NOT PRECEDENTIAL 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

___________ 

No. 22-2616 

__________ 

ANTHONY B. PUE, 

 Appellant 

v. 

NEW JERSEY TRANSIT CORPORATION 

____________________________________ 

On Appeal from the United States District Court 

for the District of New Jersey 

(D.C. Civil Action No. 3:21-cv-13557) 

District Judge: Honorable Freda L. Wolfson 

____________________________________ 

Submitted Pursuant to Third Circuit LAR 34.1(a) 

April 3, 2023 

Before: HARDIMAN, PORTER, and FREEMAN, Circuit Judges

(Opinion filed: April 13, 2023) 

___________ 

OPINION*

___________ 

PER CURIAM 

 Pro se Appellant Anthony Pue appeals from the District Court’s judgment 

dismissing his action for lack of subject-matter jurisdiction. For the reasons set forth 

*

 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent. 
2 

below, we will affirm the District Court’s judgment. 

I. 

 Pue, a former bus operator for the New Jersey Transit Corporation (“NJ Transit”), 

initiated this action in July 2021 and filed an amended complaint later that month, 

alleging that NJ Transit failed to make certain pension payments after he retired in 2017 

due to debilitating work-related injuries.1

 According to Pue, he was a party to an 

agreement with NJ Transit entitling him to payments for his disability pension, vacation 

time, and holidays. He claimed that NJ Transit committed breach of contract in failing to 

make the required payments. 

 After NJ Transit failed to plead or otherwise respond, the District Court Clerk 

entered default. Pue later filed a motion for a default judgment against NJ Transit, and 

the following month, NJ Transit’s attorney filed a letter with the District Court requesting 

additional time to respond, explaining that a change of attorneys and problems with the 

PACER system prevented a timely response. The District Court granted the request, and 

NJ Transit filed a motion to vacate the default and to dismiss for lack of jurisdiction 

shortly thereafter. NJ Transit argued that dismissal was warranted because: (1) Pue’s 

claim was barred by the Rooker-Feldman doctrine because Pue unsuccessfully raised 

essentially the same breach-of-contract claim in state court; and (2) NJ Transit is immune 

from suit under the Eleventh Amendment. Pue opposed the motion to vacate and to 

1

 Pue also filed a second amended complaint in October 2021. The District Court 

appeared to consider only the first amended complaint. Both iterations of the complaint 

raised essentially the same claims, however. 
3 

dismiss and, several weeks later, he filed a motion for summary judgment in which he 

relied on the defendant’s failure to timely plead. 

 The District Court denied Pue’s motion for default judgment and motion for 

summary judgment and granted NJ Transit’s motion to vacate the default and to dismiss 

Pue’s complaint, albeit for different reasons than those asserted by NJ Transit. 

Specifically, although Pue only explicitly asserted a state-law breach-of-contract claim, 

the District Court construed the complaint liberally and determined that he was arguably 

also attempting to assert a violation of a collective bargaining agreement under the Labor 

Management Relations Act (“LMRA”), 29 U.S.C. § 185(a), and a claim for collection of 

benefits under the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. 

§ 1132(a). However, the District Court determined that NJ Transit could not be sued 

under the LMRA or ERISA. Likewise, the District Court reasoned that it did not have 

diversity jurisdiction under 28 U.S.C. § 1332, and it declined to exercise supplemental 

jurisdiction over the state-law breach-of-contract claim. Pue timely appealed. 

II. 

We have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review 

over dismissal for lack of subject-matter jurisdiction. See Koval v. Wash. Cnty. 

Redevelopment Auth., 574 F.3d 238, 241 (3d Cir. 2009). A district court’s decision to 

set aside the entry of default and its refusal to enter a default judgment are reviewed for 

abuse of discretion. See Chamberlain v. Giampapa, 210 F.3d 154, 164 (3d Cir. 2000); 

United States v. $55,518.05 in U.S. Currency, 728 F.2d 192, 194 (3d Cir. 1984). 
4 

III. 

 Pue first argues that the District Court erred in denying his motion for a default 

judgment and granting NJ Transit’s motion to vacate the default entered by the Clerk. 

We do not favor entry of default judgments, see $55,518.05 in U.S. Currency, 728 F.2d at

194-95, and a district court may set aside a default “for good cause,” see Fed. R. Civ. P. 

55(c). Here, as discussed further below, the District Court properly concluded that it 

lacked subject-matter jurisdiction over Pue’s claims. Thus, it correctly granted NJ 

Transit’s motion to vacate the default and denied Pue’s motion for a default judgment. 

See Williams v. Life Sav. & Loan, 802 F.2d 1200, 1203 (10th Cir. 1986) (per curiam) 

(“[W]hen entry of a default judgment is sought against a party who has failed to plead or 

otherwise defend, the district court has an affirmative duty to look into its jurisdiction 

both over the subject matter and the parties.”); see also $55,518.05 in U.S. Currency, 728 

F.2d at 195 (noting that “[t]he threshold question” in deciding whether a default should 

be set aside “is whether [the defendant] has established a meritorious defense”).2

 As noted, the District Court liberally construed Pue’s pleadings and determined 

that he arguably asserted claims under the LMRA and ERISA. 3

 It concluded, however, 

that NJ Transit could not be sued under either statute. Specifically, the LMRA excludes 

2

 For similar reasons, the District Court did not err in denying Pue’s motion for summary 

judgment. 

3

 The LMRA provides a cause of action for the violation of a collective bargaining 

agreement, see 29 U.S.C. § 185(a), while ERISA allows “plan beneficiaries and 

participants to recover benefits due under a plan or to enforce the terms of the plan,” 

Plastic Surgery Ctr., P.A. v. Aetna Life Ins. Co., 967 F.3d 218, 226 (3d Cir. 2020). 
5 

from its definition of “employer[s]” covered under the act “any State or political 

subdivision thereof.” 29 U.S.C. § 152(2). Likewise, ERISA exempts from its coverage 

“governmental plan[s],” which it defines in part as those established or maintained by 

“any State or political subdivision thereof, or by any agency or instrumentality of the 

foregoing.” 29 U.S.C. §§ 1002(32), 1003(b)(1). An entity constitutes a “political 

subdivision if it was ‘either (1) created directly by the state, so as to constitute 

departments or administrative arms of the government, or (2) administered by individuals 

who are responsible to public officials or to the general electorate.’” Crilly v. Se. Pa. 

Transp. Auth., 529 F.2d 1355, 1358 (3d Cir. 1976) (quoting NLRB v. Nat. Gas Util. 

Dist., 402 U.S. 600, 604-05 (1970)) (applying test to LMRA claim); see also Koval, 574 

F.3d at 241 (applying NLRB test to ERISA claim). We treat this test as jurisdictional. 

See Crilly, 529 F.2d at 1357; Koval, 574 F.3d at 244. 

Pue does not raise any arguments in his opening brief to refute the conclusion that 

NJ Transit is a political subdivision exempt from the LMRA and ERISA. Even if the 

issue were not forfeited, see M.S. ex rel. Hall v. Susquehanna Twp. Sch. Dist., 969 F.3d 

120, 124 n.2 (3d Cir. 2020), however, we agree with the District Court’s conclusion. NJ 

Transit is “allocated within the Department of Transportation,” and is “constituted as an 

instrumentality of the State exercising public and essential governmental functions.” N.J. 

Stat. Ann. § 27:25-4(a). And it is governed by a board composed of members including 

the Commissioner of Transportation, the State Treasurer, a member of the Executive 

Branch selected by the Governor, and additional public members appointed by the 

Governor. Id. § 27.25-4(b). In both Crilly and Koval, we held that the defendants 
6 

constituted political subdivisions under similar circumstances. See Crilly, 529 F.2d at

1358 (emphasizing that defendant SEPTA was created as an agency or instrumentality of 

the Commonwealth of Pennsylvania and was governed by a board composed of members 

appointed by the Governor, mayor of Philadelphia, and county commissioners); Koval, 

574 F.3d at 243 (reasoning that defendant was established by statute as “a public body, 

corporate and politic, exercising public powers of the Commonwealth as an agency 

thereof” (citation and internal quotation marks omitted)). Thus, to the extent that Pue’s 

pleadings can fairly be construed as raising claims under the LMRA and ERISA, we 

agree with the District Court’s conclusion that it lacked subject-matter jurisdiction over 

these claims. 

Pue devotes much of his brief on appeal to raising constitutional and civil rights 

claims, most of which were not alluded to, let alone raised, in the District Court. As a 

litigant may not raise new claims for the first time on appeal, we will not consider them. 

See Jenkins v. Superintendent of Laurel Highlands, 705 F.3d 80, 88 n.12 (3d Cir. 2013). 

Two of the claims raised in Pue’s opening brief warrant further discussion, however. 

First, Pue contends that NJ Transit violated the Americans with Disabilities Act 

(“ADA”), 42 U.S.C. § 12101 et seq., by failing to make the disability pension payments. 

He suggests that the District Court should have construed his pleadings as raising this 

claim because he indicated, on his civil cover sheet, that his suit arose under the ADA. 

However, as Pue did not reference the ADA or make any factual allegations that could 

support an ADA claim in any iteration of his complaint or amended complaint, we cannot 

conclude that the District Court erred by not construing his pleadings as raising such a 
7 

claim.4

 Second, Pue argues that NJ Transit discriminated against him because it has 

provided Caucasian employees who suffered work-related injuries with pensions but has 

denied disability pensions to some African American employees, including Pue. As these 

factual allegations appeared nowhere in Pue’s pleadings, the District Court was not 

obligated to consider them.5

 

Finally, having properly dismissed Pue’s potential federal claims, the District 

Court did not abuse its discretion in declining to exercise supplemental jurisdiction over 

his state-law breach-of-contract claim. See Figueroa v. Buccaneer Hotel Inc., 188 F.3d 

172, 175 (3d Cir. 1999). A court may decline to exercise supplemental jurisdiction 

“under 28 U.S.C. § 1367(c)(3) when it dismisses all claims over which it has original 

jurisdiction.” Doe v. Mercy Cath. Med. Ctr., 850 F.3d 545, 567 (3d Cir. 2017). As Pue’s 

pleadings demonstrated that both parties are citizens of New Jersey, the District Court 

4

 Even in his brief on appeal, Pue does not raise allegations that NJ Transit discriminated 

against him because of his disability as required to support an ADA claim. See 42 U.S.C. 

§ 12112(a). Rather, he merely argues that NJ Transit improperly denied his request for 

disability pension payments, apparently because it determined that he did not meet the 

requirements for an award. 

5

 We note that Pue filed an “Amended Statement of Claim” in June 2022 in which he 

raised the same allegations. While the District Court arguably could have construed this 

document as a motion for further leave to amend the complaint to include a Title VII 

claim, any error in failing to do so was harmless, as Pue’s allegations lacked sufficient 

factual matter to establish a plausible inference that he was denied benefits because of his 

race. See EEOC v. Port Auth. of N.Y. & N.J., 768 F.3d 247, 254 (2d Cir. 2014) (noting 

“while a discrimination complaint need not allege facts establishing each element of a 

prima facie case of discrimination to survive a motion to dismiss, . . . it must at a 

minimum assert nonconclusory factual matter sufficient to nudge its claims across the 

line from conceivable to plausible to proceed” (alterations and citations omitted)); see 

also Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (providing that allegations must 

establish “more than the mere possibility of misconduct” to survive dismissal).
8

correctly noted that the diversity of citizenship required to confer jurisdiction under 28 

U.S.C. § 1332 is lacking. 

Accordingly, we will affirm the judgment of the District Court. Pue’s motion to 

strike the Appellee’s brief is denied.