IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

MARA FLAMM. : NO. 02-CV-4302

Plaintiff :

:

v. :

:

SARNER & ASSOCIATES, P.C. and :

JOSHUA SARNER, ESQUIRE and :

LEONARD SARNER, ESQUIRE and :

JODI H. BROWN, M.D. and JOHN :

MATUSAVAGE, :

Defendants :

O R D E R

AND NOW, this day of , 2002, upon consideration of

Defendant Jodi H. Brown, M.D.’s Motion to Dismiss Plaintiff’s claims against her pursuant to

Federal Rule of Civil Procedure 12(b)(6), and any response thereto, it is hereby ORDERED that

said Motion is GRANTED.

It is further ORDERED that Plaintiff’s complaint as against Defendant Jodi H. Brown,

M.D. is hereby DISMISSED with prejudice. 

BY THE COURT:

 

J.

Case 2:02-cv-04302-MFA Document 11 Filed 08/06/2002 Page 1 of 5
IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

MARA FLAMM. :

Plaintiff :

: NO. 02–CV-4302

v. :

:

SARNER & ASSOCIATES, P.C. and :

JOSHUA SARNER, ESQUIRE and :

LEONARD SARNER, ESQUIRE and : CIVIL ACTION

JODI H. BROWN, M.D. and JOHN :

MATUSAVAGE, :

Defendants :

DEFENDANT JODI H. BROWN, M.D.’S MOTION TO DISMISS

PLAINTIFF’S COMPLAINT PURSUANT 

TO FED. R. CIV. P. 12(b)(6)

Defendant, Jodi H. Brown, M.D., by her undersigned counsel, Baratta & Russell, P.C.,

hereby moves this Honorable Court for dismissal of all claims against her pursuant to Federal

Rule of Civil Procedure 12(b)(6). For the reasons set forth below and in the accompanying

Memorandum of Law, Defendant, Jodi Brown, M.D., respectfully requests that Plaintiff’s

complaint be dismissed as against her.

1. The instant Complaint arises from a debt judicially determined to be owed by

Plaintiff to Defendant, Jodi H. Brown, M.D. (“Dr. Brown”). (See ¶16, 17 of

Plaintiff’s Complaint)

2. Dr. Brown is a licensed child and adult psychiatrist, who provided Plaintiff with

psychiatric evaluation and treatment services over the course of 18 months in

1997 and 1998.

Case 2:02-cv-04302-MFA Document 11 Filed 08/06/2002 Page 2 of 5
3. Plaintiff failed to pay for those services rendered, and on April 4, 2001, a default

judgment was entered against Plaintiff in Philadelphia Municipal Court, in the

amount of $6,280.50. (See ¶17 of Plaintiff’s Complaint)

4. Plaintiff alleges that Dr. Brown retained the services of defendant, Sarner &

Associates, Joshua Sarner, Esquire and/or Leonard Sarner, Esquire (hereinafter

“Sarner”) as her attorney, to represent her interests in attempting to collect the

money owed by Plaintiff.

5. Plaintiff further alleges that Sarner employed a “process server” in an effort to

serve Plaintiff with a Notice of Deposition in Aid of Execution of the Municipal

Court Judgment.

6. Plaintiff alleges that the process server said and did certain things in the course of

serving legal process, upon which actions the entire Complaint is based.

7. The sole count of Plaintiff’s Complaint from which this Court’s jurisdiction

derives is an alleged violation by all defendants of 15 U.S.C. § 1692, et. seq., the

Fair Debt Collection Practices Act (the “Act”) (see ¶1 of Plaintiff’s Complaint).

8. The remaining counts of Plaintiff’s complaint are State causes of action.

9. Plaintiff fails to state a cause of action under the Act against Dr. Brown because

Dr. Brown is not a “debt collector” as defined therein, which is necessary for the

Act to apply. Dr. Brown is rather, a creditor of Plaintiff’s, and the Act is

inapplicable to creditors. See Gary v. Goldman and Company, 180 F. Supp. 2d

668 (E.D. Pa. 2002).

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10. Plaintiff fails to state a cause of action against any of the defendants under the

Act, as service of process in connection with the judicial enforcement of any debt

does not fall within the ambit of the Act. 15 U.S.C. § 1692(a)(6)(d).

11. All of Plaintiff’s claims against Dr. Brown are based upon a theory of vicarious

liability, through either an agency relationship, or through an alleged

conspiratorial relationship, with the defendants, Sarner (see ¶ 8, 9 of Plaintiff’s

Complaint).

12. Plaintiff makes no claim that Dr. Brown, either employed or contracted with

Defendants, John Matusavage, but only that Defendants Sarner did (see ¶ 12, 13

of Plaintiff’s Complaint).

13. Under Pennsylvania law, an attorney is considered an independent contractor of

his client, and the client may not be held vicariously liable for the negligence of

the attorney. See I&S Associates Trust v. LaSalle National Bank, 2001 WL

1143319 (E.D. Pa. 2001) and Feller v. New Amsterdam Ass. Co., 70 A.2d 299,

300 (Pa. 1950).

14. Plaintiff’s allegations of conspiracy must fail as well, as the Complaint simply

makes conclusory legal allegations thereof, and is devoid of any specific facts

showing an agreement amongst the defendants to do an unlawful act. Shirey v.

Bensalem Township, 501 F. Supp. 1138, 1141 (D.C. Pa. 1980).

15. Plaintiff has failed to state any claim against Dr. Brown upon which relief can be

granted.

16. Dismissal of Plaintiff’s Complaint on all counts against Dr. Brown is appropriate 

Case 2:02-cv-04302-MFA Document 11 Filed 08/06/2002 Page 4 of 5
pursuant to Fed. R.Civ.P. 12(b)(6).

WHEREFORE, Defendant Jodi H. Brown, M.D., respectfully requests that Plaintiff’s

Complaint be dismissed with prejudice, for failing to state a claim upon which relief can be

granted.

Respectfully Submitted

BARATTA & RUSSELL, P.C.

 By:_____ 

ANTHONY J. BARATTA, ESQ.

ANDREW P. BARATTA, ESQ.

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