Winston Banks v. Howard Taylor ( 2023 )

DLD-117 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 22-3352
___________
WINSTON J. BANKS,
Appellant
v.
HOWARD TAYLOR, Esq.; JOSEPH FINEMAN, Esq. (deceased); JEROME
TAYLOR (deceased); GINO J. BENEDETTI, Esq. (Septa); AUCLAIR
& GILES LAW OFC; JUDITH TAYLOR (Spouse)
____________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Action No. 2-21-cv-04644)
District Judge: Honorable Wendy Beetlestone
____________________________________
Submitted on Appellant’s Motion to Remand
and Appellees’ Motions to Dismiss
March 30, 2023
Before: JORDAN, SHWARTZ, and SCIRICA, Circuit Judges
(Opinion filed: April 6, 2023)
_________
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.
Winston J. Banks appeals from the District Court’s order dismissing this action
without prejudice for lack of subject-matter jurisdiction. Banks has filed a motion to
remand. Appellee Howard A. Taylor has responded with a motion to dismiss this appeal,
and appellee Gino J. Benedetti both joins in Taylor’s motion and has filed a motion to
dismiss Banks’s motion. We construe Banks’s and Taylor’s motions as motions for
summary action pursuant to 3d Cir. L.A.R. 27.4 (2011) and 3d Cir. I.O.P. 10.6. So
construed, Banks’s motion is denied, Taylor’s motion is granted, and we will affirm the
judgment of the District Court. Benedetti’s motion is denied.
I.
Banks previously worked as a bus driver for the Southeastern Pennsylvania
Transportation Authority (“SEPTA”). In 1991, while driving a bus, Banks was involved
in a collision with a tractor trailer. He later filed a counseled personal injury suit against
the owner of the tractor trailer but dismissed it in 1994 after reaching a settlement. (E.D.
Pa. Civ. No. 2-93-cv-01917.) Banks then filed a state-court malpractice suit against the
lawyers who represented him in the personal injury suit alleging that they wrongfully
induced the settlement. The trial court entered summary judgment for the lawyers, and
the Superior Court affirmed. See Banks v. Jerome Taylor & Assocs., 700 A.2d 1329 (Pa.
Super. Ct. 1997), appeal denied, 723 A.2d 668 (Pa. 1998) (Table).
In this case, Banks filed a complaint and then an amended complaint against
individuals (including Taylor) whom he apparently believes represent the estates of his
now-deceased personal injury lawyers. He also named as defendants SEPTA’s General
Counsel (Benedetti) and the law office of the tractor trailer owner. Banks alleged that the
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injuries he suffered in the 1991 collision have been ongoing and most recently required
additional back surgery in 2019. He did not assert any specific claim for relief, but he
appeared to seek additional compensation for those injuries. Banks further alleged that
several defendants, including Taylor and Benedetti, are residents of Pennsylvania. He
identified himself as a Pennsylvania resident as well.
The District Court held a conference with the parties and later dismissed this
action without prejudice for lack of subject-matter jurisdiction. The Court reasoned, inter
alia, that it lacked diversity jurisdiction because both Banks and several of the defendants
are citizens of Pennsylvania. Banks appeals. 1
II.
Taylor argues that the District Court’s dismissal was correct because the Court
lacked diversity jurisdiction and otherwise lacked subject-matter jurisdiction. We agree
and will affirm the dismissal of this action on that basis.
1
We have jurisdiction under 28 U.S.C. § 1291. Benedetti argues that we lack jurisdiction
and should dismiss this appeal because the District Court’s dismissal without prejudice is
not a final decision under § 1291. He relies on our statement in Borelli v. City of
Reading, 532 F.2d 950, 951 (3d Cir. 1976) (per curiam), that a dismissal without
prejudice is not a final decision because it invites amendment. But the term “without
prejudice” can have another meaning because it is the proper disposition when a court
dismisses a case on threshold grounds without reaching the merits. See Merritts v.
Richards, __ F.4th __, 2023 WL 2532055, at *4 (3d Cir. Mar. 16, 2023). In that context,
a dismissal without prejudice does not mean that the order lacks finality under § 1291.
See id. at *4 n.4. Instead, the dismissal without prejudice simply means that the
dismissal does not have preclusive effect on the merits. See id. That is the sense in
which we understand the District Court’s dismissal here. The Court did not mention
amendment and instead dismissed the case on threshold grounds and ordered its closure.
Thus, the order is final under § 1291 because it ended the suit as far as the District Court
was concerned. See Doe v. Hesketh, 828 F.3d 159, 165-66 (3d Cir. 2016).
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The District Court held that it lacked diversity jurisdiction under 28 U.S.C. § 1332because both Banks and several of the defendants are citizens of Pennsylvania. See In re
Lipitor Antitrust Litig., 855 F.3d 126, 150 (3d Cir. 2017). Banks has not argued
otherwise on appeal. Nor has he argued that the District Court had federal question
jurisdiction under 28 U.S.C. § 1331, and nothing in his complaints or other filings reveals
any arguable basis to assert any federal claim. Thus, we agree with the District Court that
it lacked jurisdiction over Banks’s claims.
Banks raises two issues that we briefly address. First, in his motion to remand,
Banks asks us to remand to give him additional time to find counsel. Banks requested
appointment of counsel in the District Court, which the Court denied. Banks does not
directly challenge that ruling. But to the extent that his pro se filings can be liberally
construed to do so, the Court did not abuse its discretion in declining to appoint counsel
because it denied Banks leave to proceed in forma pauperis. Cf. 28 U.S.C. § 1915(e)(1).
Banks also did not assert any claim over which the Court arguably had jurisdiction. See
Tabron v. Grace, 6 F.3d 147, 155 (3d Cir. 1993). Banks’s assertions regarding counsel
do not otherwise state any basis to remand this matter.
Second, Banks notes that he is the debtor in an ongoing bankruptcy proceeding at
E.D. Pa. Bankr. No. 17-14799 (in which, according to the docket, he is represented by
counsel). But Banks does not request any relief in that regard, and we see no need for
such relief. To the extent that Banks may believe his present claims are related to his
bankruptcy, the District Court’s dismissal is without prejudice to his ability to raise his
claims in that proceeding if it is otherwise proper for him to do so. The Court’s ruling
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also is without prejudice to Banks’s ability to raise his claims in state court if it is
otherwise proper for him to do so. We express no opinion on these issues.
III.
For these reasons, we will affirm the judgment of the District Court.
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