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Precedential or Non-Precedential: Non-Precedential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NOT PRECEDENTIAL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.
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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
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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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