Judge tosses libel suit against Michele McPhee
By adamg on Sat, 03/05/2016 - 11:12am
A suit by a family of Chechen immigrants over a Michele McPhee story on its alleged ties to the Tsarnaevs should never have been brought in US District Court in Boston, a judge ruled last month.
In his ruling, Judge Leo Sorokin cited a "lack of diversity" because both the Umarov family and McPhee live in the same state - the Umarovs in Chelsea and McPhee in East Boston.
Sorokin criticized the lawyer who drafted the complaint, saying the guy should have known the case did not belong in federal court - an argument the lawyer wrote he agreed with and that he does not know what led him to believe it did in the first place.
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Won't he just re-file in Superior Court?
Seems like if he has a legit case he'd just refile in Suffolk Superior. It's not being dismissed on the merits, which some people might think if they read only the headline. And if he doesn't re-file in state court, can't the Umarovs go after him for legal malpractice?
Can a pro se plaintiff sue himself for legal malpractice?
I think it would be kind of funny if Umarov went after McMahon for legal malpractice, seeing as how McMahon is not the attorney of record on this case. Hamzat Umarov is pro se and as far as I can tell is somehow representing other parties in this case by filing pleadings for others without a license to practice law. McMahon only drafted the complaint. Umarov filed it. IANAL but I would think that the bigger issue is the matter of Umarov's illegal representation of others and Umarov's enjoyment of the less stringent standards of pro se status with the benefit of licensed legal counsel drafting his pleadings. It just strikes me as paradoxical. I hope the show cause order was more sternly worded that what I can glean from the response.
It's doubtful to be bad
It's doubtful to be bad enough to qualify for malpractice. They can still file in state court and it won't actually prejudice the case. The complaint this lawyer wrote should be usable.
If you're still curious, here
If you're still curious, here's the show cause order (entered on the online docket). As you picked up on, the Court also asked the plaintiffs to show cause as to why Hamzat Umarov filed pleadings on behalf of other parties. It does not appear that any responsive filing was made besides that by McMahon on the issues directed at him.
District Judge Leo T. Sorokin: ELECTRONIC ORDER entered. Based on the complaint filed by the Plaintiffs, this Court lacks subject matter jurisdiction due to a lack of diversity. Unless Plaintiffs establish the Court's subject matter jurisdiction over this action by a supplemental submission due no later than February 19, 2016, the Court will DISMISS this action for lack of jurisdiction. In the event Plaintiffs make a submission, Plaintiffs must also show cause as to the basis for Hamzat Umarov, a non-lawyer, to file pleadings on behalf of other parties, in this case the other plaintiffs. Finally, in any event, Attorney McMahon shall, by February 19, 2016, show cause (a) as to on what basis he signs pleadings when he is not attorney of record and (b) his good faith basis for asserting diversity jurisdiction in the "complaint drafted" by Attorney McMahon when the complaint itself alleges both that the plaintiffs and at least one defendant are residents of Massachusetts. See Fed. R. Civ. P. 11. re1 Complaint filed by HAWA UMAROV, JUNES UMAROV, HEDA UMAROV, ADAM UMAROV, HAMZAT UMAROV, ( Show Cause Response due by 2/19/2016)(Simeone, Maria)
Yes, they could probably file
Yes, they could probably file in state court. But you're right, this mistake is really quite shocking -- diversity/jurisdiction is a really, really, REALLY basic part of law that every attorney should know.
Looking at the document attached, my guess is that the lawyer made a silly mistake -- he saw that Pamela Geller and NY Daily News were from out of state (which would permit a diversity suit in fed court). And then he forgot that the main defendant is McPhee, who is of course in state, defeating diversity of parties. If the Umarovs really wanted, they could probably sever the claims and bring two cases: a federal one against the out-of-state defendants, and a state case against McPhee.
As a side note, I'm no expert, but this looks like a fishy client-attorney arrangement at best. P. 2 says that McMahon was hired just to "draft a
complaint," but not actually to litigate the case. What the hell is the point of that? The complaint is usually the 1-2 page completely perfunctory document saying why you want to go to court. You could literally write, "I want to go to court because McPhee bothered me a lot," and as a pro se litigant, that would be good enough (if you filed in the right court, not federal). It's nothing even close to the brief in support of the lawsuit, which is part that the court actually cares about. If the Umarovs want to continue "pro se" (i.e., representing themselves), they're just going to have to hire a lawyer again to write the actual brief. So it seems like McMahon is kind of taking them for a ride.
That's like, if you're asking someone to help you write part of a book, the person writes just the title, takes your money, and then tells you to write the rest.
My advice would be to get a new lawyer, Umarovs -- fast.
From the complaint, it seems
From the complaint, it seems that the attorney knew that there was not complete diversity of parties. Par. 11 of the complaint: "This Court has subject matter jurisdiction over this case pursuant to 28 U.S.c. §1332, as the plaintiffs and some defendants are citizens of different states and countries, and the amount in controversy exceeds $75,000 exclusive of interest and costs." As you stated, knowing that having a plaintiff and two defendants be MA citizens would destroy diversity is Civ Pro 101.
The court seemed satisfied with McMahon's response: "This case is DISMISSED for lack of subject matter jurisdiction. The Order to Show Cause directed at Attorney McMahon is satisfied. The Court appreciates Attorney McMahon's concise and clear response."
Limited representation is not uncommon, even if this particular situation does seem a bit atypical. For example, attorneys often volunteer to assist unrepresented plaintiffs/defendants all the time in a limited fashion in pro bono matters (such as in housing or probate and family court).
While they should be able to refile in state court (statute of limitations is 3 yrs for defamation), this mistake at least cost them their $400 filing fee and wasted any effort they may have started for serving the internationals defendants (often a tedious process).
It's not over!
They deserve a chance. I once had a neighbor who was accused of arson by the Globe back in the day and actually won a libel case against them. So same could apply here...
Well done judge. Good call.
Well done judge. Good call.
Micshrill ought to have a few drinks
and celebrate...