                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-25-2005

Tidwell v. Bembry
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-4073




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Recommended Citation
"Tidwell v. Bembry" (2005). 2005 Decisions. Paper 1130.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/1130


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                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                      NO. 04-4073
                                   ________________

                                  TYRONE TIDWELL,

                                            Appellant

                                              v.

                             ROBERT H. BEMBRY, III
                      ____________________________________

                    On Appeal From the United States District Court
                        For the Eastern District of Pennsylvania
                              (D.C. Civ. No. 04-cv-00977)
                      District Judge: Honorable Juan R. Sanchez
                    _______________________________________


                       Submitted Under Third Circuit LAR 34.1(a)
                                    May 20, 2005

               Before: SLOVITER, BARRY and FISHER, Circuit Judges

                                 (Filed: May 25, 2005)


                              _______________________

                                     OPINION
                              _______________________

PER CURIAM

      Tyrone Tidwell, pro se, appeals an order of the United States District Court for the

Eastern District of Pennsylvania dismissing his complaint for lack of subject matter
jurisdiction and, alternatively, failure to state a claim upon which relief can be granted.

Tidwell’s complaint arises from his legal representation by Robert H. Bembry, III. We

will affirm.

       In 1996, Tidwell pleaded guilty to various offenses, including possession with

intent to distribute cocaine, tax evasion, firearms offenses and two counts of murder in

furtherance of a continuing criminal enterprise. He claims that the United States Attorney

failed to honor his promise to move for a downward departure from the applicable United

States Sentencing Guidelines range. Tidwell, therefore, sought representation from

Bembry in a post-trial evidentiary hearing to show how the government allegedly

breached the agreement. For such representation, Tidwell paid Bembry $5,000.

Although Bembry requested that Tidwell’s trial counsel testify at the hearing, he did not

subpoena trial counsel, apparently as a professional courtesy. Tidwell claims that Bembry

thereby committed legal malpractice. Tidwell did not pursue post-trial remedies or obtain

any relief related to Bembry’s alleged malpractice. Tidwell also claimed that Bembry

committed malpractice by failing to pursue a claim against Chase Auto Finance. Chase

relinquished $6,341.48 to the United States Marshall’s Office. Tidwell claims that he is

entitled to the money.

       Without explanation, the District Court dismissed Tidwell’s complaint with

prejudice because it concluded that it lacked subject matter jurisdiction and that Tidwell

failed to state a claim upon which relief could be granted. Tidwell timely appealed.



                                              2
       We have jurisdiction pursuant to 28 U.S.C. § 1291. Our review of the District

Court’s dismissal for lack of subject matter jurisdiction is plenary. See Dresser Indus.,

Inc. v. Underwriter’s at Lloyd’s of London, 106 F.3d 494, 496 (3d Cir. 1997). The

District Court correctly concluded that subject matter jurisdiction could not be premised

on 28 U.S.C. § 1331 because Tidwell’s claims of legal malpractice did not give rise to a

federal question. Arguably, however, diversity jurisdiction under 28 U.S.C. § 1332

existed. Tidwell has shown that he and Bembry are of diverse citizenship, and he claimed

that he is entitled to two and one-half million dollars in damages. Bembry argues that the

only potential damages that Tidwell concretely shows are the amount that he paid Bembry

and the amount he sought from Chase, which together amounted to less than $12,000.

This does not, however, take into account any potential intangible damages attributable to

Bembry’s actions with regard to Tidwell’s sentence. Although such an amount is difficult

to calculate, it appears that it would be sufficient to satisfy the amount in controversy

requirement. We will, therefore, assume that the District Court had subject matter

jurisdiction pursuant to § 1332.

       Be that as it may, to show legal malpractice by Bembry under Pennsylvania state

law, Tidwell had to show that he pursued post-trial remedies and failed to obtain such

relief due to an error by Bembry. See Bailey v. Tucker, 621 A.2d 108, 115 (Pa. 1993).

Tidwell did not do so. The District Court, thus, properly determined that Tidwell failed to

state a claim and dismissed his complaint pursuant to Federal Rule of Civil Procedure



                                              3
12(b)(6).

       Our review of the District Court’s decision to dismiss Tidwell’s complaint without

leave to amend is for abuse of discretion. See Gen. Refractories Co. v. Fireman’s Fund

Ins. Co., 337 F.3d 297, 303 n.1 (3d Cir. 2004). Because Tidwell has not shown that he

failed to obtain relief due to Bembry’s alleged error, he cannot possibly amend his

complaint to make a viable claim of legal malpractice. The District Court, therefore,

properly exercised its discretion to dismiss with prejudice instead of permitting Tidwell to

amend his complaint.

       Accordingly, we will affirm the District Court’s order dismissing Tidwell’s

complaint with prejudice.




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