Wright v. Elite Revenue Solutions, LLC

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

THOMAS WRIGHT, : No. 3:23-CV-597

Plaintiff □ (Saporito, J.)

Vv. (Caraballo, M.J.)

ELITE REVENUE SOLUTIONS, :

LLC, et al., :

Defendants

REPORT & RECOMMENDATION

I. Introduction

Plaintiff Thomas Wright, proceeding pro se, commenced this

purported civil rights action against 17 private and public entities on

April 7, 2023. Doc. 1. On March 20, 2024, Wright lodged the live

Amended Complaint. Doc. 11. The pleading lists the First, Fourth,

Fifth, and Fourteenth Amendments of the United States Constitution

as the bases of this suit. Id. at 1.

Most of the Defendants submitted motions to dismiss (Docs. 24,

44, 45, 53), arguing that Wright fails to articulate cognizable claims for

relief under 42 U.S.C. § 1988, and lacks standing. Further, a review of

the Amended Complaint reveals another fatal flaw. Namely, an

attachment to the pleading indicates that Wright seeks to subvert a

state tax judgment against Adolph Wright, his brother,! through this

action. Thus, this suit, if allowed to proceed further, would violate the

Rooker-Feldman doctrine, which prohibits federal trial courts from

reviewing state judgments.

For the reasons set forth below, the undersigned recommends that

all defendants be dismissed without prejudice for lack of third-party

standing and subject matter jurisdiction.

II. Background

The precise nature of this action remains unclear due to the

Amended Complaint’s general incoherency and incompleteness.? The

undersigned, however, has interpreted the allegations to the extent

1 Wright states that Adolph is his brother. Doc. 11 at 2. For clarity, Adolph Wright

will be referenced as “Adolph” and Thomas Wright as “Wright.”

2 The allegations in the Amended Complaint appear to have been cropped prior to

filing. Id. at 1-5. In a subsequent filing, Wright attached a document that

resembles but is different from the Amended Complaint. Doc. 51 at 13-17.

Regardless, neither document comports with Federal Rule of Civil Procedure

8(a)(2). See Fed. R. Civ. P. 8(a)(2) (establishing that a complaint “must” contain

“short and plain statement[s] of the claim showing that the pleader is entitled to

relief[.]”). Moreover, the Amended Complaint is signed by “H” (Doc. 11 at 5), an

individual who has no standing in this matter as a litigant or attorney, and whose

filings were previously stricken by the Court. Doc. 19. As Wright appears to have

signed the entirety of the amended complaint, following its exhibits, the Court will

nonetheless consider the pleading filed in his name. Doc. 11 at 37.

possible, and in a light most favorable to Wright. See Kedra v.

Schroeter, 876 F.3d 424, 434 (8d Cir. 2017).

The pleading purports to present a takings action under the Fifth

and Fourteenth Amendments of the United States Constitution.? See

Doc. 11 at 1 (mentioning Fifth Amendment), 2 (“taking of property”), 4

(‘property without notice or an opportunity to be heard”). The disputed

property appears to have been occupied by Adolph until he was ejected

from the land. Doc. 52 at 1 (“My brother’s valiant attempt to preserve

_ ownership of the property has been obviously futile with him being

removed under the presence of armed Sheriffs.”). Wright seems to

claim that he, too, owned a legal interest in that property. Doc. 11 at 3

(“depriving Thomas Wright, adolph wright[,] and other heirs’).

The Amended Complaint does not, however, state what legal

interest is presently owned by Wright, who admits that he resides

outside of Pennsylvania. Id. As the Court previously observed, Wright

was, at one point, a “tenant[] in common,” but “appears to have retained

no ownership interest” in the disputed property. Doc. 38 at 3-4, 12.

3 Wright’s bases for invoking the First and Fourth Amendments, Doc. 1 at 1,

remain a mystery.

The Amended Complaint appears to accuse several public and private

parties of depriving Wright of his property rights. He accordingly

demands monetary damages in the amount of “over 1 million dollars|,]

as well as punitive damages[.]” Doc. 11 at 5.

The Amended Complaint names 13 governmental entities and

individuals, who may be divided into three categories according to their

affiliations. Id. at 1. The three groups are: (1) the Luzerne County Tax

Claim Bureau and two affiliated individuals, Joan Hoggarth and James

Haddock; (2) the Luzerne County Solicitor and Harry Skene (who is also

identified as the Luzerne County Solicitor); and (8) the Luzerne County

Council and some of its members, including Tim McGinley, Lee

McDermott, Kendra Radle, David Pedri, Chris Perry, Sheila Saidman,

and Robert Schnee.* Id.

Wright also names several private parties—Elite Revenue

Solutions, LLC, or “Elite Revenue”; Samuel Falcone; David Keller; and

Joseph Plummer—but his only cognizable premise against them seems

to be that they were “acting and performing government functions.” Id.

4 The Amended Complaint identifies Perry, Saidman, and Schnee by last names

only. But an entry of appearance on their behalf shows their first names as well.

Doc. 26 at 1-2.

at 2. The motions and briefs submitted by these defendants provide

additional insights into their connections to this matter. Elite Revenue

claims that it is an “agent for the Luzerne County Tax Claim Bureau

and is responsible for collecting real property taxes....” Docs. 46 at 2;

47 at 2. Falcone is an attorney “for the Luzerne County Tax Claim

Bureau through its agent, Elite Revenue....” Doc. 46 at 2; 47 at 2.

Keller alleges that he “purchased the property through a Sheriff sale,”

foreclosed on the property, received possession of that land, and ejected

Adolph from the property. Doc. 54 at 2. Plummer has not appeared in

this action.

Most of the defendants submitted motions to dismiss under

Federal Rule of Civil Procedure 12(b)(6), presenting two lines of

arguments. Docs. 24, 44, 45, 58. The first, submitted by the Luzerne

County Solicitor, the Luzerne County Council, and Keller, stresses the

Amended Complaint’s incomprehensiveness, and concludes that the

pleading fails to state colorable claims for relief. Docs. 25 at 1-2; 54 at

1—3.5 The second, articulated by Elite Revenue and the Luzerne County

5 Keller also advises that he has never been served. Doc. 58 at 1.

Tax Claim Bureau, surmises that Wright lacks standing, as he has no

discernible interest in the property. Docs. 46 at 6—7; 47 at 6—7.

In addition to these two arguments, the Amended Complaint

betrays a fundamental flaw through an attachment—namely, an □

appellate brief filed with the Commonwealth Court of Pennsylvania on

February 29, 2024. Doc. 11 at 19-86. The brief and a subsequent

decision issued by the Commonwealth Court in the same appeal,

Commonwealth v. Wright, 2024 WL 5195484 (Pa. Commw. Ct. 2024),

indicate that Wright seeks to challenge state tax liens filed against

Adolph for unpaid taxes. Doc. 11 at 28.

The brief provides a partial insight into the muddled history of the

underlying state proceedings. According to the brief, this suit arises out

of a state tax proceeding that commenced “[o]n June 16, 2021, when the

[Pennsylvania] Department [of Revenue] filed a lien against [Adolph]

for unpaid personal income taxes totaling $6,345.20.” Id. Five months

later, “[o]n November 12, 2021, the Department filed a separate lien

against [Adolph] for unpaid realty transfer taxes totaling $6,372.78.”

Id. Following several years of litigation and appeals, the

Commonwealth Court quashed Adolph’s appeal on December 23, 2024.

Important to this Report and Recommendation is the Commonwealth

Court’s observation that “the Department filed a Certified Copy of Lien

in the trial court,” and that a “[jJudgment was entered in the same

amount on June 16, 2021.” Wright, 2024 WL 5195484, at *1 (citation

omitted). The court also noted that “th[e] matter [wa]s rife with

procedural errors because [Adolph] [wa]s attempting to convert th[e]

lien proceeding into a challenge of the tax sale of the subject property.”

Id. at *2.

In sum, Wright seemingly complains about injuries caused to

Adolph by a state tax judgment, which was issued about two years

before this instant suit was filed. Wright appears to be prodding the

Court into reviewing and even interfering with that judgment, as well

as presenting his grievances against various state and nonstate entities

for reasons that are largely unexplained.

III. Discussion

The undersigned recommends that all defendants be dismissed

without prejudice for three reasons. First, Wright lacks third-party

standing to litigate this case. Second, this lawsuit runs afoul of the

Rooker-Feldman doctrine. Third, Wright failed to serve the Amended

Complaint on two individual defendants within the period provided by

Federal Rule of Civil Procedure 4(m).

A. Federal Jurisdiction

For purposes of this Report and Recommendation only, the

undersigned assumes that Elite Revenue, Falcone, and Keller are state

actors. The Amended Complaint merely asserts that these three

private parties, along with Plummer, were “acting and performing

governmental functions,” Doc. 11 at 2, but lacks further allegations

about how those unidentified activities constitute “exercise[s of] powers

that are traditionally the exclusive prerogative of the state.” Mark v.

Borough of Hatboro, 51 F.3d 1187, 1142 (8d Cir. 1995) (emphasis in

original) (quotation omitted) (quoting Blum v. Yaretsky, 457 U.S. 991,

1004—05 (1982)). Nevertheless, construing the Amended Complaint in

the light most favorable to Wright, the undersigned assumes that the

pleading suffices. See Kedra, 876 F.3d at 434. Moreover, none of those

defendants have asserted any challenge to Wright’s Section 1983 claims

premised on their statuses as private parties.

1. Lack of Standing

Defendants Elite Revenue, Samuel Falcone, and the Luzerne

County Tax Claim Bureau request dismissal premised on Wright’s lack

of standing to advance this lawsuit. Docs. 44, 45. Namely, they

contend that Wright failed to allege that he holds an ownership interest

in the property under dispute, or is an interested party in the

underlying tax delinquencies. Docs. 46 at 4-6, 47 at 4-6. Wright does

not offer any discernible contention otherwise in his opposition. See

generally Doc. 51. That failure to establish third-party standing in his

Amended Complaint is fatal to Wright’s claims, against both the

movants and other defendants.®

Article III of the Constitution of the United States confines federal

jurisdiction to certain “Cases” and “Controversies.” U.S. Const. art. III,

§ 2, cl. 1. Therefore, “[fJederal courts are courts of limited jurisdiction,”

wielding “only that power authorized by Constitution and statute.”

Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)

6 On August 13, 2024, Wright was ordered to serve the Amended Complaint on all

defendants by September 3, 2024, and provide proof of service, accordingly. Doc. 19.

He subsequently provided proof of service for some defendants, but not for David

Keller or Joseph Plummer. Docs. 20-23. That failure to serve does not affect the

standing analysis in any event.

(citations omitted). In other words, “subject matter jurisdiction is non-

waivable.’ Nesbit v. Gears Unlimited, Inc., 347 F.3d 72, 77 (8d Cir.

20038) (citing Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S.

274, 278 (1977)).

A party therefore may move to dismiss for lack of subject matter

jurisdiction at any point during a litigation. See Fed. R. Civ. P. 12(b)(1),

12(h)(3). Even if all parties fail to address the issue, “the court can

raise sua sponte subject| ]matter jurisdiction concerns,” Nesbit, 347

F.3d at 77, because “courts have an independent obligation to satisfy

themselves of jurisdiction if it is in doubt.” Id. at 76—77 (citing Healthy

City, 429 U.S. at 278). In addressing subject matter jurisdiction under

Rule 12(b)(1), the Court “must take care not to reach the merits of a

case....” Davis v. Wells Fargo, 824 F.3d 333, 348 (3d Cir. 2016)

(quotation omitted) (quoting CNA v. United States, 535 F.3d 132, 144

(3d Cir. 2008)). A dismissal is mandatory “[iJf the court determines at

any time that it lacks subject[ ]matter jurisdiction.” Fed. R. Civ. P.

12(h)(8). In any case, the dismissal should be without prejudice.

Orthopedic, 132 F.3d at 155-56 (citations omitted).

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Article III’s “case-or controversy requirement is satisfied only

where a plaintiff has standing.” Common Cause of Pa. v. Pennsylvania,

558 F.3d 249, 258 (3d Cir. 2009) (quotation omitted) (first quoting

Sprint Comme’ns Co. v. APCC Serus., Inc., 554 U.S. 269, 273 (2008); and

then citing Valley Forge Christian Coll. v. Ams. United for Separation of

Church & State, Inc., 454 U.S. 464, 471 (1982)). “In this manner does

Article] IIT limit the federal judicial power to those disputes which

confine federal courts to a role consistent with a system of separated

powers and which are traditionally thought to be capable of resolution

through the judicial process.” Id. (quotations omitted) (first quoting

Valley Forge, 454 U.S. at 472; and then citing Flast v. Cohen, 392 U.S.

83, 97 (1968)).

“Absent Article III standing, a federal court does not have subject

matter jurisdiction to address a plaintiffs claims, and they must be

dismissed.” Jd. at 257 (quotation omitted) (quoting Jaliaferro v. Darby

Twp. Zoning Bd., 458 F.3d 181, (8d Cir. 2006)). A corollary is that the

plaintiff, as the party invoking federal jurisdiction, “bear[s] the burden

of establishing... standing.” Id. (citing DaimlerChrysler Corp. v. Cuno,

547 U.S. 332, 342 (2006)).

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Standing is founded on two sets of requirements. Id. at 257-59.

The first set is constitutional, and has the following three elements:

(1) an injury in fact (i.e, a “concrete and particularized”

invasion of a “legally protected interest”); (2) causation (i.e., a

“fairly traceable” connection between the alleged injury in fact

and the alleged conduct of the defendant); and (8)

redressability (i.e., it is “likely” and not “merely speculative”

that the plaintiffs injury will be remedied by the relief

plaintiff seeks in bringing suit).

Id. at 258 (first quoting Sprint, 554 U.S. at 273-74; then citing Lujan v.

Defs. of Wildlife, 504 U.S. 555, 561 (1992); and then citing Pa. Prison

Soc’y v. Cortes, 508 F.3d 156, 161 (8d Cir. 2007)).

Here, and reading the allegations in the Amended Complaint in

the light most favorable to Wright, he potentially satisfies those prongs.

Namely, Wright seemingly asserts that: (1) his injury lies in the

deprivation of his property rights under the Fifth and Fourteenth

Amendments; (2) the defendants’ acts causing that injury; and (8) the

injury may be redressed by monetary and punitive damages. Doc. 11 at

1-5.

Wright’s precise relationship to and ownership interest in the

underlying property remains murky. As the Court previously observed,

“Wright appears to have retained no ownership interest” in the disputed

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property, Doc. 38 at 12, and he admits that he resides outside of

Pennsylvania, where the property is located. Doc. 11 at 3. Wright does

aver, however, that the defendants “depriv[ed] Thomas Wright, adolph

wright[,] and other heirs” of their property interests, id., and the Court

determined that he was once a “tenant[] in common.” Doc. 38 at 3-4.

Thus, absent further development of the record, the Court cannot

decisively state that Wright has failed to establish constitutional

standing.

The second set of requirements—prudential standing—yields a

different conclusion. Prudential standing “embodies judicially self-

imposed limits on the exercise of federal jurisdiction.” Elk Grove

Unified Sch. Dist. v. Newdow, 542 U.S. 1, 11 (2004), abrogated on other

grounds by Lexmark Intern., Inc. v. Static Control Components, Inc.,

572 U.S. 118 (2014)). Among such prudential restrictions is “the

general prohibition on a litigant’s raising another person’s legal rights.”

Common Cause of Pa., 558 F.3d at 258 (first quoting Elk Grove,

542 U.S. at 12; then citing Valley Forge, 454 U.S. at 474-75; and then

citing Twp. of Piscataway v. Duke Energy, 488 F.3d 203, 209 (8d Cir.

2007)). “It is a well-established tenet of standing that a ‘litigant must

12

assert his or her own legal rights and interests, and cannot rest a claim

to relief on the legal rights or interests of third parties.” Pa.

Psychiatric Soc’y v. Green Spring Health Servs., Inc., 280 F.3d 278, 288

(2002) (first quoting Powers v. Ohio, 499 U.S. 400, 410 (1991); then

citing Valley Forge, 454 U.S. at 474-75; and then citing Wheeler v.

Travelers Ins. Co., 22 F.3d 534, 588 (8d Cir. 1994)).

At the same time, federal “jurisprudence recognizes third-party

standing under certain circumstances.” Id. (footnote omitted) (first

citing Campbell v. Louisiana, 523 U.S. 392, 397-98 (1998); and then

citing Hodel v. Irving, 481 U.S. 704, 711 (1987)). “[T]he principles

animating the[] prudential concerns are not subverted if the third party

is hindered from asserting its own rights and shares an identity of

interests with the plaintiff.” Jd. (first citing Craig v. Boren, 429 U.S.

190, 193-94 (1976); then citing Singleton v. Wulff, 428 U.S. 106, 114-15

(1976) (plurality opinion); and then citing Eisenstadt v. Baird, 405 U.S.

438, 443-46 (1972)).

To establish third-party standing, the plaintiff must satisfy “three

preconditions: 1) the plaintiff must suffer injury; 2) the plaintiff and the

third party must have a ‘close relationship’; and 3) the third party must

1A

face some obstacles that prevent it from pursuing its own claims.” Id.

(first citing Campbell, 523 U.S. at 397; then citing Powers, 499 U.S. at

411; and then citing The Pitts News v. Fisher, 215 F.3d 354, 359 (8d Cir.

2000)). Regarding the second element, the relationship must give the

third-party plaintiff “a sufficiently concrete interest in the outcome of

the issue in dispute and ensuring that the plaintiff will be an effective

advocate.” Pitt News, 215 F.3d at 862 (quotations omitted) (quoting

Powers, 499 U.S. at 411).

As with the constitutional standing analysis, two of the three

prudential requirements arguably are met as well, when reading the

Amended Complaint in the light most favorable to Wright. Namely,

Wright contends that he owned a partial legal interest in the property,

the taking of which, again, caused the alleged injury. Doc. 11 at 3. And

to the extent that Adolph is the appropriate third party, Wright was

determined to have once been a “tenant[] in common” with Adolph in

the underlying property. Doc. 38 at 3-4.

But Wright fails to establish the third prudential consideration.

Specifically, the Amended Complaint does not explain how Wright’s

brother, Adolph, faces obstacles that prevent him from pursuing his

15

own remedies. Indeed, given that Adolph was the individual ejected

from the property and that Wright resides in another state, id. at 3, the

Amended Complaint triggers the question of why Wright, not Adolph, is

- pursuing this action.

In such a situation, dismissal for lack of jurisdiction is the

appropriate action. See Pitts News, 215 F.3d at 363 (explaining that,

“TiJn most cases” where the plaintiff fails to “demonstrate|[] that [the

absent party] ha[s] any impediment to bringing [his or her] own suit[,]”

warrants conclusion that “the plaintiff could not assert third party

standing.”). Accordingly, because Wright failed to establish his third-

party standing, the undersigned recommends that this action be

dismissed without prejudice for lack of jurisdiction. See itd.; Orthopedic,

1382 F.3d at 155-56.

2. Rooker-Feldman Doctrine

The overall genesis of Wright’s Amended Complaint appears to be

anchored in the injuries caused to Adolph by a state tax judgment,

which was issued about two years before this instant suit was filed. See

generally Doc. 11. Wright appears to be prodding the Court into

reviewing and even interfering with that judgment. Jd. To the extent

16

Wright seeks to overturn that state tax judgment through this federal

action, the Court lacks corresponding jurisdiction; a determination that

may be made sua sponte. Nesbit, 347 F.3d at 77.

Another limitation on federal jurisdiction, the Rooker-Feldman

doctrine, bars “cases brought by state-court losers complaining of

injuries caused by state-court judgments rendered before the district

court proceedings commenced and inviting district court review and

rejection of those judgments.” Great W. Mining & Min. Co. v. Fox

Rothschild LLP, 615 F.3d 159, 166 (8d Cir. 2010) (quotation omitted)

(quoting Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280,

284 (2005)); see also Rooker v. Fid. Tr. Co., 263 U.S. 413 (1923); D.C. Ct.

of Appeals v. Feldman, 460 U.S. 462 (1983). Put simply, “federal

district courts lack jurisdiction over suits that are essentially appeals

from state-court judgments.” Jd. at 165.

The Rooker-Feldman doctrine has four requirements: (1) the

federal plaintiff must lose in a state-court judicial proceeding; (2) the

state-court judgment or decree must be rendered before the federal

action was filed; (8) the federal plaintiff must invite the review and

rejection of the state-court judgment; and (4) the federal plaintiff must

1'7

complain of injuries caused by the state-court judgment. Merritis v.

Richards, 62 F.4th 764, 774 (8d Cir. 2023) (first citing Exxon, 544 U.S.

at 284; and then citing Great W., 615 F.3d at 166).

Even assuming that Wright could establish third-party standing

in lieu of Adolph, any attempt to overturn the underlying state court

tax judgment would run afoul of the Rooker-Feldman doctrine. That

judgment, entered against Adolph on June 16, 2021, see Wright, 2024

WL 5195484, at *1, fulfills the first prong. The second element, too, is

met, since a state court issued the judgment about two years before

Wright filed this suit on April 7, 2023. Doc. 1. And as Wright

seemingly complains about the injuries caused by the tax judgment and

seeks federal review and rejection of the state tax judgment through

this purported takings action, the remaining two requirements are

satisfied as well.

The conclusion that federal jurisdiction is divested under the

Rooker-Feldman doctrine in purported challenges to a state tax decision

has been recognized throughout the Third Circuit. See, e.g., Kepoint

Pres. Trust Org. ex rel Brown v. Fisher, 173 F. App’x 191, 194 (8d Cir.

2006) (per curiam) (affirming dismissal of claim that real estate

TR

transfer taxes violated Contracts Clause); Deeck v. Singer, 2024 WL

3889097, at *3 (E.D. Pa. 2024) (recognizing that “plaintiff impermissibly

challenging a state-court judgment may do so directly[| by expressly

asking a federal court to alter or overturn the judgment, or indirectly|]

by asking the federal court to afford relief that in some way nullifies or

invalidates the state-court judgment.”); Kuznicki v. Natl Church

Residences of Penn Hills, 2024 WL 129842 (W.D. Pa. 2024) (noting that

federal courts “cannot directly or indirectly review, negate, void or

provide relief that would invalidate” state court judgments); see also

Labossiere v. PHH Mortg. Corp., 2022 WL 1044965, at *2 (D.N.J. 2022)

(declaring that attacks against foreclosures may be dismissed

“lijrrespective of how... Plaintiffs label their claims or how they

attempt to disguise their opposition or... Complaint”); Silverberg v.

DuPont de Nemours Inc., 2024 WL 4566110, at *13 (E.D. Pa. 2024)

(collecting cases).

Therefore, even if standing were not an issue, any request by

Wright that the Court overturn the state court tax judgment against

Adolph warrants dismissal without prejudice, as the Court lacks

19

jurisdiction over this matter under the Rooker-Feldman doctrine. See

Fed. R. Civ. P. 12(h)(3); Orthopedic, 132 F.3d at 155-56.

B. Failure to Serve

The undersigned further recommends that David Keller and

Joseph Plummer be dismissed without prejudice for Wright’s failure to

serve process on those two defendants. On July 22, 2024, 124 days after

the filing of the Amended Complaint, Wright was ordered to serve the

pleading on all defendants by August 5, 2024, and provide proof of

service, accordingly. Doc. 17. Wright failed to comply with that order,

prompting the Court to issue another order to serve by September 3,

2024. Doc. 19. He subsequently provided proof of service for some

defendants, but not for Keller or Plummer.” Docs. 20-23. That failure

alone would warrant dismissal of those unserved defendants, without

prejudice, pursuant to Federal Rule of Civil Procedure 4(m).

The Court of Appeals “ha[s] warned plaintiffs of the severity of

Rule 4(m): ‘Treat the [90] days with the respect reserved for a time

7 On January 22, 2025, the Honorable William I. Arbuckle ordered Wright to

respond to one of the motions to dismiss, and directed the Clerk’s Office to mail a

copy of his order to, among others, Keller. Doc. 40. Subsequently, on July 8, 2025,

Keller lodged his own motion to dismiss. Doc. 53. But, to date, Wright has failed to

effect proper service on Keller, as indicated by the absence of a proof of service and

Keller’s motion to dismiss. Jd. at 1.

927

bomb.” Petrucelli v. Bohringer & Ratzinger, 46 F.3d 1298, 1307 (8d Cir.

1995) (quoting Braxton v. United States, 817 F.2d 238, 241 (3d Cir.

1987)). Rule 4(m) establishes that:

Ifa defendant is not served within 90 days after the complaint

is filed, the court—on motion or on its own after notice to the

plaintiff—must dismiss the action without prejudice against

that defendant or order that service be made within a

specified time. But if the plaintiff shows good cause for the

failure, the court must extend the time for service for an

appropriate period.

Fed. R. Civ. P. 4(m). Alternatively, if the plaintiff provides some

explanation for the delayed service but “good cause has not been shown,

... the court still may grant the extension in the sound exercise of its

discretion.” McCurdy v. Am. Bd. of Plastic Surgery, 157 F.3d 191, 196

(3d Cir. 1998) (emphasis added) (first citing MCI Telecomms. Corp. v.

Teleconcepts, Inc., 71 F.3d 1086, 1098 (8d Cir. 1995); and then citing

Petrucelli, 46 F.3d at 1305); see also Snyder v. Swanson, 371 F. App’x

285, 286 (3d Cir. 2010) (quoting Petrucelli, 46 F.3d at 1305) (If good

cause does not exist, the District Court has discretion . . . to dismiss the

complaint without prejudice... .”).

“Courts consider ‘three factors in determining the existence of

good cause under Rule 4(m): (1) reasonableness of plaintiff's efforts to

91

serve|;| (2) prejudice to the defendant by lack of timely service];] and (8)

whether plaintiff moved for an enlargement of time to serve.”

Beautyman v. Laurent, 829 F. App’x 581, 583 (8d Cir. 2020) (alterations

in original) (citations omitted). In this analysis, “the primary focus is

on the plaintiffs reasons for not complying with the time limit in the

first place.” MCI, 71 F.3d at 1097. Regarding the second consideration,

“absence of prejudice alone can never constitute good cause to excuse

late service.” Jd. Also, for the third factor, the plaintiffs failure to “ask

any court for an extension of time before the time allotted under the

Rules had lapsed” may be fatal to a motion for enlargement of time.

McCurdy, 157 F.3d at 196.

Even without good cause, Third Circuit courts “must consider

whether any other factors? warrant extending time even though good

cause was not shown.” Petrucelli, 46 F.3d at 1307. Of course, neither

8 Recognized examples include: (1) the timeliness of a motion for extension,

Beautyman, 829 F. App’x at 584; (2) the plaintiffs (a) pro se status, Cain v. Abraxas,

209 F. App’x 94, 96 (8d Cir. 2006), (b) familiarity with litigation, Snyder, 371 F.

App’x at 287, (c) response after receipt of a document regarding faulty service, id.,

or (d) repeated failure to provide a correct address, Meade v. Reynolds, 310 F. App’x

86, 89 (8d Cir. 2020); (8) the applicable statute of limitations, Abraxas, 209 F. App’x

at 96; (4) the lack of proof of service, [deen v. Straub, 613 F. App’x 117, 119 (8d Cir.

2015); (5) the “actual notice of the legal action,” Chiang v. U.S. SBA, 331 F. App’x

118, 116 (8d Cir. 2009); and (6) the potential “prejudice to the defendant.” Jd.

These factors may be balanced against one another. Id.

99

“lrleliance upon the Clerk’s advice,” Veal, 84 F. App’x at 256, nor

“lflailure to understand Rule 4(m) do[] not excuse [the plaintiffs] failure

to provide timely service.” Cain, 209 F. App’x at 96 (citation omitted).

Ultimately, the Court may not find a good cause without a rationale.

MCI, 71 F.3d at 1097-98 (citing Braxton, 817 F.2d at 242).

Here, Wright has failed to serve process on both Keller and

Plummer, for no apparent reason. Over two years have passed since

this action’s commencement, Doc. 1, and one year since the filing of the

Amended Complaint. Doc. 11. And, again, the Court exercised its

discretion twice by notifying Wright of his failure to serve. Docs. 17, 19;

see also McCurdy, 157 F.3d at 196. But Wright has yet to provide a

rationale for his failure to serve process on Keller and Plummer.

Indeed, Keller even avers that he contacted Wright and requested

service of the complaint, the docketed version of which is only partially

legible, to no avail. Doc. 53 at 1-2.

Absent sufficient explanation from Wright, the Court cannot find

good cause for granting another extension. See MCI, 71 F.3d at 1097—

98. That failure alone warrants dismissal of those unserved

defendants, without prejudice, pursuant to Federal Rule of Civil

93

Procedure 4(m). See Rouse v. City of Pittsburgh, 2018 WL 3209480, at

*16-17 (W.D. Pa. 2018) (dismissing six unserved defendants), report

and recommendation adopted, 2018 WL 2325731 (W.D. Pa. 2018); see

also Victorin v. Jones Lang LaSalle, 2021 WL 651200, at *5-6 (D.N.J.

2021) (“a court cannot ignore a defendant simply because that

defendant was not yet served.” (discussing diversity jurisdiction)).

IV. Recommendation

Accordingly, it is RECOMMENDED that:

1. The motion to dismiss Defendants Luzerne County Solicitor,

Harry Skene, Luzerne County Council, Tim McGinley, Lee

McDermott, Kendra Radle, David Pedri, Chris Perry, Sheila

Saidman, and Robert Schnee (Doc. 24) be GRANTED, and

those Defendants be DISMISSED WITHOUT

PREJUDICE;

2. The motions to dismiss Defendants Elite Revenue Solutions,

LLC; Luzerne County Tax Claim Bureau; and Samuel

Falcone (Docs. 44, 45) be GRANTED, and those Defendants

be DISMISSED WITHOUT PREJUDICE;

24

3. The motion to dismiss Defendant David Keller (Doc. 53) be

GRANTED, and that Defendant be DISMISSED

WITHOUT PREJUDICE;

4. Defendants Joan Hoggarth, James Haddock,? and Joseph

Plummer be DISMISSED WITHOUT PREJUDICE;

5. Wright be given 21 days to submit an amended complaint,

with the caveat that illegibility caused by cropping may be a

cause for dismissal;!° and

6. The Clerk’s Office be DIRECTED to TERMINATE all

Defendants in this case.

All 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. § 686 (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,

9 Hoggarth and Haddock are not named in any of the motions to dismiss. The

undersigned’s jurisdictional reasons for recommending dismissal, however, also

applies to those two individuals.

10 See, e.g., Moss v. United States, 329 F. App’x 335, 335-36 (8d Cir. 2009) (per

curiam) (affirming dismissal that was partly based on complaint’s illegibility);

Tucker v. Monroe, 314 F. App’x 433, 434-86 (3d Cir. 2008) (per curiam) (same).

95

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.

M.D. Pa. L.R. 72.3. The failure to file timely objections to the foregoing

Recommendation may constitute a waiver of any appellate rights. See

Nara v. Frank, 488 F.3d 187, 194 (8d Cir. 2007).

Date: August 25, 2025 S/ Phillip J. Caraballo

Phillip J. Caraballo

United States Magistrate Judge

°G