Lan Trinh v. David Fineman ( 2019 )


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  •                                                                NOT PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    ___________
    No. 19-2467
    __________
    LAN TU TRINH,
    Appellant
    v.
    DAVID FINEMAN
    ____________________________________
    On Appeal from the United States District Court
    for the Eastern District of Pennsylvania
    (D.C. Civil Action No. 2-19-cv-02305)
    District Judge: Honorable Cynthia M. Rufe
    ____________________________________
    Submitted Pursuant to Third Circuit LAR 34.1(a)
    November 12, 2019
    Before: SHWARTZ, RESTREPO and RENDELL, Circuit Judges
    (Opinion filed November 14, 2019)
    ___________
    OPINION*
    ___________
    PER CURIAM
    *
    This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
    constitute binding precedent.
    Lan Tu Trinh appeals from an order of the United States District Court for the
    Eastern District of Pennsylvania, which dismissed for lack of subject matter jurisdiction
    her complaint against David Fineman.
    Trinh’s complaint alleged that Fineman was appointed as a receiver in a state court
    case involving the dissolution of her beauty school. The complaint accuses Fineman of
    not giving her a proper accounting of the escrow account related to that case and accuses
    him of “the theft of my properties on behalf of the Court of Common Pleas for Kathleen
    Trinh’s benefit.” Dkt. #1 at 6. Both the cover sheet and the complaint itself claim
    “Federal Question” jurisdiction. The complaint’s cover sheet states that the federal
    question is “investigation, crime,” Dkt. #1 at 1, and in the form complaint’s area for
    explaining the basis of the Federal Question Trinh stated: “The courts in Pennsylvania
    have denied my appeals, so I ask for the district court to hear my case,” Dkt. #1 at 2.
    The District Court sua sponte dismissed Trinh’s complaint without prejudice for
    lack of subject matter jurisdiction. The Court stated that Trinh “does not allege any
    claims arising under federal law or that the parties are citizens of different states.” Dkt.
    #3 at n.1. Trinh timely appealed.
    We have appellate jurisdiction pursuant to 
    28 U.S.C. § 1291
    . Our review of the District
    Court’s dismissal for lack of subject matter jurisdiction is plenary. FOCUS v. Allegheny
    Cty. Court of Common Pleas, 
    75 F.3d 834
    , 839-40 (3d Cir. 1996).
    2
    As we recently explained in two of Trinh’s other appeals, “In order to have subject matter
    jurisdiction, a District Court must be able to exercise either federal question jurisdiction
    or diversity jurisdiction. See 
    28 U.S.C. §§ 1331-1332
    .” Trinh v. Office of Records City
    of Phila., C.A. No. 18-3473, and Trinh v. Trinh, C.A. No. 18-3485, 
    2019 WL 30634542
    ,
    at *1 (3d Cir. July 12, 2019). We further explained that although a District Court may
    sua sponte consider whether a plaintiff has satisfied the burden of alleging facts that show
    that the Court has jurisdiction, the Court should give the plaintiff an opportunity to be
    heard before dismissing a complaint for lack of subject matter jurisdiction. 
    Id.
     at *2
    (citing Neiderhiser v. Borough of Berwick, 
    840 F.2d 213
    , 216 n.6 (3d Cir. 1988), and
    Berardi v. Swanson Mem’l Lodge No. 48 of the Fraternal Order of Police, 
    920 F.2d 198
    ,
    200 (3d Cir. 1990)).1
    The District Court properly determined that Trinh’s complaint, as filed, does not establish
    subject matter jurisdiction. Trinh did not base her complaint on diversity jurisdiction (it
    appears that she and the defendant are from the same state). And Trinh’s complaint does
    not cite any federal statute or constitutional provision that would invoke federal question
    jurisdiction.
    1
    As in the cases involved in those appeals, Trinh paid the filing fees in the District Court,
    so the screening provisions of 
    28 U.S.C. § 1915
    (e) are not applicable.
    3
    We are doubtful that Trinh can state a basis for federal subject matter jurisdiction.2 See
    Cardona v. Bledsoe, 
    681 F.3d 533
    , 535 (3d Cir. 2012) (“Federal courts are courts of
    limited jurisdiction. They possess only that power authorized by Constitution and
    statute.”) (quoting Kokkonen v. Guardian Life Ins. Co. of Am., 
    511 U.S. 375
    , 377
    (1994)). But because the District Court did not give Trinh the opportunity to respond or
    amend her complaint to properly allege federal question jurisdiction, see Neiderhiser, 
    840 F.2d at
    216 n.6, we will vacate the District Court’s judgment and remand for further
    proceedings. On remand, the District Court should provide Trinh with an opportunity to
    either respond to the issue of jurisdiction or amend her complaints to properly allege
    federal question jurisdiction. See 
    28 U.S.C. § 1653
    ; St. Francis Med. Ctr. v. Sullivan,
    
    962 F.2d 1110
    , 1117 (3d Cir. 1992).
    2
    We note that to the extent Trinh sought to bring a criminal charge against Fineman, a
    private party has no right to enforce criminal statutes. See Leeke v. Timmerman, 
    454 U.S. 83
    , 85-86 (1981) (per curiam). Trinh is also advised that a federal court cannot
    exercise appellate review over a state court judgment. See Great W. Mining & Mineral
    Co., 
    615 F.3d 159
    , 165-66 (3d Cir. 2010).
    4