Opinion
3:23-CV-01036
10-03-2023
JOHN MONTENIGRO, Plaintiff, v. DAWN GLEASON, et al., Defendants.
Mariani, Judge
REPORT AND RECOMMENDATION
SUSAN E. SCHWAB, UNITED STATES MAGISTRATE JUDGE
Plaintiff John Montenigro filed a complaint raising claims surrounding child-support proceedings that have occurred in multiple jurisdictions, including Pennsylvania. By a prior report and recommendation, we recommended that the court dismiss the complaint because the court lacks diversity jurisdiction, the claims against two of the three named defendants are barred by the Eleventh Amendment, the complaint fails to state any federal claims upon which relief can be granted, and the court should decline to exercise supplemental jurisdiction.
We further recommended, however, that the court grant Montenigro leave to amend as to one defendant-defendant Gleason. Although Montenigro failed to plead any federal claims against defendant Gleason, and he failed to allege any facts that would suggest that he could plausibly plead any federal claims upon which relief can be granted against her, in an abundance of caution, we recommended that Montenigro be granted leave to amend to attempt to properly invoke the court's diversity jurisdiction.
But we noted that even if Montenigro could invoke this court's diversity jurisdiction to bring state law claims against Gleason, since he had not alleged any facts that suggest Gleason was present in or took any actions in this forum, Montenigro may not be able to establish that this court is the proper venue for claims against Gleason or that this court has personal jurisdiction over Gleason. Thus, we cautioned Montenigro that in deciding whether to file an amended complaint, he should think hard about whether this court is the proper forum for any of his claims against Gleason.
Adopting our report and recommendation, on August 7, 2023, Judge Mariani dismissed the complaint with prejudice as to two of the three defendants, but without prejudice at to defendant Gleason. See doc. 7. He also declined to exercise supplemental jurisdiction over the state law claims. Id. And importantly, he granted Montenigro leave to file an amended complaint within 28 days, warning him that failure to file an amended complaint may result in dismissal of this action. Id. at 2. He further reminded Montenigro of our “caution as to whether the Middle District of Pennsylvania is the proper forum for this action.” Id. at 2 n.1. And he remanded the case to the undersigned for further proceedings. Id. at 2.
Montenigro has not filed an amended complaint, and the time for him to do so has passed. According, it is recommended that the court dismiss this action and close the case.
The Parties are further placed on notice that pursuant to Local Rule 72.3:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.