Leonard Thompson v. Matthew D'Emilio , 567 F. App'x 156 ( 2014 )

ALD-234 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 13-4704
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LEONARD THOMPSON,
Appellant
v.
MATTHEW D’EMILIO; DEANNE H. D’EMILIO
____________________________________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civ. No. 2-13-cv-00015)
Magistrate Judge: Honorable Maureen P. Kelly
____________________________________
Submitted for Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B) or
Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
May 15, 2014
Before: RENDELL, FISHER and GREENAWAY, JR., Circuit Judges
(Opinion filed: May 29, 2014 )
_________
OPINION
_________
PER CURIAM
Leonard Thompson appeals pro se from the District Court’s order, through a
Magistrate Judge acting on the parties’ consent pursuant to 28 U.S.C. § 636(c)(1),
dismissing his complaint. We will affirm.
Thompson filed suit pro se against Matthew D’Emilio and Deanne D’Emilio.
Thompson appears to alleges that Matthew D’Emilio helped him incorporate a business
in 1993 and that Deanne D’Emilio held Thompson’s shares in the corporation in trust for
him. Thompson further alleges that he later learned that Matthew D’Emilio never
incorporated the business as promised. Thompson did not set forth any particular cause
of action, but he later represented to the District Court that his claims were for “fraud,
unjust enrichment, conspiracy and self-dealing,” and he sought monetary damages.
Acting on defendants’ motion to dismiss, the District Court dismissed Thompson’s
complaint under Rule 12(b)(1) for lack of subject matter jurisdiction. The District Court
concluded that Thompson had not established either diversity jurisdiction under 28
U.S.C. § 1332 or federal question jurisdiction under 28 U.S.C. § 1331, and it dismissed
his complaint without leave to amend because it concluded that amendment would be
futile for those reasons.
Thompson appeals pro se and has submitted an informal brief, but he has neither
acknowledged the basis for the District Court’s rulings nor provided any reason to
question them. There is no arguable basis to do so. Regarding diversity jurisdiction,
Thompson alleges in his complaint that both he and Deanne D’Emilio are residents of
Pennsylvania but that Matthew D’Emilio is a resident of Delaware. The District Court
concluded that Thompson did not establish diversity jurisdiction because his complaint
does not suggest that the amount in controversy exceeds $75,000. The District Court also
concluded, on the basis of the parties’ representations in their briefs, that Thompson did
not establish that Matthew D’Emilio is a citizen of Delaware instead of Pennsylvania as
Matthew D’Emilio claims to be. Thompson has not challenged the District Court’s
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resolution of those issues, but the District Court need not even have reached them
because Thompson alleged that both he and Deanne D’Emilio are residents of
Pennsylvania and thus did not establish the complete diversity of citizenship necessary
for diversity jurisdiction. See Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 247 (3d
Cir. 2013).
Regarding subject matter jurisdiction, the District Court concluded that
Thompson’s complaint, liberally construed, asserts claims arising only under state law
and cannot be read to present any federal question. Thompson has not argued on appeal
that he intended to assert any federal claim, and we agree with the District Court’s
assessment of his complaint. We add only that the District Court’s dismissal of the
complaint is without prejudice to Thompson’s ability to seek whatever relief might be
available him to state court, an issue on which we express no opinion.
For these reasons, we will affirm the judgment of the District Court.
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