Ben Gross v. Robert Cormack ( 2014 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 14-1482
___________
BEN GROSS,
Appellant
v.
ROBERT CORMACK
____________________________________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil Action No. 3-13-cv-04152)
District Judge: Honorable Anne E. Thompson
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
September 25, 2014
Before: FISHER, VANASKIE and GARTH, Circuit Judges
(Filed: September 29, 2014)
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OPINION
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PER CURIAM
Plaintiff Ben Gross appeals pro se from the District Court’s order denying his
motion to reconsider the dismissal of his case for failure to state a claim. For the reasons
that follow, we will affirm the District Court’s judgment.
I.
Ben Gross brought this suit in the District Court of New Jersey, alleging that
Robert Cormack, an attorney, wrongfully and fraudulently attempted to coerce him to
discharge a construction lien, violating several federal criminal statutes in the process.
Although the complaint contained sparse factual allegations, the attached exhibits
indicated that the alleged threats consisted of two letters that Cormack sent, in his
capacity as an attorney, to Gross. In those letters, Cormack demanded that Gross
discharge what he characterized as a fraudulent construction lien or face legal action.
Cormack also informed Gross that he was not permitted to enter the properties upon
which the lien was placed and that he would be treated as a trespasser if he attempted to
do so.
The District Court dismissed the complaint for failure to state a claim pursuant to
28 U.S.C. § 1915(e), but it did so without prejudice and, even though it granted Gross an
open-ended opportunity to amend, marked the case closed. Gross quickly submitted to
the District Court a motion containing additional allegations that Cormack fraudulently
conveyed a property in order to impede Gross’ collection efforts.1 The factual details of
those allegations were also meager. The District Court denied Gross’ motion, noting that
Gross still failed to state a claim, if for no other reason than the fact that none of the
federal criminal statutes under which Gross sought remedy created a private right of
1
Gross labeled this filing a “motion to reopen.” That characterization may have been
informed by the District Court’s administrative closure of the case despite granting leave
to amend. Thus, we construe the motion as an attempt to amend the complaint and not a
motion for reconsideration.
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action. Gross then submitted another motion to the District Court that contained a list of
various federal criminal statutes, but no additional factual allegations. The District Court
construed that filing as a timely motion for reconsideration, which it denied. Gross
appealed.
II.
We have jurisdiction pursuant to 28 U.S.C. § 1291.2 We exercise plenary review
over the District Court’s order dismissing the complaint for failure to state a claim. See
Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir. 2000). We review for abuse of discretion
the District Court’s orders denying leave to amend, Winer Family Trust v. Queen, 503
F.3d 319, 331 (3d Cir. 2007), and Gross’ motion for reconsideration, see Harsco Corp. v.
Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985).
III.
We agree with the District Court that Gross failed to state a claim and find no
abuse of discretion in the District Court’s orders denying leave to amend and the motion
for reconsideration. As an initial matter, the claims enumerated in Gross’ complaint
failed because, as the District Court noted, those federal criminal statutes do not provide a
2
We construe the District Court’s order and opinion of December 16, 2013 as a denial of
leave to amend after a determination that amendment would be futile, which effectively
terminated the case on the merits. Moreover, Gross expressly stated in his notice of
appeal that he intended to stand on the complaint. See Borelli v. City of Reading, 532
F.2d 950, 951-52 (3d Cir. 1976) (per curiam). Pursuant to Federal Rule of Appellate
Procedure 4(a)(4), Gross’ motion to reconsider tolled the timeframe in which he could
file an appeal.
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private right of action. See Wisdom v. First Midwest Bank, 167 F.3d 402, 408 (8th Cir.
1999) (collecting cases determining no private right to action under the federal mail fraud
statute); United States v. D’Amato, 507 F.2d 26 (2d Cir. 1974). “Raising up causes of
action where a statute has not created them may be a proper function for common-law
courts, but not for federal tribunals.” Alexander v. Sandoval, 532 U.S. 275, 287 (2001)
(internal quotation marks omitted).3
Moreover, Gross failed to include sufficient factual allegations to support any of
the claims presented. The scope and nature of Gross’ allegations are difficult to discern
on the face of the complaint. The complaint made vague reference to a lien that Gross
placed on properties that are purported to be owned by Cormack’s clients, who are not
named in this action. In a five-paragraph statement of facts, Gross accused Cormack of
coercion, threats, false statements, and fraudulently filing a fictitious transaction.
“Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice” to state a claim. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). The requisite degree of
specificity is even higher with regard to Gross’ allegations of fraud. See Fed. R. Civ. P.
9(b). The absence of meaningful factual pleading in Gross’ complaint rendered it
insufficient.
3
To the extent that Gross’ allegations were intended to include claims of common-law
fraud or to seek other remedies based on state law, we read the District Court’s orders as
declining to exercise supplemental jurisdiction over any state law claims. See 28 U.S.C.
§ 1367(c).
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Those insufficiencies remain even if we take into account all of the documents and
additional allegations that Gross submitted to the District Court in his subsequent
motions. Gross’ motion to reopen the case contained a statement that Cormack falsely
conveyed property in order to thwart collection efforts. It did not, however, provide
sufficient factual context for those assertions. By way of illustration, Gross failed to
describe with detail the nature or extent of his rights and interests in the conveyed
property or how the alleged transfer affected those rights and interests. And while Gross
attached exhibits indicating, among other things, that Cormack prepared a mortgage and
deed related to a transfer of property interests, those documents alone do not tell enough
of a story to permit the inference of any federal cause of action. See Iqbal, 556 U.S. 662.
In his appellate briefing, Gross set forth additional allegations that Cormack
conspired to interfere with his right to prayer. Without providing factual details, Gross
cited to 18 U.S.C. § 1964 and 42 U.S.C. §§ 1985 (2) and (3).4 We will not consider
issues that are raised for the first time on appeal. See Harris v. City of Phila., 35 F.3d
840, 845 (3d Cir. 1994).
4
In his response, Cormack provided some background on the nature of those claims.
According to Cormack, Gross was engaged in state court litigation with Cormack’s
clients, regarding a structure that he built on one of the properties. In the course of that
litigation, Gross complained that he was being excluded from praying in the structure,
which had been converted to a shul. The New Jersey Superior Court discharged Gross’
lien and denied a motion to compel the property owners to permit Gross to pray on their
property. Gross himself did not rely on these factual assertions and, even if he had, they
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IV.
For the foregoing reasons, we will affirm the judgment of the District Court.
Appellee’s motion for leave to file a supplemental appendix is denied.
do nothing to cure the deficient complaint upon which Gross expressly chose to stand.
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