
USCA1 Opinion

	




          January 30, 1995      [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-2059                          DR. NELSON ABREU GONZALEZ, ET AL.,                               Plaintiffs, Appellants,                                          v.                           ANGEL LUIS MEDINA ARANA, ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Hector M. Laffitte, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                            Cyr and Stahl, Circuit Judges.                                           ______________                                 ____________________            Nydia Maria Diaz-Buxo on brief for appellants.            _____________________            Manuel A. Segarra-Vazquez on brief for appellees.            _________________________                                 ____________________                                 ____________________                      Per  Curiam.  Defendants-appellees move for summary                      ___________            affirmance of the district court's dismissal of this suit for            lack of  subject matter jurisdiction.   The complaint alleges            that jurisdiction  exists under 28 U.S.C.    1331, because it            "arises under" federal law.  The sole claim pleaded, however,            is a cause of action in tort for legal malpractice.                        It   appears   that  defendants   once   served  as            plaintiffs'  counsel  in  an  unsuccessful  adversary  action            initiated by  plaintiffs as chapter 13  debtors.  Plaintiffs'            appeal from  the bankruptcy court judgment  was dismissed for            failure  to  timely  perfect  the  appeal.    Allegations  of            attorney  misfeasance  made  at  that  time  to  explain  the            appellate processing  delay, were referred to  the bankruptcy            court for investigation.  In  this separate lawsuit, begun in            the  district  court  some  months   later,  plaintiffs  seek            $600,000 in damages  allegedly sustained as  a result of  the            malpractice.     The   district  court   granted  defendants'            unopposed  motion to  dismiss  because the  tort of  attorney            malpractice  is  a  state-created   claim  and  there  is  no            diversity of citizenship between the parties.                       Without explaining their  lack of opposition below,            plaintiffs here insist  that their  complaint "arises  under"            federal law because the legal  malpractice is alleged to have            occurred in the context of a federal proceeding  and included            a disregard of a federally-created procedural rule.                       There is  no general  federal common law  of torts,            however.   See  O'Melveny & Myers  v. FDIC, 114  S. Ct. 2048,                       ___  _________________     ____            2052 (1994); Erie R.R.  v. Tompkins, 304 U.S. 64,  78 (1938).                         _________     ________            In the absence of a specific statute creating a federal cause            of  action,  the  traditional   right  to  relief  for  legal            malpractice is rooted in  state law.  See O'Melveny  & Myers,                                                  ___ __________________            114 S. Ct. at 2055.   While federal courts  have the inherent            power to  regulate the conduct of  attorneys appearing before            them, plaintiffs' assumption that violation of a federal rule            or  ethical norm  automatically  creates a  federal cause  of            action for damages is inconsistent with the provisions of the            Rules Enabling Act.   See 28 U.S.C.   2075  (bankruptcy rules                                  ___            shall  not  "abridge,  modify   or  enlarge  any  substantive            right").  This is not an extraordinary case in which reliance            on  state tort  law as the  rule of  decision might  create a            conflict with  a substantial  federal policy.   See generally                                                            _____________            O'Melveny  &  Myers,  114  S.  Ct.  at 2053-55;  Merrell  Dow            ___________________                              ____________            Pharmaceuticals, Inc. v. Thompson,  478 U.S. 804, 808 (1986).            _____________________    ________            Any federal question in this suit would likely emerge only as            an intermediate step in  resolving the pivotal tort questions            of duty, breach, causation and damages.                        Plaintiffs  do  not predicate  jurisdiction  on the            authority of  28 U.S.C.    1334,  and the  abbreviated record            before  us  reveals  no  reason  to  require  an exercise  of            jurisdiction  under  that  statute.    No  substantial  issue                                         -3-            appearing, appellees' motion is  granted, and the judgment of                                             _______            the district court dismissing the complaint without prejudice            is affirmed.               ________                                         -4-
