PASSARELLA v. CITIZEN'S BANK

Filing 11

MEMORANDUM/OPINION THAT THE COURT WILL DISMISS THE AMENDED COMPLAINT WITHOUT PREJUDICE FOR LACK OF SUBJECT MATTER JURISDICTION. THE COURT WILL ALSO DENY PASSARELLA'S REQUEST FOR THE APPOINTMENT OF COUNSEL. PASSARELLA MAY STILL REFILE HIS CLAIMS AGAINST THE BANK IN STATE COURT. THE COURT WILL ENTER A SEPARATE ORDER. SIGNED BY HONORABLE EDWARD G. SMITH ON 3/12/18. 3/12/18 ENTERED AND COPIES MAILED TO UNREP AND E-MAILED.(ky, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
WILLIAM PASSARELLA,
Plaintiff,
v.
CITIZEN’S BANK,
Defendant.

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CIVIL ACTION NO. 17-4349

MEMORANDUM OPINION
Smith, J.

March 12, 2018

The pro se plaintiff is proceeding in forma pauperis and has attempted to sue his bank
after it allegedly allowed another individual to withdraw a total of $1,600 from his account even
though this other individual was unauthorized to make such withdrawals. The court reviewed
the original complaint under 28 U.S.C. § 1915 and determined that (1) to the extent that the
plaintiff attempted to raise claims under 42 U.S.C. § 1983, he had not alleged state action or
pleaded a violation of his constitutional rights or a violation of a federal statute, and (2) there was
no basis for subject-matter jurisdiction over any state law claims under 28 U.S.C. § 1332 because
the plaintiff failed to sufficiently allege the parties’ citizenship and the amount in controversy did
not exceed $75,000. As such, the court dismissed the complaint without prejudice to the plaintiff
to file an amended complaint that would set forth sufficient allegations to establish this court’s
subject-matter jurisdiction over the matter.
The plaintiff filed an amended complaint, but it unfortunately does not address any of the
issues identified with the original complaint. The plaintiff has also requested that the court
appoint counsel on his behalf.

Because the plaintiff has failed to remedy the jurisdictional defects identified with the
original complaint, the court must also dismiss the amended complaint without prejudice for lack
of subject-matter jurisdiction. The court will not provide the plaintiff with another opportunity
to amend the complaint because doing so at this point would be futile. In addition, the court will
deny the request for the appointment of counsel.
I.

ALLEGATIONS AND PROCEDURAL HISTORY

The pro se plaintiff, William Passarella (“Passarella”), originally commenced this action
by filing an application to proceed in forma pauperis (“IFP Application”) and a proposed
complaint against the defendant, Citizen’s Bank (the “Bank”), which the clerk of court docketed
on September 28, 2017. 1 Doc. No. 1. This matter was originally assigned to the Honorable
Timothy J. Savage. On October 5, 2017, Judge Savage entered an order denying the IFP
Application without prejudice because Passarella failed to file a certified copy of his prisoner
account statement for the six-month period prior to filing the action. See Order, Doc. No. 3.
Chief Judge Lawrence F. Stengel reassigned this case from Judge Savage to the undersigned on
October 16, 2017. See Order, Doc. No. 4. On the same date, Passarella filed his prisoner
account statement with the clerk of court. Doc. No. 5. Passarella filed a request for the
appointment of counsel on November 24, 2017, and a notice that his address changed to the State
Correctional Institution at Mahanoy on December 29, 2017. Doc. Nos. 6, 7.
This court reviewed the IFP Application with the prisoner account statement as required
by 28 U.S.C. § 1915, and entered an order on February 16, 2018, which, inter alia, (1) granted
1

In the original complaint, Passarella alleged that he opened an account in January 2017 with the Bank. Compl. at
3. In February 2017, a family member removed $1,600 from the account without Passarella’s consent. Id.
Passarella contacted the Bank’s fraud department in February 2017, and although a Bank employee informed him
that she would investigate the incident, she never did so. Id. at 4, 5. Passarella also appears to have contacted the
“chairman” at the Bank’s fraud department in July 2017, and this individual investigated the incident.
Passarella would like to have the factfinder fire the teller that gave away his $1,600. Id. at 5, 6. He also
purports to seek $150,000 in damages because he trusted the Bank and it gave away his money without his consent.
Id.

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the IFP Application, and (2) dismissed the complaint without prejudice. See Order, Doc. No. 8.
Regarding the dismissal, the court pointed out that despite using a form complaint for actions
under 42 U.S.C. § 1983, Passarella failed to include any allegations that would plausibly state a
cause of action under section 1983. Id. at 3-5, n. 4. The court also informed Passarella that it
appeared that the court lacked subject-matter jurisdiction to the extent that he was asserting any
state law claims. Id. In particular, the court noted that (1) the allegations did not establish that
the parties were completely diverse, and (2) there were no good faith allegations warranting a
damages award of $75,000 (much less $150,000 as asserted in the complaint). Id. The court
gave Passarella leave until March 19, 2018, to file an amended complaint. Id. at 3.
Passarella filed an amended complaint that the clerk of court docketed on February 26,
2018. Doc. No. 10. In the amended complaint, Passarella alleges that he was incarcerated on
January 28, 2017. Am. Compl. at 1. On February 2, 2017, he contacted the Bank and was told
that $1,000 was removed from his account. Id. He also spoke with Eboni Wilson (“Wilson”), an
employee in the Bank’s fraud department, who told him that she would investigate the incident
and place a hold on his account. Id.
Passarella again spoke to Wilson on February 7, 2017. Id. Wilson told Passarella that
the investigation was not resolved and an additional $600 was removed from his account. Id.
Wilson informed Passarella that he needed to come in person to the Bank to discuss his account.
Id. Passarella informed Wilson that he was incarcerated, and it appears that she placed a hold on
the account. 2 Id.
Apparently, Passarella was released from prison and went in person to speak to the
Bank’s manager on July 28, 2017. Id. The manager informed Passarella that the Bank was still

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The allegations are unclear as to what happened here. It is possible that Passarella asked Wilson to shut down his
account, but she refused to do so unless he showed up in person.

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investigating the issues with his account so there was nothing that the manager could do. Id.
Passarella then asked to speak to “somebody higher,” and he was referred to the “chairman
office” and spoke with someone named Melissa. Id. at 1-2. Melissa told him that the Bank had
not conducted any investigation between February 2, 2017, and February 7, 2017. Id. at 2. The
chairman told him that she would investigate the issue and contact him by phone. Id.
In early August 2017, Passarella went to another Bank location in Philadelphia. Id. It
appears that he got something notarized there. Id. It also appears that he returned to the other
Bank location and an affidavit was possibly faxed to the fraud department. 3 Id. Passarella was
incarcerated again on August 28, 2017. Id.
II.

DISCUSSION

Because the court has granted the plaintiff leave to proceed in forma pauperis, the court
must review the amended complaint to examine whether the amended 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.”). In addition, the court has
the authority to examine the court’s subject-matter jurisdiction sua sponte. See Fed. R. Civ. P.
12(h)(3) (“If the court determines at any time that it lacks subject-matter jurisdiction, the court
must dismiss the action.”); Group Against Smog and Pollution, Inc. v. Shenango, Inc., 810 F.3d
116, 122 n.6 (3d Cir. 2016) (explaining that “an objection to subject matter jurisdiction may be
raised at any time [and] a court may raise jurisdictional issues sua sponte”).
3

This portion of the amended complaint is also unclear.

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Here, the amended complaint fails to cure the defects identified in the original complaint.
As a plaintiff commencing an action in federal court, Passarella bears the burden of establishing
federal jurisdiction. See Lincoln Ben. Life Co. v. AEI Life, LLC, 800 F.3d 99, 105 (3d Cir. 2015)
(“The burden of establishing federal jurisdiction rests with the party asserting its existence.”
(citing DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342 n.3 (2006))). Similar to the original
complaint, Passarella has not articulated any basis in the amended complaint for a federal claim
for purposes of invoking the court’s federal question jurisdiction under 28 U.S.C. § 1331.
Passarella has also failed to establish a basis for diversity jurisdiction over any potential state law
claims under 28 U.S.C. § 1332. The court has already provided Passarella with an opportunity to
fix these issues and establish a basis for this court’s exercise of subject-matter jurisdiction over
this action, and he has failed to address the issues identified with the original complaint. The
court recognizes that “in forma pauperis plaintiffs who file complaints subject to dismissal under
Rule 12(b)(6) should receive leave to amend unless amendment would be inequitable or futile.”
Grayson Mayview State Hosp., 293 F.3d 103, 114 (3d Cir. 2002). Even though this is not a Rule
12(b)(6) dismissal because it appears that the court lacks subject-matter jurisdiction over this
action, the court finds that providing Passarella with another opportunity to amend his complaint
would be futile. 4 Passarella is still free to file an action in state court.
The court recognizes that Passarella has requested the court to appoint counsel on his
behalf. Civil litigants do not have a constitutional right to counsel. See Parham v. Johnson, 126
F.3d 454, 456 (3d Cir. 1997) (“The Supreme Court has not recognized nor has the court of
appeals found a constitutional right to counsel for civil litigants.” (citation omitted)).
Nonetheless, pursuant to 28 U.S.C. § 1915(e)(1), “[a] court may request an attorney to represent
any person unable to employ counsel.” Id. at 457 (quoting Tabron v. Grace, 6 F.3d 147, 153 (3d
4

The court incorporates the reasons stated in the February 16, 2018 order into this opinion. See Order at 3, n. 5.

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Cir. 1993)).

However, the Third Circuit has directed district courts to “exercise care in

appointing counsel because volunteer lawyer time is a precious commodity and should not be
wasted on frivolous cases.” Id. (citation omitted). Therefore, a court should appoint counsel
only when cases “have some merit in fact and law.” Id. (citation omitted). If the plaintiff’s
claim has merit, then the Third Circuit has suggested that the following factors serve as a
guidepost to courts in determining whether to employ counsel:
(1) the plaintiff's ability to present his or her own case;
(2) the complexity of the legal issues;
(3) the degree to which factual investigation will be necessary and the ability of
the plaintiff to pursue such investigation;
(4) the amount a case is likely to turn on credibility determinations;
(5) whether the case will require the testimony of expert witnesses;
(6) whether the plaintiff can attain and afford counsel on his own behalf.
Id. (citation omitted).
Here, Passarella potentially has a state law cause of action against the Bank if it allowed
an unauthorized individual to access and withdraw money from his account. Nonetheless, an
analysis of the six factors do not warrant appointing counsel in this case. There is no indication
that Passarella lacks the ability to present this case; the particular legal issue (whether the Bank
allowed an unauthorized individual to withdraw money from Passarella’s account) is not
particularly complex; it does not appear that a significant factual investigation will be necessary;
it does not appear that the case will turn on credibility determinations; and it does not appear that
the case will require expert testimony. Although it appears that Passarella cannot afford counsel
on his behalf, the other factors weigh heavily in favor of the court not appointing counsel.
Moreover, while counsel could potentially assist Passarella with discerning the parties’
citizenship in this matter, there is still the fundamental hurdle of establishing a good faith basis

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for damages exceeding $75,000 when only $1,600 was taken from his account. Accordingly, the
court denies Passarella’s request for the appointment of counsel.
III.

CONCLUSION

For the foregoing reasons, the court will dismiss the amended complaint without
prejudice for lack of subject-matter jurisdiction. The court will also deny Passarella’s request for
the appointment of counsel. Passarella may still refile his claims against the Bank in state court.
The court will enter a separate order.

BY THE COURT:

/s/ Edward G. Smith
EDWARD G. SMITH, J.

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