Filed: Nov. 23, 2015
Latest Update: Mar. 02, 2020
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 15-1330 _ HELENE ROBINSON, Appellant v. PNC BANK _ On Appeal from the United States District Court for the District of New Jersey (D. N.J. No. 2-14-cv-05676) District Judge: Honorable Stanley R. Chesler _ Submitted Pursuant to Third Circuit LAR 34.1(a) November 20, 2015 Before: CHAGARES, KRAUSE and GREENBERG, Circuit Judges (Filed: November 23, 2015) _ OPINION* _ PER CURIAM Helene Robinson appeals, pro se, from the Distr
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 15-1330 _ HELENE ROBINSON, Appellant v. PNC BANK _ On Appeal from the United States District Court for the District of New Jersey (D. N.J. No. 2-14-cv-05676) District Judge: Honorable Stanley R. Chesler _ Submitted Pursuant to Third Circuit LAR 34.1(a) November 20, 2015 Before: CHAGARES, KRAUSE and GREENBERG, Circuit Judges (Filed: November 23, 2015) _ OPINION* _ PER CURIAM Helene Robinson appeals, pro se, from the Distri..
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 15-1330
___________
HELENE ROBINSON,
Appellant
v.
PNC BANK
_______________________________________
On Appeal from the United States District Court
for the District of New Jersey
(D. N.J. No. 2-14-cv-05676)
District Judge: Honorable Stanley R. Chesler
_______________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
November 20, 2015
Before: CHAGARES, KRAUSE and GREENBERG, Circuit Judges
(Filed: November 23, 2015)
_________
OPINION*
_________
PER CURIAM
Helene Robinson appeals, pro se, from the District Court’s order denying her
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
application for an Order to Show Cause. For the reasons that follow, we will affirm.
Because we write primarily for the parties, who are familiar with the facts and
procedural history of this case, we set forth as brief a summary as possible here. As there
is an issue regarding the scope of this appeal, we must provide a somewhat detailed
recitation of the procedural history of two related civil actions filed by Robinson. The
cause of action underlying the appeal concerns allegations of fraudulent lending practices
in connection with Robinson’s purchase of an automobile from Linden Volkswagen
(“Linden VW”) on March 26, 2011. Linden VW assigned its sales contract with
Robinson to PNC Bank (“PNC”). In December 2013, Robinson brought an action
against Linden VW and PNC. See Robinson v. PNC Bank, et al., D.N.J. Civ. No. 13-cv-
07818. In that action, Robinson alleged that Linden VW: failed to disclose certain
financial terms of the Retail Installment Sales Contract (“RISC”) she had signed for the
purchased vehicle; had not signed the Retail Sales Order; and refused to rescind the
contract when requested to do so. See App. 18. PNC was presumably named in the
action because it was an assignee of the RISC.
Given that the sales contract contained a broad arbitration provision, Linden VW
moved to dismiss the complaint under Fed. R. Civ. P. 12(b)(6), and to compel arbitration
pursuant to the Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 2 - 16. In a Memorandum
Opinion and Order entered on April 30, 2014, the District Court granted the motion. The
court dismissed the complaint without prejudice as to Linden VW, and compelled the
2
parties to submit their dispute to arbitration in accordance with their agreement.
Robinson and PNC subsequently agreed to dismissal of the action as well, and to
arbitration of all claims and disputes between them in the arbitration of Robinson’s
claims against Linden VW before the Honorable Richard C. Camp, as arbitrator. The
District Court entered the Stipulation and Order of Dismissal on June 17, 2014. Under
the Dealer Agreement, PNC then tendered its defense to Linden VW, which agreed to
indemnify PNC and to represent its interests in the arbitration.
Unhappy with PNC’s demand on Linden VW, Robinson complained to Judge
Camp that Linden VW’s agreement to indemnify and defend PNC created an appearance
of impropriety. Judge Camp rejected Robinson’s contention that a conflict of interest
resulted from PNC tendering its defense to Linden VW, and scheduled arbitration for
September 12, 2014. Robinson failed to appear at the arbitration; instead, she submitted
a letter to Judge Camp asserting, inter alia, that there was collusion between Judge Camp
and Linden VW. See App. 44-45. Although Judge Camp originally dismissed the
arbitration because of Robinson’s failure to appear, he notified the parties on October 16,
2014, that he was not dismissing the arbitration, and he requested that the parties advise
him of their intent to pursue their claims. See App. 122. By letter dated October 30,
2014, PNC advised Judge Camp of its intent to proceed in arbitration with its
counterclaim against Robinson for her failure to make payments under the RISC. It does
not appear that Robinson responded to Judge Camp; rather, she filed a motion seeking to
reopen her civil action and to have Judge Camp removed as arbitrator with arbitration to
3
start anew.
In the meantime, Robinson filed a second action seeking to hold PNC liable for
having tendered its arbitration defense to Linden VW. See Robinson v. PNC Bank,
D.N.J. Civ. No. 14-cv-05676. Robinson also requested that the two actions be
consolidated. PNC sought to have the complaint dismissed pursuant to Fed. R. Civ. P.
12(b)(6). Robinson responded to PNC’s filing with, inter alia, a motion to amend her
complaint and a motion to have the two actions consolidated. She also filed a motion for
an order compelling PNC to appear in open court to show cause why a sanction of
official attorney misconduct should not be issued against it for “knowingly and
intentionally misrepresenting facts to the court [it] know[s] to be false.” See Mot. at 1
(D. Ct. Docket Entry # 15). In an order entered on January 8, 2015, the District Court
denied Robinson’s application for a show cause order after concluding that she failed to
demonstrate, as required by L. Civ. R. 65.1, that her request should proceed in an
expedited fashion. Given Robinson’s failure to demonstrate that emergency relief was
warranted, the court advised her that it would entertain an application made in accordance
with motion practice under the local rules. See App. 123. No such motion was filed.
In a Memorandum Opinion and Order entered on January 21, 2015, the District
Court granted PNC’s motion and dismissed the complaint. The District Court concluded
that, although Robinson cited numerous federal statutes, her complaint failed to state an
actionable violation of any of them. With respect to Robinson’s allegations relating to
the arbitration proceedings, the court determined that she failed to state a claim for relief
4
insofar as she had not stated a conflict of interest between any of the parties, nor did she
identify any ethical conflict arising out of PNC’s exercise of its contractual right to tender
its defense to Linden VW. The court also denied Robinson’s motion for leave to amend
her complaint on the ground of futility. In light of the foregoing, the District Court
denied the consolidation request – which was filed in both actions – as moot. In this
same order, the District Court addressed Robinson’s motion to reopen civil action No.
13-cv-07818 and to replace the arbitrator. The court noted that Robinson failed to
identify any inappropriate conduct or relationship involving Judge Camp, or any facts to
support her allegation of “extreme bias, prejudice and unfair practices.” The court further
noted that, to the extent Robinson “wishes to challenge any determination made in the
arbitration proceedings, such an argument would be appropriate once a motion to confirm
or deny the arbitration award is made.” See App. 5-6.
Robinson filed a notice of appeal on January 30, 2015. In her notice, Robinson
referenced only the caption and docket number for civil action No. 14-cv-5676, and only
the District Court’s order entered on January 8, 2015.1 In her Informal Brief, however,
1
The notice of appeal states in its entirety:
Notice is hereby given that Helene R. Robinson, Plaintiff pro-se, in the
above named case hereby appeal (sic) to the United States Court of Appeal
for the Third Circuit from an Application for the Issuance of an Order to
Show Cause, Docket Entry 15, Judge Stanley R. Chesler entered in this
action on 01-08-15.
App. 15.
5
Robinson states that she is appealing the District Court’s order entered on April 30, 2014,
compelling arbitration in No. 13-cv-07818, as well as the order entered by the District
Court in No. 14-cv-05676 on January 8, 2015, and the order entered in both actions on
January 21, 2015. As relief, Robinson asks the Court to “remand Complaint 13-7818
back to the lower Court for de novo review.” See Informal Br. at 21. PNC objects to
Robinson’s attempt to cast so wide a jurisdictional net with her brief.
“[I]t is well established that we have an independent duty to satisfy ourselves of
our appellate jurisdiction regardless of the parties’ positions,’” Papotto v. Hartford Life
& Accident Ins. Co., 731 F.3d 265, 269 (3d Cir. 2013) (quoting Kreider Dairy Farms,
Inc. v. Glickman,
190 F.3d 113, 118 (3d Cir. 1999)), and the scope of our review
concerning questions of our own jurisdiction is plenary. United States v. Pelullo,
178
F.3d 196, 200 (3d Cir.1999). We begin our analysis with Robinson’s notice of appeal.
Federal Rule of Appellate Procedure 3 requires that a valid notice of appeal specify the
party taking the appeal, designate the order being appealed, and name the court to which
the appeal is taken. See Fed. R. App. P. 3(c)(1)(A)-(C). To be certain, “the Supreme
Court has made clear that Rule 3’s requirements are to be construed liberally,” Witasick
v. Minn. Mut. Life Ins. Co., No. 14-1150,
2015 WL 5730009, at *4 (3d Cir. Oct. 1, 2015)
(citing Smith v. Barry,
502 U.S. 244, 248 (1992)), and this admonition has “special force
where pro se litigants are concerned.”
Id. at *4 n.6 (citing Powell v. Symons,
680 F.3d
301, 306 n.2 (3d Cir. 2012)). Nonetheless, as we have recently reiterated, “[t]his rule is
‘jurisdictional in nature’ and ‘[we] may not waive its jurisdictional requirements, even for
6
good cause.’” Id. at *4 (quoting Massie v. U.S. Dep’t of Hous. & Urban Dev.,
620 F.3d
340, 348 (3d Cir. 2010).
It is clear from her notice that Robinson is the party taking the appeal. Likewise,
there is no question that this Court is the destination of her appeal. We do not hesitate,
however, to conclude that Robinson’s filing woefully fails to provide notice – sufficient
or otherwise – of an intent to appeal any order in No. 13-cv-07818. As noted previously,
her notice of appeal does not reference the caption, docket number, or any order entered
in that action. Robinson’s two civil actions have not been consolidated, and she proved
herself capable of having a filing docketed in both actions when she sought to have the
District Court consider a request in both proceedings. See D. Ct. Docket Entry # 31 in
No. 13-cv-07818; D. Ct. Docket Entry # 9 in No. 14-cv-05676. Additionally, Linden
VW is not named on the notice nor was its counsel served with a copy of the notice of
appeal. Accordingly, we conclude that we do not have jurisdiction to review the District
Court’s Orders entered in No. 13-cv-07818 on April 30, 2014, and January 21, 2015.2
2
We note that we would be without jurisdiction to review these orders in any event.
With respect to the District Court’s order compelling arbitration, that decision is final
within the meaning of FAA, 9 U.S.C. § 16(a)(3), and we have appellate jurisdiction
pursuant to 28 U.S.C. § 1291 when a notice of appeal is timely filed. See Green Tree
Fin, Corp.-Alabama v. Randolph, 531 U.S. 79, 89 (2000) (holding that an order
compelling arbitration and dismissing all other claims is final and immediately
appealable); see also Blair v. Scott Specialty Gases,
283 F.3d 595, 602 (3d Cir. 2002)
(same even where the order dismissed the case without prejudice). Even assuming
arguendo that the District Court’s order compelling arbitration became final with the
entry of the Stipulation of Dismissal in Favor of Arbitration of Claims on June 13, 2014,
Robinson’s notice of appeal, filed on January 30, 2015, was filed well beyond the
mandatory and jurisdictional 30-day period. See Fed. R. App. P. 4(a)(1)(A); Bowles v.
7
We now turn our attention to the orders entered by the District Court on January 8,
2015 and January 21, 2015 in No. 14-cv-05676. As noted, Robinson specifically
referenced the District Court’s January 8th order in her notice of appeal; thus, her notice
is valid as to that order. We reject PNC’s contention that we do not have jurisdiction to
review that order because it is not final within the meaning of § 1291. “Under the
‘merger rule,’ prior interlocutory orders merge with the final judgment in a case, and the
interlocutory orders (to the extent that they affect the final judgment) may be reviewed on
appeal from the final order.” Koppers Co. v. Aetna Cas. & Sur. Co., 158 F.3d 170, 173
n.2 (3d Cir. 1998) (citing In re Westinghouse Secs. Litig.,
90 F.3d 696, 706 (3d Cir.
1996)). There is no dispute that the January 21st order is a final order as it relates to No.
14-cv-05676. See Nationwide Ins. Co. of Columbus, Ohio v. Patterson,
953 F.2d 44, 45
(3d Cir. 1991).
With respect to the order denying her Application for an Order to Show Cause
why the Court should not issue a sanction of official attorney misconduct, Robinson
simply asserts that the District Court “ignor[ed] the import of the Affidavit” she attached
to her application. See Informal Br. at 20. The District Court, however, specifically
Russell, 551 U.S. 205, 214 (2007). The denial of Robinson’s motion to reopen the
proceeding and replace the arbitrator, on the other hand, is arguably not a final order
within the meaning of § 1291. As the District Court noted, Robinson may challenge any
determination made in the arbitration proceeding – including any inappropriate conduct
or unfair practices on the part of the arbitrator – in a motion to confirm or deny the
arbitration award once an award is made. Robinson will then have an opportunity to
appeal any adverse decision rendered by the District Court.
8
noted in its order that it “reviewed the papers filed by [Robinson]” before concluding that
she had not demonstrated that her request should proceed in an expedited fashion. See
App. 123. Having reviewed the pertinent portion of the record, we cannot conclude that
the District Court committed any error in concluding that Robinson failed to demonstrate,
as required by L. Civ. R. 65.1, that emergency relief was warranted. If Robinson desired
to pursue her claims of attorney misconduct, she was simply required to do so in
accordance with the District Court’s motion practice under the local rules.
Robinson also seeks to challenge the District Court’s decision dismissing her
complaint in No. 14-cv-05676 pursuant to Fed. R. Civ. P. 12(b)(6), denying her leave to
amend the complaint, and denying her motion to consolidate as moot. However, we
cannot reach the merits of these issues as we do not have jurisdiction under 28 U.S.C. §
1331 to review the District Court’s order entered on January 21st. As we held some time
ago, “[i]f an appeal is taken only from a specified judgment, the court does not acquire
jurisdiction to review other judgments not specified or ‘fairly inferred’ by the Notice.”
Sulima v. Tobyhanna Army Depot, 602 F.3d 177, 184 (3d Cir. 2010) (citing Elfman
Motors, Inc. v. Chrysler Corp.,
567 F.2d 1252, 1254 (3d Cir. 1977)). Of course, given
the liberal construction we afford notices of appeal, we have also held that “we can
exercise jurisdiction over orders not specified in the Notice of Appeal if: ‘(1) there is a
connection between the specified and unspecified orders; (2) the intention to appeal the
unspecified order is apparent; and (3) the opposing party is not prejudiced and has a full
opportunity to brief the issues.’”
Id. (quoting Polonski v. Trump Taj Mahal Assocs., 137
9
F.3d 139, 144 (3d Cir. 1998)) (internal citation omitted).
We would be hard-pressed to conclude that these conditions are satisfied here.
There is little, if any, connection between the collateral-type order addressing Robinson’s
application for a show cause order regarding attorney misconduct and the District Court’s
subsequent order dismissing the action for failure to state a claim. Additionally, the
entirety of the text of Robinson’s notice of appeal is limited to the January 8th order;
thus, her intent to appeal the final order entered on January 21st is not apparent from the
face of that document. Moreover, although Robinson references the January 21st
decision in her Informal Brief and an appellate court may treat a filing styled as a brief as
a notice of appeal, her brief is not a timely filing under Fed. R. App. P. 4. See Smith, 502
U.S. at 248-49. Therefore, even considering the liberal application of Rule 3, we
conclude that we do not have jurisdiction to review the District Court’s order entered
January 21st, as Robinson did not file a proper notice of appeal with respect to this
decision.
Given the foregoing, we determine that the scope of the appeal is limited to the
order entered January 8, 2015, and will affirm District Court’s denial of Robinson’s
application for an Order to Show Cause.3
3
Appellee’s motion to file a supplemental appendix is granted.
10
