BLD-222 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 21-1567 ___________

JOSEPH ELLIOTT PORTER, Appellant

v.

A.H.P. SETTLEMENT TRUST ____________________________________

On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Civil Action No. 2-20-cv-03184) District Judge: Honorable Harvey Bartle, III ____________________________________

Submitted for Possible Dismissal Pursuant to

(e)(2)(B) or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6 July 15, 2021

Before: AMBRO, SHWARTZ and PORTER, Circuit Judges

(Opinion filed: July 27, 2021) _________

OPINION* _________

PER CURIAM

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. Pro se appellant Joseph Elliott Porter appeals from the District Court’s order

dismissing his complaint. We will affirm the District Court’s judgment.

The District Court’s February 23, 2021 memorandum recounts the background of

Porter’s litigation against AHP Settlement Trust (“the Trust”), which was established

under the Diet Drug Nationwide Class Action Settlement Agreement (the “Settlement

Agreement”) to compensate class members who suffered valvular heart disease from

using certain diet drugs. Because the parties are familiar with the underlying

background, we will not discuss it at length. The Settlement Agreement provides for

eligible claimants to receive compensation under matrices “A” and “B,” depending on

certain qualifying factors. In 2015, class member Miguel A. Larrieu submitted his claim

for Matrix A-1 benefits, with supporting medical documentation. The Trust reviewed his

claim and classified him as eligible for reduced compensation under Matrix B-1. Larrieu

contested the determination, but ultimately, on June 8, 2018, the District Court entered a

memorandum and order holding that Larrieu was entitled to compensation under Matrix

B-1. See In re: Diet Drugs Prods. Liab. Litig., E.D. Pa. Civ. No. 99-cv-20593

(Documents #5327 and #5328). Larrieu did not appeal. Meanwhile, Porter pursued a

supplemental claim determination on Larrieu’s behalf, but that claim was discontinued by

the parties’ stipulation. See

(Document #9510).

On May 7, 2020, Porter filed this complaint in the District of South Carolina,

referencing Larrieu’s claims registered with the Trust “that have already been processed

and thus adjudicated.” (Complaint, Supporting Document at 1.) Although not an

attorney, Porter asserted that he pursued Larrieu’s claim under a power of attorney

2 agreement, that the agreement specified a percentage that Porter would receive from

Larrieu’s claim settlement, and that Larrieu’s claim had been calculated incorrectly under

Matrix B instead of Matrix A. Porter sought damages, noting a power of attorney amount

and a Matrix A claim amount. The District Court for the District of South Carolina

transferred the complaint to the District Court, noting that Porter earlier had filed a nearly

identical complaint, also transferred, which had been dismissed for failure to effect

proper service under Rule 4(m) of the Federal Rules of Civil Procedure.

Porter similarly failed to serve this second complaint as required under Rule 4(m).

He requested but did not obtain the Trust’s waiver of service. The District Court ordered

Porter to serve the complaint, warning that failure to do so would result in dismissal.

Porter filed an affidavit indicating that the summons and complaint were served on

January 14, 2021, by hand delivery to a staff member at the office of the Trust’s counsel.

The Trust filed a motion to dismiss, acknowledging the hand-delivered complaint to

counsel’s law firm but asserting that counsel was not authorized to accept service for the

Trust. Alternatively, the Trust argued that Porter failed to state a cognizable claim for

relief. The parties briefed the issues.

The District Court analyzed the Trust’s motion to dismiss under Rules 12(b)(5)

and 12(b)(6). The District Court rejected Porter’s suggestion that a Google search

showing that the Trust’s office was closed excused proper service under Rule 4(m).

Further noting that Porter neither disputed that the Trust’s counsel was not authorized to

accept service nor attempted to show otherwise, and that Porter still had not served the

complaint after seven months, the District Court granted the Trust’s motion to dismiss for

3 insufficient process. Moreover, the District Court determined that, even if service were

deemed to be sufficient, the Trust would be entitled to dismissal for failure to state a

claim under Rule 12(b)(6). First, citing Elkadrawy v. Vanguard Group., Inc.,

(3d Cir. 2009), the District Court found that Porter’s attempt to contest the

calculation of Larrieu’s claim is barred by res judicata. Second, the District Court found

that, although the Settlement Agreement allows for contingency fee payments to

attorneys for successful class members, the Settlement Agreement does not provide for

payment of fees to non-attorneys, such as Porter, for helping a class member submit a

claim. Accordingly, the District Court entered an order dismissing the complaint.1 This

appeal followed, and we exercise appellate jurisdiction under

. The

parties have submitted arguments to support their positions on appeal.

Porter argues that the District Court erred in dismissing his case for insufficient

service, noting that the proper service on the Trust is evidenced by the Trust’s counsel’s

ability to file documents in response to the complaint. In addition, pointing to the District

Court’s order language specifying that it granted the Trust’s motion to dismiss “for

insufficient service of process under Rule 12(b)(5),” Porter contends that the service issue

is the sole basis for the District Court’s dismissal, and disregards the District Court’s

reliance on the “reasons set forth in the foregoing Memorandum” in its dismissal order.

Indeed, Porter argues that we should reinstate his complaint by transferring it back to the

District of South Carolina.

1 The District Court did not reach Porter’s pending motion for default judgment in light of the dismissal of the complaint. 4 However, we may affirm the District Court’s decision on any basis supported by

the record. See Murray v. Bledsoe,

(3d Cir. 2011) (per curiam). Upon

review of the record and the parties’ submissions on appeal, we will affirm here. Porter

does not address the District Court’s alternative reasons supporting dismissal of his

complaint, but for substantially similar reasons given by the District Court, we agree that

dismissal was appropriate. As noted above, the District Court considered Porter’s claims

even assuming proper service of the complaint, and Porter conceded that Larrieu’s claims

already had been adjudicated pursuant to the Settlement Agreement. Even if he is

entitled to a portion of Larrieu’s claim amount by operation of his power of attorney

agreement, Porter has not shown that the Trust is obligated under the Settlement

Agreement to disburse any funds to him directly.

Because no substantial question is presented here, we will summarily affirm the

District Court’s order dismissing Porter’s complaint. See 3d Cir. L.A.R. 27.4; 3d Cir.

I.O.P. 10.6.

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