Cynthia Yoder v. Morrow Tompkins Trueblood, et al

Filing

NOT PRECEDENTIAL PER CURIAM OPINION Coram: CHAGARES, KRAUSE and ROTH, Circuit Judges. Total Pages: 5. To the extent that Yoder requests appointment of counsel, that request is denied. To the extent that she requests any other relief from this Court, that request is denied, too.

Case: 15-3593

Document: 003112492937

Page: 1

Date Filed: 12/20/2016

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 15-3593
___________
CYNTHIA M. YODER,
Appellant
v.
MORROW, TOMPKINS, TRUEBLOOD & LEFEVRE, LLC;
MR. RICHARD J. TOMPKINS, ESQ.
____________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Action No. 2:15-cv-04590)
District Judge: Honorable J. William Ditter, Jr.
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
June 7, 2016
Before: CHAGARES, KRAUSE and ROTH, Circuit Judges
(Opinion filed: December 20, 2016)
___________
OPINION*
___________

*

This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

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Document: 003112492937

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Date Filed: 12/20/2016

PER CURIAM
Cynthia Yoder appeals pro se from the District Court’s order dismissing her
complaint with prejudice. For the reasons that follow, we will affirm that order.
I.
Yoder’s complaint, which was brought against private attorney Richard J.
Tompkins and Tompkins’s Pennsylvania-based law firm (hereinafter collectively referred
to as “Defendants”), concerned a Pennsylvania state court civil action in which Yoder
was apparently involved. Defendants represented the opposing party in that state court
case, and Yoder’s (federal) complaint alleged that Defendants had sent her a threatening
letter after she attempted to submit a pro se filing in that case. 1 Her complaint claimed
that Defendants’ conduct amounted to intimidation and harassment, and she argued that
she was entitled to relief under 42 U.S.C. § 1983 and Pennsylvania law.
Defendants moved to dismiss the complaint with prejudice for lack of subject
matter jurisdiction, see Fed. R. Civ. P. 12(b)(1), and for failure to state a claim upon
which relief can be granted, see Fed. R. Civ. P. 12(b)(6). On October 5, 2015, the
District Court granted the motion over Yoder’s objection, concluding that dismissal was

The letter, which was authored by Tompkins and attached to Yoder’s complaint, states
as follows: “Dear Ms. Yoder: I have received your most recent correspondence. Unless
you are an attorney, you are unable to practice law. In the event that you send anymore
documents, I will have no choice but to turn you in to the Pennsylvania Disciplinary
Board for unauthorized practice.”
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warranted under Rule 12(b)(1) and that the dismissal should be with prejudice because
amendment of the complaint would be futile. This timely appeal followed.
II.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291, and we review
de novo the District Court’s dismissal of Yoder’s complaint under Rule 12(b)(1). See
Free Speech Coal., Inc. v. Att’y Gen., 677 F.3d 519, 530 (3d Cir. 2012). A complaint
may be dismissed under Rule 12(b)(1) “only if [the claim raised therein] clearly appears
to be immaterial and made solely for the purpose of obtaining jurisdiction or is wholly
insubstantial and frivolous.” Gould Elecs. Inc. v. United States, 220 F.3d 169, 178 (3d
Cir. 2000) (internal quotation marks omitted). “The threshold to withstand a motion to
dismiss under [Rule] 12(b)(1) is thus lower than that required to withstand a Rule
12(b)(6) motion.” Lunderstadt v. Colafella, 885 F.2d 66, 70 (3d Cir. 1989).
In this case, we agree with the District Court that Yoder’s complaint failed to meet
the threshold to survive dismissal under Rule 12(b)(1). Because there is no diversity
jurisdiction in this case, 2 the District Court could exercise jurisdiction over her complaint
only if this civil action “aris[es] under the Constitution, laws, or treaties of the United
States.” 28 U.S.C. § 1331. Although Yoder’s complaint purported to rely on 42 U.S.C.
§ 1983, her allegations do not actually implicate that federal statute. Section 1983

For a district court to have diversity jurisdiction, “no plaintiff can be a citizen of the
same state as any of the defendants.” Grand Union Supermarkets of the V.I., Inc. v. H.E.
Lockhart Mgmt., Inc., 316 F.3d 408, 410 (3d Cir. 2003). Here, Yoder does not dispute
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provides a basis for relief only when the (1) plaintiff is deprived of a federal right, and
(2) the defendant(s) who deprived her of that right acted under color of state law. See
Groman v. Township of Manalapan, 47 F.3d 628, 633 (3d Cir. 1995). As the District
Court explained, Yoder’s allegations do not implicate a federal right and Defendants
were not acting under color of state law. See Angelico v. Lehigh Valley Hosp., Inc., 184
F.3d 268, 277 (3d Cir. 1999) (“[A] lawyer representing a client is not, by virtue of being
an officer of the court, a state actor ‘under color of state law’ within the meaning of
§ 1983.”) (quoting Polk County v. Dodson, 454 U.S. 312, 318 (1981)). 3 Because Yoder’s
purported § 1983 claim was “wholly insubstantial and frivolous,” the District Court’s
dismissal of her complaint for lack of jurisdiction was proper. Furthermore, because we
agree with the District Court that amendment of the complaint would be futile, the
District Court did not err when it dismissed the complaint with prejudice. See United
States ex rel. Schumann v. Astrazeneca Pharm. L.P., 769 F.3d 837, 849 (3d Cir. 2014).
We have considered Yoder’s various arguments in her appellate brief and
conclude that none has merit. Accordingly, and in light of the above, we will affirm the
District Court’s judgment. To the extent that Yoder requests appointment of counsel, that

the District Court’s finding that all of the parties are citizens of Pennsylvania.
3
Yoder’s complaint mentions in passing the federal Crime Victims’ Rights Act, 18
U.S.C. § 3771, which provides certain rights to “crime victims.” But that statute has no
bearing on this case, for there is no indication that Yoder qualifies as a “crime victim.”
See 18 U.S.C. § 3771(e)(2)(A) (defining “crime victim” as “a person directly and
proximately harmed as a result of the commission of a Federal offense or an offense in
the District of Columbia”).
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request is denied. To the extent that she requests any other relief from this Court, that
request is denied, too.

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