Gina Levin v. OMSNIC

PS1-158 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 14-1876
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GINA LEVIN,
Appellant
v.
OMSNIC; MARCUS SCHECHNER; LASALLE
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On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil Action No. 2-14-cv-00858)
District Judge: Honorable Susan D. Wigenton
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Submitted Pursuant to Third Circuit LAR 34.1(a)
August 1, 2014
Before: FISHER, VANASKIE and ALDISERT, Circuit Judges
(Opinion filed: August 4, 2014)
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OPINION
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PER CURIAM
Gina Levin appeals from the District Court’s order dismissing her complaint.
We will affirm.
This action arises from Levin’s pursuit of a medical malpractice action in New
Jersey state court. Levin initially filed her malpractice action in federal court, but the
District Court dismissed it for lack of subject matter jurisdiction. We affirmed and noted
that the District Court’s ruling was without prejudice to Levin’s ability to pursue her
claims in state court. See Levin v. Lillien, 511 F. App’x 149, 150-51 (3d Cir. 2013).
Levin has since done so and also has filed pro se a number of federal actions, including
those previously pending at D.N.J. Civ. Nos. 2-14-cv-00856 and 2-13-cv-06022, arising
from her state court proceeding.
In the action at issue here, Levin claims that the malpractice defendant’s
professional liability insurer should not have provided him with a defense in state court.
Levin named as defendants “OMSNIC,” which she alleges is the malpractice defendant’s
insurance carrier, “Markus Schechner,” which she alleges is the law firm that OMSNIC
retained to defend the malpractice defendant in state court, and “LaSalle,” which she
alleges is an insurance broker. Levin claims that OMSNIC’s policy with the malpractice
defendant does not cover her claim and “may be” invalid. She further claims that she has
been unable to obtain discovery in her state-court action on this issue and that she will not
consent to the disclosure of additional medical records (which she claims is necessary in
order to correct allegedly false records already produced) until the state court orders the
parties to produce proof that the malpractice defendant’s OMSNIC policy authorizes
OMSNIC to pay for his defense.
On the basis of these and related allegations, Levin asserted claims for (1)
“malicious defense,” (2) “malicious abuse of process,” (3) libel, (4) fraud and (5)
violation of her “privacy rights.” The District Court granted Levin’s motion to proceed
2
in forma pauperis, directed its Clerk to file her complaint, and then sua sponte dismissed
it without leave to amend for failure to state a claim. Levin appeals.1
In dismissing Levin’s complaint, the District Court reasoned that “[p]laintiff’s
claims stem from a pending [New Jersey] Superior Court matter and defendants’ failure
to comply with discovery requests in that action that is not a basis upon which to seek
relief before this court.” The District Court further concluded that amendment of Levin’s
complaint would be futile. We agree. Having reviewed Levin’s complaint de novo, and
having construed it liberally, we discern no conceivable basis for any plausible federal
claim. Levin also has raised no meaningful challenge to the District Court’s ruling on
appeal. For these reasons, we will affirm the judgment of the District Court.2
1
We have jurisdiction under 28 U.S.C. § 1291. We construe the District Court’s
dismissal as one under 28 U.S.C. § 1915(e)(2)(b)(ii), and we exercise plenary review
over such dismissals. See Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir. 2000). We
review a dismissal without leave to amend for abuse of discretion. See Connelly v. Steel
Valley Sch. Dist., 706 F.3d 209, 217 (3d Cir. 2013).
2
The District Court did not mention subject matter jurisdiction, but it likely lacked
diversity jurisdiction under 28 U.S.C. § 1332 because Levin did not allege complete
diversity and alleged instead that one of the defendants is “based in” her home state of
New Jersey. The District Court appears to have exercised federal question jurisdiction
because it dismissed Levin’s complaint for legal insufficiency and the standard for
determining when a complaint fails even to invoke the federal courts’ subject matter
jurisdiction is different. See Treasurer of N.J. v. U.S. Dep’t of Treasury, 684 F.3d 382,
404-05 (3d Cir. 2012). Nevertheless, the District Court’s dismissal is sufficiently similar
to a dismissal for lack of subject matter jurisdiction that it should be construed as a
dismissal without prejudice to whatever ability Levin may have to pursue her claims in
state court, an issue on which we express no opinion. See Levin, 511 F. App’x at 150.
3