Gennaro Rauso v. Angela Martinez ( 2022 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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Nos. 20-2927 and 21-1503 (Consolidated)
__________
GENNARO RAUSO,
Appellant
v.
ANGELA MARTINEZ; MARY MCFALL HOPPER; FEDERAL NATIONAL
MORTGAGE ASSOCIATION; SUNTRUST MORTGAGE, INC.; DITECH
FINANCIAL LLC; GREENTREE CONSUMER DISCOUNT COMPANY;
GREENTREE MORTGAGE SERVICING COMPANY; PHELAN HALLINAN
DIAMOND & JONES LLP; MARK FINLEY; JOSEPH F. FINLEY; JOHN DOE AND
JANE DOE OCCUPANT(S); ALLISON WELLS; JOSEPH E. DEBARBERIE;
GREENTREE SERVICING LLC; DORIAN MOLINO; CORE ABSTRACT; LTS
ACQUISITION COMPANY, LLC; ADAM H. DAVIS, ESQ.; LAUREN R. TABAS,
ESQ.
____________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(E.D. Pa. Civil Action No. 2-17-cv-04721)
District Judge: Honorable Wendy Beetlestone
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
September 16, 2022
Before: MCKEE, SHWARTZ, and MATEY, Circuit Judges
(Opinion filed: October 4, 2022)
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OPINION*
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PER CURIAM
Gennaro Rauso, proceeding pro se, appeals orders of the United States District
Court for the Eastern District of Pennsylvania related to an action he filed pursuant to 42
U.S.C. § 1983. We will affirm the judgment of the District Court.
In 2017, Rauso filed a pro se complaint against financial entities, a law firm, the
Delaware County, Pennsylvania Sheriff, and other individuals. The lawsuit arose from a
state court foreclosure action and sheriff’s sale of property. Rauso alleged that the
mortgagor transferred his rights and interests to him. Rauso claimed, among other things,
a deprivation of the right to possession and use of the property that was foreclosed. The
District Court granted Rauso several extensions of time to respond to the defendants’
motions to dismiss his complaint or to file an amended complaint.
Rauso filed an amended complaint in September 2019, which many of the
defendants again moved to dismiss. The District Court granted Rauso’s motion for an
extension of time and gave him 60 days, or until December 20, 2019, to respond. Rauso
filed another motion for an extension of time, which related to a motion to dismiss that was
not encompassed in the prior order. After a telephone status conference, the District Court
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
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ruled that Rauso must respond to all of the pending motions by January 27, 2020. The
District Court later granted Rauso’s motion for another extension of time and ordered that
he respond to the motions by March 27, 2020.
Rauso did not comply and, on April 7, 2020, the District Court granted the
defendants’ motions to dismiss. It dismissed the amended complaint as to these parties
pursuant to Federal Rule of Civil Procedure 41(b) and Poulis v. State Farm Fire and
Casualty Company, 747 F.2d 863 (3d Cir. 1984), for failure to prosecute.
Thereafter, the District Court docketed a motion by Rauso for another extension of
time to respond to the defendants’ motions to dismiss. Rauso had prepared the motion two
days before the expiration of his last extension and the District Court received it after it
had dismissed his amended complaint. The District Court denied the motion. It explained
that Rauso had already been granted extensions of time, that it had held a telephone status
conference to make him aware of the deadlines, and that the motions to dismiss had been
pending for over seven months. See Order entered 6/1/20.
On January 22, 2021, the District Court dismissed the amended complaint against
the remaining defendants. It explained that five defendants (including two Doe defendants)
had not been served and that three defendants could not be sued pursuant to a Bankruptcy
Court order. Rauso now appeals the District Court’s April 7, 2020, and January 22, 2021,
orders and several related orders.
We have jurisdiction pursuant to 28 U.S.C. § 1291. We review the dismissal of a
complaint pursuant to Rule 41(b) for abuse of discretion. Briscoe v. Klaus, 538 F.3d 252,
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257 (3d Cir. 2008). We apply the same standard to a dismissal for failure to effectuate
service. See Ayres v. Jacobs & Crumplar, P.A., 99 F.3d 565, 568 (3d Cir. 1996).
Rauso argues that we should vacate the April 7, 2020, order dismissing his
complaint for failure to prosecute and remand the matter in order to give him an opportunity
to be heard. A District Court may dismiss a case sua sponte for failure to prosecute but it
should do so cautiously because it may not have all of the facts needed to make an informed
decision. Briscoe, 538 F.3d at 258. We have held that, where the District Court does not
have the facts necessary to fully analyze the Poulis factors, it must give the plaintiff an
opportunity to be heard regarding his failure to comply with its orders. Id. at 264.
The District Court discussed all of the Poulis factors.1 Significantly, Rauso does
not identify on appeal any facts that the District Court lacked when it analyzed these
factors. And, while he notes certain relevant legal principles, he does not develop an
argument that the District Court erred in its assessment of the Poulis factors. He contends
that we should not consider this question. Rauso correctly states that he was not heard
before his case was dismissed for failure to prosecute. However, absent any contention
that the District Court lacked necessary facts, he has not shown under the circumstances
here that the District Court abused its discretion.2 To the extent Rauso asserts a violation
1
Under Poulis, a district court must consider (1) the extent of the party’s personal
responsibility; (2) prejudice to the opposing party; (3) a history of dilatoriness; (4) whether
the conduct was willful or in bad faith; (5) alternative sanctions; and (6) the meritoriousness
of the claim. Poulis, 747 F.2d at 868.
2
The District Court did not know why Rauso had not complied with its latest order granting
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of his right to due process, he has not shown a constitutional violation. Rauso was given
several extensions of time to respond to the motions to dismiss and he has not advanced
any reason why he could not comply with the District Court’s last extension.
Rauso also contends that the District Court’s orders must be vacated so that the
District Court can first determine whether it had subject matter jurisdiction over his action.
Jurisdiction, however, must be determined only if a court adjudicates a cause of action on
the merits. Sinochem Int’l Co. Ltd. v. Malaysia Int’l Shipping Corp., 549 U.S. 422, 431
(2007). Rauso has shown no error in this regard. In addition, Rauso asserts that we should
stay his appeal so that the District Court can decide if his belatedly-received motion for an
extension of time should be deemed filed when he mailed it because he was in prison. This
argument lacks merit. The District Court entertained the motion even though it was
docketed after the Court dismissed Rauso’s complaint.
Regarding the January 22, 2021, order, Rauso argues that the District Court erred in
dismissing his case for lack of service pursuant to Federal Rule of Civil Procedure 4(m).
He contends that he did not receive notice before the dismissal as required by the rule. And
he states that he was entitled to rely on the U.S. Marshals Service to serve his complaint
because he was proceeding in forma pauperis.
an extension of time to respond to the motions to dismiss. But Rauso only argued in his
belatedly-received motion for another extension that the District Court could not rule on
the motions to dismiss because some defendants had not been served. The District Court
rejected any objection in this regard in its April 7, 2020, order.
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Although the U.S. Marshals Service effectuates service for in forma pauperis
litigants, Welch v. Folsom, 925 F.2d 666, 670 (3d Cir. 1991), Rauso has not shown that he
fulfilled his obligations. The docket reflects that summonses were issued and forwarded
to the U.S. Marshals Service for two of these defendants in December 2019 (Dorian Molino
and Core Abstract) and for the third in February 2020 (LTS Acquisition Company, LLC).
Rauso then moved for an extension of time for service. He stated that the U.S. Marshals
Service had not served these defendants. The District Court denied the motion, noting that
summonses had been executed. See Order entered 6/1/20.
To the extent the District Court’s order suggests that service was made, Rauso does
not dispute that these defendants were not served. Rauso, however, does not state that he
provided the USM-285 forms necessary to effectuate service. Rauso was aware of his
responsibility to complete the forms, which he had supplied for the other defendants, and
which require the names and addresses of the defendants to be served. The District Court
did not notify Rauso before issuing the January 22, 2021, dismissal order, but he has not
shown that there was good cause for the failure to serve them. See Fed. R. Civ. P. 4(m)
(stating court must extend time for service where good cause is shown); Lee v. Armontrout,
991 F.2d 487, 489 (8th Cir. 1993) (per curiam) (noting in forma pauperis plaintiff’s
responsibility to provide addresses for service).
Rauso also challenges the District Court’s January 22, 2021, dismissal of three
defendants based on a Bankruptcy Court injunction. In May 2019, DiTech Financial LLC
(f/k/a Greentree Servicing LLC f/k/a Greentree Consumer Discount Company) notified the
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District Court that it had filed a Chapter 11 bankruptcy petition. DiTech stated that Rauso’s
action was subject to the automatic stay. DiTech later notified the Court that the
Bankruptcy Court had confirmed the Chapter 11 plan and had enjoined certain pending
actions, including Rauso’s action. See Notices of Bankruptcy Court Orders filed 11/8/19
and 6/8/2020.
Rauso argues that the District Court’s dismissal of these defendants based on the
injunction violated the automatic stay. However, as Rauso recognizes in his brief, the
automatic stay ends when a discharge is granted. 11 U.S.C. § 362(c)(2)(C). The
confirmation of a Chapter 11 plan generally discharges the debtor from debts arising before
the date of confirmation. See 11 U.S.C. § 1141(d)(1). Here, the order confirming the plan
and the injunction were issued before the January 22, 2021, dismissal order. Rauso has not
shown a violation of the automatic stay.
Finally, Rauso challenges (1) a September 24, 2020, order, which did not allow him
to file a motion to reconsider the April 7, 2020, order; (2) a December 11, 2020, order
dismissing his motion for clarification, which sought a certification pursuant to Federal
Rule of Civil Procedure 54(b) of the April 7, 2020, order; and (3) a February 18, 2021,
order denying his motion to reopen the time to appeal the September 24, 2020, order.
Insofar as Rauso’s motions related to our jurisdiction to entertain his appeal of the April 7,
2020, or September 24, 2020, orders, we need not consider these orders as we have
determined that we have jurisdiction. And no relief is due to the extent Rauso sought to
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file a motion for reconsideration of the April 7, 2020, order as he was able to challenge that
order in this appeal.
Accordingly, we will affirm the judgment of the District Court.3
3
Rauso’s motion filed on January 5, 2021, for an order granting the District Court leave to
decide a motion to correct the record, which Rauso contends is necessary to decide
jurisdictional issues, and related relief is denied.
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