ALD-046 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 22-2696 ___________

THOMAS I. GAGE, Appellant

v.

SOMERSET COUNTY, Law Enforcement; SOMERSET COUNTY JAIL; CHRISTOPHER S. PORRINO, former NJDAG; CITY OF WATCHUNG, WPD; GEOFFREY D. SORIANO, former SCPO; MICHAEL C. SCHUTTA, Det. of SCPO; JAY B. BOHN, Attorney ____________________________________

On Appeal from the United States District Court for the District of New Jersey (D.N.J. Civil Action No. 3:19-cv-09097) District Judge: Honorable Michael A. Shipp ____________________________________

Submitted on Appellees’ Motions for Summary Action December 8, 2022

Before: HARDIMAN, RESTREPO, and BIBAS, Circuit Judges

(Opinion filed: January 13, 2023) _________

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 Thomas I. Gage appeals from the District Court’s order

dismissing his civil rights claims. For the reasons that follow, we will summarily affirm

the District Court’s judgment.

For more than a decade, Gage has been filing lawsuits stemming from the

foreclosure and sale of his former property, which he believes was connected to the

construction of an adjacent real estate development. Insisting that he previously did not

receive fair treatment in the District Court for the District of New Jersey — where

multiple filing injunctions have been entered against him in similar prior actions — Gage

filed the present action in the District Court for the District of Columbia in 2018. He

named Somerset County, Somerset County Jail, Christopher S. Porrino, Geoffrey

Soriano, Michael C. Schutta, attorney Jay B. Bohn, and the City of Watchung as

defendants. He sought to bring civil rights claims of false arrest, false imprisonment, and

malicious prosecution.

Bohn filed a motion to dismiss for improper venue under Federal Rule of Civil

Procedure 12(b)(3), which the District Court granted. Later, all remaining defendants but

Watchung sought to dismiss Gage’s complaint for improper venue. Rather than dismiss

Gage’s remaining claims, the District Court concluded that it was in the interest of justice

to transfer the case to the District of New Jersey.

Once transferred, all remaining defendants but Watchung again sought dismissal,

which the District Court granted, with prejudice, after concluding that Gage’s claims

were barred by res judicata. Watchung then filed a motion to dismiss for failure to

2 effectuate service under Federal Rule of Civil Procedure 4(m), which the District Court

granted, while giving Gage an opportunity to file a motion to extend the time to effect

service of process. After Gage filed a motion to extend, the District Court denied the

motion, offering him an opportunity to file a motion to amend his complaint. Gage filed

such a motion, which the District Court denied. Gage timely appealed, and appellees

have moved for summary action. 1

We agree with the District Court’s disposition of Gage’s claims. First, res judicata

barred Gage’s claims against the Somerset County defendants, Porrino, Soriano, and

Schutta. See Fowler v. UPMC Shadyside,

(3d Cir. 2009) (exercising

plenary review over a Rule 12(b)(6) dismissal). Gage filed a prior lawsuit against all of

those defendants except for Porrino in 2016, alleging false arrest, false imprisonment, and

malicious prosecution stemming from the same incident underlying his present

allegations; it ended when the District Court dismissed his complaint for failure to state a

claim. See Gage v. Somerset County, No. 3:16-CV-3119-BRM-LHG,

,

at *1 (D.N.J. Jan. 31, 2017). We agree that Gage’s claims are barred because he either

raised them or could have raised them in that prior action. See Davis v. Wells Fargo, 824

1 We have jurisdiction over this appeal pursuant to

. Although the District Court dismissed Gage’s claims against two defendants without prejudice, its judgment is final. See Petrucelli v. Bohringer & Ratzinger,

(3d Cir. 1995) (discussing Rule 4(m)’s requirement that if service is not properly effectuated, a district court “shall dismiss the action without prejudice as to that defendant or direct that service be effected within a specified time”) (emphasis altered); In re Hall, Bayoutree Assocs., Ltd.,

(9th Cir. 1991) (“A determination of improper venue does not go to the merits of the case and therefore must be without prejudice.”).

(3d Cir. 2016) (explaining that res judicata requires “(1) a final

judgment on the merits in a prior suit involving (2) the same parties or their privies and

(3) a subsequent suit based on the same cause of action,” including claims that “could

have been brought” in the prior suit). Further, Porrino was in privity with Schutta and

Soriano — he was their supervisor and was named in this action because he allegedly

knew about his employees’ illegal conduct and sought to cover it up. See Gambocz v.

Yelencsics,

(3d Cir. 1972) (“[R]es judicata may be invoked against a

plaintiff who has previously asserted essentially the same claim against different

defendants where there is a close or significant relationship between successive

defendants.”).

Next, the District Court did not err in dismissing Gage’s claims against Bohn for

improper venue under Rule 12(b)(3). 2 All events underlying this action took place in

New Jersey, and all parties were residents of New Jersey. Gage’s subjective concerns

about bias from courts in New Jersey — based solely on unfavorable prior rulings against

him — does not permit venue in the district of his choosing. See

(b); cf.

Securacomm Consulting, Inc. v. Securacom Inc.,

(3d Cir. 2000)

2 We have not addressed the standard of review for a Rule 12(b)(3) dismissal in a precedential opinion. Compare, e.g., Gezu v. Charter Commc’ns,

(5th Cir. 2021) (applying de novo standard of review) and Mitrano v. Hawes,

(4th Cir. 2004) (same) with Algodonera De Las Cabezas, S.A. v. Am. Suisse Cap., Inc.,

(11th Cir. 2005) (per curiam) (reviewing for abuse of discretion) and Kerobo v. Sw. Clean Fuels, Corp.,

(6th Cir. 2002) (same). We need not decide that issue here; our conclusion is the same under any conceivable standard, given the circumstances of this case.

4 (explaining that “a party’s displeasure with legal rulings does not form an adequate basis

for recusal”). Further, we discern no abuse of discretion in the decision to transfer

Gage’s remaining claims, sua sponte, to the District of New Jersey, after weighing the

unique interests and considerations relevant to this case. See generally Jumara v. State

Farm Ins. Co.,

(3d Cir. 1995).

We also see no error in the District Court’s dismissal of Gage’s claims against

Watchung for failure to properly effectuate service, where he did not demonstrate good

cause for that failure. See Ayres v. Jacobs & Crumplar, P.A.,

(3d Cir.

1996) (“[T]he district court’s determination with respect to good cause [under Rule 4(m)]

is reviewed for abuse of discretion.”). As the District Court noted, Gage initiated this

action in 2018 and did not initially properly serve Watchung; he filed a motion for an

extension of time to serve Watchung in 2020 but did not take any active steps to properly

effectuate service in the interim and did not explain the delay. See MCI Telecomms.

Corp. v. Teleconcepts, Inc.,

, 1097 (3d Cir. 1995) (explaining that a litigant

must provide an explanation as to “what, if any, circumstances constitute sufficient ‘good

cause’ to excuse… [an] apparent lack of diligence”).

The District Court also did not abuse its discretion in denying Gage’s motion to

file an amended complaint. See Grayson v. Mayview State Hosp.,

(3d

Cir. 2002). Gage merely restated prior arguments and claims, making amendment futile.

5 Accordingly, we grant the appellees’ motions and will summarily affirm the

District Court’s judgment. 3

3 Appellant’s request to appear in person is denied.

6