WESTON v. DUNN WRIGHT PROPERTIES, LLC

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

JAMES ROBERT WESTON, SHIRLEY

M. BLASE, VANN C. BLASE, ERIK 1:19-cv-20778-NLH-KMW

V. BLASE, J.W.W., and

B.W.W.,1 MEMORANDUM

OPINION & ORDER

Plaintiffs,

v.

DUNN WRIGHT PROPERTIES, LLC,

Defendant.

APPEARANCES:

JAMES ROBERT WESTON

26 APPLE AVENUE

BELLMAWR, NEW JERSEY 08031

Pro se Plaintiff.

HILLMAN, District Judge

1 The Court takes the unusual step of adding a footnote to the

caption of this action to clarify that, while J.W.W. and B.W.W.

were identified by name in Plaintiff’s pro se complaint,

Plaintiff’s IFP application suggests that these two individuals

are in fact Plaintiff’s minor children. As such, this Court

will use initials to identify these minor children given

the interest in protecting the privacy of minors and the

availability of a less restrictive alternative, see Fed. R. Civ.

P. 5.2(a)(3). For the same reasons, the Court will direct the

Clerk to seal the documents contained at ECF Nos. 1 & 2 pursuant

to Local Civil Rule 5.3(c) and require Plaintiff to file

redacted versions of these documents on the Court’s electronic

filing system. Plaintiff will also be ordered to file a motion

seeking to have the documents filed at ECF Nos. 1 & 2

permanently sealed.

WHEREAS, Plaintiff James Robert Weston (“Plaintiff”),2

appearing pro se, has filed a complaint and a motion described

by Plaintiff as one for “immediate relief and injunction”

against defendant Dunn Wright Properties, LLC (“Defendant”);3 and

WHEREAS, Plaintiff alleges that he and his family were

“illegally removed from [their] home of [twenty] years” and that

his home was placed into foreclosure after an eviction action in

the Superior Court of New Jersey; and

WHEREAS, Plaintiff further alleges that he objected to the

2 Notably, the caption suggests that, in addition to Plaintiff,

this action is also brought by additional individuals identified

as Shirley M. Blase, Vann C. Blase, Erik V. Blase, J.W.W., and

B.W.W., all of whom Plaintiff identifies in his IFP application

as his family (collectively, the “Potential Plaintiffs”).

Despite Potential Plaintiffs’ names appearing in the caption of

this action, none of the Potential Plaintiffs are listed as

parties to this action on page one of Plaintiff’s pro se

complaint, and none of the Potential Plaintiffs have signed the

pro se complaint. As such, this Court cannot determine whether

the Potential Plaintiffs are proper parties to this action.

3 In a portion of Plaintiff’s pro se complaint directing

Plaintiff to identify “all defendants[,]” Plaintiff has listed

only an individual identified as Helene Raush of Cherry Hill,

New Jersey (the “Potential Defendant”). Plaintiff’s complaint

is entirely void of allegations relating to this individual, and

she does not appear in the caption of Plaintiff’s complaint. In

exhibits attached to Plaintiff’s complaint, it appears that

Raush is an attorney at Honig & Greenberg, L.L.C. (ECF No. 1-2

at 12). It remains unclear what role Raush plays in this

action, if any. As such, this Court cannot determine whether

she is an appropriate defendant in this action. Conversely,

Defendant, who appears in the caption of Plaintiff’s complaint,

does not appear in the section prompting Plaintiff to identify

all defendants.

foreclosure action, but that his prior counsel failed to submit

his objections because that firm – unidentified by Plaintiff –

is “now involved with the fraud[;]” and

WHEREAS, Plaintiff further alleges that, as a result, he

and his family “remain homeless[;]” and

WHEREAS, while Plaintiff does not allege specific damages,

he asks that this Court return him and his family to their home;

and

WHEREAS, Plaintiff has filed an application to proceed

without prepayment of fees (“in forma pauperis” or “IFP”

application), and pursuant to 28 U.S.C. § 1915(a)(1), a court

may allow a litigant to proceed without prepayment of fees if

she submits a proper IFP application; and

WHEREAS, although § 1915 refers to “prisoners,” federal

courts apply § 1915 to non-prisoner IFP applications, Hickson v.

Mauro, 2011 WL 6001088, *1 (D.N.J. 2011) (citing Lister v. Dept.

of Treasury, 408 F.3d 1309, 1312 (10th Cir. 2005) (“Section

1915(a) applies to all persons applying for IFP status, and not

just to prisoners.”) (other citations omitted); and

WHEREAS, the screening provisions of the IFP statute

require a federal court to dismiss an action sua sponte if,

among other things, the action is frivolous or malicious, or if

it fails to comply with the proper pleading standards, see 28

U.S.C. § 1915(e)(2)(B)(i)-(iii); Ball v. Famiglio, 726 F.3d 448,

452 (3d Cir. 2013); Martin v. U.S. Department of Homeland

Security, 2017 WL 3783702, at *1 (D.N.J. August 30, 2017)

(“Federal law requires this Court to screen Plaintiff’s

Complaint for sua sponte dismissal prior to service, and to

dismiss any claim if that claim fails to state a claim upon

which relief may be granted under Fed. R. Civ. P. 12(b)(6)

and/or to dismiss any defendant who is immune from suit.”); and

WHEREAS, pro se complaints must be construed liberally, and

all reasonable latitude must be afforded the pro se litigant,

Estelle v. Gamble, 429 U.S. 97, 107 (1976), but pro se litigants

“must still plead the essential elements of [their] claim and

[are] not excused from conforming to the standard rules of civil

procedure,” McNeil v. United States, 508 U.S. 106, 113 (1993)

(“[W]e have never suggested that procedural rules in ordinary

civil litigation should be interpreted so as to excuse mistakes

by those who proceed without counsel.”); Sykes v. Blockbuster

Video, 205 F. App’x 961, 963 (3d Cir. 2006) (finding that pro se

plaintiffs are expected to comply with the Federal Rules of

Civil Procedure); and

WHEREAS, the Court finds that Plaintiff’s complaint is

deficient for numerous reasons, many of which are described

herein; and

WHEREAS, first, and as a threshold matter, the Court is

unable to determine the asserted basis for the Court’s exercise

of subject matter jurisdiction. Federal Rule of Civil Procedure

8(a) provides that “[a] pleading that states a claim for relief

must contain . . . a short and plain statement of the grounds

for the court’s jurisdiction[;]” and

WHEREAS, Plaintiff has not asserted any proposed basis for

this Court’s exercise of subject matter jurisdiction; and

WHEREAS, the Court cannot determine whether the exercise

diversity jurisdiction pursuant 28 U.S.C. § 1332 would be proper

as Plaintiff has not alleged the citizenship of any party; and

WHEREAS, Plaintiff has not identified addresses for – let

alone the citizenship of - Potential Plaintiffs or Defendant;

and

WHEREAS, Plaintiff has alleged that both he and Potential

Defendant maintain addresses within New Jersey, and if both

Plaintiff and Potential Defendant are found to be citizens of

New Jersey, such a finding would destroy the completeness of

diversity amongst the parties; and

WHEREAS, Plaintiff’s allegations do not suggest any other

valid basis for exercising subject matter jurisdiction in this

action; and

WHEREAS, furthermore, Rule 8(a)(2) requires a complaint

contain “a short and plain statement of the claim showing that

the pleader is entitled to relief[;]” and

WHEREAS, while Plaintiff identifies Defendant in the

caption of the complaint, Plaintiff fails to explain how

Defendant is connected to this action, preventing this Court

assessing whether Plaintiff may be entitled to the relief he

seeks from this defendant; and

WHEREAS, as discussed in footnote three, infra, while

Plaintiff identifies Potential Defendant in the body of the

complaint, Plaintiff fails to include Potential Defendant in the

caption or otherwise explain how Potential Defendant is

connected to this action; and

WHEREAS, as discussed in footnote one, infra, while

Potential Plaintiffs appear in the caption of the complaint,

Plaintiff fails to explain what claims, if any, they have

against Defendant or Potential Defendant, preventing this Court

from assessing whether any such claims may be valid; and

WHEREAS, while Plaintiff argues that this case involves

fraud, abuse of process, and intent to harm, Plaintiff’s

allegations as to each of these causes of action is vague and

insufficient to establish that Plaintiff is “entitled to [the]

relief” he seeks, from the parties he seeks it from; and

WHEREAS, the Clerk will not file a civil complaint unless

the person seeking relief pays the entire applicable filing fee

in advance or the person applies for and is granted in forma

pauperis status pursuant to 28 U.S.C. § 1915. See Local Civil

R. 5.1(f). The filing fee for a civil complaint is $400; and

WHEREAS, Potential Plaintiffs have not filed IFP

applications or otherwise paid the required filing fee; and

WHEREAS, in addition to his complaint and IFP application,

Plaintiff has also filed a purported motion for a temporary

restraining order, without specifying the legal basis for his

motion (ECF No. 2). Plaintiff’s motion contains only a single

page, and in it, Plaintiff does not cite to any relevant law or

fact in support of his motion; and

WHEREAS, Plaintiff’s motion for a temporary restraining

order seeks an order vacating an unidentified “judgment, sheriff

sale, and eviction” (ECF No. 2);4

4 Plaintiff’s motion for temporary restraints fails to

comply with Local Civil Rule 65.1(a), which provides:

Any party may apply for an order requiring an adverse

party to show cause why a preliminary injunction

should not issue, upon the filing of a verified

complaint or verified counterclaim or by affidavit or

other document complying with 28 U.S.C. § 1746 during

the pendency of the action. No order to show cause to

bring on a matter for hearing will be granted except

on a clear and specific showing by affidavit, other

document complying with 28 U.S.C. § 1746 or verified

pleading of good and sufficient reasons why a

procedure other than by notice of motion is necessary.

An order to show cause which is issued at the

beginning of the action may not, however, serve as a

substitute for a summons which shall issue in

accordance with Fed. R. Civ. P. 4. The order to show

cause may include temporary restraints only under the

conditions set forth in Fed. R. Civ. P. 65(b).

WHEREAS, district courts must have original subject matter

jurisdiction to hear a case. 28 U.S.C. § 1441(a). “If the

court determines at any time that it lacks subject matter

jurisdiction, the court must dismiss the action.” Fed. R. Civ.

P. 12(h)(3); see also Zambelli Fireworks Mfg. Co., Inc. v. Wood,

592 F.3d 412, 420 (3d Cir. 2010) (“Under this Court’s continuing

obligation to assess its subject matter jurisdiction, we can

dismiss a suit sua sponte for lack of subject matter

jurisdiction at any stage in the proceeding”); and

WHEREAS, if a Court lacks subject matter jurisdiction over

an action, it “does not have jurisdiction to reach the merits of

Defendant[‘]s[] motion for a temporary restraining order[.]”

Arora v. Barretta, No. 19-18051, 2019 U.S. Dist. LEXIS 178134,

*7 (D.N.J. Oct. 15, 2019); and

WHEREAS, as discussed infra, Plaintiff has not alleged any

basis for this Court to exercise subject matter jurisdiction

over this action and this Court finds that doing so based on the

record before it would be improper; and

WHEREAS, therefore, the Court must deny Plaintiff’s motion

In this case, Plaintiff has not filed an affidavit,

verified complaint, or other similar document complying

with 28 U.S.C. § 1746 in support of his motion. Because

the Court concludes it lacks subject matter jurisdiction

over Plaintiff’s action, and therefore, his motion, the

Court simply notes this for Plaintiff’s reference should he

choose to refile his motion in a manner consistent with

this Order. Any future filing must comply with this Rule.

and dismiss his complaint; and

WHEREAS, the Court will grant Plaintiff an opportunity to

file an amended complaint to correct the above-referenced

deficiencies; and

WHEREAS, in preparing this Opinion and Order, the Court

determined that Plaintiff attached sensitive personal

identifiers to the initial complaint and IFP application. As

such, and in light of Plaintiff’s pro se status, the Court will

sua sponte order the documents filed at ECF Nos. 1 & 2

temporarily sealed; and

WHEREAS, to the extent Plaintiff needs to rely upon such

personal and confidential information moving forward, or

otherwise seeks to file such information along with any amended

complaint, Plaintiff should file a motion to seal such documents

pursuant to Local Civil Rule 5.3;5

THEREFORE,

IT IS on this 26th day of November , 2019

ORDERED that Plaintiff’s IFP application (ECF No. 1-1) be,

and the same hereby is, GRANTED; and it is further

5 Local Civil Rule 5.3 governs requests to seal documents filed

with the Court. Instructively, the Rule dictates that the party

seeking to seal documents must describe: (a) the nature of the

materials at issue; (b) the legitimate private or public interests

which warrant the relief sought; (c) the clearly defined and

serious injury that would result if the relief sought is not

granted; and (d) why a less restrictive alternative to the relief

sought is not available. L. Civ. R. 5.3(c)(3).

ORDERED that Plaintiff’s complaint is DISMISSED in its

entirety, WITHOUT PREJUDICE, for failing to state a claim on

which relief can be granted and for want of subject matter

jurisdiction; and it is further

ORDERED that, since this action has been dismissed for want

of subject matter jurisdiction, Plaintiff’s motion for temporary

restraints (ECF No. 2) is DENIED, WITHOUT PREJUDICE; and it is

further

ORDERED that ECF Nos. 1 & 2 – which contain confidential

and private personal identifiers for Plaintiff’s minor children

– be, and the same hereby are, TEMPORARILY SEALED; and it is

further

ORDERED that Plaintiff shall have twenty (20) days to amend

his complaint to properly cure the deficiencies noted above, to

file redacted versions of ECF Nos. 1 & 2, and to ask this Court

to permanently seal ECF Nos. 1 & 2 in a manner described in

footnote five above; and it is further

ORDERED that Plaintiff may file an amended motion for

temporary restraints, addressing the deficiencies outlined in

this Order and complying with Local Civil Rule 65.1, within

twenty (20) days of this Order; and it is further

ORDERED that if Plaintiff fails to file an amended

complaint within the timeframe allotted, this case will be

dismissed for lack of subject matter jurisdiction and failure to

state a claim. See Fed. R. Civ. P. 12(h)(3).

s/ Noel L. Hillman___

At Camden, New Jersey NOEL L. HILLMAN, U.S.D.J.