Filed: Mar. 20, 2007
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2007 Decisions States Court of Appeals for the Third Circuit 3-20-2007 Spencer v. Eristoff Precedential or Non-Precedential: Non-Precedential Docket No. 06-3970 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007 Recommended Citation "Spencer v. Eristoff " (2007). 2007 Decisions. Paper 1453. http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1453 This decision is brought to you for free and open access by the Opinions of th
Summary: Opinions of the United 2007 Decisions States Court of Appeals for the Third Circuit 3-20-2007 Spencer v. Eristoff Precedential or Non-Precedential: Non-Precedential Docket No. 06-3970 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007 Recommended Citation "Spencer v. Eristoff " (2007). 2007 Decisions. Paper 1453. http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1453 This decision is brought to you for free and open access by the Opinions of the..
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Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
3-20-2007
Spencer v. Eristoff
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-3970
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007
Recommended Citation
"Spencer v. Eristoff " (2007). 2007 Decisions. Paper 1453.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1453
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2007 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
DLD-141 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
________________
No. 06-3970
________________
DAVID F. SPENCER,
Appellant
v.
ANDREW S. ERISTOFF; M. HENDRICK, TAX COMPLIANCE REP.
________________
On Appeal From the United States District Court
For the Middle District of Pennsylvania
(D.C. Civ. No. 06-cv-00174)
District Judge: Honorable John E. Jones, III
________________
Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B)
March 1, 2007
Before: BARRY, AMBRO and FISHER, Circuit Judges
(Filed March 20, 2007)
________________
OPINION
________________
PER CURIAM
David F. Spencer, a resident of Tobyhanna, Pennsylvania, appeals from a district
court order granting appellees’ motion to dismiss his complaint. For the following
reasons, we will likewise dismiss Spencer’s appeal.1
On January 23, 2006, Spencer initiated this action by filing a complaint
challenging an income execution warrant issued to him in February 2004 by the New
York State Department of Taxation and Finance (“NYSDTF”). The warrant resulted in
garnishment of Spencer’s wages for failing to file New York state income tax returns
during the 1997, 1999, and 2000 tax years. The gravamen of Spencer’s claim, premised
upon the Uniform Commercial Code (“UCC”), was that the NYSDTF, in failing to
respond within 30 days to a December 2005 response letter sent to them by Spencer,2 had
perpetrated fraud and/or absolved Spencer of his aforementioned outstanding tax liability.
On June 12, 2006, appellees filed a motion to dismiss Spencer’s complaint for, inter alia,
failing to state a claim upon which relief could be granted. See Fed. R. Civ. P. 12(b)(6).
On August 11, 2006, the district court granted appellees’ motion to dismiss holding that
Spencer had: failed to properly effect service of process upon appellees; failed to properly
1
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. Because
Spencer has been granted in forma pauperis status on appeal, pursuant to 28 U.S.C. §
1915, we first review this appeal for possible dismissal pursuant to 28 U.S.C. §
1915(e)(2)(B).
2
In his complaint, Spencer alleged that appellees were
served a Uniform Commercial Code document via certified
mail . . . upon which [they] w[ere] given thirty (30) days to
respond. A lack of response by the Commissioner indicates
fault under UCC 1-201(16) exists, creating fraud through
material misrepresentation thus vitiating all forms, contracts,
agreements, etc., express or implied, from the beginning,
UCC 1-103.
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allege a federal question; failed to state a claim upon which relief could be granted; and
alleged misconduct by parties subject to immunity under the Eleventh Amendment.
We agree. Regardless of the underlying merits of Spencer’s complaint,
NYSDTF’s failure to respond to his response letter gives rise to no federal cause of
action. Spencer’s allegations are plainly confined to a set of alleged violations of the
UCC, an issue firmly within the purview of state law. Further, to the extent that
Spencer’s appeal concerns not the propriety of his filing, but the district court’s decision
to extend appellees’ time for filing a response to his complaint, such a decision was well
within the district court’s discretion. We decline the invitation to address it. Spencer’s
complaint failed to state a claim of a violation of federal law; thus, we find the district
court’s dismissal entirely appropriate.
In light of our preceding discussion, there was no need to provide Spencer an
opportunity to further amend his complaint because, under the facts as clarified by
Spencer in numerous filings in the district court and this court, any further amendment to
his complaint would have proven futile. See Grayson v. Mayview State Hosp.,
293 F.3d
103, 108 (3d Cir. 2002); see also Shane v. Fauver,
213 F.3d 113, 115-16 (3d. Cir. 2000).
For the foregoing reasons, we will dismiss this appeal under 28 U.S.C. §
1915(e)(2)(B).
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