                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-13-2007

Stephanatos v. Cohen
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-4989




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"Stephanatos v. Cohen" (2007). 2007 Decisions. Paper 944.
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CLD-224                                               NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT

                                   NO. 06-4989
                                ________________

                            BASIL N. STEPHANATOS,

                                               Appellant

                                          v.


           MARY ANN COHEN, MS., Sued in her official and individual
              capacity; ROBERT W. MOPSICK, Sued in his official and
             individual capacity; DAVID VIRSOTSKY, MR., Sued in his
          official and individual capacity; MARK W. EVERSON; UNITED
                               STATES OF AMERICA
                     ____________________________________

                  On Appeal From the United States District Court
                          For the District of New Jersey
                           (D.C. Civ. No. 06-cv-01310)
                     District Judge: Honorable Joel A. Pisano
                  _______________________________________

          Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B)
                                   May 10, 2007

          Before: RENDELL, SMITH AND JORDAN, CIRCUIT JUDGES

                               (Filed June 13, 2007)


                            _______________________

                                    OPINION
                            _______________________

PER CURIAM
       Basil N. Stephanatos, proceeding pro se, first filed a complaint exceeding 400

pages against the United States, the Attorney General of the United States, a United States

Attorney, United States Tax Court and Internal Revenue Service officials, and a federal

credit union. The District Court dismissed the complaint without prejudice pursuant to

Rule 8 of the Federal Rules of Civil Procedure, which requires “a short and plain

statement” of claims and the grounds on which a court has jurisdiction.

       Stephanatos filed an amended complaint, ostensibly numbering approximately 150

pages. The Government Defendants moved to dismiss Stephanatos’s amended complaint

under Rule 12(b)(1) of the Federal Rules of Civil Procedure, arguing that jurisdiction did

not attach because Stephanatos’s claims were wholly frivolous. Stephanatos filed a

motion for default judgment, a motion for a temporary restraining order, and a motion to

file additional exhibits.

       The District Court granted the Government’s motion to dismiss1 and denied

Stephanatos’s motions. Stephanatos moved “for a new trial/change of order,” and

requested leave to submit additional exhibits in support of his otherwise-titled motion for

reconsideration. He also filed another motion for a temporary restraining order. The

District Court denied his motions, and Stephanatos appeals from that order and the earlier

order dismissing his complaint.

       We will dismiss Stephanatos’s appeal pursuant to 28 U.S.C. § 1915(e)(2)(B). It



   1
    The Government had also moved for sanctions, which the District Court denied.

                                             2
has no arguable basis in fact or law. See Neitzke v. Williams, 490 U.S. 319, 325 (1989).

The District Court properly dismissed Stephanatos’s complaint and denied his motions.

       The District Court lacked jurisdiction to entertain many of Stephanatos’s claims

because they were obviously frivolous and without merit. “[F]ederal courts do not have

power to entertain claims otherwise in their jurisdiction if they are ‘so attenuated and

insubstantial as to be absolutely devoid of merit,’ . . . ‘wholly insubstantial,’ . . .

‘obviously frivolous,’ [or] ‘plainly unsubstantial.’” Hagans v. Lavine, 415 U.S. 528, 537-

38 (1974). For instance, Stephanatos’s challenges to the constitutionality of the United

States tax system are frivolous because they are foreclosed by prior court decisions. See

id. at 538.

       Furthermore, as the District Court noted, Stephanatos’s amended complaint

violated Rule 8. At first glimpse, it appears that Stephanatos attempted to comply, or, at

least, to shorten his complaint. His amended complaint looks like it tallies a mere 150 or

so pages. However, on closer examination, it is apparent that Stephanatos did not even

try to submit a “short and plain statement” of his claims or the bases for the District

Court’s jurisdiction. He incorporated his original complaint and all its appendices by

reference, see Complaint at 2 n.5, bringing his amendment to approximately 550 pages.

His complaint is not only of an unwieldy length, but it is also largely unintelligible.

While a Rule 8 dismissal is often without prejudice, see Bennett-Nelson v. La. Bd. of

Regents, 431 F.3d 448, 450 (5th Cir. 2005), a dismissal with prejudice was warranted in this

case, cf. In re Westinghouse Sec. Litig., 90 F.3d 696, 702-04 (3d Cir. 1996).

                                                3
       The dismissal for lack of jurisdiction or for failure to include a short and plain

statement of the jurisdictional grounds under Rule 8 was equally applicable to the moving

and non-moving Defendants. See Nesbit v. Gears Unlimited, Inc., 347 F.3d 72, 76-77 (3d

Cir. 2003) (holding that a court can and should evaluate its jurisdiction sua sponte); Fed.

R. Civ. P. 8(a).

       Also, the District Court properly denied Stephanatos’s motions. Stephanatos did

not present grounds for reconsideration or for a new trial (as the District Court noted in

reference to the latter, Stephanatos had not had a first trial in this case). He was not

entitled to default judgment, temporary restraining orders, or to file even more exhibits

than he had already filed.

       In sum, Stephanatos’s appeal is without merit. We will dismiss it pursuant to 28

U.S.C. § 1915(e)(B)(2).




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