United States District Court, M.D. Pennsylvania
JOHN F. CURRAN, III, Plaintiff
MARK ZINNAMOSCA & ASSOCIATES, et al., Defendants
John F. Curran, III, Plaintiff, Pro se, Hampstead, MD.
For Mark Zinnamosca & Associates, Mark Zinnamosca, CPA, Defendants: David L. Pennington, Harvey, Pennington, Herting & Renneisen, Ltd., Philadelphia, PA.
For Kelly Utz, Defendant: Jeffrey J. Worley, Gibbel Kraybill & Hess LLP, Lancaster, PA.
For University of Maryland-University of College, Defendant: Gregory R. Neuhauser, LEAD ATTORNEY, Office of Attorney General, Harrisburg, PA; Katherine D. Bainbridge, LEAD ATTORNEY, Office of the Attorney General, Educational Affairs Division, Baltimore, MD.
Susan E. Schwab, United States Magistrate Judge. Judge Kane.
REPORT AND RECOMMENDATION
Susan E. Schwab, United
States Magistrate Judge
Currently pending is a motion filed by defendants Mark Zinnamosca, CPA and Mark Zinnamosca & Associates (the Zinnamosca defendants) to dismiss the second amended complaint as well as a motion filed by the plaintiff, John F. Curran, III, to withdraw his second amended complaint without prejudice and with a right to refile at a later date. For the reasons discussed below, we recommend that the motion to dismiss filed by the Zinnamosca defendants be granted, that Curran's federal claims against those defendants be dismissed with prejudice, and that the Court decline to exercise supplemental jurisdiction over the state law claims against the Zinnamosca defendants. We also recommend that Curran's motion to withdraw without prejudice be granted as to the defendants other than the Zinnamosca defendants.
II. Background and Procedural History.
Curran filed a complaint naming the following as defendants: (1) Mark Zinnamosca & Associates; (2) Mark Zinnamosca, CPA; (3) Kelly Utz; and (4) the University of Maryland-University College. Curran alleged that both he and Zinnamosca are citizens and residents of the state of Maryland, that Zinnamosca & Associates is a corporation with a principal place of business in Maryland, that Utz is a citizen and resident of Florida, and that the University of Maryland-University College is an educational institution with its principal location in Maryland. Curran contended that the Court had subject-matter jurisdiction under 28 U.S.C. § 1331 as he sought to present federal statutory claims against the defendants.
We concluded that Curran failed to establish personal jurisdiction over defendant Utz and that he failed to state a federal claim upon which relief can be granted against any of the other defendants. Accordingly, we recommended that the defendants' motions to dismiss be granted and that the complaint be dismissed. We also recommend, however, that Curran be given leave to file an amended complaint as to two of the defendants--Mark Zinnamosca, CPA and Mark Zinnamosca & Associates. Judge Kane adopted that recommendation.
On May 23, 2014, Curran filed a second amended complaint. The second amended complaint names as defendants: (1) Mark Zinnamosca & Associates; (2) Mark Zinnamosca, CPA; (3) Kelly Utz; (4) the University of Maryland-University College; (5) Saul Ewing, LLP; (6) Kurt Ehresman; and (7) Thomas Baker Peace. Because the claims against defendants Utz and the University of Maryland had previously been dismissed with prejudice, Judge Kane ordered the claims against those defendants stricken from the second amended complaint. Curran has not filed a return of service showing that he served the second amended complaint on defendants Saul Ewing, LLP, Ehresman, and Peace.
The Zinnamosca defendants filed a motion to dismiss the second amended complaint and a brief in support of that motion. Although we ordered Curran to file a brief in opposition to that motion, he has failed to do so. Instead, he filed a motion to withdraw his second amended complaint without prejudice and with the right to refile at a later date. We recommend that Curran's motion to withdraw be granted as to the claims against Saul Ewing, LLP, Ehresman, and Peace. But because Curran has already filed multiple complaints against the Zinnamosca defendants and those defendants have appeared and defended this case, the claims against the Zinnamosca defendants should not be dismissed without prejudice. Rather, for the reasons discussed below, we recommend that the Zinnamosca defendants' motion to dismiss the second amended complaint be granted and that Curran not be granted further leave to amend as to those defendants.
III. Claims and Allegations Against the Zinnamosca Defendants.
Curran asserts fraud, malpractice, breach of fiduciary duty, and deceptive trade practices claims against the Zinnamosca defendants. In addition, Curran appears to seek to bring a claim against the Zinnamosca defendants under 18 U.S.C. § 1030(a)(4), a provision of the Computer Fraud and Abuse Act. Curran states in his second amended complaint that the Court has jurisdiction under both 28 U.S.C. § 1331(federal-question jurisdiction) and § 1332 (diversity jurisdiction). He now alleges that he is a citizen of North Carolina, that Mark Zinnamosca is a citizen of Maryland, and that Mark Zinnamosca & Associates is corporation that was formed in Delaware and that has its principal place of business in Maryland.
Curran alleges that he is the founder and 67.3% owner of Gargoyles, Inc., a Delaware corporation. He alleges that Zinnamosca was the chief financial officer of Gargoyles, Inc., until his services were terminated. Tracking the language of 18 U.S.C. § 1030(a)(4), Curran alleges in conclusory language that Zinnamosca " knowingly and with intent to defraud, accessed a protected computer without authorization, or exceeded authorized access, and by means of such conduct furthered the intended fraud." Doc. 44 at 6, ¶ 4. Curran alleges that all work done on his behalf was done on a computer network and emailed to him. In addition to referring to § 1030, Curran refers to the International Traffic in Arms Regulations (ITAR). Curran also alleges that tax filings on his behalf and on behalf of Gargoyles, Inc. were ...