2009 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

9-29-2009

Daniel Tilli v. Exxon Mobil Corp

Precedential or Non-Precedential: Non-Precedential

Docket No. 09-2279

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Recommended Citation

"Daniel Tilli v. Exxon Mobil Corp" (2009). 2009 Decisions. Paper 583.

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ALD-313 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 09-2279

___________

DANIEL TILLI, 

 Appellant

v.

EXXON-MOBIL CORPORATION; 

REX TILLERSON, CEO 

____________________________________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civil No. 09-cv-01301)

District Judge: Honorable Robert F. Kelly

____________________________________

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

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

September 17, 2009

Before: SLOVITER, FUENTES and JORDAN, Circuit Judges

(Opinion filed: September 29, 2009)

_________

OPINION

_________

PER CURIAM

Daniel Tilli filed a complaint alleging that appellees illegally raised the price of

their gas. He argued that this violated the Pennsylvania Consumer Protection Act and the
 The District Court should not have addressed the issue of jurisdiction or the merits of 1

the complaint until the filing fee had been paid or the motion to proceed in forma pauperis

had been granted. Sinwell v. Shapp, 536 F.2d 15, 19 (3d Cir. 1976).

2

Interstate Commerce Act and implied that appellees had engaged in price gouging and

price fixing. The District Court denied the in forma pauperis motion as incomplete and 1

dismissed the complaint without prejudice pursuant to Fed. R. Civ. P. 12(h)(3). Tilli filed

a notice of appeal. 

Where a District Court has dismissed a complaint without prejudice, the dismissal

is generally not appealable under 28 U.S.C. § 1291 unless the litigant cannot cure the

defect or where the litigant declares an intention to stand on the complaint, whereupon the

District Court’s order becomes final. Borelli v. City of Reading, 532 F.2d 950, 951-52

(3d Cir. 1976) (per curiam). After the District Court dismissed his complaint without

prejudice, Tilli filed a document entitled “Demand to Reinstate” in which he argued that

he did state a jurisdictional basis for his claim. Because Tilli has chosen to stand on his

pleading as filed, we have jurisdiction over the appeal.

Because Tilli is proceeding in forma pauperis on this appeal, we must analyze his

appeal for possible dismissal pursuant to 28 U.S.C. § 1915(e)(2)(B). Under §

1915(e)(2)(B), we must dismiss an appeal if the action (i) is frivolous or malicious, (ii)

fails to state a claim upon which relief may be granted, or (iii) seeks monetary damages

from a defendant with immunity.
3

On appeal, Tilli argues that interstate price gouging is in violation of the Sherman

Act. In order to state a claim under the Sherman Act, a plaintiff must allege facts to

suggest that an unlawful agreement was made. Twombly v. Bell Atlantic, 550 U.S. 544

(2007). Tilli has not stated a claim under the Sherman Act; his complaint consists of

conclusory allegations of price-fixing. This is insufficient under Twombly. Moreover,

the District Court did not err in declining to exercise supplemental jurisdiction over any

state law claims.

For the above reasons, we will dismiss the appeal for failure to state a claim,

pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). Appellant’s motion to transfer the proceedings

is denied.