ALD-087                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 12-4214
                                      ___________

                                     GINA LEVIN,
                                              Appellant

                                            v.

          STEVEN LILLIEN, DDS; ESSEX ORAL SURGERY GROUP, P.A.
                   ____________________________________

                    On Appeal from the United States District Court
                              for the District of New Jersey
                             (D.N.J. Civil No. 12-cv-00140)
                     District Judge: Honorable Susan D. Wigenton
                     ____________________________________

                       Submitted for Possible Summary Action
                  Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                   January 17, 2013
             Before: SLOVITER, VANSASKIE and WEIS, Circuit Judges

                            (Opinion filed: January 25, 2013)
                                       _________

                                       OPINION
                                       _________

PER CURIAM.

      Gina Levin, proceeding pro se, appeals an order of the United States District Court

for the District of New Jersey dismissing her complaint for lack of subject matter


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jurisdiction. For the reasons that follow, we will affirm the judgment of the District

Court.

         Levin filed a complaint against Dr. Steven Lillien and the Essex Oral Surgery

Group (the “defendants”) asserting claims of negligence and false imprisonment arising

out of a dental procedure during which Dr. Lillien allegedly injured Levin and ignored

her requests to stop the dental work he was performing. Levin averred that the District

Court had federal question jurisdiction under the Federal Tort Claims Act, the Public

Health and Welfare Act, and the Health Insurance Portability and Accountability Act of

1996.

         The defendants moved to dismiss the complaint for lack of subject matter

jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). In response, Levin

sought leave to amend her complaint so that she could pursue claims of battery, fraud,

and “patient abandonment” instead of her previously-asserted claims. Levin stated that

she no longer wished to rely on the federal statutes named in her original complaint as the

basis for the court’s jurisdiction. Instead, Levin sought to add as a co-defendant Aetna

Insurance Company, an entity she claimed was vicariously liable for her harm, and

invoke the court’s diversity jurisdiction. Levin also asked the District Court to transfer

her complaint pursuant to 28 U.S.C. § 1631 to the extent she had filed it in the wrong

court. While these motions were pending, Levin filed a complaint in New Jersey state

court raising the claims she sought to raise in her amended complaint and acknowledging

that she had erroneously filed a complaint in federal court.
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       The Magistrate Judge denied Levin’s motion to amend her complaint, concluding

that amendment would be futile because both Levin and Dr. Lillien are New Jersey

citizens, and thus, even if Aetna was added as a defendant, complete diversity would be

lacking. The Magistrate Judge also noted that Levin had abandoned her federal claims

and federal question jurisdiction did not exist.

       The Magistrate Judge also recommended that the District Court deny Levin’s

motion to remand or transfer the matter to state court. The Magistrate Judge explained

that a remand was not available because Levin’s complaint was originally filed in federal

court and that a transfer was not available under 28 U.S.C. § 1631 because that statute

only applies to transfers within the federal system. Finally, the Magistrate Judge

recommended that the District Court grant the defendants’ motion to dismiss Levin’s

original complaint because she no longer wished to assert a federal claim, diversity

jurisdiction was lacking, and New Jersey state court was the proper forum for her claims.

The District Court adopted the Magistrate Judge’s report and recommendation and this

appeal followed.

       Levin contends in her submission to this Court that the District Court erred in

dismissing her complaint with prejudice because such a dismissal may affect her state

court complaint. We agree with Levin that the dismissal of her complaint should have

been without prejudice to the pursuit of her claims in state court. See South Austin Coal.

Cmty. Council v. SBC Commc’ns Inc., 191 F.3d 842, 844 (7th Cir. 1999) (“every

jurisdictional dismissal is without prejudice to litigation of the merits in some other court
                                              3
or at some other time”). However, although the District Court’s order provides for a

dismissal with prejudice, there is no question in this case that, as a matter of law, the

District Court’s decision has no preclusive effect, other than on the merits of its

jurisdictional ruling. Disher v. Info. Res., Inc., 873 F.2d 136, 139 (7th Cir. 1989). The

Magistrate Judge’s report addresses solely the question of subject matter jurisdiction and

contemplates that Levin’s claims will be adjudicated on the merits in state court. The

District Court’s dismissal with prejudice reflects only that Levin’s federal action has

ended. Thus, no relief is due.

       To the extent Levin appeals the denial of the motion to amend her complaint, the

District Court did not abuse its discretion in denying Levin’s motion. See Shane v.

Fauver, 213 F.3d 113, 115 (3d Cir. 2000) (noting in context of Rule 12(b)(6) motion that

leave to amend is properly denied where amendment would be futile); Zambelli

Fireworks Mfg. Co., Inc. v. Wood, 592 F.3d 412, 419 (3d Cir. 2010) (requiring complete

diversity of citizenship for federal jurisdiction). The District Court also did not err in

denying Levin’s motion to remand or transfer her complaint to state court. McLaughlin

v. Arco Polymers, Inc., 721 F.2d 426, 429 (3d Cir. 1983). Finally, for the reasons stated

in the Magistrate Judge’s report, the District Court properly granted defendants’ motion

to dismiss Levin’s original complaint.

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




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