LUELLEN v. MAROADI TRANSFER & STORAGE, INC. et al

Filing 26

ORDER. Defendants' Motion (Doc. 23 ) to set aside default is GRANTED, based on Plaintiff's failure to state legally-colorable claims of prejudice. Next, Plaintiff hereby is ORDERED to show cause why this case should not be dismissed for lack of federal subject matter jurisdiction, and his deadline for responding to this show-cause Order is 2/22/17. Plaintiff expressly is cautioned that the mandates of Federal Rule of Civil Procedure 11 apply with equal force to pro se litigants. F inally, the undersigned will refrain from ruling on Plaintiff's Motion (Doc. 17 ) to disqualify counsel unless and until it is established that the Court properly may exercise subject matter jurisdiction. Defendants' duty to respond to the Motion to disqualify likewise is held in abeyance, pending further order of Court. See paper Order filed with this docket entry for more detailed analyses and instructions. Signed by Judge Cathy Bissoon on 2/7/17. (dcd)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
SCOTT LUELLEN,
Plaintiff,
v.
MAROADI TRANSFER & STORAGE,
INC., et al.,
Defendants.

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Civil Action No. 16-1846
Judge Cathy Bissoon

ORDER
At the onset, Defendants’ Motion (Doc. 23) to set aside default is GRANTED.
Assuming, without deciding, that the moving Defendants properly have been served,
their counsel entered an appearance and began defending this lawsuit no more than three days
after Plaintiff first requested the entry of default. Compare Docs. 8, 9, 10 & 11 (requests for
default) with Docs. 16 & 23 (defense counsel’s entry of appearance and Motion to Set Aside
Default). This is not a “gotcha!” Court, and there are no legally-colorable claims of prejudice on
the part of Plaintiff. See, e.g., KSure of New York Corp. v. Raineater, LLC, 2013 WL 5411933,
*1 (W.D. Pa. Sept. 26, 2013) (denying motion for reconsideration of order setting aside default
judgment, where opposing party’s counsel appeared and began defending only three days after
default judgment was entered; “the Court cannot condone legal strategies akin to ‘gotcha!’-style
litigation, where parties [persist] based on technical errors, [rather than on] the merits of the
case,” and, “[w]hile such [tactics] may comport with common misperceptions . . . regarding how

our legal system operates, it does not accurately reflect the serious work of the bench and bar”)
(citation to quotes sources omitted).1
This matter resolved, the Court must address the lack of diversity-of-citizenship revealed
on the face of the Complaint. See Nesbit v. Gears Unlimited, Inc., 347 F.3d 72, 76-77 (3d Cir.
2003) (the Court is required to address questions of subject matter jurisdiction “sua sponte,” i.e.,
of its own accord). The pleadings allege that “Plaintiff is a citizen of the Commonwealth of
Massachusetts, but was a citizen of the Commonwealth of Pennsylvania at the time of the
incident.” Compl. (Doc. 1) at ¶ 2(a). Regardless of whether Plaintiff, in the end, is a citizen of
Massachusetts or Pennsylvania (and, he cannot under the law be both), diversity is lacking
because one or more of the Defendants are alleged to be citizens of both of those states.
Id. at ¶ 2(b) (“Defendant MAROADI is a citizen of the Commonwealth of Pennsylvania”) and
at ¶ 9 (“Defendant SHAMROCK . . . was organized and incorporated under the laws of the
Commonwealth of Massachusetts”); Chem. Leaman Tank Lines, Inc. v. Aetna Cas. & Sur. Co.,
177 F.3d 210, 221 (3d Cir. 1999) (28 U.S.C. § 1332 requires “complete diversity between
plaintiff[] and all defendants”) (citation omitted).2

In his opposition brief, Plaintiff misunderstands the term “prejudice,” within the context of
default, as allowing an examination of the underlying/general aggrieved-conduct of his
opponents; and/or he equates “prejudice” with his dissatisfaction over his opponents’ having
stepped forward to defend the civil claims against them. See Pl.’s Opp’n Br. (Doc. 25) at 2-9.
The prejudice-inquiry properly focuses on whether, and the extent to which, Defendants’ delay
in responding to the pleadings unfairly hinders Plaintiff’s ability to effectively prosecute his case.
Of course, none of Plaintiff’s assertions demonstrate that Defendants’ three-day (or less) delay in
responding caused him undue prejudice.
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Although the Court need not look outside the pleadings, it appears highly likely that, in the
end, Defendant John Downey also will be revealed to be a citizen of Massachusetts. See Defs.’
Br. (Doc. 24) at 3 (stating same, subject to mandates of Rule 11). It also is not lost on the Court
that Plaintiff’s address of record is in Pittsburgh, Pennsylvania.
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Based on the foregoing, Plaintiff hereby is ORDERED to show cause why this case
should not be dismissed for lack of federal subject matter jurisdiction, and his deadline for
responding to this show-cause Order is February 22, 2017.3 Furthermore, the Court has a hint
of concern that this Plaintiff may have difficulty perceiving the distinctions between “zealousadvocacy,” as properly employed under the American legal-model, and an improper willingness
to say whatever he thinks it will take for him to “win.” Cf., e.g., France v. PNC Fin. Servs. Grp.,
Inc., 2013 WL 3279772, *4 n.5 (W.D. Pa. June 26, 2013) (expressing disfavor for legal
strategies that “degenerate into a strategy of, ‘say anything to win’”). Although the Court would
be pleased to be proven wrong, Plaintiff hereby expressly is cautioned that the mandates of
Federal Rule of Civil Procedure 11 apply with equal force to pro se litigants. See generally Fed.
R. Civ. P. 11(b) (in signing court filings, pro se litigant certifies that factual assertions/denials
are supported/warranted, and that his “legal contentions are warranted by existing law or by a
nonfrivolous argument" for extending the same); see also generally Smith v. Psychiatric
Solutions, Inc., 864 F.Supp.2d 1241, 1275 (N.D. Fla. Mar. 30, 2012) (among other things,
Rule 11 invokes “[a] duty of candor to the court,” which, if breached, may result in the
imposition of monetary and/or other sanctions).

To be clear, a dismissal of this case for lack of subject matter jurisdiction would be without
prejudice to Plaintiff’s attempting to bring suit in state court. The undersigned offers no opinion
regarding Plaintiff’s ability to properly bring claim(s) in any state court; it merely observes that
the dismissal here would be without prejudice.
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IT IS SO ORDERED.4

February 7, 2017

s\Cathy Bissoon
Cathy Bissoon
United States District Judge

cc (via ECF email notification):
Scott E. Luellen, Pro Se
All Counsel of Record

Although the Court also believes that Plaintiff’s Motion (Doc. 17) to disqualify counsel is,
on its face, without merit, the undersigned will refrain from ruling on that Motion unless and
until it is established that the Court properly may exercise subject matter jurisdiction.
Defendants’ duty to respond to the Motion to disqualify likewise is held in abeyance, pending
further order of Court.
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