GLD-158 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 12-1186

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MARILYN KENT,

Appellant

v.

ED CARBER INC.

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On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civil Action No. 11-cv-07862)

District Judge: Honorable Juan R. Sanchez

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Submitted for Possible Summary Action

Pursuant to Third Circuit L.A.R. 27.4 and I.O.P. 10.6

April 12, 2012

Before: FUENTES, GREENAWAY, JR. and NYGAARD, Circuit Judges

(Opinion filed: April 24, 2012)

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OPINION

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PER CURIAM

Marilyn Kent appeals pro se from the United States District Court for the Eastern 

District of Pennsylvania’s order dismissing her complaint. For the following reasons, we 

will affirm in part and vacate in part the District Court’s order. 
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I.

In December 2011, Kent filed a motion to proceed in forma pauperis (“IFP”) in 

the District Court. Her complaint against Ed Carber, Inc. (“Carber”) was entered on the 

District Court’s docket on January 13, 2012, the same day that the District Court entered

an order granting Kent’s motion to proceed IFP and dismissing her complaint pursuant to 

28 U.S.C. § 1915(e). 

Kent’s complaint appears to assert that in 2008 she leased Carber’s barn to house 

her horses and that they entered into an agreement to advertise for boarding, clients, 

riding lessons, and training. She claims that Carber soon became aggressive and harassed 

her when she refused to “be one of his girlfriends,” and that he was violent “with his 

vehicle.” She and her horses “experienced fear, harassment, terrorism and violence.” 

Kent asserts that Carber violated several criminal statutes, sexually harassed her, 

discriminated against her, and breached his contract with her. 

In the District Court’s order dismissing the complaint, it explained that Kent, as a 

private citizen, did not have the right to bring a criminal case against the defendants nor 

could she proceed on a civil cause of action based on federal criminal laws. Additionally, 

she could not bring a breach of contract action under the District Court’s diversity 

jurisdiction because she and the defendant are Pennsylvania residents. 

Kent now appeals.
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II.

We have jurisdiction pursuant to 28 U.S.C. § 1291. Our review of the District 

Court’s sua sponte dismissal of a complaint under 28 U.S.C. § 1915(e)(2) is plenary. 

Allah v. Seiverling

If a complaint is vulnerable to dismissal, a district court generally must first permit 

the plaintiff to file a curative amendment. 

, 229 F.3d 220, 223 (3d Cir. 2000). 

See Fletcher-Harlee Corp. v. Pote Concrete 

Contractors, Inc., 482 F.3d 247, 252 (3d Cir. 2007) (observing that in civil rights cases, 

“leave to amend must be granted sua sponte before dismissing” the complaint). 

“Dismissal without leave to amend is justified only on the grounds of bad faith, undue 

delay, prejudice, or futility.” Alston v. Parker

Here, the District Court properly dismissed Kent’s criminal claims against Carber, 

as amendment of those claims would be futile because a private person does not have a 

“judicially cognizable interest in the prosecution . . . of another.” 

, 363 F.3d 229, 236 (3d Cir. 2004).

See Linda R.S. v. 

Richard D., 410 U.S. 614, 619 (1973). However, the District Court erred in dismissing 

the remainder of the claims for lack of diversity jurisdiction without providing Kent with 

an opportunity to amend her complaint. See Grayson v. Mayview State Hosp., 293 F.3d

103, 108 (3d Cir. 2002). There is no doubt that, in its current form, Kent’s complaint is 

wholly inadequate and that it appears as though she cannot meet the requirements for 

diversity jurisdiction. See 28 U.S.C. § 1332(a)(1) (stating that federal courts have 

original diversity jurisdiction over all civil actions where the matter in controversy 

exceeds the sum of $75,000 and is between citizens of different states). Nevertheless, we 
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cannot say, at this stage, whether Kent could amend the complaint to satisfy the 

jurisdictional requirements. See 28 U.S.C. § 1653 (“Defective allegations of jurisdiction 

may be amended, upon terms, in the trial or appellate courts.”). Indeed, we have 

indicated that federal courts have a duty to consider whether a defective jurisdictional 

allegation may be remedied through amendment. See Chem. Leaman Tank Lines, Inc. v. 

Aetna Cas. & Surety Co.

Accordingly, we will affirm in part, vacate in part, and remand the matter for 

proceedings consistent with this opinion. 

, 177 F.3d 210, 222 n.13 (3d Cir. 1999).