Jason Brown v. Progressive Specialty Ins Co.

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 18-1005
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JASON L. BROWN,
Appellant
v.
PROGRESSIVE SPECIALTY INSURANCE COMPANY;
MICHAEL J. DOUGHERTY, (Attorney)
____________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Action No. 2-17-cv-05409)
District Judge: Honorable Juan R. Sánchez
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
September 26, 2018
Before: GREENAWAY, JR., BIBAS and ROTH, Circuit Judges
(Opinion filed March 29, 2019)
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OPINION*
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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.
Pro se Appellant Jason Brown appeals from the dismissal of his complaint for lack
of subject matter jurisdiction pursuant to Fed. Rule Civ. P. 12(h)(3). For the following
reasons, we will affirm the judgment.
In September 2017, appellee Matthew Dougherty filed a statement of claim
against Brown in Philadelphia Municipal Court on behalf of Progressive Specialty
Insurance Company (“Progressive”). The statement alleged that Brown was operating a
motor vehicle that “negligently and/or carelessly” collided with one of Progressive’s
insured vehicles. Progressive sought a money judgment of $4,467.46, the amount it had
paid to its insured as a result of the damages from the accident.
While that claim was pending, Brown filed a complaint in the District Court for
the Eastern District of Pennsylvania against Progressive and Dougherty, alleging that the
state action was frivolous and fraudulent, and asserting state law claims for invasion of
privacy, slander, libel, and fraud. Brown sought $500,000 in damages and an order
directing the Philadelphia Municipal Court to dismiss the claim. As a basis for his action,
he asserted diversity of citizenship, and listed two criminal statutes, 18 U.S.C. §§ 1016
(“Acknowledgment of appearance or oath”) & 1341 (“Frauds and swindles”)1, as well as
the First, Fourth, Fifth, Eighth, and Thirteenth Amendments to the U.S. Constitution.
The District Court determined that it lacked jurisdiction, and dismissed the complaint
1
Within the body of the complaint, Brown asserted a third criminal statute as a basis for
jurisdiction, 18 U.S.C. § 1030 (“Fraud and related activity in connection with
computers”).
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without prejudice to Brown seeking relief in state court on his state law claims. This
appeal ensued.
We have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise de novo review
over the District Court’s sua sponte dismissal of the complaint for lack of subject matter
jurisdiction. See U.S. S.E.C. v. Infinity Grp. Co., 212 F.3d 180, 186 & n.6 (3d Cir.
2000).
We agree with the District Court that Brown failed to establish subject matter
jurisdiction. For a federal court to exercise diversity jurisdiction over an action, the
parties must be citizens of different states and the amount in controversy must exceed
$75,000. See 28 U.S.C. § 1332(a)(1). The District Court determined that Brown and
Dougherty “appear to be citizens of Pennsylvania,” and that, therefore, the necessary
complete diversity is lacking. See Mennen Co. v. Atl. Mut. Ins. Co., 147 F.3d 287, 290
(3d Cir. 1998) (“[J]urisdiction [under § 1332] is lacking if any plaintiff and any defendant
are citizens of the same state.”). We review a court’s factual findings regarding
citizenship for clear error. See Johnson v. SmithKline Beecham Corp., 724 F.3d 337, 345
(3d Cir. 2013). We find none here, particularly in light of Brown’s failure to provide any
argument or evidence − either in the District Court or on appeal − to undermine the
District Court’s finding. See id., (explaining that we may not reverse a factual finding
where “the district court’s account of the evidence is plausible in light of the record
viewed in its entirety”) (citation omitted); see also Packard v. Provident Nat’l. Bank, 994
F.2d 1039, 1045 (3d Cir. 1993) (“The person asserting jurisdiction bears the burden of
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showing that the case is properly before the court at all stages of the litigation.”).
Accordingly, we concur with the District Court that the complaint does not establish
diversity jurisdiction.
Federal courts also have subject matter jurisdiction over “all civil actions arising
under the Constitution, laws, or treaties of the United States,” 28 U.S.C. § 1331. As the
District Court explained, federal question jurisdiction could not be premised on Brown’s
alleged violations of criminal statutes as they neither authorize civil actions nor create
civil liabilities. See Andrews v. Heaton, 483 F.3d 1070, 1076 (10th Cir. 2007); Allen v.
Gold Country Casino, 464 F.3d 1044, 1048 (9th Cir. 2006). And Brown’s mere citation
to various constitutional provisions cannot transform his state law claims into causes of
action “arising under” the Constitution.2 Moreover, the Supreme Court has repeatedly
“insisted that the conduct allegedly causing the deprivation of a federal right be fairly
attributable to the State.” Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982); see 42
U.S.C. § 1983. We agree with the District Court that there is no basis in the complaint to
suggest that the defendants, who are private actors, were acting “under color of state
law,” or that they violated Brown’s constitutional rights. Jackson v. Temple Univ. of
2
To the extent that the complaint can be read to allege independent constitutional
violations, the District Court lacked subject matter jurisdiction as the claims are “so
attenuated and unsubstantial as to be absolutely devoid of merit.” Hagans v. Lavine, 415
U.S. 528, 536-37 (1974). Brown simply offered no viable factual or legal basis
whatsoever for such claims.
4
Commw. Sys. of Higher Educ., 721 F.2d 931, 933 (3d Cir. 1983). Therefore, the District
Court properly determined that it lacked federal question jurisdiction over the complaint.
Finally, we perceive no error in the District Court’s determination that amendment
of the complaint would have been futile, or its observation that Brown could litigate his
state-law claims in state court. See Miklavic v. USAir, 21 F.3d 551, 557-58 (3d Cir.
1994); see also Figueroa v. Buccaneer Hotel Inc., 188 F.3d 172, 182 (3d Cir. 1999).
(noting that a dismissal for lack of subject matter jurisdiction is necessarily without
prejudice).
Based on the foregoing, we will affirm the District Court’s judgment.
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