Jarmuth v. Waters ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-1908
RONALD E. JARMUTH,
Plaintiff - Appellant,
versus
KATHLEEN R. WATERS; JAMES M. FRINZI,
Defendants - Appellees,
versus
FAYETTE COUNTY CHILDREN AND YOUTH SERVICES;
ANGELA J. JARMUTH; PENNSYLVANIA STATE POLICE,
Parties in Interest.
Appeal from the United States District Court for the Northern
District of West Virginia, at Clarksburg. Irene M. Keeley, Chief
District Judge; John S. Kaull, Magistrate Judge. (1:04-cv-00063-
IMK)
Submitted: January 31, 2007 Decided: March 7, 2007
Before NIEMEYER, WILLIAMS, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Ronald E. Jarmuth, Appellant Pro Se. Charles T. Berry, BOWLES,
RICE, MCDAVID, GRAFF & LOVE, PLLC, Morgantown, West Virginia;
Scott R. Leah, TUCKER & ARENSBERG, PC, Pittsburgh, Pennsylvania;
Stacie Dawn Honaker, Peter T. DeMasters, FLAHERTY, SENSABAUGH &
BONASSO, PLLC, Morgantown, West Virginia, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Ronald E. Jarmuth appeals from the district court’s
orders entering judgment in favor of Defendants in his action
claiming defamation and violations of the Pennsylvania Wiretap
Statute. Jarmuth contends that the district court erred in finding
that the statute of limitations on his defamation claims had
expired, erred by determining that it lacked personal jurisdiction
over Kathleen Waters, erred in finding no expectation of privacy
and therefore dismissing his wiretap counts, and erred by finding
that Jarmuth failed to support his defamation claim with respect to
Trooper Stevens’ phone calls. We affirm.
Jarmuth contends that the defamation claim filed in this
action was the same claim as was previously filed in the federal
district court in Pennsylvania and dismissed without prejudice when
the federal claims were dismissed. He contends, therefore, that
his refiling of the claim in the West Virginia district court is
timely under 28 U.S.C. § 1367(d) (2000). However, even assuming
that the claim is the same and that it would have been tolled from
the Pennsylvania district court’s dismissal through the disposition
of the appeal in the Third Circuit and until it was filed in the
West Virginia district court, we find that it was filed beyond the
statute of limitations. Thus, we need not resolve the myriad of
procedural issues surrounding this claim, but rather affirm the
district court’s dismissal under the statute of limitations. The
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defamatory statement that underlies this claim was discovered by
Jarmuth in December 2000, when he read the letter addressed to his
supervisor. Jarmuth moved to amend his complaint that was pending
in the Pennsylvania district court in January 2002. Although he
requested that the complaint be amended nunc pro tunc, the district
court allowed the amendment and directed that the amended complaint
be filed on January 10, 2002. This amended complaint was filed
beyond the one-year limitations period. See W. Va. Code Ann. § 55-
2-12 (Michie 2000). Thus, we conclude that Jarmuth failed to file
his defamation claim within the limitation period, and we affirm
the district court’s dismissal of this claim on this basis.
With respect to the remaining claims, we have reviewed
the record and find no reversible error. Accordingly, we affirm
for the reasons stated by the district court. Jarmuth v. Waters,
No. 1:04-cv-00063-IMK (N.D. W. Va. Mar. 31, 2005 & July 25, 2006).
Because counsel has noted an appearance on behalf of Kathleen
Waters, we deny as moot Jarmuth’s motion that pleadings and orders
be served directly on Waters. We dispense with oral argument
because the facts and legal contentions are adequately presented in
the materials before the court and argument would not aid the
decisional process.
AFFIRMED
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