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Melnick v. Estate of Leuth

United States District Court, Eastern District of Pennsylvania

October 24, 2014

SCOTT J. MELNICK, Plaintiff,



This matter is one of 29 cases filed by the plaintiff pro se, Scott J. Melnick, in which he is attempting to collect hundreds of millions of dollars based on alleged contracts by which he provided advice to various individuals and entities as to how to win the lottery.[1] For the reasons set forth below, the court will order the plaintiff to show cause why the court should not dismiss the complaint in this case for (1) lack of subject-matter jurisdiction or (2) lack of timely service of process under Rule 4(m) of the Federal Rules of Civil Procedure.


The plaintiff commenced this action against the defendant, the Estate of James L. Leuthe by filing a complaint on May 29, 2014. See Doc. No. 1.[2] It appears that the Clerk of Court’s office issued a summons to the plaintiff on June 2, 2014. See 5-29-14 Unnumbered Docket Entry Between Doc. Nos. 1 & 2 (showing issuance of summons to plaintiff on June 2, 2014). The plaintiff then filed an amended complaint on October 22, 2014. See Doc. No. 2.

In the amended complaint, the plaintiff alleges that he lives in Allentown, Pennsylvania, and the decedent, James L. Leuthe, lived in North Whitehall, Pennsylvania. See Am. Compl. at ¶¶ 1-2. He also alleges that he and the defendant are United States citizens. Id. at ¶¶ 3-4. He claims that the “court has jurisdiction, as the agreements made were completed by telephone and as given to friendly agreements.” Id. at ¶ 5.

As for the substance of his claims, the plaintiff avers that he “looked to have made a verbal and binding contract to proceed in a cooperative venture with [the decedent] to win a jackpot lottery.” Id. at ¶ 8. In this agreement, the decedent agreed to “divulge the winnings of any assigned lottery tickets played by [him] as part of a lottery ticket purchasing agreement.” Id. at ¶ 9. The decedent also allegedly agreed to disclose an income tax statement to the plaintiff so the plaintiff could determine whether or not the decedent won the lottery. Id. at ¶ 10.

Despite this agreement, the decedent did not disclose the pertinent tax information to the plaintiff. Id. at ¶ 11. Thus, the plaintiff “assume[s], per the agreement, that the lottery was won but not disclosed.” Id. The plaintiff claims that the decedent breached the contract when he failed to turn over the income tax statement, and the plaintiff seeks damages in the amount of $254, 000, 000 (relating to a January 24, 2007 Powerball lottery) and $15, 000, 000 (relating to a January 27, 2007 Powerball lottery). Id. at ¶¶ 12, 13. In addition, the plaintiff seeks an additional $134, 500, 000 in “compensatory damages, ” “$9, 000 per lottery claim . . . for legal fees, ” and “[a] summation of at least 4% interest . . . for any money lost during this time.” Id. at ¶¶ 14-16.[3]


Although there appear to be significant issues with the merits of the claims in the complaint insofar as the plaintiff is attempting to collect money resulting from a lottery that the decedent, James L. Leuthe, may or, most likely, may not have won prior to his death, the court will not address those issues at this point. Instead, there are two preliminary issues requiring resolution: First, it does not appear that the court has subject-matter jurisdiction over this action. Second, it does not appear that the plaintiff has properly effected service of the complaint and summons as required by Rule 4(m) of the Federal Rules of Civil Procedure.

With regard to subject-matter jurisdiction, the party asserting federal jurisdiction “bears the burden of showing that the case is properly before the court at all stages of the litigation.” Packard v. Provident Nat’l Bank, 994 F.2d 1039, 1045 (3d Cir. 1993). Although the only document of record so far is the complaint, the court is obliged to address issues of subject-matter jurisdiction sua sponte. See Trent Realty Assocs. v. First Fed. Sav. & Loan Ass’n of Philadelphia, 657 F.2d 29, 36 (3d Cir. 1981) (“A federal court is bound to consider its own jurisdiction preliminary to consideration of the merits.”). If the court lacks subject-matter jurisdiction, the court must dismiss the action. See Fed. R. Civ. P. 12(h)(3) (“If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.”).

Here, the amended complaint does not contain any particular averments regarding subject-matter jurisdiction other than the plaintiff’s blanket assertion that the court has jurisdiction because the parties spoke on the telephone. See Am. Compl. at ¶ 5. This allegation, in itself, does not affirmatively show the basis for this court’s jurisdiction over this matter. Moreover, the court is unaware of any act of Congress providing the court with jurisdiction by virtue of apparently non-diverse parties’ use of the telephone to communicate if said communication does not violate the Constitution or a federal statute.

The only document in which the plaintiff attempted to affirmatively identify the basis for the court’s subject-matter jurisdiction in this matter was the original complaint. Although the original complaint is no longer the operative document because the plaintiff filed an amended complaint, the court notes that the plaintiff had indicated in the original complaint that the court has federal-question jurisdiction (28 U.S.C. § 1331) over this case. See Compl. at 2, Doc. No. 1. In support of this allegation, the plaintiff alleged that the following constitutional, statutory, or treaty rights are at issue: “Embezzlement, Theft of Service, Conspiracy.” Id.

Even if the court were to rely on the plaintiff’s allegation in the original complaint that he was seeking to invoke the court’s jurisdiction over matters involving a federal question, he still has not sustained his burden to show that jurisdiction is proper here. The federal-question jurisdiction statute provides that “[t]he 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.

“For a claim to arise under the Constitution, laws or treaties of the United States, a right or immunity created by the Constitution or laws of the United States must be an essential element of the plaintiff’s claim.” In re Orthopedic Bone Screw Prods. Liab. Litig., 939 F.Supp. 398, 399 (E.D. Pa. 1996) (citation omitted). “Furthermore, the cause of action must be created by the federal law or the ...

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