                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 17-3404
                                       ___________

                                    JEAN COULTER,
                                              Appellant

                                             v.

                    BLAZE TATANANNI; JEAN TATANANNI;
                   MORGAN STANLEY; RICHARD E. DIETRICK;
                      MICHAEL WILLSON; THOMAS RUSS;
                            UNKNOWN EMPLOYEE OF
                                MORGAN STANLEY,
                        in Pittsburgh (known only as “LISA”).
                     ____________________________________

                     On Appeal from the United States District Court
                        for the Western District of Pennsylvania
                             (W.D. Pa. No. 2-17-cv-00629)
                        District Judge: Honorable Cathy Bissoon
                      ____________________________________

                   Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                    May 1, 2018

               Before: BIBAS, NYGAARD, and FISHER, Circuit Judges

                                  (Filed: June 12, 2018)
                                       ___________

                                        OPINION*
                                       ___________


*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
PER CURIAM

       The Chief Judge of the Southern District of New York transferred to the Western

District of Pennsylvania (“the District Court”) a pro se complaint filed by Jean Coulter in

which she claimed that employees of Morgan Stanley mismanaged her checking and

investment accounts and then engaged in an information-withholding conspiracy. Coulter

predicated federal subject matter jurisdiction on both 28 U.S.C. §§ 13311 and 1332(a)(1).2

       A Magistrate Judge sua sponte ordered Coulter to show cause why her case should

not be dismissed for lack of subject matter jurisdiction. Instead of attempting to satisfy

the show cause order, however, Coulter requested recusal of the Magistrate Judge. The

Magistrate Judge refused to recuse, and concurrently recommended that the case be

dismissed. The District Court agreed with that recommendation, over Coulter’s

objections, and it dismissed the case “with prejudice, for want of subject matter

jurisdiction.” The District Court later denied Coulter’s “motion to amend the findings

pursuant to [Fed. R. Civ. P. 52 & 59] and motion for recusal.” This appeal followed.3

       We have jurisdiction under 28 U.S.C. § 1291. Federal Rule of Civil Procedure

12(h)(3) permits a federal court to raise “at any time” the question of subject matter



1
 “The district courts shall have original jurisdiction of all civil actions arising under the
Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331.
2
  “The district courts shall have original jurisdiction of all civil actions where the matter
in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is
between . . . citizens of different States.” 28 U.S.C. § 1332(a)(1).
3
  Coulter failed to brief, and thus waived on appeal, any challenge to the denial of post-
judgment relief. See Garza v. Citigroup Inc., 881 F.3d 277, 284 (3d Cir. 2018).

                                              2
jurisdiction, and requires dismissal if the court determines that it lacks subject matter

jurisdiction. Our review of a dismissal under Rule 12(h)(3) is plenary, see SEC v. Infinity

Grp. Co., 212 F.3d 180, n.6 (3d Cir. 2000), and we may thus affirm on any record-

supported grounds. See MacDonald v. CashCall, Inc., 883 F.3d 220, 225 (3d Cir. 2018).

By contrast, we review for abuse of discretion the denial of a recusal motion.

Securacomm Consulting, Inc. v. Securacom Inc., 224 F.3d 273, 278 (3d Cir. 2000).

       Coulter squandered multiple opportunities to set forth a viable basis for the

District Court to exercise subject matter jurisdiction. As a result, the District Court did

not err in dismissing the case.

       The District Court correctly concluded that Coulter advanced no bona fide federal

cause of action, for purposes of securing jurisdiction under 28 U.S.C. § 1331. Although

Coulter repeatedly invoked 42 U.S.C. § 1983, that law applies only to state actors, see

Morrow v. Balaski, 719 F.3d 160, 165-66 (3d Cir. 2013), and none were named as

defendants.4 “[A] suit may sometimes be dismissed for want of jurisdiction where the

alleged claim under the Constitution or federal statutes clearly appears to be immaterial

and made solely for the purpose of obtaining jurisdiction or where such claim is wholly

insubstantial and frivolous.” Davis v. Wells Fargo, 824 F.3d 333, 350 (3d Cir. 2016)

(quoting Bell v. Hood, 327 U.S. 678, 682 (1946)); see also Nowak v. Ironworkers Local

6 Pension Fund, 81 F.3d 1182, 1189 (2d Cir. 1996). Insofar as Coulter attempted to assert




4
 The District Court had communicated that principle of civil rights law to Coulter on
multiple prior occasions, as noted in the Magistrate Judge’s report.

                                              3
a federal cause of action under § 1983, this is a case where the nature of the pleading

defect is, under Bell v. Hood, jurisdictional rather than merits-related.

         The District Court also correctly concluded that Coulter failed to establish

diversity of citizenship, for purposes of securing jurisdiction under 28 U.S.C. § 1332(a),

though we reach that same conclusion by an alternate path. Coulter did not allege in her

complaint her state of citizenship.5 And the cover sheet for the complaint cryptically

claimed both that she resided at some unspecified address in Camden County, New

Jersey and that she was “temporarily living at an [unspecified] address in Sterling,

Virginia.”6 In addition, Coulter declined to directly respond to the aspect of the

Magistrate Judge’s show cause order related to diversity jurisdiction, and her objections


5
    Instead, she alleged as follows:

       “A.) Pro Se Plaintiff, JEAN COULTER, is a Resident of New Jersey, with
contact address:
              Jean Coulter
              P.O. Box 8094
              Philadelphia, Pennsylvania 19101-8084
              412-616-9505 (Google Voice)”

        As matter of jurisdictional pleading, that allegation is defective because it does not
state that Coulter is a “citizen” of New Jersey (or of any state). Cf. Lincoln Ben. Life Co.
v. AEI Life, LLC, 800 F.3d 99, 106 (3d Cir. 2015) (noting that the since-abrogated Form
7 in the Appendix to the Federal Rules of Civil Procedure provided samples of
jurisdictional pleading that permitted a plaintiff to “simply allege that a party is a ‘citizen
of [a certain state].’”). Also, there are no details from which to piece together Coulter’s
domicile and thus her state of citizenship; an assertion of ‘residence’ alone is insufficient.
See McCann v. Newman Irrevocable Tr., 458 F.3d 281, 286 (3d Cir. 2006); cf. Texas v.
Florida, 306 U.S. 398, 424 (1939) (“Residence in fact, coupled with the purpose to make
the place of residence one’s home, are the essential elements of domicile.”).
6
 Perhaps for that reason Coulter concedes on appeal that the “Magistrate Judge was not
acting inappropriately to sua sponte question [her] domicile . . ..”

                                               4
to the Magistrate Judge’s report similarly failed to provide sufficient facts to establish

citizenship in any state.7 We thus conclude as a matter of law that Coulter did not attempt

to meet her burden of production after questions concerning putative diversity

jurisdiction were raised by the Magistrate Judge. See Washington v. Hovensa LLC, 652

F.3d 340, 341, 345 (3d Cir. 2011).

       Furthermore, it was not an abuse of discretion for the Magistrate Judge and the

District Court to deny Coulter’s requests for recusal, the premise for each—a litany of

acts of bias, criminality, and ethical breach—being plainly unfounded. Insofar as Coulter

continues to be dissatisfied with adverse rulings by the District Court in this and other

cases, we remind her that such dissatisfaction “is not a proper basis for recusal.” Coulter

v. Coulter, 715 F. App’x 158, 161 (3d Cir. 2017).

       Coulter’s “motion for change of venue” is denied. Her various April 2, 2018

motions for recusal of judges on this Court are denied as unnecessary, as none of those

judges participated in the disposition of this appeal. Cf. In re Kensington Int’l Ltd., 353

F.3d 211, 224 (3d Cir. 2003) (following “the principle that ‘[d]iscretion is confided in the

district judge in the first instance to determine whether to disqualify himself . . . [because


7
  In those objections, Coulter presented herself as a rolling stone, refusing to provide a
home address as she was “again considering re-locating,” while pontificating that she was
(1) “find[ing] herself often in the area of Washington, D.C.,” (2) being “pull[ed]” by her
“connections” to the “Northern part of New Jersey,” and (3) not discounting possible
citizenship in Illinois. On appeal, the only address Coulter provides is that of a private
mailbox in Butler, Pennsylvania. Generally speaking, Coulter is free to roam about as she
pleases and to keep her whereabouts private. But insofar as she seeks entry into federal
court on the basis of diversity jurisdiction, Coulter must in each case allege and
ultimately establish, inter alia, her “physical presence in a state with an intent to remain
there indefinitely.” Frett-Smith v. Vanterpool, 511 F.3d 396, 401 (3d Cir. 2008).

                                              5
the] judge presiding over a case is in the best position to appreciate the implications of

those matters alleged in a recusal motion.’”) (quoting In re Drexel Burnham Lambert

Inc., 861 F.2d 1307, 1312 (2d Cir. 1988)). Coulter’s motions for recusal of the judges on

this panel have been denied by separate orders.

       Finally, although we agree with the District Court that recusal was unwarranted

and that dismissal for lack of subject matter jurisdiction was proper, we must modify the

judgment below for a technical reason. The District Court dismissed Coulter’s case “with

prejudice,” but, as a dismissal for lack of subject matter jurisdiction, it should have been

“without prejudice.” See NJ Physicians, Inc. v. President of U.S., 653 F.3d 234, 241 n.8

(3d Cir. 2011); Figueroa v. Buccaneer Hotel Inc., 188 F.3d 172, 182 (3d Cir. 1999). We

modify the judgment accordingly. And, as modified, the judgment of the District Court

will be affirmed.




                                              6
