                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 14-1676
                                       ___________

                                  JOHN MATTHEWS,
                                              Appellant

                                             v.

                  WESTIN WASHINGTON DULLES AIRPORT;
              STARWOOD HOTELS & RESORTS WORLDWIDE, INC.
                   ____________________________________

                    On Appeal from the United States District Court
                          for the Eastern District of Pennsylvania
                          (D.C. Civil Action No. 2-13-cv-01740)
                 District Judge: Honorable Nitza I. Quiñones Alejandro
                      ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   January 26, 2015

               Before: FUENTES, SHWARTZ and ROTH, Circuit Judges

                              (Opinion filed: July 16, 2015)
                                     ___________

                                        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.
       Pro se litigant John Matthews appeals the District Court’s dismissal of his

complaint alleging invasion of privacy, tortious interference with business and contract,

intentional infliction of emotional distress (IIED), and defamation by Appellee Starwood.

For the reasons set forth below, we will affirm the District Court’s judgment.

       Matthews, a travel agent, planned a “winter getaway tour” at the Westin Hotel in

Herndon, Virginia, to take place in February 2012. The tour was ultimately attended by

more guests than the number for which the hotel had planned. When the food ran out

before everyone was served, the guests became disgruntled and Matthews had a heated

exchange with the hotel staff. During this exchange, he claimed that the staff defamed

him in front of his customers and thereby jeopardized his business. He also complained

that he was forced to reimburse the guests who paid out-of-pocket for meals that were

supposed to be included in the package but that the hotel would not provide.

       On January 10, 2013, Matthews filed case #13-cv-00143 (“Complaint 143”) in the

Eastern District of Pennsylvania, naming both the Westin Washington Dulles Airport

Hotel and Starwood Hotels Resorts Worldwide, Inc. as defendants. Despite explicit

instructions from the District Court, and two opportunities to amend his complaint,

Matthews did not properly plead the diversity necessary to sustain federal jurisdiction.

As a result, the District Court dismissed Complaint #143, without prejudice to his re-

filing in state court. Matthews appealed that dismissal. Two weeks later, Matthews filed

a new complaint in the Eastern District of Pennsylvania, alleging the same violations by




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the same parties (in case #13-cv-01740, or “Complaint 740”). This time, he properly

pled diversity jurisdiction. He withdrew his appeal in Complaint 143 shortly thereafter.

        Westin moved to stay the proceedings and compel arbitration, pursuant to the

arbitration clause in their contract with Matthews and 9 U.S.C. § 3. The District Court

granted that motion.1 Apparently unaware that the District Court’s order applied to

Westin only, Starwood did not answer the complaint, and the Court entered a default

judgment against it. But Starwood moved to strike that judgment, succeeded, and

subsequently filed a motion under Federal Rule of Civil Procedure 12(b)(6) to dismiss the

complaint for failure to state a claim. The District Court concluded that all of the claims

were time-barred and dismissed the case. Matthews filed a timely notice of appeal. We

have jurisdiction under 28 U.S.C. § 1291 and exercise a plenary standard of review. See

Connelly v. Steel Valley Sch. Dist., 706 F.3d 209, 212 (3d Cir. 2013).

        The statute of limitations for most of the claims at bar — invasion of privacy,

tortious interference with business and contract, and defamation — is one year from the

date of the incident out of which they arose.2 See 42 Pa. Con. Stat. Ann. § 5523(1)

(invasion of privacy); In re Phila. Newspapers, LLC, 690 F.3d 161, 174 (3d Cir. 2012)



1
  Matthews has not contested the dismissal of Westin. We therefore do not consider the
issue. See Gass v. Virgin Islands Tel. Corp., 311 F.3d 237, 246 (3d Cir. 2002); Fed. R.
App. P. 28(a).


2
    The parties do not dispute the District Court’s use of Pennsylvania law.


                                              3
(defamation); Evans v. Phila. Newspapers, Inc., 601 A.2d 330, 333-35 (Pa. Super. Ct.

1991) (tortious interference with business and contract, when based on alleged acts of

defamation). Here, the incident out of which these claims arose occurred in February

2012. Matthews filed Complaint 740 on April 2, 2013, which is more than a year after

February 2012 and therefore exceeds the statute of limitations. Matthews did not contest

this fact. He argued instead that the complaint at bar should be characterized as an

amendment relating back to Complaint 143, which he filed in January 2013, and that his

claims are therefore timely. This contention fails.

       Complaint 143 and Complaint 740 are separate and distinct cases. After two

unsuccessful amendments, Complaint 143 was dismissed without prejudice as to

potential re-filing in state court. The order dismissing the complaint prohibited any

further amendment to it in federal court. Matthews withdrew his appeal of that order,

which ended the litigation surrounding Complaint 143. The fact that Matthews filed a

second complaint in federal court, asserting the same claims against the same parties, did

not resurrect it. See Neverson v. Bissonnette, 261 F.3d 120, 126 (1st Cir. 2001) (“Rule

15(c) simply does not apply where . . . the party bringing suit did not seek to ‘amend’ or

‘supplement’ his original pleading, but, rather, opted to file an entirely new [action] at a

subsequent date.”); see also O’Donnell v. Vencor, Inc., 465 F.3d 1063, 1066 (9th Cir.

2006); Bailey v. N. Indiana Pub. Serv. Co., 910 F.2d 406, 413 (7th Cir. 1990). It is thus

clear that the defamation and tortious interference claims asserted here in Complaint 740,

the case filed in April 2013, are barred by the statute of limitations.

                                              4
       With respect to Matthews’s IIED claim, the District Court decided that the

limitations period is also one year, a conclusion that Matthews did not contest. The

District Court reached this conclusion by extending the reasoning of Evans, a case in

which the Pennsylvania Superior Court held that a tortious interference claim based on

alleged acts of defamation falls under the one-year limitations period assigned to

defamation claims. The Evans Court reasoned that plaintiffs should not be permitted to

circumvent the limitations period by strategically mislabeling what is, at its heart, a

defamation claim. 601 A.2d at 332. It is true that the IIED claim here is based on alleged

acts of defamation. See Complaint at Count 4 (“As a direct and proximate result of the

Defendants’ false and defamatory assertions, plaintiff has suffered emotionally living in

fear [for] his safety.”). But we need not decide today whether the District Court’s

extension of Evans was appropriate, because this IIED claim clearly fails on its merits.

The comments and behavior that Matthews described cannot be characterized as

outrageous or extreme enough to state an IIED claim under Pennsylvania law. See

Andrews v. City of Philadelphia, 895 F.2d 1469, 1486-87 (3d Cir. 1990).

       Matthews also appears to argue that the District Court erred in striking the default

judgment against Starwood. This too fails. We review the grant of a motion to strike a

default judgment for abuse of discretion — see Emcasco Ins. Co. v. Sambrick, 834 F.2d

71, 75-76 (3d Cir. 1987) — and we will not interfere with the District Court’s exercise of

that discretion absent a firm conviction that it committed a “clear error of judgment.” In

re Cendant Corp. PRIDES Litig., 235 F.3d 176, 181 (3d Cir. 2000). As a general matter,

                                              5
default judgments are disfavored. See Zawadski de Bueno v. Bueno Castro, 822 F.2d

416, 420 (3d Cir. 1987). We see no clear error in the District Court’s decision to strike

the default and to consider the case’s merits. Emcasco, 834 F.2d at 75-76.

       Accordingly, we will affirm the judgment of the District Court.




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