                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-9-2003

Roberts v. Mayor and Burgesses
Precedential or Non-Precedential: Non-Precedential

Docket No. 02-2126




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                                                     NOT PRECEDENTIAL

              UNITED STATES COURT OF APPEALS
                   FOR THE THIRD CIRCUIT


                            No. 02-2126


                    CLARENCE P. ROBERTS,

                                   Appellant

                                  v.

THE MAYOR AND BURGESSES OF THE LONDON BOROUGH OF BRENT


 ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
                 DISTRICT OF NEW JERSEY

                   (Dist. Court No. 02-cv-01064)

               District Court Judge: Faith S. Hochberg


                      Argued on June 2, 2003

        Before: ALITO, ROTH and STAPLETON, Circuit Judges


                    (Opinion Filed: July 9, 2003)

                                            ANDREW M. MOSKOWITZ
                                            (argued)
                                            76 South Orange Ave., Suite 205
                                            South Orange, NJ 07079

                                            Counsel for Appellant
                               OPINION OF THE COURT




PER CURIAM:

       Clarence P. Roberts (“Roberts”) appeals an order of the United States District

Court for the District of New Jersey (“District Court”) dismissing his complaint against

the Mayor and Burgesses of the London Borough of Brent (“Brent”) with prejudice for

lack of subject matter jurisdiction. For the reasons stated below, we affirm the judgment

of the District Court.

       Because we write only for the parties, we need not discuss the factual background

of this case. Roberts makes three contentions on appeal. First, Roberts argues that the

District Court was not authorized to dismiss his complaint before he could serve Brent

with process. Second, Roberts maintains that even if the District Court could dismiss the

complaint prior to service of process, the District Court was required to allow Roberts

leave to amend his complaint. Finally, Roberts avers that the District Court erred by

determining that it lacked subject matter jurisdiction over Roberts’s suit. We address

Roberts’s contentions in turn below. Because the present case involves only disputes of

law, our review is plenary. In re Sharon Steel Corp., 871 F.2d 1217, 1223 (3d Cir. 1989).

                                             I.

       Roberts claims that a District Court cannot dismiss a complaint on its own motion

before the plaintiff serves process on the defendant. In support of this proposition,

                                             2
Roberts cites Urbano v. Calissi, 353 F.2d 196 (3d Cir. 1965), and Mayberry v. Prasse, 449

F.2d 1266 (3d Cir. 1971). In Urbano, the District Court dismissed the plaintiffs’

complaint prior to service of process on the defendants. We vacated the District Court’s

judgment and remanded for further proceedings. In a brief opinion, we stated that since it

“appear[ed] that none of the defendants ha[d] been served with the complaint,” it was

“desirable that the action be permitted to proceed in the customary manner.” Urbano, 353

F.2d at 197. In Mayberry, the District Court dismissed the plaintiffs’ action pre-service

“without any consideration of the merits.” Mayberry, 449 F.2d at 1266. We vacated and

remanded, stating simply that “the district court should have followed here the advice

given in the Urbano case.” Id. at 1267.

       We agree with Roberts that Urbano established the supervisory rule that a District

Court may not dismiss a suit prior to service of process. This rule rests on three sound

prudential grounds. First, the dismissal of a complaint prior to service of process can

compromise the District Court’s appearance of impartiality. See Oatess v. Sobolevitch,

914 F.2d 428, 431 (3d Cir. 1990) (citing this consideration in favor of the proposition that

a District Court may not dismiss a complaint prior to service of process under Fed. R.

Civ. P. 12(b)(6)). Second, “[w]hile [a] district court may aim” by dismissing a complaint

prior to service of process “to clear its docket of what appears to be a meritless case and

relieve the defendants of the time and expense needed to respond, if an appeal is taken the

case shuttles between the district and appellate courts.” Id. Finally, in such



                                              3
circumstances “the appellate court . . . will likely be without the aid of opposing counsel

to clarify the issues.” Id.

       We do not, however, read Urbano to foreclose the possibility that dismissal for

lack of subject matter jurisdiction prior to service of process may be harmless error. Such

a reading would be inconsistent with the grounds on which Urbano was decided. To

support our conclusion in Urbano, we cited a Ninth Circuit decision, Harmon v. Superior

Court, 307 F.2d 796 (9th Cir. 1962), in which that court reversed a District Court decision

dismissing a complaint prior to service of process. Importantly, Harmon was not decided

on the ground that dismissal before service of process is always improper. Instead,

Harmon emphasized that a “District Court always has power to dismiss for lack of

jurisdiction . . . . at any time that such lack appears.” Harmon, 307 F.2d at 797. It was

the Harmon court’s determination that the District Court had jurisdiction pursuant to 28

U.S.C. § 1343, not a blanket rule prohibiting dismissal prior to service of process for lack

of jurisdiction, that formed the basis for its conclusion. Id. at 797-98. We would not

likely have relied on Harmon in Urbano if we held the view that dismissal prior to service

of process always constitutes reversible error.1 Moreover, preserving the possibility of



       1
        Our recognition of the possibility of harmless error in this context aligns our
jurisprudence in this area with that of several other circuits that have concluded that
dismissal of a complaint for lack of subject matter jurisdiction is appropriate even where
such dismissal occurs prior to service of process. See Joyce v. Joyce, 975 F.2d 379,
386-87 (7th Cir. 1992) (affirming the dismissal of a complaint for lack of subject matter
jurisdiction prior to service of process); Zernial v. United States, 714 F.2d 431, 433-34
(5th Cir. 1983) (affirming a dismissal prior to service of process on the ground that “[s]ua

                                             4
harmless error in these circumstances comports with Fed. R. Civ. P. 61, which recognizes

that “any ruling or order” by a District Court may constitute harmless error. See Fed. R.

Civ. P. 61 (“No error in . . . any ruling or order . . . by the court . . . is ground for . . .

disturbing a judgment or order, unless refusal to take such action appears to the court

inconsistent with substantial justice.”). Accordingly, we hold that while it constitutes

error for a District Court to dismiss an action prior to service of process on the defendant,

that error may be harmless under certain circumstances.

       Although we need not enumerate all of the possible circumstances under which the

dismissal of a complaint prior to service of process may amount to harmless error, we

believe that one such situation obtains where it is apparent, on the face of the complaint,

that the District Court lacks subject matter jurisdiction. This determination comports with

Fed. R. Civ. P. 12(h)(3), which categorically states that “[w]henever it appears by

suggestion of the parties or otherwise that the court lacks jurisdiction of the subject

matter, the court shall dismiss the action.” Fed. R. Civ. P. 12(h)(3); see also Ruhrgas AG

v. Marathon Oil Co., 526 U.S. 574, 583 (1999) (“[S]ubject-matter delineations must be

policed by the courts on their own initiative even at the highest level.”). As we explain

below, we believe that the District Court in the instant case erred by dismissing Roberts’s



sponte dismissal for lack of subject-matter jurisdiction is, of course, proper at any stage of
the proceedings”); Franklin v. Oregon, 662 F.2d 1337, 1342 (9th Cir. 1981) (“In contrast
to dismissals for failure to state a claim, if the court lacks subject matter jurisdiction, it is
not required to issue a summons or follow the other procedural requirements.”) (citing
Loux v. Rhay, 375 F.2d 55, 58 (9th Cir. 1967)).

                                                  5
complaint prior to service of process on Brent, but that such error was harmless because it

was clear from the face of Roberts’s complaint that the District Court lacked subject

matter jurisdiction.

       For a District Court to possess subject matter jurisdiction over a plaintiff’s action

under Article III of the Constitution, the plaintiff must have standing to sue. ACLU-NJ v.

Twp. of W all, 246 F.3d 258, 261 (3d Cir. 2001). A “plaintiff only has Article III standing

if,” inter alia, “‘it is likely, as opposed to merely speculative, that the injury will be

redressed by a favorable decision.’” Pitt News v. Fisher, 215 F.3d 354, 361 (3d Cir.

2000) (quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Serv., Inc., 528 U.S. 167, 181

(2000)). When the question whether a plaintiff’s “‘claims of economic injury would be

redressed by a favorable decision . . . depends on the unfettered choices made by

independent actors not before the court[] and whose exercise of broad and legitimate

discretion the court[] cannot presume either to control or to predict,’” US Ecology, Inc. v.

United States DOI, 231 F.3d 20, 24 (D.C. Cir. 2000) (quoting ASARCO, Inc. v. Kadish,

490 U.S. 605, 615 (1989)), the plaintiff must “adduce facts showing that those choices

have been or will be made in such manner as to . . . permit redressability of injury,” Lujan

v. Defenders of Wildlife, 504 U.S. 555, 562 (1992).

       In the instant case, Roberts’s alleged injury consists of the taking of his property

by Brent pursuant to the judgment of the Chancery Division of the British High Court

(“Chancery Division”). Roberts argues that if the District Court issued a declaratory



                                                6
judgment stating that he had not been served in compliance with the Hague Convention

on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial

Matters (the “Convention”), that declaration “would likely cause the court in the English

action to vacate its order.” Brief for Appellant at 13. The redressability of Roberts’s

injury therefore depends on the future actions of the Chancery Division, an “independent

actor not before the court.” Roberts was thus required to plead facts suggesting that the

Chancery Division would vacate its order if the District Court issued a declaratory

judgment in Roberts’s favor.

       Roberts’s complaint, however, contains no indication of why the Chancery

Division would vacate its judgment if the District Court issued the declaratory judgment

Roberts seeks. Accordingly, Roberts’s complaint failed to allege that his injury was

redressable by a favorable decision. The District Court therefore correctly determined

that it lacked subject matter jurisdiction over Roberts’s action.

       Since it was apparent from the face of Roberts’s complaint that the District Court

did not have subject matter jurisdiction over Roberts’s suit, we hold that, although the

District Court erred by dismissing Roberts’s complaint prior to service of process, the

District Court’s error was harmless.

                                             II.

       Roberts next contends that the District Court erred by failing to afford him leave to

amend his complaint. In support of this proposition, Roberts cites Fed. R. Civ. P. 15(a),



                                              7
which states that “[a] party may amend the party’s pleading once as a matter of course at

any time before a responsive pleading is served.” Fed. R. Civ. P. 15(a). Since no

responsive pleading had yet been served on Roberts at the time the District Court

dismissed his suit, Roberts argues, Roberts should have been allowed to amend his

complaint.

       It is well established that even before a responsive pleading has been filed, a

District Court may dismiss a plaintiff’s claim without leave to amend where “any

amendment would be futile.” Shane v. Fauver, 213 F.3d 113, 116 (3d Cir. 2000); see also

Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002) (“When a plaintiff

does not seek leave to amend a deficient complaint after a defendant moves to dismiss it,

the court must inform the plaintiff that he has leave to amend within a set period of time,

unless amendment would be inequitable or futile.”); Schreiber Distrib. Co. v. Serv-Well

Furniture Co., 806 F.2d 1393, 1401 (9th Cir. 1986) (“If a complaint is dismissed for

failure to state a claim, leave to amend should be granted unless the court determines that

the allegation of other facts consistent with the challenged pleading could not possibly

cure the deficiency.”).

       We have held that where the absence of subject matter jurisdiction is apparent

from the face of a complaint, any amendment would be futile, and hence dismissal

without leave to amend is proper. See Miklavic v. USAir, 21 F.3d 551, 557-58 (3d Cir.

1994) (“[W]e find that granting leave to amend would have been futile on [the] ground . .



                                             8
. . [of] lack of subject matter jurisdiction.”). As noted above, it was clear from Roberts’s

complaint that the District Court lacked subject matter jurisdiction over his suit. 2

Accordingly, the District Court was not required to grant Roberts leave to amend.

                                              III.

       For the foregoing reasons, we affirm the judgment of the District Court.




       2
        At oral argument, Roberts acknowledged that he is not currently suffering injury
as a result of threats by Brent to execute the Chancery Division’s judgment in the United
States.
                                               9

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