NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 23-2192
___________
GREGORY J. PODLUCKY,
Appellant
v.
THE LINDSAY LAW FIRM, P.C.
____________________________________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(W.D. Pa. Civ. No. 2:23-cv-00858)
District Judge: Honorable W. Scott Hardy
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
December 8, 2023
Before: JORDAN, PHIPPS, and NYGAARD, Circuit Judges
(Opinion filed: January 11, 2024)
___________
OPINION *
___________
PER CURIAM
Gregory Podlucky implemented a scheme to falsely inflate the financials of his
company, Le-Nature’s, Inc. (LNI), and bilk its investors and banks out of over
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
$600,000,000. In 2011, Podlucky pleaded guilty in the U.S. District Court for the
Western District of Pennsylvania to income tax evasion and other offenses. In addition to
its appellate and collateral-attack waivers, the plea agreement contained a provision
through which Podlucky agreed “to the criminal forfeiture of all pieces of gems and
jewelry that were seized as evidence during the investigation” of his crimes, “with the
exception of certain personal pieces to be agreed upon by the parties.” Podlucky was
ultimately sentenced to 240 months of imprisonment and ordered to pay restitution. 1
Podlucky’s many challenges to his convictions and sentence all have failed. Those
challenges included a motion under 28 U.S.C. § 2255 and a motion to withdraw his plea,
both of which claimed that the Government breached the plea agreement when it did not
return to Podlucky hundreds of pieces of jewelry (the disputed jewels). Podlucky had also
claimed that his defense counsel at The Lindsay Law Firm (TLLF) were constitutionally
ineffective in negotiating the terms of the plea agreement. See, e.g., United States v.
Podlucky, 697 F. App’x 744, 745 (3d Cir. 2017) (per curiam).
In 2023, Podlucky filed in the District Court a pro se complaint repackaging his
jewelry-related postconviction claim as one for breach of contract against TLLF under
state law. According to Podlucky, TLLF “failed to follow the terms and conditions of its
1
After Podlucky was remanded to the custody of the Bureau of Prisons, the IRS
determined that he was liable for tax deficiencies and civil fraud penalties related to his
tax returns for filing years 2003-2006. Podlucky disputed the IRS’s assessment. The U.S.
Tax Court conducted a trial and then sustained the IRS’s deficiency and penalty
determinations. Podlucky’s appeal of that decision is pending. See Podlucky v. C.I.R.,
C.A. No. 22-70169 (9th Cir.).
2
retainer agreement and subsequent Plea Agreement it executed,” which resulted in his
non-receipt of the disputed jewels.
The District Court authorized Podlucky to proceed in forma pauperis, dismissed
his complaint without prejudice, and permitted him to file an amended complaint. In the
amended complaint that followed, Podlucky again raised his breach-of-contract claim
while adding a claim for intentional infliction of emotional distress (IIED). Podlucky
predicated the District Court’s subject matter jurisdiction on 28 U.S.C. § 1332(a). 2
The District Court screened Podlucky’s amended complaint and dismissed it with
prejudice for failure to state a claim, under 28 U.S.C. § 1915(e)(2)(B)(ii). Starting with
the breach-of-contract claim, the District Court observed that Podlucky “does not allege
how [TLLF] supposedly breached any of the terms” of their fee agreement or “that he
suffered damages as a result.” DC Op. 3. The District Court determined as well that any
breach of the plea agreement by the Government could not be imputed to TLLF, which
was not a party to that agreement. Turning to the IIED claim, the District Court observed
that the amended complaint “contains no allegation of physical injury or harm to
[Podlucky] as a result of [TLLF’s] conduct, let alone any allusion to competent medical
evidence of the same.” DC Op. 4. Finally, the District Court determined that any further
amendment of Podlucky’s pleading would be futile.
2
Podlucky alleged that he “is a citizen of the State of Colorado,” that The Lindsay Law
Firm is headquartered in Pennsylvania, and that “the amount in controversy is greater
than a statutory minimum.” According to the records of the Bureau of Prisons, Podlucky
is currently housed at a Residential Reentry Center in Phoenix, Arizona.
3
Podlucky appealed. We have appellate jurisdiction under 28 U.S.C. § 1291. We
review de novo an order dismissing a pleading under § 1915(e)(2)(B)(ii). See Allah v.
Seiverling, 229 F.3d 220, 223 (3d Cir. 2000). The denial of leave to amend a pleading,
meanwhile, is reviewed for abuse of discretion, though we review de novo any
determination that amendment would be futile. See U.S. ex rel. Schumann v.
AstraZeneca Pharms. L.P., 769 F.3d 837, 849 (3d Cir. 2014).
We are skeptical that Podlucky’s claims, which are based on facts familiar to him
for over a decade prior to filing this suit, would survive a statute-of-limitations test. Cf.
42 Pa. Cons. Stat. Ann. § 5525(a)(1) (providing that “An action upon a contract” “must
be commenced within four years”); 42 Pa. Cons. Stat. Ann. § 5524(7) (providing that any
action “to recover damages for injury to person or property which is founded on
negligent, intentional, or otherwise tortious conduct” “must be commenced within two
years”). Regardless, we agree with the District Court that Podlucky failed to plausibly
plead the elements of a contract or IIED claim under Pennsylvania law.
Even now, Podlucky fails to identify any express term of the fee agreement that he
believes was breached. Insofar as Podlucky meant to frame his contract claim as one
asserting professional negligence, cf. Br. 4 (arguing that his defense counsel “had a
fiduciary duty pursuant to the rules and standards of the American Bar Association and
the Pennsylvania Bar Association to ensure the enforcement of the bargains in
Podlucky’s Plea Agreement”), the claim would lack plausibility given the plain terms of
the fee and plea agreements.
4
The IIED claim also was insufficiently pleaded. In particular, we agree with the
District Court that Podlucky did not plausibly allege “some type of resulting physical
harm due to the defendant’s outrageous conduct, as required under Pennsylvania law.”
Geness v. Cox, 902 F.3d 344, 353 n.3 (3d Cir. 2018) (citation and internal quotations
omitted). Podlucky argues that requiring him to produce evidence of his physical injuries
at this stage would be premature. See Br. 6. But all that was required of him was to
plausibly plead “factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged,” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009), and his filings to date all have failed to suggest that he could or would
provide such content for a hypothetical second amended complaint.
For all of those reasons, the District Court did not err in dismissing Podlucky’s
amended complaint with prejudice. We will affirm the District Court’s judgment.
5
Gregory Podlucky v. Lindsay Law Firm
Combined Opinion