Not For Publication in West's Federal Reporter Citation Limited Pursuant to 1st Cir. Loc. R. 32.3 

# United Stat es Court of Appeals

For the First C ircuit

No. 03-1747 RUBLE HECK-DANCE, Plaintiff, Appellant,

v. JOSE F. CARDONA-JIMENEZ, Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Salvador E. Casellas, U.S. District Judge ]
Before Torruella, Circuit Judge , Stahl, Senior Circuit Judge , and Lynch, Circuit Judge .

Ruble L. Heckon brief pro se. Jose O. Ramos Gonzalez and Ramos Gonzalez & Toyos Olascoaga on brief for appellee.

June 15, 2004-2- PER CURIAM . Pro se plaintiff-appellant Ruble Heck-Dance ("Heck ") appeals the grant of summary judgment in favor of defendant-appellee Jose F. Cardona-Jimenez ("Cardona"). We review the grant of summary judgment de novo , examining the record independentlyand drawing any factual inferences in the light most favorable to the non-movant. Gu v. Boston Police Dep't , 312 F.3d 6, 10 (1st Cir. 2002). After carefully reviewing the parties' briefs and the record, we affirmthe grant of summary judgment substa ntia llyfor the reasons stated in the district court's opinion and order entered on February 5, 2003. We add only the following comments.

We agree with Heck that diversity of citizenship appears to be lacking in this case, and that the lower court's characterization of this case as a diversity action appears to have been in error. We are satisfied, however, that the district court hadsubject matter jurisdiction over this case purs uant t o 28 U.S.C. § 1334(b) because Heck's legal malpractice claim is based on the defendan t atto rney's handling of Heck's bankruptcy case. Grausz v. Englander , 321 F.3d 467, 471-72 (4th Cir. 2003) (holding that debtors' legal malpractice claim was a claim "arising in" Title 11 for purposes of federal jurisdiction since the proceeding would have no practical existence but for the bankruptcy).

Heck's other claimed errors lack merit. First, the d istrict court did not err in applying Puerto Rico's on e-yea r-3-

statute of limitations for tort actions to Heck's legal malpractice
case. Colon Prieto v. Geigel , 115 D.P.R. 232, 236 & n.4, 115 P.R. Offic. Trans. 313, 318 & n.4 (1984). Further, the district court didnot err in ruling that Heck's legal malpractice case was timebarred. We agree with the lower court that Heck's June 19, 2000 article in the San Juan Star demonstrated Heck's awareness of his legal malpractice claim against Cardona, and that his malpractice action - filed at the earliest on July 18, 2001 in bankruptcy court - was untimely.

Heck's attempt to toll the statute of limitations by invoking various bankruptcy laws is to no avail. First, Heck cannot rely on the automatic stay provision in 11 U.S.C. § 362(a) becau se it applies only to actions "against" the debtor. Heck's
re li ance on Simon v. Navon , 116 F.3d 1 (1st Cir. 1997), is misplaced. In that case, we held that section 362 stays appellate proceedings in ac t ions originally brought "against" the debtor, even when it is the debtor who files the appeal. Simon , 116 F.3d at 4 . Second, Heck was not entitled to an extension of time to file his malpractice action pursuant to 11 U.S.C. § 108(a). By its terms section 108(a) applies only to extend time for actions which the debtor had on the date of filing the bankruptcy petition. See 11 U.S.C. § 108(a) ("If applicable law . . . fixes a period within which the debtor may commence an action , and such period has not expired

before the date of the filing of the petition . . .")-4-

(emphasis added). In this action, Heck claims that Cardonamishandled his bankruptcy case. Obviously, the claim arose postpetition. Therefore, section 108(a) is inap plicab le. Matter of Phillip , 948 F.2d 985, 987 (5th Cir. 1991) (noting that causes of action acquired post-pet itio n are not protected by section 108). Finally, even assuming that Heck could not bring this action until the bankru ptcy trustee abandoned the claim, Heck does not assert that he sought to have the trustee abandon the claim prior to the running of the limitations period. In re Price , 173 B.R. 434, 443 (Bankr. N.D. Ga. 1994) (noting that, to extent timing is important, debtor may move for order requiring trustee to abandon claim). Thus, there is no basis to toll the limitations period.

The judgment of the district court is affirmed . See 1st Cir. R. 27(c).