                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-23-2006

Lee v. Thompson
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-4006




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Recommended Citation
"Lee v. Thompson" (2006). 2006 Decisions. Paper 1732.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1732


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                                                                 NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT

                                    NO. 04-4006
                          _______________________________

                                   REGINALD L. LEE,
                                               Appellant
                                         v.

                            RONALD B. THOMPSON, P.A.
                        ___________________________________

                     On Appeal From the United States District Court
                              For the District of New Jersey
                               (D.C. Civ. No. 02-cv-05114)
                       District Judge: Honorable Robert B. Kugler
                     ______________________________________

                   Submitted Under Third Circuit LAR 34.1(a)
                                January 11, 2006
           BEFORE: FISHER, ALDISERT AND WEIS, CIRCUIT JUDGES
                           (Filed: January 23, 2006)
                          _______________________

                                         OPINION

                                _______________________
PER CURIAM.

              In 2002, Reginald Lee submitted the underlying complaint in the United

States District Court for the District of New Jersey asserting jurisdiction on the basis of

diversity of citizenship. See 28 U.S.C. § 1332(a). In his complaint, Lee alleged a claim

of legal malpractice against Ronald Thompson, Esquire, stemming from his

representation of Lee in a 2000 civil matter. Thompson answered the complaint and

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asserted a counterclaim against Lee on March 3, 2003, subsequently amending his answer

on March 10, 2003. Approximately nine months later, on December 2, 2003, Thompson

moved for summary judgment on the ground Lee had failed to provide an affidavit of

merit within the 60 days following Thompson’s answer as required by the New Jersey

Affidavit of Merit Statute. See N.J. Stat. Ann. § 2A:53A-27. By order entered

September 27, 2004, the District Court granted Thompson’s motion and dismissed his

counterclaim. Lee timely appealed.

              We have jurisdiction pursuant to 28 U.S.C. § 1291. This Court exercises

plenary review over the District Court’s order granting summary judgment. McLeod v.

Hartford Life & Acc. Ins. Co., 372 F.3d 618, 623 (3d Cir. 2004). After a careful review

of record, and consideration of Lee’s arguments on appeal, we will affirm the District

Court’s order.

              The New Jersey Affidavit of Merit Statute requires the plaintiff in a

malpractice action to provide the defendant, within 60 days after the answer is filed, with

an affidavit of “an appropriate licensed person that there exists a reasonable probability”

that the care which is the subject of the complaint falls outside acceptable professional

standards. N.J. Stat. Ann. § 2A:53A-27. In lieu of an affidavit, the plaintiff may provide

a sworn, written statement that, after written request, the defendant failed to provide the

plaintiff with records that have a substantial bearing on the preparation of the affidavit.

N.J. Stat. Ann. § 2A:53A-28. Failure to provide either the affidavit or the sworn

statement within 60 days, or 120 days if the court grants an extension for good cause,

                                              2
results in dismissal “for failure to state a cause of action.” N.J. Stat. Ann. § 2A:53A-29;

see also Burns v. Belafsky, 766 A.2d 1095, 1099-1101 (N.J. 2001) (holding that one 60-

day extension may be granted for good cause shown provided that the plaintiff applies for

the extension and files the affidavit within 120 days of the answer being filed). We have

held that a District Court’s application of the New Jersey Affidavit of Merit Statute does

not conflict with the Federal Rules of Civil Procedure and is enforceable in the District

Courts when New Jersey law applies. Chamberlain v. Giampapa, 210 F.3d 154 (3d Cir.

2000); see also Snyder v. Pascack Valley Hosp., 303 F.3d 271, 273 (3d Cir. 2002). Here,

the District Court correctly determined that Thompson was entitled to summary judgment

because Lee failed to submit an affidavit of merit as required by New Jersey law.

              Lee argues on appeal that the District Court erroneously concluded that an

expert’s affidavit was required because common knowledge makes apparent the merits of

his claim. See Hubbard v. Reed, 774 A.2d 495, 499-500 (N.J. 2001) (holding that no

affidavit of merit need be filed in “common knowledge” malpractice cases); Natale v.

Camden County Correctional Facility, 318 F.3d 575 (3d Cir. 2003) (applying Hubbard).

For the reasons fully explained by the District Court, however, because Thompson’s

alleged negligence is not “readily apparent to anyone of average intelligence and ordinary

experience,” the common knowledge exception does not apply. Natale, 318 F.3d 579

(citations and quotations omitted). We also reject Lee’s argument that, because he was

proceeding pro se in the District Court, he was not required to obtain an affidavit of merit.

In short, although we have an obligation to liberally construe a pro se litigant’s pleadings,

                                              3
“ignorance of the law or failure to seek legal advice will not excuse failure to meet the

filing deadline.” Hyman Zamft and Manard v. Cornell, 707 A.2d 1068, 1071 (N.J. Super.

App. Div.1999); see also Chamberlain, 210 F.3d at 162 (noting that neither an “attorney’s

mere carelessness [n]or lack of proper diligence” will constitute “extraordinary

circumstances” sufficient to excuse affidavit requirement) (citations and quotations

omitted); Taylor v. Plousis, 101 F. Supp.2d 255, 270 (D. N.J. 2000).

              For the foregoing reasons, we will grant the appellee’s motion and

summarily affirm the District Court’s September 27, 2004, order.




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