Filed: Apr. 11, 2007
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2007 Decisions States Court of Appeals for the Third Circuit 4-11-2007 Lee v. Krieg Precedential or Non-Precedential: Non-Precedential Docket No. 06-4180 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007 Recommended Citation "Lee v. Krieg" (2007). 2007 Decisions. Paper 1318. http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1318 This decision is brought to you for free and open access by the Opinions of the United States
Summary: Opinions of the United 2007 Decisions States Court of Appeals for the Third Circuit 4-11-2007 Lee v. Krieg Precedential or Non-Precedential: Non-Precedential Docket No. 06-4180 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007 Recommended Citation "Lee v. Krieg" (2007). 2007 Decisions. Paper 1318. http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1318 This decision is brought to you for free and open access by the Opinions of the United States ..
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Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
4-11-2007
Lee v. Krieg
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-4180
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007
Recommended Citation
"Lee v. Krieg" (2007). 2007 Decisions. Paper 1318.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1318
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.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 06-4180
________________
DENNIS LEE,
Appellant
v.
ERIC KRIEG;
JOHN DOES 1-10;
JANE DOES 1-10;
JOHN DOE CORPORATIONS 1-10
____________________________________
On Appeal From the United States District Court
For the District of New Jersey
(Civil No. 06-cv-00278)
District Judge: Honorable Kathryn S. Hayden
_______________________________________
Submitted Under Third Circuit LAR 34.1(a)
March 21, 2007
Before: RENDELL, COWEN and VAN ANTWERPEN, Circuit Judges
(Filed: April 11, 2007)
_______________________
OPINION
_______________________
PER CURIAM
Dennis Lee, proceeding pro se, appeals an order of the United States District Court
for the District of New Jersey dismissing his complaint as improperly filed.
In January 2006, Lee filed a complaint against Krieg, alleging that Kreig and other
un-named persons intercepted private phone conferences between Lee and his business
associates, disrupted live demonstrations Lee sponsored at various locations, and used the
internet to make false accusations of fraud against Lee. He claims tortious interference
with economic relations and civil conspiracy. He seeks damages in the amount of one
million dollars and injunctive relief.
The matter was referred to a Magistrate Judge who issued an order directing Lee to
show cause why the matter should be allowed to proceed where the Complaint essentially
reiterated allegations contained in Lee v. Krieg, et al., Civ. A. No. 04-05521.1 Lee filed a
timely response. The Magistrate Judge recommended that the Complaint be dismissed as
an improper attempt to reopen Civil No. 04-05521. Lee objected. The District Court
overruled his objections, adopted the Magistrate Judge’s Report and dismissed the action
with prejudice and without costs. Lee timely appealed.
We have jurisdiction pursuant to 28 U.S.C. § 1291. We review for abuse of
discretion the District Court’s sua sponte dismissal of Lee’s complaint pursuant to its
inherent authority to control the docket. See Marshall v. Sielaff, 492 F.2d 917, 918 (3d
1
The 2004 action was dismissed on November 30, 2005, “without prejudice and
without costs, subject to the rights of the parties upon good cause shown within 60 days,
to reopen the action...” The order refers to a settlement that appears not to exist.
2
Cir. 1974).2
This may just be a case of an improvidently filed pleading. It appears that Lee was
trying to comply with the District Court order by filing his complaint within the sixty day
period provided in the order. Lee explained in his response to the show cause order that
Krieg’s continued misconduct prompted Lee to re-file or re-open the matter. After
conducting some research, Lee concluded, albeit erroneously, that he had to re-open the
case by instituting a new action within the sixty-day period set forth in the dismissal order
in 04-05521. He protested that he was not trying to avoid filing an application to reopen
in 04-05521 in order to get his case before a different judge because he fully expected that
the new case would be assigned to the same judge who presided over the 2004 case.
Although Lee admitted that he would probably file a recusal motion, he claimed that “my
re-filing is my attempt to reopen Civil No. 04-5521.”
Lee’s attempt to reopen the old case by filing a new complaint appears simply
misguided and inartful. The question is whether the most extreme sanction of a dismissal
with prejudice is warranted. Courts should be reluctant to deprive a plaintiff of the right
to have his claim adjudicated on the merits, and thus, it is necessary for the district court
2
The court did not indicate that it was acting under the authority of Rule 41(b). In
any event, the standard of review is the same for Rule 41(b) dismissals. See Emerson v.
Thiel College, 296 F.3d 184, 190 (3d Cir. 2002). We review essentially the same factors
with respect to the proper exercise of inherent authority, see Donnelly v. Johns-Manville
Sales Corp.,
677 F.2d 339, 342 (3d Cir. 1982), as we do in analyzing the propriety of a
Rule 41(b) dismissal, see Poulis v. State Farm Fire and Casualty Company,
747 F.2d 863,
868 (3d Cir. 1984).
3
to consider whether measures short of dismissal would better serve the interests of justice.
See Titus v. Mercedes Benz of North America, 695 F.2d 746, 749 (3d Cir. 1982).
There is nothing in this record indicating a history of dilatoriness on Lee’s part or
that Lee’s action was contumacious, willful, or done in bad faith. If, as the record
arguably suggests, Lee made a procedural mistake in an effort to comply with the court’s
prior order, it would seem appropriate to notify him of the mistake and dismiss the new
complaint without prejudice to his filing a motion to re-open in the 2004 case. Although
a court is not by any means required to do so, it may also decide in a case like Lee’s that
it is appropriate to deem the erroneously filed pleading as filed in the correct case as of
the date the new pleading was filed in district court. This approach permits the court to
close with dispatch the case that never should have been opened in the first place and it
also provides the pro se litigant an opportunity to be heard in the case in which the litigant
intended to be heard all along, with no prejudice to the opposing party.
We reiterate that the court has broad discretion in deciding whether to dismiss an
action with prejudice under Rule 41(b) or pursuant to its inherent authority to manage its
docket. In the absence of any consideration on the record by the District Court of
measures less drastic than dismissal in Lee’s case, however, we conclude that we cannot
affirm the District Court’s order dismissing the complaint with prejudice.
Accordingly, we will vacate the District Court’s judgment and remand for further
proceedings consistent with this Opinion. Lee’s motion to strike Krieg’s appellate brief is
denied.
4
