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Tauss v. Jevremovic

United States District Court, E.D. Pennsylvania

July 19, 2017



          John R. Padova, J.

         Pro se plaintiff Calvin A. Tauss brings suit against George Jevremovic, alleging injuries arising from the breach of a contract entered into between Tauss and Jevremovic's company, Material Culture. Jevremovic has filed a Motion to Dismiss the Complaint. For the following reasons, we grant Jevremovic's Motion in part and deny it in part and dismiss the Complaint with prejudice.

         I. BACKGROUND

         Tauss, a North Carolina resident, is an avid collector of East Asian antiquities. (Compl. Ex. 1, “Cause for Action” at 1.) In January 2014, in order to dispose of his collection of antiquities, he contacted Material Culture, a consignment business operating out of Pennsylvania.[1] (Compl. Ex. 3, “Timeline of Events” at 1.) George Jevremovic, the owner of Material Culture, offered to sell Plaintiff's collection of antiquities through public auctions. (Id.

         at 1-2.) Tauss and Material Culture entered into a Consignment Agreement on October 18, 2014, pursuant to which Material Culture would sell Tauss's antiquities. (Compl. Ex. 2-A, Consignment Agreement.) The Consignment Agreement includes a provision stating that no reserves would be placed on items sold by Material Culture for Mr. Tauss and that estimates made by Material Culture were neither guarantees nor reserve prices for any items. (Consignment Agreement ¶ 4.)

         Tauss transported his collection of East Asian antiquities to Philadelphia and the items were offered for sale in Material Culture's online auctions. (Compl. Ex. 3, “Timeline of Events” at 5.) Many of Tauss's items were sold at auction by Material Culture over a period of several months. (Id. at 6.) After a December 2014 auction, in which Material Culture refused to honor a $4, 900 bid for a jade necklace, Tauss contacted the Federal Bureau of Investigation about what he perceived as a scam on the part of Material Culture. (Compl. Ex. 3, “Timeline of Events, ” at 6-7.) Tauss was dissatisfied with the prices at which Material Culture had sold his antiquities and filed suit against Jevremovic in North Carolina state court in August of 2015. (Id. at 7-8.) The state court action was dismissed because the Consignment Agreement contains a forum selection clause, which states that the parties “agree that any dispute arising out of the terms and conditions of this agreement will be brought before a court of competent jurisdiction within the State of Pennsylvania.” (Consignment Agreement ¶ 11.)

         Tauss then brought suit in the Western District of North Carolina, which transferred the case to this district because of the forum selection clause in the contract. Tauss v. Jevremovic, Civ. A. No. 15-148, Order at 7 (W.D. N.C. Aug. 12, 2016).[2] Jevremovic now moves to dismiss the Complaint for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1) and for failure to state claim upon which relief may be granted pursuant to Federal Rule of Civil Procedure 12(b)(6).


         When we review pro se pleadings in the context of a Motion to Dismiss, we liberally construe the allegations of the complaint and hold them “to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citing Estelle v. Gamble, 429 U.S. 97, 106 (1976) and Fed.R.Civ.P. 8(f)). We also “apply the applicable law, irrespective of whether the pro se litigant has mentioned it by name.” Dluhos v. Strasberg, 321 F.3d 365, 369 (3d Cir. 2003) (citation omitted). Nevertheless, even a pro se complaint “must contain a least a modicum of factual specificity, identifying the particular conduct of the defendant that is alleged to have harmed the plaintiff, so that the court can determine that the complaint is not frivolous and a defendant has adequate notice to frame an answer.” Lawrence v. Mental-Health Doctor, Civ. A. No. 12-642, 2013 WL 1285461, at *2 (E.D. Pa. Mar. 28, 2013) (citation omitted).


         Jevremovic moves to dismiss Tauss's Complaint, arguing that this Court lacks jurisdiction over this suit and that, regardless of whether we have jurisdiction, Tauss has failed to state a claim upon which relief can be granted.

         A. Subject Matter Jurisdiction

         “When a motion under Rule 12 is ‘based on more than one ground, the court should consider the Rule 12(b)(1) challenge first since if it must dismiss the complaint for lack of subject matter jurisdiction, the accompanying defenses and objections become moot and do not need to be determined.'” Curtis v. Unionville-Chadds Ford Sch. Dist., Civ. A. No. 12-4786, 2013 WL 1874919, at *3 (E.D. Pa. May 1, 2013) (quoting Jeffrey Banks, Ltd. v. Jos. A. Bank Clothiers, Inc., 619 F.Supp. 998, 1001 n. 7 (D. Md. 1985)). Thus, we must first address Jevremovic's argument that we lack subject matter jurisdiction over this proceeding. To establish subject matter jurisdiction, a plaintiff must show that his or her action arises “under the Constitution, laws or treaties of the United States, ” as provided by 28 U.S.C. § 1331 (“federal question jurisdiction”), or that the parties are of diverse citizenship and the amount in controversy exceeds $75, 000, pursuant to 28 U.S.C. § 1332 (“diversity jurisdiction”).

         A motion to dismiss for lack of subject matter jurisdiction brought pursuant to Rule 12(b)(1) “may be treated as either a facial or factual challenge to the court's subject matter jurisdiction.” Gould Elecs. Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000) (citing Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977)). Here, Jeremovic brings a facial attack. “A facial attack, as the adjective indicates, is an argument that considers a claim on its face and asserts that it is insufficient to invoke the subject matter jurisdiction of the court. . . .” Constitution Party of Pennsylvania v. Aichele, 757 F.3d 347, 358 (3d Cir. 2014). “Such an attack can occur before the moving party has filed an answer or otherwise contested the factual allegations of the complaint.” Id. (citing Mortensen, 549 F.2d ...

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