvie's alleged misconduct. (Id. ¶¶ 79, 161, 164). The Fund then informed Ogilvie that a lien for $5000 would be placed against her. (Id. ¶ 80).

Sometime around June 2013, Ogilvie contacted the Pennsylvania Supreme Court to reinstate her active status as a member of the state bar. (Id. ¶ 104). ThePennsylvania Supreme Court instructed that she would be required to repay the Fund for its $5000 disbursement to Mr. Simpson before petitioning for reinstatement of active status. (Id.) Sometime thereafter, denying any and all misconduct alleged in Mr. Simpson's complaint, Ogilvie requested that the Fund reconsider its prior adjudication. (Id. ¶¶ 82, 105-12). However, she became too ill to follow up on this request. (Id. ¶¶ 82, 105).

In October 2013, the Fund informed Ogilvie by letter that her former client Patti Johnson ("Ms. Johnson") sought reimbursement from the Fund for losses allegedly suffered as a result of Ogilvie's misconduct. (Id. ¶¶ 3, 127-28). In a follow-up letter dated December 6, 2013, the Fund directed Ogilvie to respond within thirty days if she intended to request a hearing or to defend against the allegations in Ms. Johnson's complaint. (Id. ¶¶ 3-4). The letter indicated that the Fund would otherwise allow the matter to proceed without Ogilvie's participation. (Id. ¶ 5).

Ogilvie contacted Ms. Peifer by telephone and requested a continuance of proceedings concerning Ms. Johnson's complaint, pursuant to the 2010 order. (Id. ¶ 84). Ms. Peifer directed Ogilvie to submit a written request for same and indicated that she would bring the matter to the attention of the board during its review of Ms. Johnson's submission. (Id. ¶ 85). This matter is still pending before the Fund.

Ogilvie commenced the instant action by filing a complaint on December 17, 2013.³ (Doc. 1). On December 23, 2013, the court granted Ogilvie's motion for leave to proceed in forma pauperis. See 28 U.S.C. § 1915(a)(1); (Doc. 4). Ogilvie subsequently filed an amended complaint on August 16, 2014. (Doc. 24). Ogilvie first alleges that the Fund and the Fund officials (collectively, "Fund defendants") discriminated against her on the basis of disability, in violation of the ADA. (Id. ¶¶ 90-97). Ogilvie further asserts, pursuant to § 1983, that the Fund defendants violated (1) her Fourteenth Amendment rights to equal protection and procedural due process; (2) her First Amendment right to freedom of association; and (3) her right to unimpaired private contract under the Contract Clause of the United States Constitution, U.S. CONST. art. I, § 9, cl. 1. (Doc. 24 ¶¶ 129-45). Additionally, Ogilvie brings state law claims of false statement, misrepresentation, fraud, and theft against Mr. Simpson, Donna Simpson, and Ms. Johnson (collectively, "former clients"). (Id. ¶¶ 159-61). Lastly, Ogilvie challenges the constitutionality of the following Pennsylvania rules under § 1983: Pennsylvania Rules of Disciplinary Enforcement 503, 521, and 531, enacted by the Pennsylvania Supreme Court, and Fund Regulations 3.2(g), 3.4(b), and 3.4(c), promulgated by the Fund. (Id. ¶¶ 162-76). Her claims regarding Disciplinary Rules 503 and 531 are against the Pennsylvania Supreme Court and the Attorney General, and her claims concerning Disciplinary Rule 521 and Fund Regulations 3.2(g), 3.4(b), and 3.4(c) are against the Pennsylvania Supreme Court, the Attorney General, and the Fund. (Id.)

To rectify her alleged injuries, Ogilvie seeks a declaration that Pennsylvania Rules of Disciplinary Enforcement 503, 521, and 531 and Fund Regulations 3.2(g), 3.4(b), and 3.4(c) violate the ADA, the Fourteenth Amendment, the First Amendment, and the Contract Clause. (Id. ¶ 177). She further prays to enjoin enforcement of said rules by the Fund and the Pennsylvania Supreme Court and seeks damages from all named defendants. (Id. ¶¶ 27, 177).

In three separate motions (Docs. 26, 38, 59), various institutional and individual defendants have moved to dismiss Ogilvie's amended complaint in its entirety. The motions (Docs. 26, 38) filed by the Fund defendants and by the Pennsylvania Supreme Court invoke Federal Rule of Civil Procedure 12(b)(1) and Federal Rule of Civil Procedure 12(b)(6). The motion (Doc. 59) filed by the Attorney General invokes only Rule 12(b)(1). On March 3, 2015, Ogilvie moved (Doc. 63) for leave to file a second amended complaint pursuant to Rule 15(a)(2). The motions are fully briefed and ripe for disposition.

II. Standard of Review

A. Rule 12(b)(1): Subject Matter Jurisdiction

Rule 12 of the Federal Rules of Civil Procedure enumerates various defenses and objections a party may raise in response to a pleading and the manner in which such defenses and objections are to be asserted. See FED. R. CIV. P. 12. Federal Rule of Civil Procedure 12(b)(1) provides that a court may dismiss a claim for lack of subject matter jurisdiction. See FED. R. CIV. P. 12(b)(1). Such jurisdictional challenges take one of two forms: (1) parties may levy a "factual" attack, arguing that one or more of the pleading's factual allegations are untrue, removing theaction from the court's jurisdictional ken, see Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977); or (2) they may assert a "facial" challenge, which assumes the veracity of the complaint's allegations but nonetheless argues that a claim is not within the court's jurisdiction, see Tolan v. United States, 176 F.R.D. 507, 510 (E.D. Pa. 1998). In either instance, it is the plaintiff's burden to establish jurisdiction. See Mortensen, 549 F.2d at 891 ("[T]he plaintiff will have the burden of proving that jurisdiction does in fact exist."). Courts should grant a Rule 12(b)(1) motion only when it appears with certainty that assertion of jurisdiction would be improper. See Gould Elecs....