MCMILLIAN v. WETZEL et al

Filing 128

MEMORANDUM OPINION indicating that. for reasons stated within, Plaintiff's Motion to Certify 127 is denied, as moot, as the Court will decline to exercise supplemental jurisdiction over his state law claims against Kulp. An Appropriate Order follows. Signed by Judge Nora Barry Fischer on 3/7/18. (jg)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
CORLIVEETHO MCMILLIAN,
Plaintiff,
v.
JOHN E. WETZEL, Secretary of
Corrections;
JEFFREY WITHERITE, Western Region
Staff Assistant of Department of
Corrections; SUPERINTENDANT BRIAN
COLEMAN; SECURITY CAPTAIN
WEAVER; UNIT MANAGER STEPHEN
BOZAS; CO I OFFICER CARNS; CO I
OFFICER PALMER; and PRISONER
WILLIAM KULP;
Defendants.

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Civil Action No. 14-1529
Judge Nora Barry Fischer
Chief Magistrate Judge Maureen P.
Kelly

MEMORANDUM OPINION
Presently before the Court is Corliveetho McMillian’s (“Plaintiff”) pro se “Motion to
Certify Summary Judgment Verdict for Immediate Appeal and Consolidated Memorandum of
Law,” wherein he seeks to have the Court amend its prior Order entering summary judgment
against him and certify it for an interlocutory appeal pursuant to Rule 54(b) of the Federal Rules
of Civil Procedure as there is no just reason for delay. (Docket No. 127). After careful
consideration of Plaintiff’s Motion and for the following reasons, the Court will decline to exercise
supplemental jurisdiction over the state law assault and battery claims against non-diverse
Defendant William Kulp (“Kulp”) and dismiss such claims, without prejudice, to Plaintiff pursuing
them in an appropriate venue, because the Court does not have original jurisdiction over such
claims and all federal claims have been dismissed from this action. See 28 U.S.C. § 1367(c)(3).

Accordingly, Plaintiff’s Motion to Certify [127] will be DENIED, as moot.
By way of background, Plaintiff is a prisoner in the custody of the Pennsylvania
Department of Corrections (“DOC”), currently incarcerated at the State Correctional Institution
(“SCI”)-Camp Hill. Plaintiff was incarcerated at SCI-Fayette on January 26, 2013 which is the
date of events that give rise to this action, and prior to that, was incarcerated at SCI-Dallas. (Docket
No. 112 at 2). Plaintiff brought suit pursuant to 42 U.S.C. § 1983 against various corrections
officers and DOC personnel (collectively, the “DOC Defendants”). Plaintiff also named another
former inmate at SCI-Fayette, Kulp, as a defendant. (Id. at 1, n.1). Despite being served with
process while at SCI-Somerset, Kulp never responded. (Id.). Consequently, Plaintiff moved for
default against Kulp. (Docket No. 63). The Clerk’s Office entered default on August 24, 2015.
(Docket No. 64). After the Clerk’s entry of default, Plaintiff has never filed a motion for default
judgment pursuant to Rule 55(b).
The DOC Defendants moved for Summary Judgment which was granted by the Court and
judgment was entered against Plaintiff and in favor of the DOC Defendants on March 6, 2017.
(Docket No. 114). After receiving an extension of time to do so, Plaintiff appealed to the United
States Court of Appeals for the Third Circuit on May 9, 2017. (Docket No. 119). Subsequently,
on January 30, 2018, the Court of Appeals issued an Order dismissing the appeal for lack of
jurisdiction because final judgment was not entered against Defendant Kulp and hence, the order
entering summary judgment only as to the DOC Defendants did not constitute a final appealable
order. (Docket No. 126). Specifically, the Court of Appeals stated that: “[f]or an action involving
claims against multiple parties, a judgment that resolves less than all of the claims against all of
the parties is not a ‘final’ judgment unless the court ‘expressly determines that there is no just
reason for delay.’” (Docket No. 126 at 2 (quoting Sulima v. Tobyhanna Army Depot, 602 F.3d 177,

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183 (3d Cir. 2010) (in turn quoting Fed. R. Civ. P. 54(b)). The Court of Appeals further noted that
the entry of default is an interlocutory order that is not immediately appealable and that “the
proceedings in the District Court are not final as to all parties and will not be until the District
Court finally resolves, by default judgment pursuant to Federal Rule of Civil Procedure 55(b) or
otherwise, appellant’s claims against defendant Kulp.” (Id.).
In response to the Court of Appeals’ Order, Plaintiff filed the instant motion on February
26, 2018 seeking to amend the summary judgment Order entered by this Court to add language
that there is no just reason for delay for the purpose of making it a final order which would, in turn,
permit his appeal to go forward before the Court of Appeals. (Docket No. 127). Among other
things, Plaintiff asserts that it is unknown when his claims against Kulp will be resolved and that
they are sufficiently separate to warrant bifurcation from the claims that he asserted against the
DOC Defendants upon which this Court has entered summary judgment against him. (Id.).
At the outset, Plaintiff’s motion is untimely to the extent that he seeks to amend the
judgment entered on March 6, 2017 as such motion was filed well beyond the 28-day deadline for
filing motions to amend a judgment set forth in Rule 59(e). See FED. R. CIV. P. 59(e) (“A motion
to alter or amend a judgment must be filed no later than 28 days after the entry of the judgment.”).
In addition, Plaintiff has not advocated that he should be granted relief from the judgment under
Rule 60 and it appears to the Court that none of the reasons set forth in Rule 60(a) or (b) apply to
these circumstances. See FED. R. CIV. P. 60(a), (b).
Beyond these procedural deficiencies, as the Court of Appeals noted, Plaintiff obtained a
default against Kulp under Rule 55(a) but has not filed a motion for a default judgment under Rule
55(b). “An entry of default is a purely ministerial act carried out by a court clerk on request in
cases in which a defendant has ‘failed to plead or otherwise defend.’” Sourcecorp Inc. v. Croney,

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412 F. App’x 455, 457 (3d Cir. 2011) (quoting FED. R. CIV. P. 55(a)). The entry of default is a
prerequisite to obtaining a default judgment, which requires the applicant to separately file a
motion for default judgment in accordance with Rule 55(b). See Husain v. Casino Control Com’n,
265 F. App’x 130 (3d Cir. 2008); see also FED. R. CIV. P. 55(b)(2) (“In all other cases, the party
must apply to the court for a default judgment.”).
Although Plaintiff has not filed a motion for default judgment against Kulp, even if he had
done so, the Court would decline to exercise supplemental jurisdiction over his state law claims.
To this end, “a district court has an obligation to consider its jurisdiction before entering a default
judgment, […] and it is appropriate for a district court to decline to enter a default judgment or to
vacate default judgment where the court lacks jurisdiction or questions whether it has jurisdiction.”
Pieczenik v. Comm’r New Jersey Dep't of Envtl. Prot., No. 16-3579, 2017 WL 4994487, at *3 (3d
Cir. Nov. 2, 2017) (internal and external quotations omitted). In addition, “[t]he district courts
may decline to exercise supplemental jurisdiction over a claim, … if the district court has dismissed
all claims over which it has original jurisdiction.” 28 U.S.C. § 1367(c)(3). In the Order entered
on March 6, 2017, the Court entered summary judgment against Plaintiff on all of his federal
claims against the DOC Defendants. (Docket No. 114). The remaining claims against non-diverse
defendant Kulp are for assault and battery arising under state law; hence, the Court does not have
original jurisdiction over the claims against Kulp and they are properly dismissed pursuant to §
1367(c)(3). See e.g., Foye v. Wexford Health Sources Inc., 675 F. App'x 210, 215 (3d Cir. 2017)
(Foye’s remaining allegations of medical malpractice and medical negligence arise under state
law, and the District Court did not abuse its discretion in declining to exercise supplemental
jurisdiction over Foye’s state law claims in the absence of any actionable federal claim.”); Byrd v.
Shannon, 715 F.3d 117, 128 (3d Cir. 2013) (“Because we will affirm the District Court's order

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granting summary judgment, along with its decision to decline reconsideration of its previous
order, we will also affirm the District Court's decision to decline supplemental jurisdiction over
Byrd's state law negligence claims.”). To the extent necessary, the Court will set aside the default
as to Kulp, finding good cause to do so given the jurisdictional issue.1 See FED. R. CIV. P. 55(c).
For all of these reasons, Plaintiff’s Motion to Certify [127] is DENIED, as moot, as the
Court will decline to exercise supplemental jurisdiction over his state law claims against Kulp. An
Appropriate Order follows.
BY THE COURT:
s/Nora Barry Fischer
Nora Barry Fischer
U.S. District Judge
Dated: March 7, 2018
cc/ecf: All counsel of record.
cc:

Corliveetho McMillian
AY-6916
SCI-Camp Hill
P.O. Box 200
Camp Hill, PA 17001

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The Court declines to fully address the merits of the claims against Kulp. With that said, the statute of
limitations for tort claims in Pennsylvania is two years and Kulp was not served with the Second Amended Complaint
until July 15, 2015, (Docket No. 57), which is more than two years after the incident in question on January 26, 2013.
Kulp was misnamed as “William Kulpet” in both the original and amended complaints. (See Docket Nos. 6, 8). But,
there is also no indication in the record that Kulp received notice the original complaint within 120 days of filing
which would permit the Court to apply the relation back doctrine to the Second Amended Complaint. See Fed. R.
Civ. P. 15(c)(1)(C); see also Milburn v. City of York, 612 F. App’x 119, 122 (3d Cir. 2015).

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