MELNICK v. LEHIGH PIZZA
MEMORANDUM/OPINION THAT THIS ACTION WILL BE DISMISSED WITH PREJUDICE. SIGNED BY HONORABLE JEFFREY L. SCHMEHL ON 1/28/15. 1/29/15 ENTERED AND COPIES MAILED TO PRO SE'. (ky, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
MR. SCOTT JEFFREY MELNICK,
SCHMEHL, J. /s/ JLS
January 28, 2015
On May 29, 2014, Plaintiff Scott Jeffrey Melnick filed a pro se complaint against
Defendant Lehigh Pizza. 1 For reasons discussed below, this action will be dismissed with
The Court has a duty to consider subject matter jurisdiction sua sponte at all
stages of litigation. Yellowbird Bus Co. v. Lexington Ins. Co., 450 F. App'x 213, 216 (3d
Cir. 2011). The complaint in this matter appears to indicate that both Plaintiff and
Defendant are citizens of Pennsylvania, so there is no diversity jurisdiction. See 28
U.S.C.A. § 1332. The complaint alleges federal question jurisdiction on the basis of
“Embezzlement, Theft of Service[, and] Conspiracy.” The Court perceives no federal
question in either that express statement or elsewhere throughout the complaint.
“A federal court may sua sponte dismiss a complaint for lack of subject matter
jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1) when the allegations
The record in this matter does not indicate that any of these documents have been properly served on
Defendant, which could provide an independent basis for dismissal. Given the other bases for dismissal
discussed in this opinion, however, the Court will not go through the process of notifying Plaintiff of the
intent to dismiss for lack of service.
within the complaint ‘are so attenuated and unsubstantial as to be absolutely devoid of
merit, . . . wholly insubstantial, . . . obviously frivolous, . . . plainly unsubstantial, . . . or
no longer open to discussion.’” DeGrazia v. F.B.I., 316 F. App'x 172, 173 (3d Cir. 2009)
(quoting Hagans v. Lavine, 415 U.S. 528, 536-37 (1974)). The DeGrazia court further
described the plaintiff’s claims as warranting dismissal because “they rel[ied] on fantastic
scenarios lacking any arguable factual basis.” Id. In apparently related complaints filed
by Plaintiff Melnick against other defendants around the same time, it is just possible to
discern that the claims involve some alleged agreement between Plaintiff and others (not
always very clearly the named defendants, which is also a problem here) under which
Plaintiff would psychically predict lottery numbers and the others would actually play the
lotteries and remit a share of the proceeds to Plaintiff. See, e.g., Melnick v. Temple Beth
El, No. 14-3207 (E.D.P.A.). Although the complaint in this particular case does not
specifically mention the fantastical allegations about psychic ability, in leaving that out, it
also leaves out any real explanation of the claim and contains no reference to any
agreement with any of the people mentioned. The complaint references conversations
with a woman (seemingly a customer) and a counter attendant at Lehigh Pizza. The
complaint expressly notes the woman’s disinterest, and at best suggests Plaintiff told the
counter attendant how to win the lottery, with no indication of any agreement, interest, or
even comment in return. The complaint also expressly questions whether or not “Lehigh
Pizza or its employee” actually made any attempt to win a lottery and whether any
potential attempt was successful. The only thing clear about the allegations is their
fantastical and entirely insubstantial nature; in turn, the lack of a basis for this Court to
exercise jurisdiction is also clear.
Dismissal is also appropriate based on noncompliance with Federal Rule of Civil
Procedure 8, which requires pleadings to contain “a short and plain statement of the claim
showing that the pleader is entitled to relief” and allegations to be “simple, concise, and
direct.” See also Scibelli v. Lebanon Cnty., 219 F. App'x 221, 222 (3d Cir. 2007). The
complaint in this matter contains numerous instances of nonsensical phrasing and
irrelevant information (e.g., “I was to explain my nature during a chance meeting at
Lehigh Pizza. The slightly attractive (college age) student was to arouse my intellect, and
I was to tell her my story. She was with two other people and doing most of the
deliberating about the house. The music was down and I tried to get her up on my lottery
instincts. She said she felt disinterested, but I argued for a point in that I was eating large
fries on my own.”). The complaint is devoid of a comprehensible statement of the claim
itself; as noted above, the Court can just barely begin to grasp what the complaint may be
about by reading it in conjunction with Plaintiff’s complaints in other cases.
Further, it is appropriate that dismissal on these various bases be with prejudice.
The utterly confused nature of the complaint suggests any amendment would be futile.
Even if Plaintiff could amend to expressly allege that someone involved here actually
agreed to enter into some arrangement, the apparent crux of the complaint is an
unbelievable and meritless claim of a contract to profit from Plaintiff’s psychic abilities,
with no conceivable jurisdictional link; no amendment can cure that deficiency.
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