DLD-117 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 22-3352 ___________

WINSTON J. BANKS, Appellant

v.

HOWARD TAYLOR, Esq.; JOSEPH FINEMAN, Esq. (deceased); JEROME TAYLOR (deceased); GINO J. BENEDETTI, Esq. (Septa); AUCLAIR & GILES LAW OFC; JUDITH TAYLOR (Spouse) ____________________________________

On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Civil Action No. 2-21-cv-04644) District Judge: Honorable Wendy Beetlestone ____________________________________

Submitted on Appellant’s Motion to Remand and Appellees’ Motions to Dismiss March 30, 2023

Before: JORDAN, SHWARTZ, and SCIRICA, Circuit Judges

(Opinion filed: April 6, 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. Winston J. Banks appeals from the District Court’s order dismissing this action

without prejudice for lack of subject-matter jurisdiction. Banks has filed a motion to

remand. Appellee Howard A. Taylor has responded with a motion to dismiss this appeal,

and appellee Gino J. Benedetti both joins in Taylor’s motion and has filed a motion to

dismiss Banks’s motion. We construe Banks’s and Taylor’s motions as motions for

summary action pursuant to 3d Cir. L.A.R. 27.4 (2011) and 3d Cir. I.O.P. 10.6. So

construed, Banks’s motion is denied, Taylor’s motion is granted, and we will affirm the

judgment of the District Court. Benedetti’s motion is denied.

I.

Banks previously worked as a bus driver for the Southeastern Pennsylvania

Transportation Authority (“SEPTA”). In 1991, while driving a bus, Banks was involved

in a collision with a tractor trailer. He later filed a counseled personal injury suit against

the owner of the tractor trailer but dismissed it in 1994 after reaching a settlement. (E.D.

Pa. Civ. No. 2-93-cv-01917.) Banks then filed a state-court malpractice suit against the

lawyers who represented him in the personal injury suit alleging that they wrongfully

induced the settlement. The trial court entered summary judgment for the lawyers, and

the Superior Court affirmed. See Banks v. Jerome Taylor & Assocs.,

(Pa.

Super. Ct. 1997), appeal denied,

(Pa. 1998) (Table).

In this case, Banks filed a complaint and then an amended complaint against

individuals (including Taylor) whom he apparently believes represent the estates of his

now-deceased personal injury lawyers. He also named as defendants SEPTA’s General

Counsel (Benedetti) and the law office of the tractor trailer owner. Banks alleged that the 2 injuries he suffered in the 1991 collision have been ongoing and most recently required

additional back surgery in 2019. He did not assert any specific claim for relief, but he

appeared to seek additional compensation for those injuries. Banks further alleged that

several defendants, including Taylor and Benedetti, are residents of Pennsylvania. He

identified himself as a Pennsylvania resident as well.

The District Court held a conference with the parties and later dismissed this

action without prejudice for lack of subject-matter jurisdiction. The Court reasoned, inter

alia, that it lacked diversity jurisdiction because both Banks and several of the defendants

are citizens of Pennsylvania. Banks appeals. 1

II.

Taylor argues that the District Court’s dismissal was correct because the Court

lacked diversity jurisdiction and otherwise lacked subject-matter jurisdiction. We agree

and will affirm the dismissal of this action on that basis.

1 We have jurisdiction under

. Benedetti argues that we lack jurisdiction and should dismiss this appeal because the District Court’s dismissal without prejudice is not a final decision under § 1291. He relies on our statement in Borelli v. City of Reading,

(3d Cir. 1976) (per curiam), that a dismissal without prejudice is not a final decision because it invites amendment. But the term “without prejudice” can have another meaning because it is the proper disposition when a court dismisses a case on threshold grounds without reaching the merits. See Merritts v. Richards, __ F.4th __,

, at *4 (3d Cir. Mar. 16, 2023). In that context, a dismissal without prejudice does not mean that the order lacks finality under § 1291. See id. at *4 n.4. Instead, the dismissal without prejudice simply means that the dismissal does not have preclusive effect on the merits. See id. That is the sense in which we understand the District Court’s dismissal here. The Court did not mention amendment and instead dismissed the case on threshold grounds and ordered its closure. Thus, the order is final under § 1291 because it ended the suit as far as the District Court was concerned. See Doe v. Hesketh,

(3d Cir. 2016). 3 The District Court held that it lacked diversity jurisdiction under

because both Banks and several of the defendants are citizens of Pennsylvania. See In re

Lipitor Antitrust Litig.,

(3d Cir. 2017). Banks has not argued

otherwise on appeal. Nor has he argued that the District Court had federal question

jurisdiction under

, and nothing in his complaints or other filings reveals

any arguable basis to assert any federal claim. Thus, we agree with the District Court that

it lacked jurisdiction over Banks’s claims.

Banks raises two issues that we briefly address. First, in his motion to remand,

Banks asks us to remand to give him additional time to find counsel. Banks requested

appointment of counsel in the District Court, which the Court denied. Banks does not

directly challenge that ruling. But to the extent that his pro se filings can be liberally

construed to do so, the Court did not abuse its discretion in declining to appoint counsel

because it denied Banks leave to proceed in forma pauperis. Cf.

(e)(1).

Banks also did not assert any claim over which the Court arguably had jurisdiction. See

Tabron v. Grace,

(3d Cir. 1993). Banks’s assertions regarding counsel

do not otherwise state any basis to remand this matter.

Second, Banks notes that he is the debtor in an ongoing bankruptcy proceeding at

E.D. Pa. Bankr. No. 17-14799 (in which, according to the docket, he is represented by

counsel). But Banks does not request any relief in that regard, and we see no need for

such relief. To the extent that Banks may believe his present claims are related to his

bankruptcy, the District Court’s dismissal is without prejudice to his ability to raise his

claims in that proceeding if it is otherwise proper for him to do so. The Court’s ruling 4 also is without prejudice to Banks’s ability to raise his claims in state court if it is

otherwise proper for him to do so. We express no opinion on these issues.

III.

For these reasons, we will affirm the judgment of the District Court.

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