Lan Trinh v. David Fineman

• Court: Court of Appeals for the Third Circuit
• Decided: November 14, 2019
• Docket: 19-2467
• Status: Unpublished

Opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 19-2467 __________

LAN TU TRINH, Appellant

v.

DAVID FINEMAN ____________________________________

On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Civil Action No. 2-19-cv-02305) District Judge: Honorable Cynthia M. Rufe ____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a) November 12, 2019

Before: SHWARTZ, RESTREPO and RENDELL, Circuit Judges

(Opinion filed November 14, 2019) ___________

OPINION* ___________

PER CURIAM

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. Lan Tu Trinh appeals from an order of the United States District Court for the

Eastern District of Pennsylvania, which dismissed for lack of subject matter jurisdiction

her complaint against David Fineman.

Trinh’s complaint alleged that Fineman was appointed as a receiver in a state court

case involving the dissolution of her beauty school. The complaint accuses Fineman of

not giving her a proper accounting of the escrow account related to that case and accuses

him of “the theft of my properties on behalf of the Court of Common Pleas for Kathleen

Trinh’s benefit.” Dkt. #1 at 6. Both the cover sheet and the complaint itself claim

“Federal Question” jurisdiction. The complaint’s cover sheet states that the federal

question is “investigation, crime,” Dkt. #1 at 1, and in the form complaint’s area for

explaining the basis of the Federal Question Trinh stated: “The courts in Pennsylvania

have denied my appeals, so I ask for the district court to hear my case,” Dkt. #1 at 2.

The District Court sua sponte dismissed Trinh’s complaint without prejudice for

lack of subject matter jurisdiction. The Court stated that Trinh “does not allege any

claims arising under federal law or that the parties are citizens of different states.” Dkt.

#3 at n.1. Trinh timely appealed.

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

Court’s dismissal for lack of subject matter jurisdiction is plenary. FOCUS v. Allegheny

Cty. Court of Common Pleas, 75 F.3d 834, 839-40 (3d Cir. 1996).

2 As we recently explained in two of Trinh’s other appeals, “In order to have subject matter

jurisdiction, a District Court must be able to exercise either federal question jurisdiction

or diversity jurisdiction. See 28 U.S.C. §§ 1331-1332.” Trinh v. Office of Records City

of Phila., C.A. No. 18-3473, and Trinh v. Trinh, C.A. No. 18-3485, 2019 WL 30634542,

at *1 (3d Cir. July 12, 2019). We further explained that although a District Court may

sua sponte consider whether a plaintiff has satisfied the burden of alleging facts that show

that the Court has jurisdiction, the Court should give the plaintiff an opportunity to be

heard before dismissing a complaint for lack of subject matter jurisdiction. Id. at *2

(citing Neiderhiser v. Borough of Berwick, 840 F.2d 213, 216 n.6 (3d Cir. 1988), and

Berardi v. Swanson Mem’l Lodge No. 48 of the Fraternal Order of Police, 920 F.2d 198,

200 (3d Cir. 1990)).1

The District Court properly determined that Trinh’s complaint, as filed, does not establish

subject matter jurisdiction. Trinh did not base her complaint on diversity jurisdiction (it

appears that she and the defendant are from the same state). And Trinh’s complaint does

not cite any federal statute or constitutional provision that would invoke federal question

jurisdiction.

1 As in the cases involved in those appeals, Trinh paid the filing fees in the District Court, so the screening provisions of 28 U.S.C. § 1915(e) are not applicable.

3 We are doubtful that Trinh can state a basis for federal subject matter jurisdiction.2 See

Cardona v. Bledsoe, 681 F.3d 533, 535 (3d Cir. 2012) (“Federal courts are courts of

limited jurisdiction. They possess only that power authorized by Constitution and

statute.”) (quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377

(1994)). But because the District Court did not give Trinh the opportunity to respond or

amend her complaint to properly allege federal question jurisdiction, see Neiderhiser, 840

F.2d at 216 n.6, we will vacate the District Court’s judgment and remand for further

proceedings. On remand, the District Court should provide Trinh with an opportunity to

either respond to the issue of jurisdiction or amend her complaints to properly allege

federal question jurisdiction. See 28 U.S.C. § 1653; St. Francis Med. Ctr. v. Sullivan,

962 F.2d 1110, 1117 (3d Cir. 1992).

2 We note that to the extent Trinh sought to bring a criminal charge against Fineman, a private party has no right to enforce criminal statutes. See Leeke v. Timmerman, 454 U.S. 83, 85-86 (1981) (per curiam). Trinh is also advised that a federal court cannot exercise appellate review over a state court judgment. See Great W. Mining & Mineral Co., 615 F.3d 159, 165-66 (3d Cir. 2010). 4