BLD-208                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 17-1020
                                       ___________

                                    MEL M. MARIN,
                                            Appellant

                                             v.

                          PITTSBURGH TRIBUNE REVIEW
                       ____________________________________

                     On Appeal from the United States District Court
                        for the Western District of Pennsylvania
                              (W.D. Pa. No. 2-16-cv-00346)
                       District Judge: Honorable Mark R. Hornak
                      ____________________________________

           Submitted for Possible Dismissal Due to a Jurisdictional Defect and
               for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)
         or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                     May 4, 2017

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

                              (Opinion filed: July 10, 2017)
                                       _________

                                        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.
       Mel M. Marin appeals orders of the District Court denying relief from dismissal of

two identical lawsuits he filed against the Pittsburgh Tribune-Review.

                                               I.

       Marin filed complaints in March and April 2016. His claims—defamation and

fraud—related to the April 29, 2015 publication of a profile on Marin regarding his

candidacy for commissioner of Armstrong County, Pennsylvania. The first case was

given docket number 2:16-cv-00346 (“Case No. 346”); the second, docket number 2:16-

cv-00536 (“Case No. 536”). Both were assigned to the Honorable Mark R. Hornak.

       Case No. 346

       Marin did not pay the filing fee to initiate his first action; he instead applied to

proceed in forma pauperis (“IFP”). By order entered March 29, 2016, the District Court

dismissed Marin’s complaint and his IFP application without prejudice because Marin’s

proof of indigence was signed almost eight months before it was filed.

       The District Court invited Marin to submit a non-stale financial declaration, but he

did not. Instead, months later, Marin filed a “motion to seal planned records to show

diversity” (a filing seemingly intended for Case No. 536), as well as a motion to vacate

the District Court’s order of dismissal under Fed. R. Civ. P. 60(b), or, in the alternative,

to extend or reopen the time to appeal under Fed. R. App. P. 4(a). Marin claimed in the

motions that he never received a copy of the District Court’s order by mail (a claim

seemingly intended for Case No. 536).

       Case No. 536
                                               2
         As in the earlier-filed case, in the second one Marin filed a complaint and an

application to proceed IFP. The District Court was skeptical of the allegations in the

complaint regarding diversity jurisdiction because of the nature of Marin’s suit and the

conflicting addresses he had used in a different case. The District Court thus entered an

order on May 3, 2016, requiring Marin to submit “a verified declaration or affidavit”

setting forth certain facts supporting his purported out-of-state citizenship.

         Soon after, Marin filed an unsigned “supplement” to his IFP application. The

District Court dismissed the “supplement,” reminded Marin of its May 3, 2016 order, and

allowed three weeks for him to comply with that order. The District Court warned Marin

in clear terms (“This is the Plaintiff’s final chance”) that non-compliance would result in

dismissal. But Marin did not comply. As a result, the District Court denied Marin’s IFP

application and dismissed the case without prejudice based on an apparent lack of subject

matter jurisdiction under 28 U.S.C. §1332(a). Four months later, Marin filed motions to

seal and to vacate/reopen substantively identical to those filed in Case No. 346.1

                                             ***

         By orders entered on December 5, 2016, the District Court denied Marin’s

motions to vacate/reopen without prejudice to his “filing of any factually and legally

supported Motions for such relief as he deems necessary and proper.” In addition, the




1
    Unlike in Case No. 346, the motions filed in Case No. 536 were unsigned.
                                               3
District Court consolidated Case Nos. 346 and 536 under the docket of the first case, and

compelled Marin to use the CM/ECF system going forward.2 Marin appealed.

                                               II.

       We first address our jurisdiction. The notice of appeal is timely only as to the

District Court’s December 5, 2016 orders, which denied Marin’s motions for relief from

dismissal “without prejudice.” An order disposing of a matter without prejudice permits

further action in the district court and thus, as a general rule, is not “final” and

immediately appealable under 28 U.S.C. § 1291.3 However, when a complaint or other

pleading suffers from a defect that cannot be cured by amendment, or if the plaintiff

elects to “stand” on his or her pleading, a without-prejudice order of dismissal is final as

a practical and legal matter and we may exercise appellate jurisdiction.4

       Marin argues that the District Court’s orders denying relief from dismissal were

effectively with prejudice because the statute of limitations on his claims had already run;

any pleading amendment or supplemental filing would have been futile.5 Marin is only

half right. His claims for defamation and fraud concerned events in April 2015. While,




2
  CM/ECF “is a computer case management system that allows courts to maintain
electronic case files and attorneys to file (and serve) documents through the Internet.”
Ragguette v. Premier Wines & Spirits, 691 F.3d 315, 321 n.1 (3d Cir. 2012). But for the
District Court’s order, its local rules would have exempted Marin, as a pro se litigant,
from mandatory e-filing. See W.D. Pa. Civ. R. 5.5.
3
  See Borelli v. City of Reading, 532 F.2d 950, 951 (3d Cir. 1976) (per curiam).
4
  See id. at 951-52.
5
  See, e.g., Fassett v. Delta Kappa Epsilon, 807 F.2d 1150, 1156 (3d Cir. 1986).
                                               4
at the time of the District Court’s December 5, 2016 orders, the one-year limitation on

Marin’s defamation claim had run, the two-year limitation for his fraud claim had not.6

       Regardless, we gather from Marin’s words and conduct in this Court and the

District Court that his intent is to stand on his complaints in their dismissed form. 7 We

thus have jurisdiction.8

                                            III.

       As Marin has been proceeding pro se, his filings will be liberally construed.9

Marin’s claims on appeal attack the decisions by the District Court denying relief from

dismissal in both Case No. 346 and Case No. 536.

       As noted above, in Case No. 346, the District Court denied Marin’s IFP

application without prejudice—based on his submission of stale financial information—

in order to facilitate the indigence inquiry. That was an appropriate exercise of the


6
  Compare 42 Pa. C.S. § 5523(1) (defamation) with 42 Pa. C.S. § 5524(7) (fraud).
7
  See Frederico v. Home Depot, 507 F.3d 177, 192-93 (3d Cir. 2007); Semerenko v.
Cendant Corp., 223 F.3d 165, 172-73 (3d Cir. 2000).
8
  The District Court does not appear to have considered whether Marin was entitled to
relief under Rule 60(b) or Appellate Rule 4(a), instead denying his motions because of
continued non-compliance with court orders. Were one of the December 5, 2016 orders
read to deny relief under Rule 60(b) or Appellate Rule 4(a), the order would be final and
immediately appealable, cf. United States v. Rinaldi, 447 F.3d 192, 195 (3d Cir. 2006);
Isidor Paiewonsky, Inc. v. Sharp Props., Inc., 998 F.2d 145, 149-50 (3d Cir. 1993), and
would be reviewed for abuse of discretion, see Norris v. Brooks, 794 F.3d 401, 403 n.1
(3d Cir. 2015); Rinaldi, 447 F.3d at 195. Our standard of review is the same if the
District Court’s orders are read as denials of motions to reconsider dismissal. See Max’s
Seafood Café ex rel. Lou-Ann, Inc. v. Quinteros, 176 F.3d 669, 673 (3d Cir. 1999).
9
  Marin used to be a practicing attorney. The rule of liberal construction of pro se
pleadings may not apply to those drafted by, or with the assistance of, the legally trained.
Cf. Allen v. Aytch, 535 F.2d 817, 821-22 n.21 (3d Cir. 1976). However, the record
                                              5
District Court’s discretion. At no point thereafter, in Case No. 346, did Marin attempt to

pay the filing fee or comply with the District Court’s order to provide a new financial

declaration. It was thus proper for the District Court to deny relief from dismissal,

without prejudice, unless and until the issue of payment for the litigation was resolved.

       In Case No. 546, Marin never attempted to comply with the District Court’s order

that he provide facts establishing diversity jurisdiction. District courts have a firm and

continuing obligation to make sure that subject matter jurisdiction exists in a federal

proceeding. And, the very nature of this litigation (a one-time candidate for public office

in Pennsylvania suing a Pennsylvania newspaper), in addition to Marin’s documented

transiency,10 raised legitimate questions about citizenship for purposes of diversity

jurisdiction under § 1332(a). It was thus proper for the District Court to dismiss the

action and to deny relief from dismissal, without prejudice, unless and until the issue of

subject matter jurisdiction was resolved.

       We reject Marin’s argument that non-compliance with the District Court’s orders

is excusable because he did not receive copies of the orders in the mail. In Case No. 346,

the docket reflects that copies of the March 29, 2016 dismissal order were sent via regular


convinces us that departure from the rule of liberal construction is not appropriate here.
10
   On his notice of appeal, Marin identified his mailing address as a PO Box in Rochester,
New York. Subsequent filings identify Marin’s so-called “temporary” mailing address as
a PO Box in San Diego, California, state that his legal residence is in Utica, New York,
and suggest that his place of habitation changes on a daily basis. In one pending case in
the Western District of Pennsylvania (also before Judge Hornak), Marin indicated that his
legal residence is in Erie, Pennsylvania; he then filed a stream of notices announcing
changes in his mailing address (to Ford City, Pennsylvania; to Parma, Ohio; and so on).
                                              6
and certified mail to Marin on April 1, 2016, and that the certified mail card was signed

and returned that same month. In Case No. 536, the docket reflects that Marin was filing

documents electronically and was thus availing himself of the court’s CM/ECF system;

he was, as a consequence, receiving “email notices, containing hyperlinks to documents,

immediately upon” the entry of the District Court’s orders.11

       Therefore, for the reasons given above, this appeal presents no substantial question

and we will summarily affirm the orders under review. See 3d Cir. L.A.R. 27.4; 3d Cir.

I.O.P. 10.6.




See DC Civ. No. 1:14-cv-00049. The District Court in this case noted those filings.
11
   Nara v. Frank, 488 F.3d 187, 194 n.11 (3d Cir. 2007). That Marin purportedly did not
check his email with any regularity is not sufficient to prove lack of notice or receipt of a
court filing, in the same way that one’s refusal to open his or her own ‘snail mail’ fails
that task. See, e.g., Two-Way Media LLC v. AT&T, Inc., 782 F.3d 1311, 1318 (Fed. Cir.
2015); Khor Chin Lim v. Courtcall Inc., 683 F.3d 378, 381 (7th Cir. 2012). Marin’s plea
that he should be allowed to sporadically file documents electronically but receive court
orders only through non-electronic mailings should be directed to the District Court,
which is imbued with wide discretion in the area of case management.
                                              7
