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


3-20-2007

Spencer v. Eristoff
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-3970




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"Spencer v. Eristoff " (2007). 2007 Decisions. Paper 1453.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1453


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DLD-141                                                          NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                               ________________

                                     No. 06-3970
                                  ________________

                                 DAVID F. SPENCER,
                                                     Appellant

                                           v.

        ANDREW S. ERISTOFF; M. HENDRICK, TAX COMPLIANCE REP.

                                  ________________

                    On Appeal From the United States District Court
                        For the Middle District of Pennsylvania
                              (D.C. Civ. No. 06-cv-00174)
                      District Judge: Honorable John E. Jones, III
                                  ________________

           Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B)
                                    March 1, 2007

                Before: BARRY, AMBRO and FISHER, Circuit Judges

                                 (Filed March 20, 2007)

                                  ________________

                                      OPINION
                                  ________________

PER CURIAM

      David F. Spencer, a resident of Tobyhanna, Pennsylvania, appeals from a district

court order granting appellees’ motion to dismiss his complaint. For the following
reasons, we will likewise dismiss Spencer’s appeal.1

       On January 23, 2006, Spencer initiated this action by filing a complaint

challenging an income execution warrant issued to him in February 2004 by the New

York State Department of Taxation and Finance (“NYSDTF”). The warrant resulted in

garnishment of Spencer’s wages for failing to file New York state income tax returns

during the 1997, 1999, and 2000 tax years. The gravamen of Spencer’s claim, premised

upon the Uniform Commercial Code (“UCC”), was that the NYSDTF, in failing to

respond within 30 days to a December 2005 response letter sent to them by Spencer,2 had

perpetrated fraud and/or absolved Spencer of his aforementioned outstanding tax liability.

On June 12, 2006, appellees filed a motion to dismiss Spencer’s complaint for, inter alia,

failing to state a claim upon which relief could be granted. See Fed. R. Civ. P. 12(b)(6).

On August 11, 2006, the district court granted appellees’ motion to dismiss holding that

Spencer had: failed to properly effect service of process upon appellees; failed to properly


       1
        We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. Because
Spencer has been granted in forma pauperis status on appeal, pursuant to 28 U.S.C. §
1915, we first review this appeal for possible dismissal pursuant to 28 U.S.C. §
1915(e)(2)(B).
       2
           In his complaint, Spencer alleged that appellees were

                served a Uniform Commercial Code document via certified
                mail . . . upon which [they] w[ere] given thirty (30) days to
                respond. A lack of response by the Commissioner indicates
                fault under UCC 1-201(16) exists, creating fraud through
                material misrepresentation thus vitiating all forms, contracts,
                agreements, etc., express or implied, from the beginning,
                UCC 1-103.

                                              -2-
allege a federal question; failed to state a claim upon which relief could be granted; and

alleged misconduct by parties subject to immunity under the Eleventh Amendment.

       We agree. Regardless of the underlying merits of Spencer’s complaint,

NYSDTF’s failure to respond to his response letter gives rise to no federal cause of

action. Spencer’s allegations are plainly confined to a set of alleged violations of the

UCC, an issue firmly within the purview of state law. Further, to the extent that

Spencer’s appeal concerns not the propriety of his filing, but the district court’s decision

to extend appellees’ time for filing a response to his complaint, such a decision was well

within the district court’s discretion. We decline the invitation to address it. Spencer’s

complaint failed to state a claim of a violation of federal law; thus, we find the district

court’s dismissal entirely appropriate.

       In light of our preceding discussion, there was no need to provide Spencer an

opportunity to further amend his complaint because, under the facts as clarified by

Spencer in numerous filings in the district court and this court, any further amendment to

his complaint would have proven futile. See Grayson v. Mayview State Hosp., 293 F.3d

103, 108 (3d Cir. 2002); see also Shane v. Fauver, 213 F.3d 113, 115-16 (3d. Cir. 2000).

       For the foregoing reasons, we will dismiss this appeal under 28 U.S.C. §

1915(e)(2)(B).




                                              -3-
