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Pendleton v. Nepa Community Federal Credit Union & Board of Directors

July 26, 2007

ELLSWORTH PENDLETON, PLAINTIFF,
v.
NEPA COMMUNITY FEDERAL CREDIT UNION & BOARD OF DIRECTORS, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Judge Caputo

MEMORANDUM

Presently before the Court are two motions. The first is a motion to dismiss filed by Defendant Secretary of State of the Commonwealth of Pennsylvania. (Doc. 9.) The second is a motion for judgment on the pleadings filed by Defendants NEPA Community Federal Credit Union and its Board of Directors. (Doc. 20.) For the reasons stated below, the Court will sua sponte dismiss the Plaintiff's Complaint for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1), as the causes of action included therein are frivolous and devoid of merit. As a result, the present motions will be mooted.

The Court has jurisdiction over this action pursuant to Title 28 of the United States Code, Section 1331 ("federal question").

BACKGROUND

The allegations contained in the Complaint (Doc. 1) are as follows.

On or about November, 1, 2004 Plaintiff filed a "Commercial claim tort claim" pursuant to "13 pa C.S 9-102(b) (i)" against NEPA Community Federal Credit Union and Oakview Terrace Condo Association & its Board of Directors with the Secretary of State of the Commonwealth of Pennsylvania.*fn1 (Compl., "First Cause of Action" ¶ 1.) Plaintiff alleges that this tort was committed in the course of his business and profession. (Id.)On or about September 27, 2004, Plaintiff mailed certified copies of his "Commercial Affidavit" to Defendants on two separate occasions, and each time Defendants failed to respond. By not answering the "Commercial Affidavit" in a timely manner, Plaintiffs allege that Defendants went into "default". (Id. ¶¶ 2,3.)Judge Jerome P. Cheslock, of the Court of Common Please of Monroe County, Pennsylvania, entered unconstitutional and biased orders by "derailing" Plaintiff's Commercial tort and Constitutional tort claims. (Id. ¶ 4.)

Plaintiff states that Defendants NEPA Community Federal Credit Union and its Board of Directors, along with Oakview Terrace Condo. Association and its Board of Directorsconspired to oppress, threaten, and intimidate Plaintiff for enforcing his constitutional rights in violation of Title 18 of the United States Code, Section 241. (Compl., "Second Cause of Action" ¶ 1.) Plaintiff states that he has a commercial lien against two of the defendants which needs to be reduced to judgment, and that Judge Cheslock has rendered unconstitutional decisions in "expunging" these liens. (Id. ¶ 2.)

Plaintiff states that Pedro Cortez, the Secretary of State of the Commonwealth of Pennsylvania, and his assistant, Martha Brown, have violated Title 18 of the United States Code, Section 242 under the color of law by expunging his Uniform Commercial Code ("UCC") filings on the grounds that the filings were fraudulent. (Compl. "Third Cause of Action" ¶ 1.) Martha Brown stated that the expungement was a court order from Judge Cheslock. Plaintiff states that the expungement exceeded both Judge Cheslock's judicial powers and the powers of the Secretary of State. (Id.) Plaintiff asserts that, pursuant to UCC Article 9-518(c), a "correction statement does not have any effect on the initial filing"; however, Martha Brown stated that the expungement was pursuant to UCC Article 9-518(d) because it was a fraudulent filing of a financial statement. (Id.) None of the delivered "affidavits" have been disputed, and therefore Plaintiff prays that his liens are enforced, and that he is awarded damages against the Secretary of State in the amount of $1,000,000, and "anything else just and proper." (Id.)

On November 6, 2006, Plaintiff filed a Complaint. (Doc. 1.) On November 14, 2006, the Court issued an Order granting Plaintiff's application to proceed in forma pauperis. (Doc. 4.) On December 22, 2006, Defendant Secretary of State of the Commonwealth of Pennsylvania filed a motion to dismiss. (Doc. 9.) On April 10, 2007, Defendants NEPA Community Federal Credit Union and its Board of Directors filed a motion for judgment on the pleadings. (Doc. 20.)

These two motions are fully briefed and ripe for disposition.

LEGAL STANDARD

A federal court may dismiss a plaintiff's complaint, sua sponte, for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1), when the allegations of the complaint are attenuated, insubstantial, frivolous, devoid of merit, and/or no longer open to discussion. Hagans v. Lavine, 415 U.S. 528, 536-37 (1974); see also Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 89 (1998).

Thus, the Court has the inherent power to grant a dismissal based on the legal insufficiency of a claim, and may exercise this power on its own initiative. See Meritcare Inc. v. St. Paul Mercury Ins. Co., 166 F.3d 214, 217 (3d Cir. 1999) ("A federal court has the obligation to address a question of subject matter jurisdiction sua sponte"). See Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1408-09 (3d Cir. 1991) (dismissal is proper only when the claim clearly appears to be either immaterial and solely for the purpose of obtaining jurisdiction, or is wholly insubstantial and frivolous), quoting Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 666-67 (1974) (some federal questions are so "insubstantial, implausible, foreclosed by prior decisions of [the Supreme] Court, or otherwise completely devoid of merit as not to involve a federal controversy within the jurisdiction of the District Court...."). "Moreover, dismissal for lack of jurisdiction is not appropriate merely because the legal theory alleged is probably false, but only because the right claimed is 'so ...


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