Erwin Lejon-Twin El v. Joe Marino, et al

Filing

NOT PRECEDENTIAL PER CURIAM OPINION Coram: JORDAN, RESTREPO and SCIRICA, Circuit Judges. Total Pages: 10.

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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 17-2492
___________
ERWIN LEJON-TWIN EL,
Appellant
v.
JOE MARINO, Director, Human Resources;
IMPAX LABORATORIES, f/k/a Corepharma LLC
____________________________________
On Appeal from the United States District Court
for the District of New Jersey
(D.N.J. No. 2-16-cv-02292)
District Judge: Honorable Kevin McNulty
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
January 4, 2018
Before: JORDAN, RESTREPO, and SCIRICA, Circuit Judges
(Opinion filed: January 8, 2018)
___________
OPINION*
___________
PER CURIAM
Plaintiff-appellant Erwin LeJon-Twin El, proceeding pro se, appeals the District
Court’s denial of his motion to amend his complaint and numerous post-judgment

*

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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motions. El contends that his former employer, Impax Laboratories, Inc., and its Director
of Human Resources, Joseph Marino, violated federal and state law when they refused to
issue his paychecks under the name that he currently uses rather than the name he used
when he was hired.1
The District Court dismissed El’s initial complaint without prejudice for failure to
state a claim under Federal Rule of Civil Procedure 12(b)(6), on defendants’ motion. El
then sought leave to amend his complaint, which the District Court denied. It dismissed
his case with prejudice by order entered on May 1, 2017, holding that the amendment
would be futile where El’s allegations would still not survive a motion to dismiss under
Rule 12(b)(6).
El subsequently filed a motion to reassign the case to another judge. The District
Court construed his request as a motion under Federal Rule of Civil Procedure 60(b) and
denied it by order entered on June 8, 2017. El then filed a series of motions essentially
seeking reconsideration of the District Court’s prior decisions and a stay of the case
pending appeal. The District Court denied these motions on August 7, 2017. El timely
appealed the District Court’s decisions dismissing his case with prejudice and denying his
post-judgment motions.2

1

El was hired under the name Erwin Hilton; he currently uses the name Erwin LeJonTwin El. See, e.g., Appellant’s Br. at 12, 15.
El’s two notices of appeal only address the District Court’s post-judgment decisions.
However, his appellate brief suggests that he also seeks review of the District Court’s
underlying denial of his motion for leave to amend his complaint and subsequent
2

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We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. “[W]e review
the District Court’s denial of [a motion for] leave to amend for abuse of discretion, and
review de novo its determination that amendment would be futile.” See U.S. ex rel.
Schumann v. Astrazeneca Pharm. L.P., 769 F.3d 837, 849 (3d Cir. 2014).
We review the District Court’s post-judgment decisions for abuse of discretion.
See Lazaridis v. Wehmer, 591 F.3d 666, 669 (3d Cir. 2010) (motions for reconsideration
under Rule 59(e)); Budget Blinds, Inc. v. White, 536 F.3d 244, 251 (3d Cir. 2008)
(motions for reconsideration under Rule 60(b)(1)-(3), (5)-(6)); Imprisoned Citizens Union
v. Ridge, 169 F.3d 178, 189 (3d Cir. 1999) (motions to stay). “A district court abuses its

dismissal of his case with prejudice. See Appellant’s Br. at 18-19. El filed his initial
Rule 60(b) motion on May 11, 2017, within 28 days of the District Court’s May 1, 2017
dismissal, which tolled his time to appeal the underlying judgment. See Fed. R. App. P.
4(a)(4)(A)(vi). His subsequent notice of appeal, filed within 30 days of the District
Court’s denial of his Rule 60(b) motion, was thus timely for both the dismissal of his case
and the denial of his Rule 60(b) motion. See id.; Fed. R. App. P. 4(a)(1)(A); Fed. R. Civ.
P. 6(a)(1)(C). Although Federal Rule of Appellate Procedure 3(c)(1)(B) requires parties
to specify the judgments that they wish to appeal, we have a heightened duty to construe
notices of appeal by pro se litigants liberally. See Gov’t of Virgin Islands v. Mills, 634
F.3d 746, 751 (3d Cir. 2011). Thus, we will address the District Court’s decision to deny
El’s motion to amend his complaint as well as its post-judgment decisions.
In his appellate brief, El states that he also seeks reversal of the District Court’s
February 14, 2017 decision to dismiss his complaint without prejudice. The District
Court granted him leave to amend his complaint, and he chose not to pursue several
claims in his amended complaint. Thus, to the extent that El challenges the dismissal of
claims that appeared only in his initial complaint, he has failed to raise them with the
District Court and thus has waived those issues on appeal. See Fletcher-Harlee Corp. v.
Pote Concrete Contractors, Inc., 482 F.3d 247, 253 (3d Cir. 2007) (explaining that a
plaintiff “can hardly fault the [District] Court for not granting relief it never requested”
and that if the plaintiff “had knowledge of facts that would cure the defects in its
complaint, it should have asserted them before now”).
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discretion when it bases its decision upon a clearly erroneous finding of fact, an
erroneous conclusion of law, or an improper application of law to fact.” Cox v. Horn,
757 F.3d 113, 118 (3d Cir. 2014). For the reasons that follow, we will affirm the District
Court’s decisions.
A.

Motion for Leave to Amend
The District Court correctly determined that granting El leave to amend his

complaint would be futile because his proposed amended complaint would not survive
dismissal. In his proposed complaint, El claimed that defendants’ decision to issue his
paychecks in the name that was on record with the Social Security Administration and the
Internal Revenue Service violated his rights under a number of statutes and the
Constitution. This complaint was El’s second attempt to state a claim that would survive
dismissal.
Courts “should freely give leave [to amend] when justice so requires.” Fed. R.
Civ. P. 15(a)(2). However, “undue delay, bad faith, dilatory motive, prejudice, [or]
futility” could all “justify a denial of leave to amend.” Shane v. Fauver, 213 F.3d 113,
115 (3d Cir. 2000). “‘Futility’ means that the complaint, as amended, would fail to state
a claim upon which relief could be granted” under the standard of Federal Rule of Civil
Procedure 12(b)(6). Id. In evaluating whether a plaintiff has stated a claim upon which
relief could be granted, “we accept all factual allegations as true, construe the complaint
in the light most favorable to the plaintiff, and determine whether, under any reasonable
reading of the complaint, the plaintiff may be entitled to relief.” Bronowicz v. Allegheny
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Cty., 804 F.3d 338, 344 (3d Cir. 2015) (internal quotation mark omitted).
El’s amended complaint primarily relies on statutes which regulate government
actors. First, the Privacy Act of 1974 and its implementing regulations at 49 C.F.R. §
802.7(d) and (e) relate to how federal agencies collect, use, and disseminate private
information about individuals. See 5 U.S.C. § 552a. The Religious Land Use and
Institutionalized Persons Act also regulates activities by the government, not private
actors. See 42 U.S.C. §§ 2000cc, 2000cc-1. The activities of the Government
Accountability Office are regulated by 4 C.F.R. §§ 83.9 and 83.10. The Secretary of the
Treasury is authorized to collect taxes pursuant to 26 U.S.C. § 6301. The statute that
would permit El to bring a Fourth Amendment claim for civil damages, 42 U.S.C. §
1983, would only apply if defendants were state actors. See U.S. Const. amend. IV;
Benn v. Universal Health Sys., Inc., 371 F.3d 165, 169 (3d Cir. 2004).
A number of other statutes upon which El relies in his complaint are plainly
inapplicable to his claims: 18 U.S.C. §§ 241, 242, and 1001 are criminal statutes which
cannot form the basis of El’s civil lawsuit; 1 U.S.C. § 8 is a rule of construction that
includes a “born-alive infant” within the meaning of the words “person,” “human being,”
“child,” and “individual” with respect to Congressional Acts or rules and regulations
enacted by administrative agencies; and 28 C.F.R. § 25.7 is one of a series of regulations
implementing the National Instant Criminal Background Check System under the Brady
Handgun Violence Prevention Act, see 28 C.F.R. § 25.1. The Patient Protection and
Affordable Care Act includes a provision that prohibits retaliation against whistleblowers
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who disclose violations of the Act under certain circumstances. See 15 U.S.C. § 2087.
El has not alleged that his employer retaliated against him for taking any such actions,
and regardless, his remedy under that statute would first require him to file an
administrative complaint with the Secretary of Labor. See id. § 2087(b)(1).
El also relies on defendant Impax’s employee code of conduct, which does not
create a federal right of action against his private employer. Neither does a 1787 treaty
between the United States and Morocco.
Finally, El claims that defendants violated N.J. Admin. Code. 12:55-2.4, a state
regulation governing the time and mode of wage payments following the termination or
voluntary departure of an employee. The District Court declined to assert supplemental
jurisdiction over this purely state law claim where El could not state any federal claims.
See 28 U.S.C. § 1367(c)(3).
El challenges the District Court’s conclusion that defendants are “non-State
actors” but does not explain why a private company or its director of human resources
would be a government entity or official, respectively. See Appellant’s Br. at 11.
Defendants are not government actors. The remaining statutes upon which El relies are
either entirely inapplicable to his claims or fail to provide a federal right of action for him
to pursue. The District Court properly declined to exercise supplemental jurisdiction
over El’s remaining state law claim as he could not state a federal claim over which the

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District Court would have had original jurisdiction.3 Thus, the District Court did not
abuse its discretion in denying El’s motion for leave to amend. Such an amendment
would have been futile where El’s proposed complaint would not survive a Rule 12(b)(6)
motion. See Shane v. Fauver, 213 F.3d 113, 115 (3d Cir. 2000).
B.

Post-Judgment Motions
After the District Court denied El’s motion for leave to amend his complaint and

dismissed his case, El filed a motion in which he requested “Judicial Disqualification and
Assignment to Another Judge.” See J.A. at 139. The District Court explained that
because judgment had already been entered in El’s case, there were no pending matters
from which he could be disqualified and nothing left to reassign to another judge.
However, the District Court treated El’s motion as a motion for reconsideration because
he sought to reopen his case. El also cited Federal Rule of Civil Procedure 60(b) at the
end of his motion.
El’s only argument in support of reopening his case was that the District Court
judge was biased against him, based on a number of answers that the judge provided in
his 2011 questionnaire to the Senate Committee on the Judiciary before his nomination

3

El maintains that because he was granted permission to proceed in forma pauperis, his
case should not have been dismissed. See Appellant’s Br. at 17-18. On the contrary, a
district court is required to independently screen and dismiss a case where a party
proceeding in forma pauperis fails to state a claim upon which relief may be granted. See
28 U.S.C. § 1915(e)(2)(B)(ii). Additionally, El contends that he “do[es] not consent . . .
to be explicitly bound by the standards set out in [Bell Atl. Corp. v. Twombly, 550 U.S.
544 (2007)].” See Appellant’s Br. at 16. As El has chosen to litigate his claims in
federal court, this position is meritless.
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was confirmed. For substantially the reasons that the District Court stated in analyzing
El’s motion, we agree that El’s allegation of bias is baseless. See J.A. at 19-22. Rather,
El merely seems to disagree with the District Court’s prior ruling dismissing his case,
which does not show the District Court judge’s bias or support reconsideration of the
dismissal. See In re Imperial “400” Nat., Inc., 391 F.2d 163, 172 (3d Cir. 1968) (“[A]
motion under Rule 60(b) may not be used as a substitute for appeal.”). Thus, we find no
abuse of discretion in the District Court’s denial of El’s motion for reconsideration.
The District Court also did not abuse its discretion in denying El’s subsequent
motions for a stay and for reconsideration.4 First, before granting the extraordinary
remedy of a stay pending appeal, courts consider:
(1) whether the stay applicant has made a strong showing that
he is likely to succeed on the merits; (2) whether the applicant
will be irreparably injured absent a stay; (3) whether issuance
of the stay will substantially injure the other parties interested
in the proceeding; and (4) where the public interest lies.
See Republic of Philippines v. Westinghouse Elec. Corp., 949 F.2d 653, 658 (3d Cir.

El asks us to correct a repeated typographical error in Impax’s former business name in
the captions of several of the District Court’s decisions. See Appellant’s Br. at 18.
However, El has not explained how a typographical error in the captions affected the
District Court’s decisions, or argued that the current defendants are not the parties against
whom he wishes to pursue his claims. Because defendants have been properly identified
in the District Court docket and on appeal, and there is no dispute as to the identities of
the parties, there is no need to remand the case to the District Court to correct any such
error. See In re U.S. Healthcare, Inc., 193 F.3d 151, 158 n.2 (3d Cir. 1999).
Additionally, El argues that the District Court erroneously identified his surname as
“LeJon-Twin El” rather than “El.” See Appellant’s Amended Notice of Appeal at 6-9.
El does not point us to these supposed errors, and upon review of the record, we have
been unable to locate any.
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1991). As the District Court observed, “it is difficult to imagine what meaningful relief a
stay could [have] afford[ed]” El, as its prior orders did not “call upon anyone to do
anything.” See J.A. at 148. El could not establish either a likelihood of success on the
merits or any irreparable injury, given his inability to state a federal claim and his failure
to explain why he would suffer any harm by the denial of a stay. On appeal, he has not
clarified why he sought a stay of the District Court’s orders. We thus agree with the
District Court that El failed to demonstrate that he was entitled to a stay.
The District Court also properly denied El’s motion seeking “substantive relief”
pursuant to Federal Rule of Appellate Procedure 27(a)(2)(B)(iii), which is inapplicable to
proceedings in district courts and in any event only describes the documents which must
be attached to any appellate “motion seeking substantive relief.”
Finally, the District Court did not abuse its discretion in denying El’s motions for
reconsideration under Federal Rule of Civil Procedure 59(e) and 60(b).5 As the District
Court explained, El’s motions attempted to relitigate the substance of his dismissed
claims; he did not seek relief based on some extraordinary circumstance. “[M]otions [for
reconsideration] are not to be used as an opportunity to relitigate the case; rather, they
may be used only to correct manifest errors of law or fact or to present newly discovered
evidence. Blystone v. Horn, 664 F.3d 397, 415 (3d Cir. 2011). Therefore, we will affirm

El titled his Rule 59(e) motion as seeking a “new trial” under Rule 59(b). See J.A. at
152. However, El’s case never reached trial; thus, the District Court generously
construed his filing as a motion for reconsideration under Rule 59(e).
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the District Court’s orders dismissing El’s case and denying his post-judgment motions.

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