Catherine O’boyle v. DAVID L. BRAVERMAN, Attorney Pro Se

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-3865
CATHERINE O’BOYLE; MARTIN E. O’BOYLE, individually and a General Partner in
New Midland Plaza Associates, a Tennessee General Partnership, and as General Partner
in Commerce Partnership No. 1147, a Florida General Partnership, and as Partnership No.
171, a Florida General Partnership,
Appellants
v.
DAVID L. BRAVERMAN, Attorney Pro Se; BRAVERMAN & KASKEY, a NEW
JERSEY and PENNSYLVANIA PROFESSIONAL CORPORATION, formerly known
as and doing business as BRAVERMAN, DANIELS, KASKEY, LTD; FELLHEIMER,
BRAVERMAN & KASKEY; JOHN DOE ATTORNEYS 1-5; XYZ ENTITIES 6-10;
(ficticious names), jointly, severally and individually
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil No. 1-08-cv-00553)
District Judge: Honorable Joseph H. Rodriguez
Submitted Pursuant to Third Circuit LAR 34.1(a)
June 12, 2009
Before: McKEE, HARDIMAN, and VAN ANTWERPEN, Circuit Judges.
(Filed :July 15, 2009)
OPINION OF THE COURT

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Either directly or through the Florida partnerships, Martin O’Boyle had a 99.87 %1
interest in New Midland and Catherine O’Boyle owned the remaining 0.13 %.
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VAN ANTWERPEN, Circuit Judge.
Appellants Catherine and Martin O’Boyle were general partners in New Midland
Plaza Associates (“New Midland”), a Tennessee partnership; they were also partners in
two Florida partnerships, both of which had ownership interests in New Midland.1
Appellants retained Appellee Braverman and his former law firm to represent New
Midland in its dispute with a mortgage lender. Braverman filed suit on behalf of
Appellants in Tennessee court in April 1999. In the current case, which was filed in New
Jersey court on December 14, 2007, and was subsequently removed to federal court,
Appellants claim that Braverman failed to use due care in connection with the Tennessee
litigation and that his malpractice resulted in the dismissal of the Tennessee case and in
the Tennessee court levying sanctions on Appellants.
Braverman moved to dismiss the action and the District Court granted
Braverman’s motion under Federal Rule of Civil Procedure 12(b)(6). In dismissing the
case, the District Court applied New Jersey choice of law principles and concluded that
Tennessee law applied. It ruled that, because Appellees filed suit on December 14, 2007,
and their injuries were suffered no later than November 2, 2006, the action was barred
under Tennessee’s one year statute of limitations for legal malpractice claims. For the
following reasons, we agree and will affirm the decision of the District Court.

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See Staehr v. Hartford Financial Services Group, Inc., 547 F.3d 406, 425 (2d Cir.2
2008) (“Although the general rule is that a district court may not look outside the
complaint and the documents attached thereto in ruling on a Rule 12(b) motion to dismiss,
we have acknowledged that the court may also consider matters of which judicial notice
may be taken. . . . Dismissal under Fed. R. Civ. P. 12(b)(6) is appropriate when a
defendant raises a statutory bar as an affirmative defense and it is clear from the face of
the complaint, and matters of which the court may take judicial notice, that the plaintiff’s
claims are barred as a matter of law.” (internal quotation marks, alteration marks, and
3
I.
The District Court had jurisdiction under 28 U.S.C. § 1332. This Court has
appellate jurisdiction pursuant to 28 U.S.C. § 1291. When considering a district court’s
grant of a motion to dismiss under Rule 12(b)(6) we exercise plenary review and accept
all factual allegations in the complaint as true, viewing them in the light most favorable to
the plaintiff. Umland v. PLANCO Financial Services, Inc., 542 F.3d 59, 64 (3d Cir.
2008). In doing so, we “determine whether, under any reasonable reading of the
complaint, the plaintiff may be entitled to relief.” Id. (quotation marks omitted).
II.
The District Court, in deciding this case, considered Tennessee court documents
for the purpose of determining the dates on which the Tennessee litigation was dismissed
and on which the Tennessee court levied sanctions on Appellants. Appellants argue that,
as it decided this case in the context of a Rule 12(b)(6) motion, the District Court’s
dismissal on statute of limitations grounds was improperly based on public records that
were outside the face of the complaint. Similar arguments have been rejected by this and
other Courts of Appeals. This Court has held that,2

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citations omitted; emphasis in original)); accord Levy v. Ohl, 477 F.3d 988, 991-92 (8th
Cir. 2007); Rodi v. Southern New England School of Law, 389 F.3d 5, 18-19 (1st Cir.
2004).
In a diversity action, a federal court “must apply the choice of law rules of the3
forum state to determine what law will govern the substantive issues of a case.” Warriner
v. Stanton, 475 F.3d 497, 499-500 (3d Cir. 2007) (citing Klaxon Co. v. Stentor Elec. Mfg.
Co., 313 U.S. 487, 496 (1941)). The parties do not dispute the applicability of New
Jersey’s choice of law rules.
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[t]o resolve a 12(b)(6) motion, a court may properly look at public records,
including judicial proceedings, in addition to the allegations in the complaint.
Specifically, on a motion to dismiss, we may take judicial notice of another
court’s opinion—not for the truth of the facts recited therein, but for the existence
of the opinion, which is not subject to reasonable dispute over its authenticity.
Southern Cross Overseas Agencies, Inc. v. Wah Kwong Shipping Group Ltd., 181 F.3d
410, 426-27 (3d Cir. 1999) (citations omitted). Accordingly, it was not improper for the
District Court to take judicial notice of Tennessee court documents in deciding the Rule
12(b)(6) motion at issue.
III.
New Jersey’s choice of law rules apply to this case. Appellants argue that the3
District Court’s application of New Jersey’s choice of law rules was flawed in that the
court erred in finding an actual conflict between the New Jersey and Tennessee statutes of
limitations and that, even if a conflict exists, the court erred in concluding that Tennessee
law applied. We disagree, and for the following reasons, will affirm the District Court’s
order dismissing this case.
Appellants maintain that their action is timely under both the New Jersey and

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Tennessee statutes of limitations. We disagree. Tennessee’s statute of limitations for
legal malpractice claims is one year from the time the cause of action accrues. Tenn.
Code Ann. § 28-3-104(a)(2). New Jersey, on the other hand, allows six years from the
accrual of the cause of action. McGrogan v. Till, 771 A.2d 1187, 1194 (N.J. 2001)
(holding that legal malpractice actions are governed by the six year statute of limitations
contained in N.J.S.A. 2A:14-1). Under the law of both states, a legal malpractice action
accrues when the plaintiff suffers actual damage and discovers, or through the use of
reasonable diligence should have discovered, that the defendant-attorney’s conduct
caused this damage. See John Kohl & Co. v. Dearborn & Ewing, 977 S.W.2d 528, 532
(Tenn. 1998); Vastano v. Algeier, 837 A.2d 1081, 1084 (N.J. 2003). There is no dispute
that the current action would be timely under New Jersey law.
Tennessee law holds that “[i]t is a court’s judgment that decrees the loss of a right
or remedy or imposes a legal liability. Thus, when a judgment is entered, a ‘legally
cognizable injury’ occurs.” Cherry v. Williams, 36 S.W.3d 78, 85 (Tenn. Ct. App. 2000);
see also Carvell v. Bottoms, 900 S.W.2d 23, 29 (Tenn. 1995) (rejecting the argument that
the statute of limitations for legal malpractice should be tolled pending the appeal of the
underlying suit). We thus reject Appellants’ argument that their cause of action accrued
on December 27, 2006, the date on which they settled the appeal in the Tennessee action.
As noted by the District Court,
[t]he only injuries alleged in the Complaint are the dismissal of the Tennessee
Litigation and the imposition of sanctions against Plaintiffs. According to public

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While Appellants advance their legal malpractice claim under both tort and4
contract theories, “whether a plaintiff employs an underlying theory of contract or tort in
a legal-malpractice action is irrelevant to the statute of limitations inquiry. . . . Decades of
unbroken precedent in New Jersey . . . illustrate that the essence of the typical legal-
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records related to the Tennessee Litigation, these sanctions were first imposed on
September 27, 2005. The state court filed its final decree dismissing the
Tennessee Litigation on December 14, 2005. Then, on November 2, 2006,
additional sanctions were imposed. . . . Thus, this action accrued no later than
November 2006.
Appellants filed their Complaint on December 14, 2007. The District Court correctly
held that, even giving Appellants the benefit of the latest possible date of
accrual—November 2, 2006—the current action was not timely under Tennessee’s one
year statute of limitations.
Having established a conflict between the application of New Jersey’s and
Tennessee’s statutes of limitations to this case, we must determine which one to apply.
The New Jersey Supreme Court “abandoned the ‘mechanical rule’ that the New Jersey
statute of limitations still applied in cases where a foreign substantive law was chosen, in
an attempt to discourage forum shopping. Instead, New Jersey ‘borrows’ the statute of
limitations of the state whose substantive law applies to the case.” Warriner v. Stanton,
475 F.3d 497, 500 n.2 (3d Cir. 2007) (citing Heavner v. Uniroyal, Inc., 305 A.2d 412, 418
(N.J. 1973)). Thus, we proceed to determine whether New Jersey’s or Tennessee’s
substantive law applies.
During the pendency of this appeal, the New Jersey Supreme Court altered its
framework for resolving conflict of law disputes arising out of tort claims. P.V. v. Camp4

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malpractice claim is ‘tortious injury to the rights of another.’” McGrogan v. Till, 771
A.2d 1187, 1192-93 (N.J. 2001) (citations omitted).
Section 6 states that, in the absence of a statutory directive on choice of law,5
the factors relevant to the choice of the applicable rule of law include
(a) the needs of the interstate and international systems,
(b) the relevant policies of the forum,
(c) the relevant policies of other interested states and the relative interests of those
states in the determination of the particular issue,
(d) the protection of justified expectations,
(e) the basic policies underlying the particular field of law,
(f) certainty, predictability and uniformity of result, and
(g) ease in the determination and application of the law to be applied.
Restatement (Second) of Conflict of Laws § 6 (1971).
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Jaycee, 962 A.2d 453, 460 (N.J. 2008). In Camp Jaycee, the Court expressly adopted the
Restatement (Second) of Conflict of Laws’s most significant relationship test. Id. Under
this test, we apply the “general principle” of § 145, as viewed through the “prism” of § 6.
See id. at 458-59. Section 145 states that
(1) The rights and liabilities of the parties with respect to an issue in tort are
determined by the local law of the state which, with respect to that issue, has the
most significant relationship to the occurrence and the parties under the principles
stated in § 6.[5]
(2) Contacts to be taken into account in applying the principles of § 6 to
determine the law applicable to an issue include:
(a) the place where the injury occurred,
(b) the place where the conduct causing the injury occurred,
(c) the domicil[e], residence, nationality, place of incorporation and
place of business of the parties, and

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(d) the place where the relationship, if any, between the parties is
centered.
These contacts are to be evaluated according to their relative importance with
respect to the particular issue.
Restatement (Second) of Conflict of Laws § 145 (1971).
The District Court decided this case using the governmental interest analysis in
effect before Camp Jaycee. According to the New Jersey Supreme Court, the
“‘governmental-interest test is substantially similar to the most-significant-relationship
test,’” as it “embodies all of the elements of the governmental interest test plus a series of
other factors deemed worthy of consideration.” Camp Jaycee, 962 A.2d at 459 n.4 & 460
(quoting Fu v. Fu, 733 A.2d 1133, 1152 (N.J. 1999) (Pollock, J., dissenting)). We thus
need not belabor our discussion of the above factors, which were addressed in detail by
the District Court.
The alleged injury at issue is the dismissal of the Tennessee suit and the Tennessee
court’s imposition of sanctions. Both this injury and the conduct that caused the
injury—Braverman’s allegedly improper handling of the Tennessee litigation—occurred
in Tennessee. Appellees’ involvement in the Tennessee lawsuit arose out of their status
as general partners in New Midland, a Tennessee General Partnership with its principal
place of business in Tennessee. As the Appellants hired Braverman “for the purpose of
filing a lawsuit . . . in Tennessee,” the parties’ relationship is centered in Tennessee. The
only factors weighing in favor of the application of New Jersey law are Catherine

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We have carefully considered the parties’ other arguments and conclude that they6
are either without merit or moot in light of our statute of limitations decision.
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O’Boyle’s New Jersey citizenship and the fact that Braverman is a member of the New
Jersey bar. These factors are insufficient to overcome the fact that Tennessee has the
most significant relationship to a claim of legal malpractice arising out of litigation that
took place in its courts and involved an entity formed under its laws.
For these reasons, we agree with the District Court’s discussion of the § 145
factors, conclude that this suit was properly dismissed as time barred under Tennessee’s
statute of limitations, and will affirm the decision of the District Court.6

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