2012 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

12-20-2012

David Calhoun v. Lawrence Murray

Precedential or Non-Precedential: Non-Precedential

Docket No. 09-2968

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 09-2968

____________

DAVID CALHOUN,

Appellant

v.

LAWRENCE F. MURRAY; KENYA MANN;

JOEL GOLDSTEIN; UNITED STATES MARSHALS SERVICE

____________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. No. 2-08-cv-04707)

District Judge: Honorable Ronald L. Buckwalter

____________

Argued November 14, 2012

Before: SCIRICA, FISHER and JORDAN, Circuit Judges.

(Filed: December 20, 2012)

David Calhoun

Elkton FCI

P.O. Box 10

Lisbon, OH 44432

Pro Se Appellant

Loren L. AliKhan (ARGUED)

O’Melveny & Myers

1625 I Street N.W.

Washington, DC 20006

Counsel for Appellant
2

John C. Manning (ARGUED)

Alan M. Robinson

Pennsylvania Board of Probation & Parole

Executive Offices

1101 South Front Street, Suite 5100

Harrisburg, PA 17104-1268

Counsel for Appellee, Lawrence Murray

Charlene K. Fullmer (ARGUED)

Office of United States Attorney

615 Chestnut Street, Suite 1250

Philadelphia, PA 19106

Counsel for Appellees, Kenya Mann,

Joel D. Goldstein, and United States Marshals Service

____________

OPINION OF THE COURT

____________

FISHER, Circuit Judge.

David Calhoun appeals two orders of the District Court dismissing his claims 

against former Pennsylvania Board of Probation and Parole Secretary Lawrence F. 

Murray (“State Defendant/Appellee”), former Assistant U.S. Attorney Kenya Mann, 

Assistant U.S. Attorney Joel Goldstein, and the U.S. Marshals Service (“Federal 

Defendants/Appellees”). Calhoun alleges that the Appellees violated his liberty and 

caused him to be falsely imprisoned by keeping him in custody during his federal trial 

after he posted bail. Because the District Court erred in dismissing Calhoun’s claims 

against Mann and Goldstein on res judicata grounds and failed to provide adequate 

reasoning in dismissing Calhoun’s claim against Murray, we will vacate the District 
3

Court’s orders and remand the case to the District Court for proceedings consistent with 

this opinion.

I.

We write principally for the parties, who are familiar with the factual context and 

legal history of this case. Therefore, we will set forth only those facts necessary to our 

analysis.

In December 2005, Calhoun was serving a state sentence when the Pennsylvania 

Department of Corrections transferred him to federal custody to stand trial in the Eastern 

District of Pennsylvania on federal drug charges. Calhoun posted bail on the federal drug

charges on July 28, 2005, and his state sentence expired on February 23, 2006. Calhoun, 

however, remained in detention throughout his federal trial, which concluded with a 

guilty verdict and a sentence of 20 years imprisonment and 10 years supervised release. 

On August 17, 2006, Calhoun appealed his conviction on the basis of insufficiency of the 

evidence, trial court error, and prosecutorial misconduct. On May 1, 2008, this Court 

affirmed the judgment of the District Court. During Calhoun’s criminal proceedings, 

Mann and Goldstein were counsel for the government. Mann was predecessor counsel;

Goldstein was trial and appellate counsel.

In early 2008, Calhoun filed two suits, one in federal court (“original federal court 

action”) and the other in Pennsylvania state court (“original state court action”), alleging 

that Murray, Mann, Goldstein, and the U.S. Marshals Service violated his liberty and 
4

caused him to be falsely imprisoned. This appeal concerns the original state court action, 

but an explanation of both cases is pertinent to our analysis.

No. 08-cv-0458 – The Original Federal Court Action

The original federal court action was commenced on January 30, 2008, when 

Calhoun filed a complaint in the U.S. District Court for the Eastern District of 

Pennsylvania against Murray, Mann, Goldstein, and the U.S. Marshals Service. Calhoun 

asserted claims under 42 U.S.C. §§ 1983 and 1985 and Bivens v. Six Unknown Named 

Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), alleging that the defendants 

“worked in collusion to deprive [Calhoun] of his liberty in the form of false 

imprisonment” because “upon reaching his maximum term expiration date of his state 

sentence on Feb. 23, 2006, [Calhoun] remained in [the] custody of the federal authorities 

despite the fact that he had posted bail on his federal case.”

On March 18, 2008, the District Court dismissed the complaint without prejudice 

under 28 U.S.C. § 1915(e)(2)(B)(i). The District Court held that the complaint did not 

state a claim against Murray, that Mann and Goldstein were absolutely immune from suit 

as prosecutors, and that the doctrine of sovereign immunity barred the claims against the 

U.S. Marshals Service. On March 27, 2008, Calhoun filed an amended complaint that 

dropped the U.S. Marshals Service as a defendant. Also, because Murray was no longer 

the Secretary of the Parole Board, the complaint was amended on September 17, 2008 to 

substitute the sitting Secretary, Cynthia Daub, as a defendant.
5

The defendants then filed motions to dismiss, which the District Court granted on 

December 18, 2008. With regard to Mann and Goldstein, the District Court concluded 

that it was reasonable for the federal prosecutors to believe that Calhoun’s continued 

detention did not violate his constitutional rights. Accordingly, Calhoun’s claims against 

Mann and Goldstein were dismissed on account of qualified immunity. With regard to 

Daub, the District Court held that although the amended complaint alleged claims against 

her predecessor, Murray, it did not allege that Daub “either directed or acquiesced in 

permitting the decision to detain [Calhoun] after the expiration of his state sentence,” and 

therefore did not satisfy the personal involvement requirement of § 1983. The District 

Court entered a judgment dismissing the case.

On December 26, 2008, Calhoun filed a motion for reconsideration. With regard 

to Mann and Goldstein, Calhoun argued that the court should have permitted him to 

amend his complaint to present evidence of his claims. With regard to Daub, Calhoun 

asserted that he had sought an extension of time to respond to Daub’s motion to dismiss, 

but his motion never reached the District Court. Calhoun explained that previous filings 

had not reached their intended recipients and that he had formally complained to this 

Court about the courthouse mailroom procedures. He attached as an exhibit to his motion 

a letter from the Circuit Executive stating that “[a]n investigation of [his] complaint 

revealed a problem with the mail intake process for the Courthouse and the Clerk’s 

Office.”
6

On January 22, 2009, the District Court denied reconsideration as to Mann and 

Goldstein, but held the motion in abeyance as to Daub. The District Court concluded that 

Calhoun’s representation that he had filed an extension motion, coupled with the Circuit 

Executive’s letter concerning problems in the courthouse mailroom, justified holding the 

reconsideration motion in abeyance so that Calhoun could respond to Daub’s motion to 

dismiss. The District Court directed Calhoun to file that response by February 23, 2009. 

Calhoun subsequently filed the response on February 23, 2009, but the District Court has 

yet to rule on his reconsideration motion.

On February 24, 2010, after Calhoun filed a notice of appeal, this Court dismissed 

Calhoun’s appeal for lack of appellate jurisdiction, noting that the District Court had yet 

to resolve the claims against Daub, and thus, the order was not yet appealable.

No. 08-cv-4707 – The Original State Court Action

After initiating the original federal court action, Calhoun attempted to assert 

similar claims in the Philadelphia Court of Common Pleas against Murray, Mann, 

Goldstein, and the U.S. Marshals Service. To this end, on February 14, 2008, Calhoun 

dispatched a “praecipe,” which was styled as a complaint, to the Court of Common Pleas 

alleging that “the defendants have, in their negligence and/or deliberate indifference to 

[Calhoun’s] liberty interest caused [Calhoun] to be falsely imprisoned through overdetention.” The praecipe was never docketed in the Court of Common Pleas, however, 

and was instead docketed in the Commonwealth Court of Pennsylvania on May 2, 2008. 

On May 22, 2008, the Commonwealth Court dismissed the case as filed in error.
7

Calhoun filed a notice of appeal to the Supreme Court of Pennsylvania on June 4, 

2008, challenging the Commonwealth Court’s dismissal of the action without providing 

him an opportunity to respond. On September 17, 2008, the Supreme Court of 

Pennsylvania noted probable jurisdiction.

On September 30, 2008, the Federal Defendants filed a notice of removal of 

Calhoun’s action to the U.S. District Court for the Eastern District of Pennsylvania, 

which was predicated on 28 U.S.C. § 1442(a) – the federal officer removal provision. On 

October 16, 2008, Calhoun filed an objection to the removal as untimely under 

§ 1446(b)’s 30-day time period for removal. The Federal Defendants responded that their 

removal was not untimely because § 1446(b)’s 30-day time period commences upon 

service of the complaint, and they were never properly served. The District Court, on 

October 29, 2008, denied Calhoun’s objection to the timeliness of removal.

On December 24, 2008, the Federal Defendants filed a motion to dismiss the 

removed action and argued that the dismissal of the original federal action was res 

judicata of the claims against defendants Mann and Goldstein in the removed action. The 

District Court subsequently, on March 26, 2009, dismissed the claims against defendants 

Mann and Goldstein on the basis of res judicata. The District Court also dismissed 

Calhoun’s claim against the U.S. Marshals Service, construing the claim as one under the 

Federal Tort Claims Act, 28 U.S.C. § 1346(b), and concluding that Calhoun had not 

satisfied the prerequisites for such a claim.
8

On March 6, 2009, while the proceedings against the Federal Defendants were 

ongoing, Murray filed a motion to dismiss. On March 23, 2009, Calhoun requested a 45-

day extension of the time within which to respond to Murray’s motion to dismiss, 

explaining that he was proceeding pro se, had no legal training, and had limited access to 

the prison’s law library. The District Court granted Calhoun’s motion on May 12, 2009 

and ordered him to respond within 14 days. On May 26, 2009, Calhoun filed a 

handwritten motion for an additional 30-day extension of time, explaining that he had 

been placed in a restrictive housing unit and was unable to access his legal materials. 

The District Court did not rule on this motion, and, on May 28, 2009, filed the following 

order:

“[T]he motion to dismiss filed by Lawrence F. Murray is GRANTED. All 

claims against Lawrence F. Murray are DISMISSED. THIS CASE IS 

CLOSED.”

Also on May 28, 2009, Calhoun filed a motion to amend his complaint, which was 

dismissed as moot on June 2, 2009. On May 29, 2009, Calhoun sought reconsideration, 

which was denied on June 25, 2009. Calhoun filed a timely notice of appeal with this 

Court on July 1, 2009. On February 1, 2010, the Federal Appellees filed a motion for 

summary affirmance, arguing that the issues on appeal were identical to the those raised 

in Calhoun’s then-pending appeal in the original federal court action. On June 29, 2010, 

this Court denied the motion for summary affirmance, explaining:

“To the extent Appellees are attempting to make a res judicata argument in 

support of their motion, we reject that . . . because there does not appear to 
9

be a final appealable order in the DC No. 08-cv-0458 [the original federal 

court action].”

II.

The District Court had federal question jurisdiction under 28 U.S.C. § 1331. We 

have jurisdiction under 28 U.S.C. § 1291 due to Calhoun’s appeal of a final order in the 

District Court.

This Court exercises de novo review of a district court’s dismissal of a complaint, 

including dismissal based on res judicata. Morgan v. Covington Twp., 648 F.3d 172, 177 

(3d Cir. 2011). We review a district court’s decision regarding a motion for extension of 

time for abuse of discretion. Drippe v. Tobelinski, 604 F.3d 778, 783 (3d Cir. 2010). 

With regard to a district court’s denial of a motion to remand, we exercise plenary review 

to the extent that the underlying basis for the motion presents a legal question. Ario v. 

Underwriting Members of Syndicate 53 at Lloyds for 1998 Year of Account, 618 F.3d 

277, 287 (3d Cir. 2010).

III.

A.

As an initial argument, the Federal Appellees assert that the doctrine of derivative

jurisdiction provides a basis for dismissal of Calhoun’s claims against Mann and 

Goldstein in their official capacities along with Calhoun’s claims against the U.S. 

Marshals Service.
10

Under the doctrine of derivative jurisdiction, a federal district court is without 

proper removal jurisdiction if the state court from which the case was removed lacked 

subject matter jurisdiction, even if the case could have originally been filed in federal 

court. Minnesota v. United States, 305 U.S. 382, 389 (1939). Although the doctrine of 

derivative jurisdiction has been abrogated for removals under the general removal statute, 

28 U.S.C. § 1441, see 28 U.S.C. § 1441(f), the doctrine arguably still applies to removals, 

as in this case, pertaining to federal officers, 28 U.S.C. § 1442. See, e.g., Rodas v. 

Seidlin, 656 F.3d 610, 619 (7th Cir. 2011); Palmer v. City Nat’l Bank, 498 F.3d 236, 246 

(4th Cir. 2007).

Regardless of whether the District Court exercised proper removal jurisdiction of 

Calhoun’s claims against Mann, Goldstein, and the U.S. Marshals Service, the doctrine of 

derivative jurisdiction does not deprive this Court of jurisdiction on appeal. While

“[c]hallenges to subject-matter jurisdiction can of course be raised at any time prior to 

final judgment,” even for the first time on appeal, Grupo Dataflux v. Atlas Global Grp., 

L.P., 541 U.S. 567, 571 (2004), challenges based on procedural defects in removal cannot 

be raised for the first time on appeal. Grubbs v. General Elec. Credit Corp., 405 U.S. 

699, 702 (1972). 

Our jurisdiction on appeal in this matter is governed by Grubbs because “[t]he 

doctrine of derivative jurisdiction, despite its perhaps improvident name, is best 

understood as a procedural bar to the exercise of federal judicial power. That is, the 

doctrine creates a defect in removal, but is not an essential ingredient to federal subject 
11

matter jurisdiction.” Rodas, 656 F.3d at 619; see also Morda v. Klein, 865 F.2d 782, 784

(6th Cir. 1989); Foval v. First Nat’l Bank of Commerce in New Orleans, 841 F.2d 126, 

129 (5th Cir. 1988); Sorosky v. Burroughs Corp., 826 F.2d 794, 800-01 (9th Cir. 1987).

Each of Calhoun’s claims could have been properly filed in the District Court. 

Therefore, we are not deprived of jurisdiction on appeal, despite the existence of any 

potential procedural errors in removal.

B.

Calhoun argues that the District Court erroneously dismissed his claims against 

Mann and Goldstein on the basis of res judicata and that res judicata cannot present a 

barrier to his claims because there has been no final judgment in his previous case, the 

original federal court action.1

 1 Calhoun asserts that this Court’s June 29, 2010 denial of summary affirmance 

based on a lack of finality in the original federal court action is law of the case and binds 

our present consideration of the issue. However, the June 29, 2010 denial of summary 

affirmance was issued by a motions panel of this Court, and a decision of a motions panel 

is not binding on a merits panel for the purpose of the law of the case. Council Tree 

Commc’ns, Inc. v. FCC, 503 F.3d 284, 291-92 (3d Cir. 2007).
12

The preclusive effect of a federal court judgment is determined by federal law.2

In Clausen Co. v. Dynatron/Bondo Corp., we vacated a judgment that was 

erroneously predicated on res judicata by holding that the finality requirement was not 

met:

 

Taylor v. Sturgell, 553 U.S. 880, 891 (2008). To succeed in the assertion of a res judicata

defense, the defendant must show there has been “(1) a final judgment of the merits in a 

prior suit involving; (2) the same parties or their privies; and (3) a subsequent suit based 

on the same causes of action.” Sheridan v. NGK Metals Corp., 609 F.3d 239, 260 (3d 

Cir. 2010). Unless a court expressly determines that finality is warranted and there is no 

just reason for delay, “any order or other decision . . . that adjudicates fewer than all the 

claims or the rights and liabilities of fewer than all the parties does not end the action as 

to any of the claims or parties and may be revised at any time before the entry of a 

judgment adjudicating all the claims and all the parties’ rights and liabilities.” Fed. R. 

Civ. P. 54(b).

“The adjudication relied upon was of the second count of a two count 

complaint . . . . The first count is still pending in the district court. Thus the 

 2 The District Court erroneously conducted a res judicata analysis under state law 

rather than federal law. The Federal Appellees attempt to justify the District Court’s 

analysis by citing this Court’s opinion in Delaware River Port Authority v. Fraternal 

Order of Police, 290 F.3d 567, 573 (3d Cir. 2002) (“A federal court looks to the law of 

the adjudicating state to determine its preclusive effect.”). However, unlike Calhoun’s 

case, in which the question is whether a previous federal court decision has a preclusive 

effect, Delaware River involved a question of whether a previous state court decision had 

a preclusive effect. Only when the previous decision comes from a state court will a 

federal court analyze the preclusive effect of the previous decision under state law.
13

disposition of the second count falls squarely within Fed. R. Civ. P. 54(b). 

There has been no express determination that Count II is a separate claim 

on which a final judgment should be entered. Thus the disposition of Count 

II is interlocutory, and subject to reconsideration by the district court so 

long as Count I remains pending.”

889 F.2d 459, 466 (3d Cir. 1989).

Here, the District Court failed to consider the lack of finality in the original federal 

court action. In ruling on Calhoun’s motion for reconsideration in the original federal 

court action, the District Court held as follows:

“Regarding Defendant Daub, Plaintiff’s Motion for Reconsideration is 

HELD IN ABEYANCE. On or before February 23, 2009, Plaintiff shall 

provide this Court with his Response to Defendant Daub’s Motion to 

Dismiss. Consistent with the local rules, Defendant Daub may reply to 

Defendant. At that time, this Court will reexamine the merits of Plaintiff’s 

Motion for Reconsideration as it pertains to Defendant Daub.”

Calhoun has since provided his response to Daub’s motion to dismiss, but the 

District Court has yet to reexamine the merits of Calhoun’s motion for reconsideration. 

The District Court, in the original federal court action, did not expressly determine that 

finality was warranted. Therefore, as in Clausen, the res judicata finality requirement has

not been met because the previous adjudication was on only one count of a two count 

complaint, the other count is still pending, and the disposition of the adjudicated count is 

still subject to reconsideration by the District Court so long as the other count remains 
14

pending. 889 F.2d at 466. The District Court thus erroneously dismissed Calhoun’s 

claims against Mann and Goldstein on res judicata grounds.3

C.

Calhoun asserts that the District Court erred in not ruling on his motion for an 

extension of time to respond to Murray’s motion to dismiss before granting Murray’s 

motion to dismiss, thus effectively denying his motion for an extension of time. We 

review denials of motions for extension of time for an abuse of discretion. See Drippe v. 

Tobelinski, 604 F.3d 778, 783 (3d Cir. 2010) (“We deem it self-evident that appellate 

courts cannot too easily agree to meddle in such case-management decisions lest the trial 

court’s authority be undermined and the systems sputter.”).

On March 6, 2009, Murray filed a motion to dismiss. On March 23, 2009, 

Calhoun moved for a 45-day extension of time to file a response. The District Court 

granted Calhoun’s motion for a 45-day extension and, on May 12, 2009, informed 

Calhoun that he was required to respond within 14 days. When Calhoun subsequently 

 3 The Federal Appellees, for the first time on appeal, argue that although the 

District Court based its decision on res judicata (or claim preclusion) grounds, the 

decision can be upheld on the basis of collateral estoppel (or issue preclusion). However, 

even under the less stringent standards for collateral estoppel, a prior adjudication must 

be “sufficiently firm” in order to have issue-preclusive effect, and an important criterion 

in assessing the firmness of the prior decision is “whether [the] decision could have been, 

or actually was, appealed.” Free Speech Coal., Inc. v. Att’y Gen. of the U.S., 677 F.3d 

519, 541 (3d Cir. 2012). Because Calhoun attempted to appeal the District Court’s order 

in the original federal court action, and this Court dismissed the appeal due to a lack of 

finality, we decline to hold that that the District Court’s erroneous res judicata decision 

can be upheld on collateral estoppel grounds.
15

filed a handwritten motion for an additional 30-day extension of time, the District Court 

was under no obligation to grant the request. Thus, the District Court did not err in 

denying Calhoun’s motion for an extension of time.

D.

Calhoun argues that the District Court erred in dismissing his claims against 

Murray without putting forth any reasoning or analysis. When a district court dismisses a 

complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure, in order to be 

upheld, it must be evident that the district court dismissed the complaint because the 

complaint failed to state a claim, rather than because the non-moving party did not file a 

response to the moving party’s motion to dismiss. See Stackhouse v. Mazurkiewicz, 951 

F.2d 29, 30 (3d Cir. 1991).

Here, after Calhoun filed his motion for an extension of time, the District Court 

issued the following order:

“[T]he motion to dismiss filed by Lawrence F. Murray is GRANTED. All 

claims against Lawrence F. Murray are DISMISSED. THIS CASE IS 

CLOSED.”

This order simply does not provide enough analysis for this Court to conclude that 

Calhoun’s complaint against Murray was dismissed for valid reasons. As noted, the 

District Court was permitted to deny Calhoun’s motion for an extension of time to file his 

response to Murray’s motion to dismiss, but the District Court was not permitted to 

dismiss Calhoun’s claims solely because he did not file a response. Thus, while we are 

mindful of the problems of district courts in dealing with a large volume of litigation, we 
16

nevertheless conclude that under Stackhouse, the District Court erred in failing to provide 

any reasoning or analysis in this situation.

E.

Calhoun argues that this case should be remanded to the District Court with an 

order for the District Court to remand to the state court.4

In regard to service of process upon the United States, its agencies, corporations, 

officers, or employees, the Federal Rules of Civil Procedure provide that “service of 

 Calhoun specifically asserts that 

the case was untimely removed from the state court to the District Court and thus should 

be returned to the state court for proper adjudication. “The notice of removal of a civil 

action or proceeding shall be filed within 30 days after the receipt by the defendant, 

through service or otherwise, of a copy of the initial pleading.” 28 U.S.C. § 1446(b)(1). 

The Supreme Court has recognized that “[a] named defendant’s time to remove is 

triggered by simultaneous service of the summons and complaint, or receipt of the 

complaint, through service or otherwise, after and apart from service of the summons, but 

not by mere receipt of the complaint unattended by any formal service.” Murphy Bros., 

Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 347-48 (1999) (emphasis added).

 4 To be sure, because the District Court’s orders will be vacated, this Court has the 

authority to order the District Court to remand the case to the state court. While an 

appellate court will not overturn a final judgment on the basis of a defect in removal if, at 

the time of judgment, the district court would have had subject matter jurisdiction over 

the action had it initially been brought in federal court, see Grubbs v. General Elec. 

Credit Corp., 405 U.S. 699, 702 (1972), that rule does not apply when the court of 

appeals vacates the district court’s judgment, leaving no judgment on the merits. See 16 

James Wm. Moore, Moore’s Federal Practice § 107.41[1][c][ii][C] (3d ed. 1997).
17

process shall be effected by delivering a copy of the summons and of the complaint to the 

United States attorney for the district in which the action is brought . . . and by also 

sending a copy of the summons and of the complaint by registered or certified mail to the 

Attorney General of the United States.” Fed. R. Civ. P. 4(i)(1).

Here, as noted by the Federal Appellees, the 30-day removal period of 

§ 1446(b)(1) was never triggered because Calhoun failed to perfect service upon the 

defendants. According to the certificate of service, Calhoun’s “praecipe,” which was 

styled as a complaint, was sent to each of the defendants via first class mail without any 

accompanying summons. In addition, neither the United States Attorney for the Eastern 

District of Pennsylvania nor the Attorney General of the United States were served with 

the praecipe. Therefore, Calhoun never perfected service upon the defendants, and the 

30-day time period for removing to federal court has not yet commenced. Removal was 

thus premature.

Despite this defect of premature removal, we decline to remand this case to the 

state court. Although the general removal statute, 28 U.S.C. § 1441, is to be strictly 

construed in favor of state court adjudication, see Abels v. State Farm Fire & Cas. Co., 

770 F.2d 26, 29 (3d Cir. 1985), the federal officer removal statute, 28 U.S.C. § 1442, 

upon which removal was premised in this matter, should be broadly construed in favor of 

a federal forum. See Sun Buick, Inc. v. Saab Cars USA, Inc., 26 F.3d 1259, 1262 (3d Cir. 

1994). This is because “one of the primary purposes for the [federal officer] removal 

statute – as its history clearly demonstrates – was to have [federal] defenses litigated in 
18

the federal courts” including “the defense of official immunity.” Willingham v. Morgan, 

395 U.S. 402, 407 (1969).

There are a number of factors weighing against remand to the state court in this 

matter. First, the gravamen of Calhoun’s claims are federal in nature, involving federal 

actors, and are better suited for a federal forum. Second, the procedural defect in removal 

was not the result of bad faith or undue delay on the part of the defendants. Third, a 

remand to the state court for Calhoun to formally perfect service so that the defendants 

can properly remove the case to the District Court would be a waste of judicial resources. 

The District Court has subject matter jurisdiction over Calhoun’s claims and the 

procedural defect in removal does not outweigh the policy considerations of keeping this 

case in federal court.5

IV.

The District Court erred in dismissing Calhoun’s claims against Mann and 

Goldstein on res judicata grounds and failed to provide adequate reasoning in dismissing 

Calhoun’s claim against Murray. Thus, we will vacate the District Court’s orders and 

remand the case to the District Court for proceedings consistent with this opinion.6

 5 We have also considered Calhoun’s arguments that the District Court erred in not 

allowing him to amend his complaint and that removal was improper because it occurred 

while the case was in an appellate posture. Neither argument has merit or warrants 

further discussion.

6 We note once again, as we did at oral argument, our appreciation of the excellent 

work of appointed counsel for Calhoun.