VAIL v. KING S.R.

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

ANTOINETTE VAIL, )

) No. 2:25-cv-368

Plaintiff, )

)

v. ) Judge Robert J. Colville

)

ROSS KING S.R., et al., )

)

Defendants. )

)

)

MEMORANDUM OPINION

Robert J. Colville, United States District Judge

Before the Court is a Motion for Leave to Proceed In Forma Pauperis (“IFP Motion”) (ECF

No. 1) filed by Plaintiff Antoinette Vail. The Court will grant Plaintiff’s IFP Motion, and

Plaintiff’s Complaint (ECF No. 1-1) will be docketed. The Court will not, however, direct service

at this time, as the Court lacks subject matter jurisdiction in this matter and Plaintiff’s Complaint

fails to set forth any factual allegations whatsoever and is frivolous, and it will be dismissed

without leave to amend pursuant to 28 U.S.C. §1915(e).

Pursuant to 28 U.S.C. §1915(a), Plaintiff requested and has been granted leave to proceed

in forma pauperis. Thus, her allegations must be reviewed in accordance with the directives

provided in 28 U.S.C. §1915(e). Section 1915(e)(2), as amended, requires federal courts to review

complaints filed by persons who are proceeding in forma pauperis and to dismiss, at any time, any

action that is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks

monetary relief against a defendant who is immune from such relief. 28 U.S.C. §1915(e)(2)(B).

“[A] complaint…is frivolous where it lacks an arguable basis either in law or in fact.”

Neitzke v. Williams, 490 U.S. 319, 325 (1989). Thus, under §1915(e)(2)(B), courts are “authorized

to dismiss a claim as frivolous where ‘it is based on an indisputable meritless legal theory or where

the factual contentions are clearly baseless.’” O’Neal v. Remus, No. 09-14661, 2010 WL 1463011,

at *1 (E.D. Mich. Mar. 17, 2010) (quoting Price v. Heyrman, No. 06-C-632, 2007 WL 188971, at

*1 (E.D. Wis. Jan. 22, 2007)).1

In determining whether a complaint fails to state a claim upon which relief may be granted

for purposes of Section 1915(e)(2)(B), courts apply the same standard applied to motions to

dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure. D’Agostino v. CECOM

RDEC, 436 F. App’x 70, 72 (3d Cir. 2011) (citing Tourscher v. McCullough, 184 F.3d 236, 240

(3d Cir. 1999)). A complaint must be dismissed pursuant to Rule 12(b)(6) if it does not allege

“enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly,

550 U.S. 554, 556 (2007) (rejecting the traditional 12(b)(6) standard set forth in Conley v. Gibson,

355 U.S. 41, 45-46 (1957)); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly). “A

claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw

the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S.

at 678 (citing Twombly, 550 U.S. at 556). In making this determination, the court must accept as

true all allegations of the complaint and all reasonable factual inferences must be viewed in the

light most favorable to the plaintiff. Angelastro v. Prudential-Bache Sec., Inc., 764 F.2d 939, 944

(3d Cir. 1985). “To the extent that a complaint filed in forma pauperis which fails to state a claim

lacks even an arguable basis in law, Rule 12(b)(6) and §1915([e]) both counsel dismissal.” Neitzke,

490 U.S. at 328 (footnote omitted).

1 Dismissal under Section 1915(e)(2) is “often made sua sponte prior to the issuance of process, so as to spare

prospective defendants the inconvenience and expense of answering [frivolous] complaints[,]” Neitzke, 490 U.S. at

324, or complaints which fail to state a claim on which relief may be granted.

Although a district court is not obligated to permit leave to amend before dismissing a

complaint in a non-civil rights case, Wolfington v. Reconstructive Orthopaedic Assocs. II P.C.,

935 F.3d 187, 210 (3d Cir. 2019), courts generally grant leave to amend unless amendment of the

complaint would be inequitable or futile. See, e.g., Bachtell v. Gen. Mills, Inc., 422 F. Supp. 3d

900, 915 (M.D. Pa. Oct. 1, 2019) (citing Phillips v. Allegheny Cty., 515 F.3d 224, 245 (3d Cir.

2008)).

Plaintiff is proceeding pro se and, as such, she is entitled to liberal construction of her

submissions in federal court. This means that the Court must liberally construe the factual

allegations of the complaint because pro se pleadings, “however inartfully pleaded, must be held

to less stringent standards than formal pleadings drafted by lawyers.” Erikson v. Pardus, 551 U.S.

89, 94 (2007) (internal quotation omitted); Haines v. Kerner, 404 U.S. 519, 520 (1972). In

addition, the court should “‘apply the applicable law, irrespective of whether a pro se litigant has

mentioned it by name.’” Higgins v. Beyer, 293 F.3d 683, 688 (3d Cir. 2002) (quoting Holley v.

Dep’t of Veterans Affairs, 165 F.3d 244, 247-48 (3d Cir. 1999)). That said, “pro se litigants still

must allege sufficient facts in their complaints to support a claim.” Mala v Crown Bay Marina,

Inc., 704 F.3d 239, 245 (3d Cir. 2013). Further, pro se litigants are not free to ignore the Federal

Rules of Civil Procedure. Pruden v. Long, Civ. A. No. 3:CV-06-2007, 2006 WL 3325439, *1

(M.D. Pa. Oct. 24, 2006).

As noted, the Court believes that several deficiencies support dismissal of Plaintiff’s

Complaint under Section 1915(e) at this time. Most notably, Plaintiff’s Complaint contains no

factual allegations, and instead merely lists the parties, the purported basis for jurisdiction

(specifically asserting that the Court has federal question jurisdiction because Plaintiff attempts to

bring a claim under the False Claims Act (“FCA”) and the Deficit Reduction Act (“DRA”)), and

the relief Plaintiff seeks. Plaintiff submitted a form pro se civil complaint, which provides the

following instruction to the litigant under the heading “Statement of Claim”:

Write a short and plain statement of the claim. Do not make legal arguments. State

as briefly as possible the facts showing that each plaintiff is entitled to the damages

or other relief sought. State how each defendant was involved and what each

defendant did that caused the plaintiff harm or violated the plaintiff’s rights,

including the dates and places of that involvement or conduct. If more than one

claim is asserted, number each claim and write a short and plain statement of each

claim in a separate paragraph. Attach additional pages if needed.

ECF No. 1-1 at 4. In response to this prompt, Plaintiff simply wrote: “Federal Civil False Claims

and Reduction Acts.”

Because Plaintiff pled no facts whatsoever, she fails to allege facts to support a claim to

relief that is plausible on its face. Dismissal is warranted on this basis alone. That said, the Court

believes that it is in the interest of efficiency to discuss several other issues presented by Plaintiff’s

Complaint that would also independently warrant dismissal of her Complaint at this juncture.

While Plaintiff’s Complaint does not set forth factual allegations supporting her claims, it

provides the Court with enough information to determine that it lacks subject matter jurisdiction

in this case. As noted, Plaintiff has apparently attempted to assert a claim under the FCA and the

DRA. Because Plaintiff is proceeding pro se, such a claim lacks an arguable basis in law, and is

thus frivolous. The Third Circuit has explained:

The False Claims Act enables private parties, known as relators, to bring

enforcement actions on behalf of the United States to recover funds which were

fraudulently obtained, and to share in any resulting damages award. 31 U.S.C. §

3729, et seq.; see also U.S. ex rel. Wilkins v. United Health Grp., Inc., 659 F.3d

295, 304-05 (3d Cir. 2011). When a relator files a qui tam suit, the action is deemed

to be brought “for the person and for the United States Government.” 31 U.S.C. §

3730(b)(1). Indeed, “while the False Claims Act permits relators to control the

False Claims Act litigation, the claim itself belongs to the United States.” U.S. ex

rel. Mergent Servs. v. Flaherty, 540 F.3d 89, 93 (2d Cir. 2008). We have held,

however, that an individual proceeding pro se may not represent third parties in

federal court. See Lazaridis v. Wehmer, 591 F.3d 666, 672 (3d Cir. 2010); see also

28 U.S.C. § 1654 (providing that in federal court, “parties may plead and conduct

their own cases personally or by counsel. . . .”). Therefore, a pro se litigant may

not pursue a qui tam action on behalf of the Government.

Downey v. United States, 816 F. App’x 625, 627 (3d Cir. 2020); see also Stoner v. Santa Clara

Cnty. Off. of Educ., 502 F.3d 1116, 1126 (9th Cir. 2007) (“Nor does the FCA ‘support a finding

that the government and the relators can pursue their interests . . . separately,’ [United States v.

Schimmels (In re Schimmels), 127 F.3d 875, 884 (9th Cir. 1997)], such that relators could bring

their ‘own case’ without binding the government.”). Because Plaintiff cannot pursue a claim under

the FCA while proceeding pro se, such a claim cannot form the basis for federal question

jurisdiction in this case. The same is an independent basis that would support dismissal of

Plaintiff’s Complaint.

Plaintiff also makes a vague reference to “identity theft” in her claim for relief. “The

federal statute criminalizing identity theft, 18 U.S.C. § 1028, however, does not permit a civil

cause of action or remedy, and there is no other private federal law cause of action for identity

theft.” Walker v. Jackson, No. 24-CV-2574, 2024 WL 3761743, at *3 (E.D. Pa. Aug. 12, 2024).

Accordingly, the same cannot support federal question jurisdiction.

To the extent that Plaintiff attempts to assert state law claims sounding in tort or breach of

contract, the Court notes that the civil cover sheet (ECF No. 1-2) attached to Plaintiff’s Complaint

indicates that she and the Defendants are all citizens of Pennsylvania, thus establishing that the

complete diversity requirement of 28 U.S.C. § 1332 is not met in this case. Accordingly, the Court

does not have subject matter jurisdiction over any such claims.

Finally, the Court notes that Plaintiff lists “Beyond Home Healthcare (Owner)” in the

caption of her Complaint, and that she checked a box on her civil cover sheet that indicates that at

least one plaintiff is “Incorporated or [has a] Principal Place of Business [i]n This State.” ECF

No. 1-2. “Corporations and limited liability companies (LLC) cannot proceed as pro se litigants

in federal court.” Kilinc v. Tracfone Wireless Inc., 757 F. Supp. 2d 535 (W.D. Pa. 2010).

Accordingly, to the extent that Plaintiff attempts to bring claims on behalf of a corporate entity or

LLC pro se, the same is improper.

Given Plaintiff’s pro se status and considering the Court’s discussion above, the Court is

constrained to conclude that amendment of the claims upon which Plaintiff relies for subject matter

jurisdiction would be futile in this specific case. Accordingly, the Court will dismiss this case

without leave to amend, and it will direct the Clerk of Court to mark this case as closed. To be

clear, the Court’s dismissal is premised upon Plaintiff’s pro se status and the Court’s lack of subject

matter jurisdiction. The Court does not pass on the merits of Plaintiff’s claims, other than to

acknowledge that there is no private federal cause of action for identity theft. This Court’s Order

will be entered without prejudice to Plaintiff pursuing her potential FCA claim in the future to the

extent she obtains counsel. The Court further notes that its decision is also entered without

prejudice to Plaintiff, whether pro se or with the aid of counsel, pursuing any state law claims

dismissed herein in state court.

BY THE COURT:

/s/Robert J. Colville_______

Robert J. Colville

United States District Judge

DATED: April 4, 2025

cc:

Antoinette Vail

110 McIntyre Road

Pittsburgh, PA 15237