PHILADELPHIA – A judge has rejected a motion to dismiss that was filed by an attorney after he was sued for allegedly failing to appeal a case in a timely manner.

The May decision filed by Judge J. Curtis Joyner in the U.S. District Court of Eastern Pennsylvania mentioned that Michael Gigliotti filed a motion to dismiss the plaintiffs' malpractice suit against him for failure to "state a claim upon which relief can be granted" and because he was not the attorney responsible for filing an appeal. 

The court found that Gigliotti had, in fact, positioned himself to be responsible for the plaintiffs' case.

The initial lawsuit occurred in bankruptcy court and named Greg Bayer and John Larson as plaintiffs. The case resulted in the judge deciding that the debt Nicholas Bayer allegedly owed the plaintiffs was dischargable. 

The plaintiffs wanted to appeal the decision, but Gigliotti claimed he was not eligible to file the appeal because he was only local counsel. The plaintiffs then filed a complaint against Gigliotti and Kashkashian & Associates, alleging breach of contract on Oct. 27.

Gigliotti argued that it was the responsibility of attorney Robert Sweeney to file the appeal because he "was providing active legal advice" and "had an attorney-client relationship" with the plaintiffs. 

But the amended complaint states that Gigliotti was "responsible for executing all filings on Plaintiffs' behalf with the court" and that he discussed filing an appeal with the plaintiffs. The plaintiffs allege that when they began to inquire about the appeal deadline to Gigliotti, he did not respond. After finding new legal representation, the plaintiffs learned that the period to appeal had expired.

The district court found that Gigliotti could have acted without the permission of Sweeney.

"We find that plaintiffs have averred sufficient facts independent of Mr. Sweeney's actions or inactions which involve what took place solely between plaintiffs and Mr. Gigliotti which are sufficient to state a claim upon which relief may plausibly be granted," the decision read.

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