2014 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

5-29-2014

Leonard Thompson v. Matthew D'Emilio

Precedential or Non-Precedential: Non-Precedential

Docket No. 13-4704

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Recommended Citation

"Leonard Thompson v. Matthew D'Emilio" (2014). 2014 Decisions. Paper 525.

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ALD-234 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 13-4704

___________

LEONARD THOMPSON,

Appellant

v.

MATTHEW D’EMILIO; DEANNE H. D’EMILIO

____________________________________

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. Civ. No. 2-13-cv-00015)

Magistrate Judge: Honorable Maureen P. Kelly

____________________________________

Submitted for Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B) or 

Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6

May 15, 2014

Before: RENDELL, FISHER and GREENAWAY, JR., Circuit Judges

(Opinion filed: May 29, 2014 )

_________

OPINION

_________

PER CURIAM

Leonard Thompson appeals pro se from the District Court’s order, through a 

Magistrate Judge acting on the parties’ consent pursuant to 28 U.S.C. § 636(c)(1), 

dismissing his complaint. We will affirm.

Thompson filed suit pro se against Matthew D’Emilio and Deanne D’Emilio. 
2

Thompson appears to alleges that Matthew D’Emilio helped him incorporate a business 

in 1993 and that Deanne D’Emilio held Thompson’s shares in the corporation in trust for 

him. Thompson further alleges that he later learned that Matthew D’Emilio never 

incorporated the business as promised. Thompson did not set forth any particular cause 

of action, but he later represented to the District Court that his claims were for “fraud, 

unjust enrichment, conspiracy and self-dealing,” and he sought monetary damages. 

Acting on defendants’ motion to dismiss, the District Court dismissed Thompson’s 

complaint under Rule 12(b)(1) for lack of subject matter jurisdiction. The District Court 

concluded that Thompson had not established either diversity jurisdiction under 28 

U.S.C. § 1332 or federal question jurisdiction under 28 U.S.C. § 1331, and it dismissed 

his complaint without leave to amend because it concluded that amendment would be 

futile for those reasons.

Thompson appeals pro se and has submitted an informal brief, but he has neither 

acknowledged the basis for the District Court’s rulings nor provided any reason to 

question them. There is no arguable basis to do so. Regarding diversity jurisdiction, 

Thompson alleges in his complaint that both he and Deanne D’Emilio are residents of 

Pennsylvania but that Matthew D’Emilio is a resident of Delaware. The District Court 

concluded that Thompson did not establish diversity jurisdiction because his complaint 

does not suggest that the amount in controversy exceeds $75,000. The District Court also 

concluded, on the basis of the parties’ representations in their briefs, that Thompson did 

not establish that Matthew D’Emilio is a citizen of Delaware instead of Pennsylvania as 

Matthew D’Emilio claims to be. Thompson has not challenged the District Court’s 
3

resolution of those issues, but the District Court need not even have reached them 

because Thompson alleged that both he and Deanne D’Emilio are residents of 

Pennsylvania and thus did not establish the complete diversity of citizenship necessary 

for diversity jurisdiction. See Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 247 (3d 

Cir. 2013).

Regarding subject matter jurisdiction, the District Court concluded that 

Thompson’s complaint, liberally construed, asserts claims arising only under state law 

and cannot be read to present any federal question. Thompson has not argued on appeal 

that he intended to assert any federal claim, and we agree with the District Court’s 

assessment of his complaint. We add only that the District Court’s dismissal of the 

complaint is without prejudice to Thompson’s ability to seek whatever relief might be 

available him to state court, an issue on which we express no opinion.

For these reasons, we will affirm the judgment of the District Court.