stating that pro se plaintiffs are responsible for having the summons and complaint timely served on defendants because, “[a]t the end of the day, they cannot flout procedural rules—they must abide by the same rules that apply to all other litigants”
How later courts described this case
- stating that pro se plaintiffs are responsible for having the summons and complaint timely served on defendants because, “[a]t the end of the day, they cannot flout procedural rules—they must abide by the same rules that apply to all other litigants”
- holding that pro se litigants must “allege sufficient facts in their complaints to support a claim”
- finding that notwithstanding a more liberal construction of a pro se litigant’s allegations, the pro se litigant must still “allege sufficient facts in their complaint[] to support a claim”
- explaining that “courts need not provide substantive legal advice to pro se litigants” and that “pro se litigants still must allege sufficient facts in their complaints to support a claim”
Written by the judges who cited it.
The opinion
PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 10-4710
_____________
KELLEY JOSEPH MALA,
Appellant
v.
CROWN BAY MARINA, INC.
____________
On Appeal from the District Court
of the Virgin Islands
District Court No. 3-06-cv-00120
District Judge: The Honorable Juan R. Sanchez
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
December 3, 2012
Before: SMITH, HARDIMAN, and ROTH, Circuit
Judges
(Filed: January 7, 2013)
1
Alan R. Feuerstein
Feuerstein & Smith
475 Delaware Avenue
Buffalo, NY 14202
Counsel for Appellant
W. Mark Wilczynski
Palm Passage C20-22
P.O. Box 1150
St. Thomas, VI 00804
Counsel for Appellee
________________
OPINION
________________
SMITH, Circuit Judge.
Kelley Mala sued Crown Bay Marina after his boat
exploded. The District Court conducted a bench trial
during which Mala represented himself and after which
the court rejected his negligence claims. Mala now
contends that the court should have provided him with
additional assistance because of his status as a pro se
litigant. He also contends that the court wrongfully
denied his request for a jury trial and improperly ruled on
2
a variety of post-trial motions. We reject these
contentions and we will affirm.
I
Mala is a citizen of the United States Virgin
Islands. On January 6, 2005, he went for a cruise in his
powerboat near St. Thomas, Virgin Islands. When his
boat ran low on gas, he entered Crown Bay Marina to
refuel. Mala tied the boat to one of Crown Bay‘s eight
fueling stations and began filling his tank with an
automatic gas pump. Before walking to the cash register
to buy oil, Mala asked a Crown Bay attendant to watch
his boat.
By the time Mala returned, the boat‘s tank was
overflowing and fuel was spilling into the boat and into
the water. The attendant manually shut off the pump and
acknowledged that the pump had been malfunctioning in
recent days. Mala began cleaning up the fuel, and at
some point, the attendant provided soap and water. Mala
eventually departed the marina, but as he did so, the
engine caught fire and exploded. Mala was thrown into
the water and was severely burned. His boat was
unsalvageable.
More than a year later, Mala sued Crown Bay in
3
the District Court of the Virgin Islands.1 Mala‘s pro se
complaint asserted two claims: first, that Crown Bay
negligently trained and supervised its attendant, and
second, that Crown Bay negligently maintained its gas
pump. The complaint also alleged that the District Court
had admiralty and diversity jurisdiction over the case,
and it requested a jury trial. At the time Mala filed the
complaint, he was imprisoned in Puerto Rico. Although
the record is silent on the reason for his imprisonment, it
is fair to say that he is a seasoned litigant—in fact, he has
filed at least twenty other pro se lawsuits.2 See
Appellee‘s Br. at 21–22.
Mala‘s original complaint named ―Crown Bay
Marina Inc.‖ as the sole defendant. But Mala soon
amended his complaint by adding other defendants—
including Crown Bay‘s dock attendant, Chubb Group
Insurance Company, Crown Bay‘s attorney, and ―Marine
Management Services Inc, [a] registered corporation
entity duly licensed to conduct business in the State of
Florida . . . , d/b/a Crown Bay Marina Inc, [ ] a corporate
1
Chief Judge Curtis Gomez was initially assigned
the case, but Judge Juan Sanchez took over in the middle
of 2010 and presided over the trial.
2
Mala requested a court-appointed attorney in this
case, but the District Court denied the request because his
history of filing frivolous lawsuits prevented him from
securing in forma pauperis status. See 28 U.S.C. § 1915.
4
entity duly licensed to conduct business in St. Thomas
Virgin Islands of the Unites States.‖ JA 55. The District
Court allowed Mala to amend his complaint a second
time by adding his wife as a plaintiff—though the court
dismissed her loss-of-consortium claim shortly thereafter.
Mala later attempted to amend his complaint a third time
by adding Texaco as a defendant. The District Court
rejected this attempt for failing to comply with Federal
Rule of Civil Procedure 15(a)(2) (requiring the other
side‘s consent or the court‘s leave).3
As the trial approached, two significant incidents
took place. First, the District Court decided on its own to
identify the parties to the case. It concluded that the only
parties were Mala and ―Marine Services Management
d/b/a Crown Bay Marina, Inc.‖ JA 132. It thereby
dismissed all other defendants that Mala had named in
his various pleadings.
Next, Crown Bay filed a motion to strike Mala‘s
jury demand. Crown Bay argued that plaintiffs generally
do not have a jury-trial right in admiralty cases—only
when the court also has diversity jurisdiction. And Crown
Bay asserted that the parties were not diverse in this case,
which the court itself had acknowledged in a previous
3
Because the District Court refused to add Texaco
as a defendant, see JA 94 n.2, we have omitted ―Texaco
Puerto Rico‖ from the case caption.
5
order. In response to this motion, the District Court ruled
that both Mala and Crown Bay were citizens of the
Virgin Islands. The court therefore struck Mala‘s jury
demand, but nevertheless opted to empanel an advisory
jury.
The trial began at the end of 2010—nearly four
and a half years after Mala filed his complaint. The delay
is partly attributable to the District Court‘s decision to
postpone the trial until after Mala‘s release from prison.
At the close of Mala‘s case-in-chief, Crown Bay renewed
a previous motion for summary judgment. The court
granted the motion on the negligent-supervision claim
but allowed the negligent-maintenance claim to go
forward. At the end of the trial, the advisory jury returned
a verdict of $460,000 for Mala—$400,000 for pain and
suffering and $60,000 in compensatory damages. It
concluded that Mala was 25 percent at fault and that
Crown Bay was 75 percent at fault. The District Court
ultimately rejected the verdict and entered judgment for
Crown Bay on both claims.
After his loss at trial, Mala filed a flurry of
motions, asking the court to vacate its judgment and hold
a new trial. These motions contained numerous
overlapping objections. A magistrate judge prepared
three Reports and Recommendations that summarized
Mala‘s claims and urged the District Court to reject all of
them. Judge Sanchez adopted these recommendations
6
and explained his reasoning in an eight-page opinion.
This appeal followed. Mala argues that the District
Court made three reversible errors. First, the court failed
to accommodate Mala as a pro se litigant. Second, it
improperly denied his request for a jury trial. Third, it
erroneously adopted the magistrate‘s recommendations.
We consider and reject these arguments in turn. 4
II
Mala first argues that the District Court did not
give appropriate consideration to his status as a pro se
litigant. Specifically, he claims that the District Court
should have provided him with a pro se manual—a
manual that is available to pro se litigants in other
districts in the Third Circuit and throughout the country.
We conclude that pro se litigants do not have a right to
general legal advice from judges, so the District Court
did not abuse its discretion by failing to provide a
manual.
4
The District Court had admiralty jurisdiction
under 28 U.S.C. § 1333(1). Mala argues that the court
also had diversity jurisdiction under 28 U.S.C. § 1332.
This argument determines the outcome of Mala‘s jury
claim, so we will discuss it in Part III. At all events, we
have jurisdiction under 28 U.S.C. § 1291.
7
According to Mala, ―[t]here is comparatively little
case law regarding the responsibility of courts to provide
information and assistance to the pro se party.‖
Appellant‘s Br. at 7. A more accurate statement is that
there is no case law requiring courts to provide general
legal advice to pro se parties. In a long line of cases, the
Supreme Court has repeatedly concluded that courts are
under no such obligation. See, e.g., McKaskle v. Wiggins,
465 U.S. 168, 183–184 (1984) (―A defendant does not
have a constitutional right to receive personal instruction
from the trial judge on courtroom procedure. Nor does
the Constitution require judges to take over chores for a
pro se defendant that would normally be attended to by
trained counsel as a matter of course.‖); McNeil v. United
States, 508 U.S. 106, 113 (1993); Faretta v. California,
422 U.S. 806, 834 n.46 (1975).
The Supreme Court revisited this line of cases
nearly a decade ago. In Pliler v. Ford, 542 U.S. 225
(2004), the Court rejected the idea that district courts
must provide a specific warning to pro se litigants in
certain habeas cases. It concluded that ―[d]istrict judges
have no obligation to act as counsel or paralegal to pro se
litigants.‖ Id. at 231. After all, a ―trial judge is under no
duty to provide personal instruction on courtroom
procedure or to perform any legal ‗chores‘ for the
defendant that counsel would normally carry out.‖ Id.
(quoting Martinez v. Court of Appeal of Cal., Fourth
Appellate Dist., 528 U.S. 152, 162 (2000)) (quotation
8
marks omitted). Because of this general rule, courts need
not, for example, inform pro se litigants of an impending
statute of limitation. See Outler v. United States, 485
F.3d 1273, 1282 n.4 (11th Cir. 2007) (―[N]o case has
ever held that a pro se litigant should be given actual
notice of a statute of limitations.‖).
The general rule, then, is that courts need not
provide substantive legal advice to pro se litigants. Aside
from the two exceptions discussed below, federal courts
treat pro se litigants the same as any other litigant. This
rule makes sense. Judges must be impartial, and they put
their impartiality at risk—or at least might appear to
become partial to one side—when they provide trial
assistance to a party. See Pliler, 542 U.S. at 231
(―Requiring district courts to advise a pro se litigant . . .
would undermine district judges‘ role as impartial
decisionmakers.‖); Jacobsen v. Filler, 790 F.2d 1362,
1364 (9th Cir. 1986); see also Julie M. Bradlow,
Comment, Procedural Due Process Rights of Pro Se
Civil Litigants, 55 U. Chi. L. Rev. 659, 671 (1988)
(―[E]xtending too much procedural leniency to a pro se
litigant risks undermining the impartial role of the judge
in the adversary system.‖). Moreover, this rule eliminates
the risk that judges will provide bad advice. See Pliler,
542 U.S. at 231–32 (noting that warnings and other legal
advice ―run the risk of being misleading themselves‖);
see also Robert Bacharach & Lyn Entzeroth, Judicial
Advocacy in Pro Se Litigation: A Return to Neutrality, 42
9
Ind. L. Rev. 19, 42 (2009) (―[G]iving legal advice is
prohibited by multiple canons of judicial conduct.‖).
To be sure, some cases have given greater leeway
to pro se litigants. These cases fit into two narrow
exceptions. First, we tend to be flexible when applying
procedural rules to pro se litigants, especially when
interpreting their pleadings. See, e.g., Higgs v. Att’y Gen.,
655 F.3d 333, 339 (3d Cir. 2011) (―The obligation to
liberally construe a pro se litigant‘s pleadings is well-
established.‖). This means that we are willing to apply
the relevant legal principle even when the complaint has
failed to name it. Dluhos v. Strasberg, 321 F.3d 365, 369
(3d Cir. 2003). And at least on one occasion, we have
refused to apply the doctrine of appellate waiver when
dealing with a pro se litigant. Tabron v. Grace, 6 F.3d
147, 153 n.2 (3d Cir. 1993). This tradition of leniency
descends from the Supreme Court‘s decades-old decision
in Haines v. Kerner, 404 U.S. 519 (1972). In Haines, the
Court instructed judges to hold pro se complaints ―to less
stringent standards than formal pleadings drafted by
lawyers.‖ Id. at 520; see Erickson v. Pardus, 551 U.S. 89,
94 (2007).
We are especially likely to be flexible when
dealing with imprisoned pro se litigants. Such litigants
often lack the resources and freedom necessary to
comply with the technical rules of modern litigation. See
Moore v. Florida, 703 F.2d 516, 520 (11th Cir. 1983)
10
(―Pro se prison inmates, with limited access to legal
materials, occupy a position significantly different from
that occupied by litigants represented by counsel‖). The
Supreme Court has ―insisted that the pleadings prepared
by prisoners who do not have access to counsel be
liberally construed and [has] held that some procedural
rules must give way because of the unique circumstance
of incarceration.‖ McNeil v. United States, 508 U.S. 106,
113 (1993) (citations omitted). Accordingly, the Supreme
Court has concluded that pro se prisoners successfully
file a notice of appeal in habeas cases when they deliver
the filings to prison authorities—not when the court
receives the filings, as is generally true. Houston v. Lack,
487 U.S. 266, 270–71 (1988) (―Such prisoners cannot
take the steps other litigants can take to monitor the
processing of their notices of appeal and to ensure that
the court clerk receives and stamps their notices of appeal
before the 30-day deadline.‖).
Yet there are limits to our procedural flexibility.
For example, pro se litigants still must allege sufficient
facts in their complaints to support a claim. See Riddle v.
Mondragon, 83 F.3d 1197, 1202 (10th Cir. 1996). And
they still must serve process on the correct defendants.
See Franklin v. Murphy, 745 F.2d 1221, 1234–35 (9th
Cir. 1984). At the end of the day, they cannot flout
procedural rules—they must abide by the same rules that
apply to all other litigants. See McNeil, 508 U.S. at 113
(―[W]e have never suggested that procedural rules in
11
ordinary civil litigation should be interpreted so as to
excuse mistakes by those who proceed without
counsel.‖); Kay v. Bemis, 500 F.3d 1214, 1218 (10th Cir.
2007).
The second exception to our general rule of
evenhandedness is likewise narrow. We have held that
district courts must provide notice to pro se prisoners
when converting a motion to dismiss into a motion for
summary judgment. See Renchenski v. Williams, 622
F.3d 315, 340 (3d Cir. 2010). In particular, courts must
tell pro se prisoners about the effects of not filing any
opposing affidavits. Id.; see also Somerville v. Hall, 2
F.3d 1563, 1564 (11th Cir. 1993); Neal v. Kelly, 963 F.2d
453, 457 (D.C. Cir. 1992); Klingele v. Eikenberry, 849
F.2d 409, 411 (9th Cir. 1988) (concluding that the rule
applies only to pro se prisoners). But see Williams v.
Browman, 981 F.2d 901, 903–04 (6th Cir. 1992) (holding
that such notice is unnecessary); Martin v. Harrison
Cnty. Jail, 975 F.2d 192, 193 (5th Cir. 1992) (same).
Similarly, the Supreme Court has required district
courts to provide notice to pro se litigants in habeas cases
before converting any motion into a motion to vacate
under 28 U.S.C. § 2255. See Castro v. United States, 540
U.S. 375, 383 (2003). The underlying principle is simple:
when a court acts on its own in a way that significantly
alters a pro se litigant‘s rights—for example, by
converting one type of motion into a different type of
12
motion—the court should inform the pro se party of the
legal consequences. But as the Supreme Court made clear
only a few months after Castro, notice is the exception.
Nonassistance is the rule. See Pliler, 542 U.S. at 231,
233–34.
That brings us back to Mala‘s claim. Mala argues
that the District Court should have provided him with a
pro se manual. Various district courts have created
manuals to help pro se litigants navigate the currents of
modern litigation. See, e.g., U.S. District Court for the
Eastern District of Pennsylvania, Clerk’s Office
Procedural Handbook (2012),
http://www.paed.uscourts.gov/documents/
handbook/handbook.pdf; U.S. District Court for the
Western District of Pennsylvania, Pro Se Package: A
Simple Guide to Filing a Civil Action (2009),
http://www.pawd.uscourts.gov/Documents/Forms/PROS
E_manual_2009.pdf; U.S. District Court for the District
of New Jersey, Procedural Guide for Pro Se Litigants
(2006), http://www.njd.uscourts.gov/rules/proselit-
guide.pdf. These manuals are generally available online
and in the clerk‘s office. They explain how to file a
complaint, serve process, conduct discovery, and so
forth. In addition, public-interest organizations have
supplemented these manuals by publishing their own
guides for pro se litigants. See, e.g., Columbia Human
Rights Law Review, A Jailhouse Lawyer’s Manual (9th
ed. 2011), http://www3.law.columbia.edu/ hrlr/jlm/toc/.
13
These manuals can be a valuable resource for pro
se litigants. They may help litigants assert and defend
their rights when no lawyer is available. And they can
reduce the administrative burden on court officials who
must grapple with inscrutable pro se filings. Because
these manuals do not provide case-specific advice and
because they are available to all litigants—not just to pro
se litigants—they do not impair judicial impartiality. See
Nina I. VanWormer, Note, Help at Your Fingertips: A
Twenty-First Century Response to the Pro Se
Phenomenon, 60 Vand. L. Rev. 983, 1018 (2007) (―By
providing pro se litigants with easy, understandable, and
reliable access to both procedural and substantive law,
court systems can uphold their mandate to impartially
administer justice to all, while at the same time
increasing the efficiency with which they can manage
their dockets.‖). Without a doubt, these manuals are
informative, and inexperienced litigants would do well to
seek them out.
That said, nothing requires district courts to
provide such manuals to pro se litigants. See Pliler, 542
U.S. at 231 (―District judges have no obligation to act as
counsel or paralegal to pro se litigants.‖). To put it
another way, pro se litigants do not have a right—
constitutional, statutory, or otherwise—to receive how-to
legal manuals from judges. See McKaskle, 465 U.S. at
183–184 (―[T]he Constitution [does not] require judges
to take over chores for a pro se defendant that would
14
normally be attended to by trained counsel as a matter of
course.‖). And Mala has less reason to complain than the
neophyte pro se litigant, having filed more than twenty
suits in the past. See Appellee‘s Br. at 21–23. His
experiences have made him well acquainted with the
courts. See Davidson v. Flynn, 32 F.3d 27, 31 (2d Cir.
1994) (refusing to be flexible when interpreting a
complaint because the plaintiff was ―an extremely
litigious inmate who [was] quite familiar with the legal
system and with pleading requirements‖); Cusamano v.
Sobek, 604 F. Supp. 2d 416, 445–46 (N.D.N.Y. 2009).
The District Court‘s failure to provide Mala with a pro se
litigation manual was not an abuse of discretion. 5
Mala also suggests that the District Court abused
its discretion by not considering his status as a prisoner
during the early stages of litigation. His problem,
5
We would reject Mala‘s claim even if the District
Court had an obligation to provide a pro se manual. For
one thing, Mala never indentified anything that he would
have done differently if he had access to such a manual.
Moreover, it is unclear why he needed a pro se manual
from the District Court of the Virgin Islands. He could
have received a manual from other district courts or from
public-interest organizations. These manuals are easy to
access through an internet search, which Mala could have
performed while doing his legal research at the local
library. Any error therefore would be harmless.
15
however, is that he has not identified anything in
particular that the court should have done differently. In
fact, the court was solicitous of Mala‘s needs as an
incarcerated litigant—delaying the trial until his release
from prison and allowing him to amend the complaint at
least once despite his noncompliance with Rule 15(a).
Contrary to Mala‘s suggestion, the court accommodated
his status as a prisoner.
III
Mala next argues that the District Court
improperly refused to conduct a jury trial. This claim
ultimately depends on whether the District Court had
diversity jurisdiction. The court concluded that it had
only admiralty jurisdiction, and Mala urges us to
conclude otherwise. We generally exercise plenary
review over jurisdictional questions, but factual findings
that ―underline a court‘s determination of diversity
jurisdiction . . . are subject to the clearly erroneous rule.‖
Frett-Smith v. Vanterpool, 511 F.3d 396, 399 (3d Cir.
2008) (citation and quotation marks omitted). Here, the
District Court found that both Mala and Crown Bay were
citizens of the Virgin Islands. These findings were not
clearly erroneous, and so we conclude that Mala did not
have a jury-trial right.
The Seventh Amendment creates a right to civil
jury trials in federal court: ―In Suits at common law . . .
the right of trial by jury shall be preserved.‖ U.S. Const.
16
amend. VII. Admiralty suits are not ―Suits at common
law,‖ which means that when a district court has only
admiralty jurisdiction under 28 U.S.C. § 1331(1), the
plaintiff does not have a jury-trial right. Complaint of
Consolidation Coal Co., 123 F.3d 126, 132 (3d Cir.
1997) (citing Waring v. Clarke, 46 U.S. (5 How.) 441,
458–60 (1847)). But the saving-to-suitors clause in
§ 1333(1) preserves state common-law remedies. U.S.
Express Lines Ltd. v. Higgins, 281 F.3d 383, 390 (3d Cir.
2002). This clause allows plaintiffs to pursue state claims
in admiralty cases as long as the district court also has
diversity jurisdiction. Id. In such cases, § 1333(1)
preserves whatever jury-trial right exists with respect to
the underlying state claims. Gorman v. Cerasia, 2 F.3d
519, 526 (3d Cir. 1993) (noting that the saving-to-suitors
clause saves ―common law remedies, including the right
to a jury trial‖); see also Ross v. Bernhard, 396 U.S. 531,
537–38 (1970).
Mala argues that the District Court had both
admiralty and diversity jurisdiction. As a preliminary
matter, the court certainly had admiralty jurisdiction. The
alleged tort occurred on navigable water and bore a
substantial connection to maritime activity. See Jerome
B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513
U.S. 527, 534 (1995) (explaining the two-part test for
admiralty jurisdiction under § 1333(1)).
The grounds for diversity jurisdiction are less
17
certain. District courts have jurisdiction under 28 U.S.C.
§ 1332 only if the parties are completely diverse.
Barefoot Architect, Inc. v. Bunge, 632 F.3d 822, 836 (3d
Cir. 2011). This means that no plaintiff may have the
same state or territorial citizenship as any defendant. Id.
The parties agree that Mala was a citizen of the Virgin
Islands. He was imprisoned in Puerto Rico when he filed
the suit, but his imprisonment is of no moment. Prisoners
presumptively retain their prior citizenship when the
gates close behind them. See Hall v. Curran, 599 F.3d
70, 72 (1st Cir. 2010); Smith v. Cummings, 445 F.3d
1254, 1260 (10th Cir. 2006); Sullivan v. Freeman, 944
F.2d 334, 337 (7th Cir. 1991). No one challenges that
presumption here.
Unfortunately for Mala, the District Court
concluded that Crown Bay also was a citizen of the
Virgin Islands. Mala rejects this conclusion, stating that
the sole defendant was Marina Management Services—a
Florida corporation that operated Crown Bay Marina as
one of its divisions. For its part, Crown Bay
acknowledges that Marina Management Services
managed the day-to-day operations at Crown Bay
Marina, but Crown Bay argues that the two were separate
legal entities. We recognize that the District Court could
have done more to clarify the relationship between these
18
two entities. 6 Even so, Mala‘s claim must fail.
Mala bears the burden of proving that the District
Court had diversity jurisdiction. McCann v. Newman
Irrevocable Trust, 458 F.3d 281, 286 (3d Cir. 2006)
6
A few months before trial, the District Court
decided to ―clarify the pre-trial status of [the] case.‖ JA
131. Because no one else had been served, the court
dismissed all defendants other than ―Marine Services
Management d/b/a Crown Bay Marina, Inc.‖ JA 132. The
acronym ―d/b/a‖ stands for ―doing business as‖ and
typically indicates that the second name (here, ―Crown
Bay Marina, Inc.‖) is the party‘s trade name, whereas the
first name (here, ―Marine Services Management,‖ which
seems to be a reference to Marina Management Services)
is the party‘s legal name. See, e.g., Tai-Si Kim v.
Kearney, 838 F. Supp. 2d 1077, 1090 (D. Nev. 2012).
This suggests that a Florida corporation was the sole
defendant.
On the other hand, during the pre-trial
proceedings, Crown Bay claimed to be a Virgin Islands
entity, separate from Marina Management Services, see
JA 122, and later provided testimony to support that
claim, see Trial 12/6 at 75–76. Also, the District Court
concluded that it lacked diversity jurisdiction. See JA 96.
n.3. This suggests that the sole defendant was a Virgin
Islands business and that Marina Management Services
was a separate entity.
19
(―The party asserting diversity jurisdiction bears the
burden of . . . proving diversity of citizenship by a
preponderance of the evidence.‖). Mala failed to meet
that burden because he did not offer evidence that Crown
Bay was anything other than a citizen of the Virgin
Islands. Mala contends that Crown Bay admitted to being
a citizen of Florida, but Crown Bay actually denied
Mala‘s allegation that Crown Bay Marina was a division
of ―Marine Management Services.‖ Compare JA 55 ¶ 9
(alleging that Crown Bay Marina was a ―corporate
entity‖ under ―Marine Management Services‖), with JA
61 ¶ 9 (admitting that ―Marine Management Services‖ is
a Florida corporation but denying everything else). 7
Absent evidence that the parties were diverse, we
are left with Mala‘s allegations. Allegations are
insufficient at trial. McCann, 458 F.3d at 286 (requiring a
showing of diversity by a preponderance of the
7
Mala also points out that during a pretrial
hearing, Crown Bay‘s attorney introduced himself as
―Mark Wilczynski on behalf of Marina Management
Services, Inc.‖ JA 144. But this statement does not
appear to be an admission that Crown Bay was the same
entity as Marina Management Services. Indeed, Crown
Bay‘s attorney might have introduced himself this way
simply because the District Court had previously
identified the defendant as ―Marine Services
Management d/b/a Crown Bay Marina, Inc.‖
20
evidence). And they are especially insufficient on appeal,
where we review the District Court‘s underlying factual
findings for clear error. Smith, 511 F.3d at 399. Under
this standard, we will not reverse unless ―we are left with
the definite and firm conviction‖ that Crown Bay was in
fact a citizen of Florida. Id. (quotation mark omitted).
Mala has not presented any credible evidence that Crown
Bay was a citizen of Florida—much less evidence that
would leave us with the requisite ―firm conviction.‖
Mala tries to cover up this evidentiary weakness by
again pointing to his pro se status. He argues that we
should construe his complaint liberally to find diversity.
But Mala‘s problem is not a pleading problem. It is an
evidentiary problem. Our traditional flexibility toward
pro se pleadings does not require us to indulge
evidentiary deficiencies. See Brooks v. Kyler, 204 F.3d
102, 108 n.7 (3d Cir. 2000) (indicating that pro se
litigants still must present at least affidavits to avoid
summary judgment). Accordingly, the parties were not
diverse and Mala does not have a jury-trial right. 8
8
At various times, Mala suggested that the District
Court also had supplemental jurisdiction. It is unclear
whether he was referring to supplemental jurisdiction
under 28 U.S.C. § 1367, or whether he was calling
diversity jurisdiction by the wrong name. Either way, the
argument fails. As noted above, the parties were not
21
Mala also claims that the District Court erred by
rejecting the advisory jury‘s verdict. Federal Rule of
Civil Procedure 39(c) states that ―[i]n an action not
triable of right by a jury, the court, on motion or on its
own . . . may try any issue with an advisory jury.‖
District courts are free to use advisory juries, even absent
the parties‘ consent. Compare Fed. R. Civ. P. 39(c)(2)
(requiring consent for a nonadvisory jury when the party
does not have a jury-trial right), with id. 39(c)(1) (not
requiring consent for an advisory jury); see also
Broadnax v. City of New Haven, 415 F.3d 265, 271 n.2
(2d Cir. 2005). District courts are also free to reject their
verdicts, as long as doing so is not independently
erroneous. Wilson v. Prasse, 463 F.2d 109, 116 (3d Cir.
1972) (―[F]indings by an advisory jury are not binding.‖).
As a result, the District Court did not err in this case by
empanelling an advisory jury or by rejecting its verdict.
diverse. And even if he was referring to supplemental
jurisdiction under § 1367, such jurisdiction exists only
when there is no independent basis for federal
jurisdiction. See 28 U.S.C. § 1367(a) (stating that
supplemental jurisdiction is limited to ―other claims‖
over which district courts do not have ―original
jurisdiction‖). Here, the District Court had admiralty
jurisdiction over all parts of Mala‘s claim, as both parties
acknowledge. The court did not need supplemental
jurisdiction.
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IV
Mala‘s final claim is that the District Court
erroneously ruled on a handful of post-trial motions.
After losing at trial, Mala asked the court to vacate the
judgment under Federal Rule of Civil Procedure 60(b)
and to grant a new trial under Rules 50(b) and 59. These
motions contained several overlapping arguments.9 A
magistrate judge recommended that the District Court
reject these motions, and the court adopted the
magistrate‘s recommendations. We conclude that the
court did not make a mistake in doing so.
In reviewing a district court‘s decision to adopt a
magistrate‘s recommendations, ―[w]e exercise plenary
review over the District Court‘s legal conclusions and
apply a clearly erroneous standard to its findings of fact.‖
O’Donald v. Johns, 402 F.3d 172, 173 n.1 (3d Cir. 2005)
(per curiam). Mala claims that ―the Court stubbornly
maintained that its rulings were correct and proper; no
real review took place of the facts of the case, especially
on the issue of jurisdiction allowing the Plaintiff a jury
trial, nor acknowledging that the Court‘s decision to
9
Among other things, Mala claimed that he should
have received a jury trial, that the District Court
improperly ignored evidence, that the court did not have
jurisdiction once Mala had filed a recusal motion, and
that Crown Bay had committed fraud on the court.
23
empanel an advisory jury during the pretrial conference
was unclear and confusing to the Plaintiff at best.‖
Appellant‘s Br. at 23.
Mala‘s claim has little substance. The magistrate
prepared three Reports and Recommendations that
discussed Mala‘s arguments and urged the District Court
to deny his motions. Judge Sanchez explained his reasons
for doing so in an eight-page opinion. Both judges were
meticulous and thorough. Mala has given us no reason to
accept his general argument that ―no real review took
place.‖
Beyond this general argument, Mala alleges two
specific shortcomings. First, he bemoans the District
Court‘s refusal to conduct a jury trial. As noted above,
this was not an error. Although the court could have been
clearer about Crown Bay‘s citizenship, Mala nevertheless
failed to meet his burden of proving diversity. Second,
Mala asserts that he failed to understand that the jury‘s
findings would be nonbinding. This was not the District
Court‘s fault. The court plainly stated that the jury would
be advisory. See JA 147 (―[CROWN BAY‘S
ATTORNEY]: And is that in fact the Court‘s position
that there will be an advisory jury? THE COURT: Yes.‖).
We therefore reject Mala‘s final claim.
***
Mala is a serial pro se litigant. In this case, he
24
convinced a jury of his peers to award him over $400,000
in damages. Unfortunately for Mala, the jury was
advisory, and the District Court rejected the verdict. We
conclude that the court did not err by using an advisory
jury or by rejecting its verdict. Nor did the court err by
adopting the magistrate‘s recommendations or by failing
to provide a pro se manual. For these reasons we will
affirm the District Court‘s judgment.
25