The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
MICHAEL J. PENDLETON, )
)
Plaintiff, )
) Civil Action No. 2:22-1312
v. ) Judge Nora Barry Fischer
) Magistrate Judge Keith Pesto
CITY OF PITTSBURGH, et al., )
)
Defendants. )
ORDER OF COURT
AND NOW, this 24th day of June, 2025, upon consideration of the Report and
Recommendation of U.S. Magistrate Judge Keith A. Pesto dated May 13, 2025, (Docket No. 37),
recommending that Plaintiff Michael J. Pendleton’s Motion to Vacate a Void Judgment Under
Rule 60(b)(4) and to Remand Complaint Back to State Court Pursuant to 28 U.S.C. § 1447(c) and
Royal Cabin, USA v. Wullschleger (2025), (Docket No. 36), be denied as he failed to establish that
the judgment was void and subject to collateral attack under Rule 60(b)(4) and directing that any
objections by non-ECF users like Plaintiff were due by May 30, 2025, and Plaintiff’s timely
Objections to the Report and Recommendation which were post-marked on May 28, 2025, (Docket
No. 38), the matter having been reassigned to the undersigned on June 17, 2025 for prompt
disposition of the matter, (Docket No. 39), and having conducted a de novo review of the Report
and Recommendation, (Docket No. 37), which is adopted as the Opinion of the Court, as
supplemented herein,
IT IS HEREBY ORDERED that Plaintiff’s Objections [38] are OVERRULED, as the
Court finds that Plaintiff has failed to meet his heavy burden to demonstrate that the judgment
dismissing this case with prejudice on June 28, 2023 is void under Rule 60(b)(4) based on the
subsequent precedent in Royal Canin U.S.A., Inc. v. Wullschleger, 604 U.S. 22 (2025) holding that
a District Court lacks subject matter jurisdiction over a removed case if the plaintiff drops all
federal claims and there is no independent basis of subject matter jurisdiction over the remaining
claims. See Fed. R. Civ. P. 60(b)(4). To that end, the U.S. Court of Appeals for the Third Circuit
has recognized that “‘a judgment is not void’ under Federal Rule of Civil Procedure 60(b)(4)
‘simply because it is erroneous, or is based upon precedent which is later deemed incorrect or
unconstitutional.’ []. ‘A court has the power to determine its own jurisdiction,’ […], and ‘[i]n the
interest of finality ... an error in that determination will not render the judgment void’ absent a
‘clear usurpation of power.’” George v. Rushmore Serv. Ctr., LLC, 114 F.4th 226, 239 (3d Cir.
2024) (citing Marshall v. Board of Education, 575 F.2d 417, 422, n.19 (3d Cir. 1987)) (further
quotation marks omitted). Where, as here, the issues concerning the Court’s subject matter
jurisdiction were litigated in the District Court and Plaintiff did not file a timely appeal from the
final order dismissing the case, the judgment is not void for purposes of Rule 60(b)(4). Id.
Finally, in Royal Canin, U.S.A., Inc., 604 U.S. at 43, n.10, the Supreme Court emphasized
that it was not bound by dicta in a prior footnote in Rockwell Int’l Corp. v. United States suggesting
that “‘when a defendant removes a case to federal court based on the presence of a federal claim,’
[…] ‘an amendment eliminating the original basis for federal jurisdiction generally does not defeat
jurisdiction.’” Id. (quoting Rockwell Int’l Corp. v. United States, 549 U.S. 457, 473-474 (2007)).
With that said, the Supreme Court continued that:
It is of course a much different thing for this Court to reach that
conclusion than for a lower court to do so. We do not at all fault any
court that relied on the Rockwell footnote to find jurisdiction in a
case like this one. Courts that did so simply took us at our word, in
a way both understandable and appropriate.
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Royal Canin, 604 U.S. at 43. As such, even if the District Court maintaining subjecting matter
jurisdiction and dismissing this action would be erroneous in light of the subsequent precedent in
Royal Canin, there was not a clear usurpation of power by the District Court and the final judgment
– which Plaintiff did not timely appeal -- is not void for purposes of Rule 60(b)(4). George v.
Rushmore Serv. Ctr., LLC, 114 F.4th at 239.
IT IS FURTHER ORDERED that Plaintiff’s Motion to Vacate a Void Judgment [36] is
DENIED.
s/ Nora Barry Fischer
Nora Barry Fischer
Senior U.S. District Judge
cc/ecf: United States Magistrate Keith Pesto
cc: Michael J. Pendleton
DY-1646
SCI Somerset
1590 Walters Mill Road
Somerset, PA 15510-0001
(via first class mail)
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