COHEN v. TINSLEY et al
MEMORANDUM/OPINION THAT THE COURT WILL DENY THE RULE 60(d) MOTION AND DISMISS THE PURPORTED INDEPENDENT ACTION WITH PREJUDICE. SIGNED BY HONORABLE EDWARD G. SMITH ON 4/5/17. 4/5/17 ENTERED AND COPIES MAILED TO PRO SE'.(ky, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
JEFFREY COHEN, Personally and as Sole
Shareholder of RB ENTERTAINMENT
JOHN TINSLEY and REGULATORY
INSURANCE SERVICES, INC.,
CIVIL ACTION NO. 16-mc-210
April 5, 2017
A pro se plaintiff, proceeding on behalf of himself and his limited liability company, has
filed an application to proceed in forma pauperis and this purported independent action under
Rule 60(d) of the Federal Rules of Civil Procedure. The plaintiffs seek to have the court vacate
an order entered in the United States District Court for the District of Maryland in which the
District of Maryland dismissed their action for improper venue. Although the court will grant
the individual plaintiff leave to proceed in forma pauperis, the court will dismiss this purported
independent action because he (1) had the opportunity to present his claims in the District of
Maryland or the Fourth Circuit Court of Appeals but apparently chose not to do so, and (2) failed
to demonstrate that he is entitled to relief to prevent a grave miscarriage of justice if the District
of Maryland’s order remains in effect.
The pro se plaintiff, Jeffrey Cohen (“Cohen”), asserts that he is the founder of Indemnity
Insurance Corporation RRG (“IIC”), which provides “coverage to a niche segment of the
entertainment industry, mainly providing coverage to nightclubs, bars, restaurants, bands, and
special events.” Motion for Relief of J. Pursuant to FRCP Rule 60(d) (“Mot.”) at 2-1. 1 Cohen is
also the sole owner and shareholder of RB Entertainment Ventures, LLC (“RB”), the 99% owner
of IIC. Id. In 2012, the Department of Insurance of the State of Delaware (the “Department”)
used the named defendants, John Tinsley (“Tinsley”) and Regulatory Insurance Services, Inc.
(“RIS”), to conduct a “target[ed] financial examination of a particular transaction with IIC.” Id.
at 2-2. Tinsley is the president and principal of RIS. Id.
As part of their investigation, the defendants sent agents to IIC offices in Maryland for
The plaintiffs contend that the Department should not have used the
defendants to conduct the investigation because Delaware law prohibits the Department from
using for-profit contractors. Id. Cohen attempted to bring this issue to light, but apparently did
so to no avail. Id. at 2-2, 2-3.
Through an affidavit prepared by the defendants, they informed the Department that IIC
was “financially impaired.” Id. at 2-3. This resulted in the Department seizing control of IIC
pursuant to proceedings in the Delaware Court of Chancery. Id. The defendants were able to
remove Cohen from control of IIC, and the Delaware court declined to allow the plaintiffs to
participate in delinquency proceedings related to IIC. Id. at 2-4. Eventually, the Department
filed a petition for liquidation, which the Delaware court granted. Id. at 2-3 & n.1. IIC was
liquidated in April 2014. Id. at 2-5. The plaintiffs claim that as part of the liquidation, the
defendants were required to file semiannual reports with the court. Id. The plaintiffs assert that
the defendants have not filed any such reports. Id.
The plaintiffs’ motion is docketed at two separate document numbers, so the court uses the plaintiff’s method of
pagination for ease of reference.
Apparently, while the Department was involved in the delinquency and eventual
liquidation of IIC, counsel for the Delaware Insurance Commissioner referred Cohen to the
United States Attorney’s Office in Baltimore. Id. at 2-6. In June 2014, federal agents arrested
Cohen pursuant to an indictment charging him with fraudulent conduct related to IIC. Id. In
December 2015, Cohen pleaded guilty to several charges and he is currently serving a sentence
of 444 months incarceration. Id. Cohen has appealed from his judgment of sentence in the
criminal matter to the Fourth Circuit Court of Appeals. Id.
Cohen filed a civil action on behalf of the plaintiffs in the United States District Court for
the District of Maryland, which was docketed at Civil Action No. 16-3169 and assigned to the
Honorable William M. Nickerson. 2 Id. at 1. In addition to having filed a complaint, the
plaintiffs filed a motion for a preliminary injunction and sought leave to proceed in forma
pauperis. See Cohen, et al. v. Tinsley, et al., No. 16-cv-3169, Doc. Nos. 1-4. On October 5,
2016, less than a month after the plaintiffs commenced the action, Judge Nickerson entered a
memorandum and order in which the court granted the application to proceed in forma pauperis
and dismissed the action without prejudice. See Memorandum (“Mem.”), Cohen, et al. v.
Tinsley, et al., No. 16-cv-3169, Doc. No. 5; Order, Cohen, et al. v. Tinsley, et al., No. 16-cv3169, Doc. No. 6.
In dismissing the action, Judge Nickerson concluded that venue was improper under 28
U.S.C. § 1391(b) because the events described in the complaint occurred in Delaware and the
named defendants resided in Pennsylvania. See Mem. at 2-3, Cohen v. Tinsley, et al., No. 16-cv3169, Doc. No. 5. Judge Nickerson also concluded that due to the “considerable uncertainty as
Although the plaintiffs are contesting the entry of an order in the District of Maryland, they have not attached any
documents filed in that action, including the complaint and the complained-of order, to the instant motion. Because
all of the information related to the case is publicly available through PACER, the court has endeavored to provide
the proper background for this case by briefly referring to documents filed in the District of Maryland action.
to whether the appropriate venue is a Delaware state court or a different federal district court”
dismissal rather than transfer under 28 U.S.C. § 1406(a) was warranted. Id. at 3.
On October 31, 2016, this court’s clerk of court docketed this purported independent
action seeking relief under Rule 60(d) of the Federal Rules of Civil Procedure. 3 Doc. No. 1.
Because the plaintiffs failed to pay the filing and administrative fees or file an application to
proceed in forma pauperis, the court entered an order on December 22, 2016, in which the court
required the plaintiffs to either pay the filing and administrative fees or submit a completed
application to proceed in forma pauperis within 30 days of the date of the order. Doc. No. 2.
Cohen filed an application to proceed in forma pauperis with an account statement that the clerk
of court docketed on January 23, 2017. Doc. No. 3. Unfortunately, the plaintiff did not include
the required certification by a prison official and did not get a certified copy of his prison
account statement. As such, the court entered an order on February 2, 2017, which required the
plaintiffs to either pay the filing fee and administrative fee or file a completed in forma pauperis
application that included the necessary certification and certified prison account statement within
30 days of the date of the order. Doc. No. 4. In response to the court’s order, Cohen filed
another application to proceed in forma pauperis (the “IFP Application”) that the clerk of court
docketed on March 6, 2017.
Pursuant to the federal “prisoner mailbox rule,” a pro se prisoner plaintiff’s complaint (or petition) is deemed filed
“at the time petitioner delivered it to the prison authorities for forwarding to the court clerk.” Houston v. Lack, 487
U.S. 266, 275-76 (1988). Although this doctrine arose in the context of habeas corpus petitions, the Third Circuit
has extended it to civil actions brought under 42 U.S.C. § 1983. See Pearson v. Secretary Dep’t of Corr., 775 F.3d
598, 600 n.2 (3d Cir. 2015) (applying rule in section 1983 action and determining that pro se prisoner plaintiff filed
complaint on date he signed it).
Here, it appears that Cohen signed and dated the action on October 18, 2016, which would have been
within two weeks of Judge Nickerson’s decision dismissing the action for improper venue. See Mot. at 2-18.
Unfortunately, this dating, in itself, generally would not inform the court of the time that Cohen placed the document
in the control of prison officials for mailing to the clerk of court. It also appears that the envelope containing this
action was postmarked on October 27, 2016. Doc. No. 1-1 at ECF p. 17.
The IFP Application
Regarding applications to proceed in forma pauperis, the court notes that
any court of the United States may authorize the commencement, prosecution or
defense of any suit, action or proceeding, civil or criminal, or appeal therein,
without prepayment of fees or security therefor, by a person who submits an
affidavit that includes a statement of all assets such prisoner possesses that the
person is unable to pay such fees or give security therefor.
28 U.S.C. § 1915(a). 4 This statute
“is designed to ensure that indigent litigants have meaningful access to the federal
courts.” Neitzke v. Williams, 490 U.S. 319, 324, 109 S.Ct. 1827, 104 L.Ed.2d 338
(1989). Specifically, Congress enacted the statute to ensure that administrative
court costs and filing fees, both of which must be paid by everyone else who files
a lawsuit, would not prevent indigent persons from pursuing meaningful
litigation. Deutsch[ v. United States, 67 F.3d 1080, 1084 (3d Cir. 1995)]. Toward
this end, § 1915(a) allows a litigant to commence a civil or criminal action in
federal court in forma pauperis by filing in good faith an affidavit stating, among
other things, that he is unable to pay the costs of the lawsuit. Neitzke, 490 U.S. at
324, 109 S.Ct. 1827.
Douris, 293 F. App’x at 131-32 (footnote omitted).
When addressing applications to proceed in forma pauperis under section 1915, district
courts undertake a two-step analysis: “First, the district court evaluates a litigant’s financial
status and determines whether [he or she] is eligible to proceed in forma pauperis under §
1915(a). Second, the court assesses the complaint under § 1915[(e)(2)] to determine whether it
is frivolous.” Roman v. Jeffes, 904 F.2d 192, 194 n.1 (3d Cir. 1990) (citing Sinwell v. Shapp, 536
F.2d 15 (3d Cir. 1976)). 5
“The reference to prisoners in § 1915(a)(1) appears to be a mistake. In forma pauperis status is afforded to all
indigent persons, not just prisoners.” Douris v. Middletown Twp., 293 F. App’x 130, 132 n.1 (3d Cir. 2008) (per
The Roman court referenced the former version of 28 U.S.C. § 1915(d), which stated that “[t]he court may request
an attorney to represent any such person unable to employ counsel and may dismiss the case if the allegation of
poverty is untrue, or if satisfied that the action is frivolous or malicious.” 28 U.S.C. § 1915(d) (1990) (redesignated
as Section 1915(e) by the Prison Litigation Reform Act, Pub.L. No. 104-135, 110 Stat. 1321 (1996)). The portion of
section 1915(d) which allowed the district court to dismiss frivolous in forma pauperis complaints is now codified at
Concerning the litigant’s financial status, the litigant must establish that he or she is
unable to pay the costs of suit. Walker v. People Express Airlines, Inc., 886 F.2d 598, 601 (3d
Cir. 1989). “In this Circuit, leave to proceed in forma pauperis is based on a showing of
indigence. We review the affiant’s financial statement, and, if convinced that he or she is unable
to pay the court costs and filing fees, the court will grant leave to proceed in forma pauperis.”
Deutsch, 67 F.3d at 1084 n.5 (internal citations omitted).
The Third Circuit does not define what it means to be indigent. Nonetheless, “[a]
plaintiff need not ‘be absolutely destitute to enjoy the benefit of the statute.’” Mauro v. New
Jersey Supreme Ct., Case No. 56, 900, 238 F. App’x 791, 793 (3d Cir. 2007) (per curiam)
(quoting Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339 (1948)); see also Potnick
v. Eastern State Hosp., 701 F.2d 243 (2d Cir. 1983); Zaun v. Dobbin, 628 F.2d 990 (7th Cir.
1980). Some courts have explained that all a plaintiff needs to show is that because of his or her
poverty, he or she cannot afford to pay for the costs of the litigation and provide himself or
herself (or his or her family) with the necessities of life. See, e.g., Rewolinski v. Morgan, 896 F.
Supp. 879 (E.D. Wis. 1995) (“An affidavit demonstrating that the petitioner cannot, because of
his poverty, provide himself and any dependents with the necessities of life is sufficient.”); Jones
v. State, 893 F. Supp. 643 (E.D. Tex. 1995) (“An affidavit to proceed in forma pauperis is
sufficient if it states that one cannot, because of poverty, afford to pay for the costs of litigation
and still provide for him- or herself and any dependents.”).
Here, after reviewing the IFP Application, it appears that Cohen is unable to pay the costs
of suit. Therefore, the court will grant Cohen leave to proceed in forma pauperis. This does not
end the inquiry, however, because Cohen is not the only named plaintiff in this action.
28 U.S.C. § 1915(e)(2)(B)(i). See 28 U.S.C. § 1915(e)(2)(B)(i) (stating frivolous nature of in forma pauperis
complaint is ground for dismissal).
RB is a limited liability company and is not a “person” for purposes of the in forma
pauperis statute. See Rossmann v. Huvelle, No. 1:12-cv-00092-EJL-REB, 2012 WL 5866236, at
*3 (D. Idaho Oct. 16, 2012) (“[B]ecause Sawtooth Capital LLC is not a natural person, it cannot
qualify for in forma pauperis status under § 1915.” (internal footnote omitted)); see also Brittain
v. Marsh Prods., Inc., No. CIV. A. 86-0052, 1986 WL 1557, at *1 (E.D. Pa. Jan. 30, 1986)
(“[P]laintiffs request leave to proceed in forma pauperis. The affidavit is signed only by [the
individual plaintiff] and does not reveal the financial status of [the corporate plaintiff]. This
situation is of no consequence, however, because a corporation is not a ‘person’ within the
meaning of the ‘in forma pauperis’ statute[.]”). Accordingly, to the extent that the plaintiffs are
seeking leave to proceed in forma pauperis on behalf of RB, the court will deny RB’s request for
in forma pauperis status.
Review of the Complaint Under 28 U.S.C. § 1915
Grounds for Sua Sponte Dismissal Under 28 U.S.C. § 1915(e)(2)(B)
Because the court has granted Cohen leave to proceed in forma pauperis, the court must
engage in the second part of the two-part analysis and examine whether the complaint is
frivolous, fails to state a claim upon which relief can be granted, or asserts a claim against a
defendant immune from monetary relief. See 28 U.S.C. § 1915(e)(2)(B)(i)-(iii) (providing that
“[n]otwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall
dismiss the case at any time if the court determines that-- . . . (B) the action or appeal-- (i) is
frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks
monetary relief against a defendant who is immune from such relief.”). A complaint is frivolous
under section 1915(e)(2)(B)(i) if it “lacks an arguable basis either in law or fact,” Neitzke v.
Williams, 490 U.S. 319, 325 (1989), and is legally baseless if it is “based on an indisputably
meritless legal theory.” Deutsch, 67 F.3d at 1085. In addressing whether a pro se plaintiff’s
complaint is frivolous, the court must liberally construe the allegations in the complaint. Higgs
v. Att’y Gen., 655 F.3d 333, 339-40 (3d Cir. 2011).
Regarding the analysis under section 1915(e)(2)(B)(ii), the standard for dismissing a
complaint for failure to state a claim pursuant to this subsection is identical to the legal standard
used when ruling on Rule 12(b)(6) motions. See Tourscher v. McCullough, 184 F.3d 236, 240
(3d Cir. 1999) (applying Rule 12(b)(6) standard to dismissal for failure to state a claim under §
1915(e)(2)(B)). Thus, to survive dismissal, “a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The
plaintiff’s factual allegations “must be enough to raise a right to relief above the speculative
level.” Twombly, 550 U.S. at 556 (citation omitted).
In the Rule 60(d) motion, Cohen raises a number of arguments in support of his contest
of the District of Maryland’s decision dismissing his action. See Mot. at 2-8 - 2-18. This court
need not reach any of these arguments because Cohen has failed to establish a sufficient basis for
maintaining an independent action in this district.
Rule 60(d) of the Federal Rules of Civil Procedure provides that Rule 60 “does not limit”
a district court from “(1) entertain[ing] an independent action to relieve a party from a judgment,
order, or proceeding[.]” 6 Fed. R. Civ. P. 60(d)(1). “In bringing . . . an independent action
against a prior judgment, it is not necessary, in order to obtain relief, to return to the court which
rendered the first judgment.” Schum v. Bailey, 578 F.2d 493, 504 (3d Cir. 1978); see Morrel v.
Rule 60(d) provides that Rule 60 also “does not limit a court’s power to: . . . (2) grant relief under 28 U.S.C. §
1655 to a defendant who was not personally notified of the action; or (3) set aside a judgment for fraud on the
court.” Fed. R. Civ. P. 60(d)(2)-(3). The plaintiffs do not argue that subsections (2) or (3) apply here.
Nationwide Mut. Fire Ins. Co., 188 F.3d 218, 223 (4th Cir. 1999) (“Further, and also in contrast
to a motion for relief under Rule 60(b), an independent action may be brought in a court other
than the one that issued the contested order: A federal court can entertain an original action to
enjoin or otherwise grant relief from a judgment ... rendered not only by it, but also by another
federal court.” (citations and internal quotation marks omitted)); see also Lapin v. Shulton, Inc.,
333 F.3d 169, 172 (9th Cir. 1964) (explaining that independent actions under Rule 60 for relief
from other courts’ judgments are rarely permitted because of “considerations of comity and
orderly administration of justice”). Nonetheless, “Rule 60(d) may not be used as a substitute for
appeal.” Sharpe v. United States, No. CIV. A. 02-771, 2010 WL 2572636, at *2 (E.D. Pa. June
22, 2010) (citing Fox v. Brewer, 620 F.2d 177, 180 (8th Cir. 1980)).
“[I]n determining whether to entertain independent actions for relief,” courts must
exercise their discretion and be guided by “traditional equitable principles.” LinkCo, Inc. v.
Naoyuki Akikusa, 615 F. Supp. 2d 130, 134 (S.D.N.Y. 2009) (quoting Campaniello Imports, Ltd.
v. Saporiti Italia S.p.A., 117 F.3d 655, 661 (2d Cir. 1997)). Independent actions under Rule 60
are “reserved for those cases of ‘injustices which, in certain instances, are deemed sufficiently
gross to demand a departure’ from rigid adherence to the doctrine of res judicata.” United States
v. Beggerly, 524 U.S. 38, 46 (1998) (quoting Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322
U.S. 238, 244 (1944)). Thus, “an independent action should be available only to prevent a grave
miscarriage of justice.” Id. Moreover, the party prosecuting an independent action must show
“that there was no ‘opportunity to have the ground now relied upon to set aside the judgment
fully litigated in the original action.’” Adefumi v. City of Philadelphia, No. CIV. A. 09-586,
2011 WL 1161727, at *4 & n.40 (E.D. Pa. Mar. 29, 2011) (quoting Gleason v. Jandrucko, 860
F.2d 556, 560 (2d Cir. 1988)).
As illustrated by the above language, Rule 60(d) acts as a savings clause. United States
v. Foy, 803 F.3d 128, 134 (3d Cir. 2015). “Rule 60 by itself does not vest a district court with
jurisdiction to consider such a motion or independent action.” Id. (citations omitted). In this
regard, “[o]rdinarily, it would be clear that a district court would have jurisdiction over a Rule 60
motion or an independent action seeking relief from a judgment because the court will have
ancillary jurisdiction to consider a challenge to its own judgment or order.” Id. If, however, the
movant brings the Rule 60(d) action in a court that did not enter the original judgment, the
movant must establish independent grounds for jurisdiction. See id. (“Though we recognize that
there may be circumstances in which a district court has jurisdiction over . . . an independent
action seeking relief from a judgment entered by another court, such as where a party to initial
proceedings registers a judgment obtained in another court pursuant to 28 U.S.C. § 1963 . . . Foy
does not point to such an independent ground for jurisdiction here.”); see also Peach v.
Laborers’ Int’l Union of N. Am., No. CIV. A. 09-450-GPM, 2010 WL 502767, at *3 (S.D. Ill.
Feb. 9, 2010) (“Where a judgment has been affirmed on appeal, leave of the appellate court is
required before a district court may entertain an action attacking the judgment.”); 11 Wright,
Miller & Kane, Federal Practice & Procedure: Civil § 2868 (3d ed.) (“If [the independent action]
is brought in a court other than the one that gave the original judgment, independent grounds of
jurisdiction are needed.”).
Here, this matter presents a fundamental issue insofar as Cohen is attempting to
personally proceed in a pro se capacity and also represent RB, a limited liability company.
Concerning attempts by pro se litigants to represent business entities,
“[i]t has been the law for the better part of two centuries ... that a corporation may
appear in the federal courts only through licensed counsel.” Rowland v. Cal.
Men’s Colony, 506 U.S. 194, 201-02, 113 S.Ct. 716, 121 L.Ed.2d 656 (1993); see
also Simbraw, Inc. v. United States, 367 F.2d 373, 373-74 (3d Cir. 1966) (so
holding). The same applies to LLCs, even those with only a single member,
because even single-member LLCs have a legal identity separate from their
members. See United States v. Hagerman, 545 F.3d 579, 581-82 (7th Cir. 2008);
Lattanzio v. COMTA, 481 F.3d 137, 140 (2d Cir. 2007).
Dougherty v. Snyder, 469 F. App’x 71, 72 (3d Cir. 2012) (per curiam). Based on this wellestablished law, although Cohen may represent himself in this case, he may not represent the
interests of RB, a separate legal entity, which must be represented by counsel.
Even if Cohen could bring this matter on behalf of the plaintiffs, he may not maintain this
independent action here for two reasons. 7 First, the record demonstrates that Cohen failed to
contest the decision in the District of Maryland by filing a motion under Rule 60 or even an
appeal to the Fourth Circuit Court of Appeals. All of the grounds upon which Cohen challenges
Judge Nickerson’s decision are challenges that he could have raised in a motion under Rule
60(b) or by filing an appeal to the Fourth Circuit. 8 Cohen has not demonstrated that he lacked
For purposes of the disposition of this action, the court presumes that there is an independent basis for subjectmatter jurisdiction at this stage of the litigation, although the precise basis is not apparent at this point.
In the complaint, the plaintiff alleges that “[t]his Court has subject matter jurisdiction pursuant to 28 U.S.S.
[sic] § 1331 (federal question jurisdiction), 28 U.S.C. § 1343 (civil rights jurisdiction); 28 U.S.C. § 1367
(supplemental jurisdiction over state law claims); and 42 U.S.C. § 1983 (civil rights jurisdiction).” Complaint at
ECF p.2, Cohen, et al. v. John Tinsley, et al., No. CIV. A. 16-3169-WMN (D. Md.), Doc. No. 1. As for these
purported bases of jurisdiction, the only federal statutes referenced in the complaint are 42 U.S.C. § 1983 and 28
U.S.C. § 2201. For the plaintiffs to ultimately prevail in a section 1983 claim, he must establish (and not simply
allege) that the defendants acted under color of state law. See Sameric Corp. of Del., Inc. v. City of Philadelphia,
142 F.3d 582, 590 (3d Cir. 1998). This essentially requires the plaintiff to show that the defendants were “state
actors.” Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 929 (1982). Although private parties generally do not act
under state law and are therefore not liable under section 1983, there are certain circumstances under which the law
will treat a private individual as a state actor. See Leshko v. Servis, 423 F.3d 337, 339-47 (3d Cir. 2005) (discussing
and analyzing state action under section 1983). There might be an issue as to whether the defendants were state
actors in this case.
If the plaintiffs could not establish that the defendants were state actors, they would not be able to rely on
the Declaratory Judgment Act to support jurisdiction because it does not serve as an independent basis for federal
subject-matter jurisdiction. See Ragoni v. United States, 424 F.2d 261, 264 (3d Cir. 1970) (“[T]he mere fact that a
declaratory judgment is sought is not, of itself, ground for federal jurisdiction.”). Thus, it would appear that the
plaintiffs would have to proceed via diversity jurisdiction under 28 U.S.C. § 1332, and it appears through the
allegations in the complaint that the parties would be completely diverse. See Complaint at 1-2.
As already discussed, Cohen filed this case only two or three weeks after Judge Nickerson entered his
memorandum and order on the docket. All of the grounds for relief are grounds that Cohen could have raised in a
Rule 60(b) motion, and it appears that if he would have filed a Rule 60(b) motion in the District of Maryland, the
court would have considered it as having been timely filed insofar as even a three-week period would appear to be
reasonable and, to the extent that he is raising arguments based on subsections (b)(1), (2), or (3) of Rule 60, he filed
it within one year of Judge Nickerson’s order. See Fed. R. Civ. P. 60(c)(1) (“A motion under Rule 60(b) must be
the opportunity to have Judge Nickerson rule on the grounds raised in the instant motion or that
he was otherwise prevented from doing so. Therefore, as Cohen could have raised the precise
claims presented here in the District of Maryland or the Fourth Circuit and has not alleged or
shown that he was prevented from doing so, permitting such an action here in this district is
Second, Cohen has not satisfied his significant burden of showing that granting him relief
in this case will prevent a grave miscarriage of justice. As indicated above, Cohen appears to
have simply chosen to forgo seeking relief in the District of Maryland or the Fourth Circuit by
filing this action here. In addition, a grave miscarriage of justice would not occur if the court
does not entertain this action because any prejudice to the plaintiffs caused by Judge Nickerson’s
order is minimal or non-existent. Cohen appears to believe that somehow Judge Nickerson
addressed the merits of his case when he simply determined that the District of Maryland lacked
venue over the dispute and dismissed, rather than transferred, the action. Cohen is still free to
recommence the action by filing a new complaint in a jurisdiction that would have proper venue
over his claims. A request to vacate another district court’s order dismissing an action without
prejudice based on improper venue does not present the type of extraordinary circumstances
under which an independent action under Rule 60(d)(1) is proper. 9
made within a reasonable time--and for reasons (1), (2), and (3) no more than a year after the entry of the judgment
or order or the date of the proceeding.”). Thus, there was not a timeliness issue or other procedural barrier that
prevented Cohen from filing the motion or the District of Maryland from considering it.
He also could have filed an appeal as of right to the Fourth Circuit. See Fed. R. App. P. 4(a)(1)(A)(“In a
civil case, except as provided in Rules 4(a)(1)(B), 4(a)(4), and 4(c), the notice of appeal required by Rule 3 must be
filed with the district clerk within 30 days after entry of the judgment or order appealed from.”). To the extent
Cohen doubts his ability to have filed an appeal, see, e.g., Brown v. Panther II Transp., Inc., No. 16-2182, -- F.
App’x --, 2016 WL 7414192 (4th Cir. Dec. 22, 2016) (per curiam) (affirming district court’s dismissal of civil action
because of improper venue).
Cohen’s substantive attacks on Judge Nickerson’s decision also would not, in any event, provide a basis for relief.
Cohen first contests Judge Nickerson’s statement “[w]hether the Complaint states a federal question or a civil rights
violation is unclear.” Mot. at 2-9. In support of Cohen’s argument that Judge Nickerson erred in this statement, he
focuses on his various allegations about the case presenting a federal question or civil rights violation that constitute
nothing more than conclusions of law. See, e.g., id. (“Plaintiffs clearly pleaded that ‘this court is proper for this
The court also notes that Cohen submitted a “Prologue” with his Rule 60(d) motion in
which he essentially argues that he has brought this action in this district because the District of
Maryland “has been unreceptive to reason and has issued judgments that are laden with mistakes
of law and fact.” Doc. No. 1-1 at ECF p. 15. He argues that Judge Nickerson “has taken an
untenable and obstinate position that is clearly designed to prevent the matter from proceeding to
discovery and to trial.” Id. He asserts that Judge Nickerson’s intent to obstruct the plaintiffs’
ability to proceed to trial is demonstrated by his incorrect rulings in which “the logic of his
decisions [is] so contrary to coherent rationale.” Id. He further notes that while litigating other
matters in the District of Maryland, the Fourth Circuit has reversed decisions in three of those
other matters. Id. at ECF p. 16.
Nothing Cohen submitted in the “Prologue” alters the court’s conclusion that the
plaintiffs failed to satisfy their high burden of establishing that maintenance of this action is
matter pursuant to 28 U.S.C. § 1391(b) & (b)(2)’; ‘28 U.S.C. § 1331’; ‘28 U.S.C. § 1343’; ‘28 U.S.C. § 1367’: ‘42
U.S.C. § 1983.’”). While they are clear as to what the plaintiff is alleging, they are not the type of well-pleaded
factual allegations by which a court reviews complaints to ascertain whether venue or subject-matter jurisdiction are
proper. Regardless, this particular statement, even if wrong, has nothing to do with Judge Nickerson’s decision and
would not provide a basis for relief from his order.
Cohen’s second and fourth objections to Judge Nickerson’s decision appear to relate to the conclusion that
the allegations in the complaint pertain to actions in Delaware. Mot. at 2-13 – 2-15. Cohen appears to believe that
Judge Nickerson concluded, at least in part, that the case belonged in the Delaware Court of Chancery. This is
inaccurate because Judge Nickerson references Delaware and the Delaware Court of Chancery only because the
allegations in the complaint relate to actions that occurred in Delaware. At no point did Judge Nickerson state that
the plaintiff could only maintain the action in the Court of Chancery in Delaware. In any event, the court cannot
dispute Judge Nickerson’s conclusion that despite the plaintiff’s conclusory statement in the complaint that a
substantial, if not all, of the events giving rise to his claims occurred in the District of Maryland, it is abundantly
apparent based on a review of the allegations in the complaint that a substantial part the events occurred in
Delaware. While this might not be the case, Cohen pleaded as such as is bound by the factual allegations in his own
The final portion of Judge Nickerson’s opinion of which Cohen complains is the judge’s statement that the
named defendants reside in Pennsylvania. Mot. at 2-15. Cohen seems to assert that by including this statement in
the memorandum, Judge Nickerson was somehow attacking his allegations for purposes of diversity jurisdiction or
even that it meant that the court lacked personal jurisdiction over the defendants. See Mot. at 2-15 – 2-18.
With this objection, Cohen once again misinterprets Judge Nickerson’s decision. Judge Nickerson
references the defendants residing in Pennsylvania purely for venue purposes and to support his conclusion that the
District of Maryland was not the proper venue. Judge Nickerson does not mention the defendants’ residence for
purposes of personal jurisdiction or subject-matter jurisdiction, and he did not dismiss the action without prejudice
because of a lack of subject-matter jurisdiction or personal jurisdiction. Therefore, this argument would not provide
the plaintiffs with any relief.
necessary to correct a grave miscarriage of justice. As indicated above, the plaintiffs’ arguments
in support of their motion lack merit. In addition, Cohen recognizes that he had the ability to
appeal from Judge Nickerson’s decision if he disagreed with it and just chose to not do so despite
allegedly having success in other appeals to the Fourth Circuit. He does not indicate that
anything prevented him from filing an appeal, and it is evident from his submissions in this case
that he consciously chose to file here simply to have a different court evaluate the merits of
Judge Nickerson’s decision. Although courts have concluded that Rule 60(d)(1) permits parties
to bring actions in a court other than the one in which the order or judgment complained of was
entered, this is a prime example of why considerations of comity and the orderly administration
of justice result in courts rarely allowing such cases to proceed.
Based on the information in the IFP Application, the court will grant Cohen leave to
proceed IFP, but cannot grant IFP status for RB because it is not a “person” under the in forma
pauperis statute. The court also finds that because the plaintiffs clearly chose to pursue this
action in this district despite failing to exhaust their available avenues for relief in the District of
Maryland or the Fourth Circuit Court of Appeals, they have not shown that they lacked the
opportunity to fully litigate in the original action the grounds now relied upon to set aside the
District of Maryland’s order and judgment. In addition, the plaintiffs have failed to demonstrate
that this case presents the type of exceptional circumstances under which the court would
properly entertain this action to prevent a grave miscarriage of justice that occurred in the
District of Maryland. The order complained of does not preclude the plaintiffs from filing a new
action in a proper venue, and none of the plaintiffs’ arguments are potentially meritorious in any
event. Accordingly, the court will deny the Rule 60(d) motion and dismiss this purported
independent action with prejudice.
BY THE COURT:
/s/ Edward G. Smith
EDWARD G. SMITH, J.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?