S. Christel Liptok v. Bank of America

• Court: Court of Appeals for the Third Circuit
• Decided: May 15, 2019
• Docket: 16-4341
• Status: Unpublished

Opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ________________

No. 16-4341 ________________

S. CHRISTEL LIPTOK; ASHLEY M. LIPTOK; NICHOLAS J. LIPTOK; JOHN JAMES LIPTOK; BRIAN M. LIPTOK; *W. THOMAS BOUSSUM,

Appellants v.

BANK OF AMERICA

(*Dismissed pursuant to Fed. R. App. P. 3(e) and 3rd Cir. L.A.R. 3.3. and Misc. 107.1(a)) ________________

Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Civil Action No. 3-15-cv-00156) District Judge: Honorable James M. Munley ________________

Submitted Under Third Circuit L.A.R. 34.1(a) April 15, 2019

Before: AMBRO, GREENAWAY, JR., and SCIRICA, Circuit Judges

(Opinion filed: May 15, 2019) ________________

OPINION* ________________

AMBRO, Circuit Judge

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. The Liptok family lives in one half of a duplex in Pottsville, Pennsylvania. For a

time, Bank of America owned the adjoining half as the result of a foreclosure. The

Liptoks allege that the Bank neglected its half of the duplex, and that this caused damage

to the Liptok property, including a broken furnace, flooding in the basement, and mold.

Led by John Joseph Liptok, the family brought this suit pro se in the Middle District of

Pennsylvania. The case was referred to Magistrate Judge Schwab.

Matters soon went south. In an early phone conference, Mr. Liptok berated Judge

Schwab and threatened to send her to “Gitmo,” prompting her to summon U.S. marshals

to her chambers for protection. ECF 39, No. 3:15-cv-156 (M.D. Pa). Judge Schwab

recused herself, and the case was reassigned to Magistrate Judge Carlson.

The Liptoks’ conduct did not improve. They refused to comply with discovery

orders, prompting Judge Carlson to warn them that the case could be dismissed under

Federal Rule of Civil Procedure 41(b). They responded by accusing Judge Schwab of

criminal conduct and by describing the behavior of counsel for Bank of America as

“[l]ittle girl antics in a big boy world.” ECF 31, No. 3:15-cv-156. Mr. Liptok refused to

sit for a deposition on the ground that the Bank was “making the court accessories [sic] to

all the crimes,” and further stated that Judge Schwab “should be dis barred [sic] and

jailed in a mental ward.” ECF 50, No. 3:15-cv-156. Although he eventually gave a

deposition, he sought to “dismiss” it on the ground that counsel for Bank of America and

Judge Carlson were “having an affair.” ECF 53, No. 3:15-cv-156. Judge Carlson struck

these filings from the record.

2 The harassment soon reached a tipping point for the Bank’s counsel. Mr. Liptok

appears to have posted a picture of the attorney (a third-year associate) and her husband

on social media along with a written post accusing them of perjury. The attorney

withdrew her appearance from the case, and Judge Carlson had to stay the matter while

Bank of America secured new counsel.

Eventually the Bank filed a motion for summary judgment. It argued that the

Liptoks had failed to pursue their claims and that they could not produce any evidence

establishing that its actions caused their injuries. The Liptoks responded with a “[m]otion

to dismiss motion of defendant” that accused Bank of America’s new counsel of

“attacking us” and “filing lies.” ECF 73, No. 3:15-cv-156. They never responded

coherently to the merits of the motion.

Judge Carlson recommended granting summary judgment for the Bank under

Federal Rule of Civil Procedure 41(b) due to the Liptoks’ “chaotic, undisciplined, and

inappropriate litigation practice.” Report & Recommendation at 6 (applying Poulis v.

State Farm Fire & Cas. Co., 747 F.2d 863 (3d Cir. 1984)). He also recommended

summary judgment on the merits; given that the Liptoks never responded to Bank of

America’s statement of material facts, he accepted those facts as true and concluded they

failed to show causation or produce evidence of damages.

The Liptoks objected to Judge Carlson’s Report & Recommendation by asserting

that his “sanity is in serious question” and that he “should be ordered to have his head

examined.” ECF 84, No. 3:15-cv-156. The District Court noted that the Liptoks had not

3 mounted any legal arguments against the Report & Recommendation, adopted it in full,

and granted summary judgment for Bank of America.

The Liptoks appealed. We appointed amicus appellate counsel to provide a

neutral view of the issues: (1) whether diversity jurisdiction exists in this case, (2)

whether Judge Schwab or Judge Carlson should have appointed counsel for the Liptoks,

and (3) whether the District Court was correct to grant summary judgment for Bank of

America because of the Liptoks’ litigation conduct or on the merits.1

Discussion

A. Jurisdiction

“[W]e must ensure that the District Court and our Court have jurisdiction over a

case before addressing the merits.” Hassen v. Gov’t of Virgin Islands, 861 F.3d 108, 112

(3d Cir. 2017) (citation omitted). Because the Liptoks assert the state-law claim of

negligence, we evaluate whether we have diversity jurisdiction under 28 U.S.C. § 1332.

We are satisfied that we do. Bank of America is a citizen of North Carolina,

where it maintains its principal place of business. See 28 U.S.C. § 1348; Wachovia Bank

v. Schmidt, 546 U.S. 303, 306–07 (2006) (“[A] bank’s citizenship is determined by

the place designated in the bank’s articles of association as the location of its main

office[.]”). As for the Liptoks, each family member “is deemed to be a citizen of the state

where he [or she] is domiciled.” See Zambelli Fireworks Mfg. Co., Inc. v. Wood, 592

F.3d 412, 419 (3d Cir. 2010). When the lawsuit was filed, all seven lived in

1 We thank amicus counsel Katherine M. Romano of Walsh Pizzi O’Reilly Falanga LLP for her excellent brief. 4 Pennsylvania. Reply at 6. Now, one (Ashley) lives in New Mexico and another (John

James) lives in either Pennsylvania or the District of Columbia. Compl. ¶ 5.

Importantly, none are domiciled in North Carolina. Prodded by the amicus brief, John

Joseph Liptok explained that the family’s only connection to North Carolina was his

temporary assignment to Marine Corps Base Camp Lejeune years ago. Reply at 3. Thus

we are satisfied that all family members are diverse from Bank of America.

The amount-in-controversy requirement is met as well. “A complaint will be

deemed to satisfy the required amount in controversy unless the defendant can show to a

legal certainty that the plaintiff cannot recover that amount.” Spectacor Mgmt. Grp. v.

Brown, 131 F.3d 120, 122 (3d Cir. 1997). The Liptoks’ demands here are erratic, ranging

from $5 million per family member to $1 trillion total. Though these damages may be

fanciful, we cannot say to a legal certainty that the amount in controversy is less than

$75,000. The Liptoks allege thousands of dollars of personal property damage from a

flood in the basement; a broken furnace costing roughly $15,000; and twelve years of oil,

electric, and water bills. They also ask that Bank of America buy the adjoining property,

tear it down, and clean up the premises. Because the amount in controversy is over

$75,000, and because complete diversity exists between the parties, we have jurisdiction.

5 B. Appointment of Counsel

Soon after filing this suit, the Liptoks requested a lawyer. After Judge Schwab

recused herself, Judge Carlson deferred acting on the request under the factors set forth in

Tabron v. Grace, 6 F.3d 147 (3d Cir. 1993). In particular, he opted not to appoint

counsel until it was clear whether the case had any merit.

The Liptoks have forfeited any challenge to Judge Carlson’s choice. “[U]nless

exceptional circumstances exist, a party may not obtain relief in this court without

making an objection and seeking review of [a] magistrate judge’s order in the district

court.” Cont’l Cas. Co. v. Dominick D’Andrea, Inc., 150 F.3d 245, 246 (3d Cir. 1998).

The Liptoks did not seek review of the order in the District Court. Nor did they raise the

issue in their opening brief to us. “It is well settled that an appellant’s failure to identify

or argue an issue in his opening brief constitutes waiver of that issue on appeal.” United

States v. Pelullo, 399 F.3d 197, 222 (3d Cir. 2005).

Even reaching the merits, we would affirm Judge Carlson’s order, which we

review for abuse of discretion. See Montgomery v. Pinchak, 294 F.3d 492, 498 (3d Cir.

2002). Once a court determines “whether the claimant’s case has some arguable merit in

fact and law,” it should proceed to balance the Tabron factors, including the claimant’s

ability to present the case and the difficulty of the legal issues. Id. at 499 (citing Tabron,

6 F.3d at 155–57).

Here, Judge Carlson concluded it was unlikely any lawyer would take the Liptoks’

case. We have long instructed courts to be “sensitive” to “the indignities that some

lawyers have been subjected to by certain litigants, including verbal and written abuse,

6 excessive demands and complaints, and malpractice suits.” Tabron, 6 F.3d at 157 n.7.

This case illustrates our warning. In the words of the neutral amicus counsel, the Litpoks

exhibited a pattern of “accusing essentially every attorney and judge who touched their

case of fraud, threats, illegal conduct, and bias, and making personal attacks against

opposing counsel and judges despite repeated entreaties from the Court to refrain from

such invective.” Amicus Br. at 38. True to form, the Liptoks responded to the amicus

filing with more baseless diatribes. See Reply at 2 (“[T]he lawyers are running wild.”);

id. at 6 (“[A]ll you have out here right now is a bunch of lawyers lying and screwing

around.”). It is far from clear they would listen to the advice of court-appointed counsel

anyway; before our Court they have predicted that any future lawyer of theirs would be

bought off by Bank of America to seek “a low settlement without our consent.”

Appellants’ Mot. to Remand (Mar. 5, 2018); see also ECF 71-1 at 7, No. 3:15-cv-156

(asserting that “Lawyer 101” is to “lie cheat steal”). In short, Judge Carlson did not

abuse his “broad discretion to determine whether appointment of counsel is warranted.”

Tabron, 6 F.3d at 157.

C. Dismissal on Merits

We affirm the grant of summary judgment for insufficient evidence. The Liptoks

never disputed Bank of America’s statement of material facts. When a party “fails to

properly address another party’s assertion of fact,” a court may “consider the fact

undisputed for purposes of the motion.” Fed. R. Civ. P. 56(e). Taking the Bank’s

statement of material facts as true, we conclude that the negligence claim of the Liptoks

fails on two elements: causation and damages.

7 As to causation, they allege that the furnace broke on November 1, 2013. Compl.

¶ 9. But the Bank did not own the adjacent property until December 12, 2013, so its

conduct could not have caused the furnace to break. More generally, none of the

Liptoks’ alleged injuries occurred during the three months that the Bank owned the

property (December 2013 to March 2014). As a result, Judge Carlson was correct to

conclude their claim fails on causation.

As to damages, the Liptoks’ evidence is similarly slim. They assert medical

injuries, but, as Judge Carlson found, they have failed to produce any expert medical

evidence in support of their claim.2

Thus we affirm.

2 To the extent the complaint could be read as bringing a claim for breach of contract based on the Bank’s alleged promise to fix the furnace, we affirm Judge Carlson’s conclusion that there was no consideration and thus no contract. 8