                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 19-3232
                                       __________

                                GERALD I. SMITH, JR.,
                                                    Appellant

                                             v.

                 SEAN M. LYNN; LAW OFFICES OF SEAN M LYNN
                    ____________________________________

                     On Appeal from the United States District Court
                                for the District of Delaware
                          (D.C. Civil Action No. 18-cv-01415)
                      District Judge: Honorable Colm F. Connolly
                      ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    April 7, 2020

                Before: KRAUSE, MATEY and COWEN, Circuit Judges

                              (Opinion filed April 14, 2020)
                                     ___________

                                        OPINION*
                                       ___________

PER CURIAM

       Gerald Smith appeals the District Court’s order granting Appellees’ motion to

dismiss his complaint. For the reasons below, we will affirm the District Court’s order.


*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
       The procedural history of this case and the details of Smith’s claims are well

known to the parties, set forth in the Magistrate Judge’s Report and Recommendation,

and need not be discussed at length. Sounding largely in diversity jurisdiction, the claims

in Smith’s complaint against Appellees arose from Appellee Lynn’s representation of

Smith’s ex-wife in family court proceedings, during which Lynn, inter alia, sought a

protection-from-abuse order on behalf of the ex-wife. Appellees filed a motion to

dismiss. A Magistrate Judge recommended that the motion to dismiss be granted. The

District Court dismissed the complaint for lack of standing and for failure to state a claim,

and Smith filed a timely notice of appeal.

       We have jurisdiction pursuant to 28 U.S.C. § 1291 and exercise de novo review

over the District Court’s legal conclusions. See Kamal v. J. Crew Group, Inc., 918 F.3d

102, 109 (3d Cir. 2019) (dismissal for lack of standing); Estate of Roman v. City of

Newark, 914 F.3d 789, 795 (3d Cir. 2019) (dismissal for failure to state a claim).

       In his brief, Smith challenges the District Court’s conclusion that he lacked

standing to bring claims based on federal criminal statutes.1 However, we agree with the

District Court. See Cent. Bank of Denver v. First Interstate Bank of Denver, 511 U.S.

164, 190 (1994) (refusing to infer a private right of action from a “bare criminal statute”).



1
  While Appellee Lynn was a Delaware state legislator at the time of the events in the
complaint, Smith does not suggest that any of his actions were taken in his capacity as a
legislator. See Mark v. Borough of Hatboro, 51 F.3d 1137, 1150 (3d Cir. 1995) (“[A]n
otherwise private tort is not committed under color of law simply because the tortfeasor is
an employee of the state.”).
                                            2
While he asserts that the District Court failed to analyze factors relevant to the

determination as to whether a private remedy is provided for by a statute, the case he

cites to, Cannon v. University of Chicago, 441 U.S. 677 (1979), did not involve a

criminal statute. Moreover, Smith does not explain in his brief before us how the factors

are satisfied with respect to any individual criminal statute he cited in his complaint. See

Barna v. Bd. of Sch. Dirs. of Panther Valley Sch. Dist., 877 F.3d 136, 145-46 (3d Cir.

2017) (“[W]e have consistently refused to consider ill-developed arguments or those not

properly raised and discussed in the appellate briefing.”).2

       Next, Smith contends that the Magistrate Judge was biased because she referred to

extrajudicial sources, i.e. decisions by the state courts during Smith’s divorce

proceedings. However, in deciding a motion to dismiss, a district court is permitted to

review matters of public record and take judicial notice of a prior judicial opinion. See

McTernan v. City of York, 577 F.3d 521, 526 (3d Cir. 2009). In any event, Smith has not

pointed to anything to suggest any bias whatsoever on the part of the Magistrate Judge.




2
  In his objections to the Report and Recommendation, Smith claimed that Appellee Lynn
violated 18 U.S.C. § 1513(e), which prohibits actions that harm those who have provided
a law enforcement officer with truthful information about the commission of a federal
offense. He asserts that he is a federal government whistleblower, and that Appellees
acted in retaliation because of his complaints. However, Appellees were not the target of,
or in any way involved in, Smith’s purported whistle-blowing complaints, and he has not
alleged any plausible facts supporting his conclusory assertion that Appellees
intentionally retaliated against him for that complaint. Thus, even if he could bring a
private cause of action, Smith has not stated a claim of criminal retaliation against an
informant.
                                               3
       Smith states that the District Court hid the fact that sanctions were imposed on

Appellees’ counsel. He appears to be referring to the District Court order that granted his

motion for sanctions in part and struck an affidavit from the record because the Appellees

did not properly serve the affidavit on Smith. Smith does not explain how he was

prejudiced by this order. Moreover, as the order is publicly available on the electronic

docket, it is evident that the District Court did not hide its order.

       Smith also argues that the District Court erred in denying his November 8, 2018

motion for sanctions without requesting a response from Appellees. He appears to

contend that the District Court could not have fairly considered the motion without a

response. However, given that it was Smith’s burden to support his motion, the District

Court did not err by resolving the motion without a formal response.3 Smith also asserts

without explanation or description that he clearly proved that several false statements

were made by Appellees in their filings. However, that the Appellees did not describe

the facts of the case with the precision and detail that Smith desired did not support the

imposition of sanctions. The District Court did not abuse its discretion in denying the

motion for sanctions. See Moeck v. Pleasant Valley Sch. Dist., 844 F.3d 387, 389-390

(3d Cir. 2016) (standard of review).

       Smith suggests that the District Court erred in dismissing his claim for intentional

infliction of emotional distress because he suffered distress. However, under Delaware


3
 Appellees’ counsel did file a letter response to the motion for sanctions, denying the
allegations against him and asking whether a formal response was needed.
                                             4
law, such a claim requires not only that Smith experienced emotional distress but also

that the Appellees caused it by engaging in extreme and outrageous conduct. See Hunt

ex. rel. DeSombre v. State, 69 A.3d 360, 367 (Del. 2013). Before sending the matter to a

jury, the court determines first whether the alleged conduct can reasonably be considered

extreme or outrageous. Id. Smith argued in his Objections that Appellee Lynn caused

emotional distress by filing the emergency petition for protection from abuse. However,

filing such a petition on behalf his client could not reasonably be considered extreme and

outrageous.4 Smith has failed to state a claim under Delaware law for intentional

infliction of emotional distress, and the District Court did not err in dismissing this claim.

       Smith asserts that the District Court failed to address the wanton and willful

misconduct described in his complaint. However, the Magistrate Judge, in her Report

and Recommendation adopted by the District Court, thoroughly summarized and

analyzed the acts of the Appellees that Smith was challenging as well as the injuries he

claimed to have suffered.    Moreover, Smith has not alleged any facts in his complaint

that would support a determination that Appellees acted wantonly and willfully or

recklessly.5


4
 We note that Smith was represented by counsel and the family court commissioner’s
order granting the petition was affirmed on appeal by the Delaware Supreme Court.
5
  Appellees argue that the only relevant allegation in the complaint is that their “wanton
and willful behavior intentionally interfered” with Smith’s application for correction of
his military records in violation of federal criminal statutes. In response, Smith argues in
his reply brief that he used the equivalent word “reckless” several times in his complaint
to describe Appellees’ behavior.
                                               5
        Smith argues that his Seventh Amendment right to a jury trial was violated.

However, the Seventh Amendment protects the right to a jury trial in civil cases where

there are factual issues to be decided. See In re Peterson, 253 U.S. 300, 310 (1920) (“No

one is entitled in a civil case to trial by jury, unless and except so far as there are issues of

fact to be determined.”). When a District Court concludes as a matter of law that a claim

cannot succeed, that legal determination does not usurp the fact-finding province of the

jury and does not violate the Seventh Amendment. See Christensen v. Ward, 916 F.2d

1462, 1466 (10th Cir. 1990) (“[The] Seventh Amendment right to a jury trial was not

abridged, because . . . the complaints failed as a matter of law to present an issue for

trial.”).

        Finally, Smith requests that, if we conclude that he has failed to state a claim, the

matter be remanded to the District Court to allow him to amend his complaint. A

plaintiff should generally be given leave to amend a complaint subject to dismissal for

failure to state a claim unless doing so would be futile. See Grayson v. Mayview State

Hosp., 293 F.3d 103, 108 (3d Cir. 2002). Smith, however, has not explained how he

would amend his complaint to state a claim. Moreover, given the weaknesses of his

claims described above, it would be futile to allow amendment.

        For the above reasons, as well as those set forth by the District Court, we will

affirm the District Court’s judgment. As the appendix contains confidential mental

health records, Smith’s motion to seal the appendix is granted; the appendix shall be


                                               6
sealed for fifty years. Appellees’ motion to expedite and for summary action is denied as

moot.




                                            7
