Villanova University School of Law: Digital Repository

USDC for the Western District of Pennsylvani

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
8-22-2025 
Profit Point Tax Technologies Inc v. Dpad Group LLP 
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Recommended Citation 
"Profit Point Tax Technologies Inc v. Dpad Group LLP" (2025). 2025 Decisions. 694. 
https://digitalcommons.law.villanova.edu/thirdcircuit_2025/694 
This August is brought to you for free and open access by the Opinions of the United States Court of Appeals for 
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         NOT PRECEDENTIAL 
 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
___________ 
 
No. 24-3107 
___________ 
 
PROFIT POINT TAX TECHNOLOGIES, INC. 
 
v. 
 
DPAD GROUP, LLP; JOHN MANNING; DANIEL STEELE 
 
v. 
 
PROFIT POINT TAX TECHNOLOGIES, INC.; PATRICK SWEET 
 
                Patrick Sweet, 
                       Appellant 
____________________________________ 
 
On Appeal from the United States District Court 
for the Western District of Pennsylvania 
(D.C. Civil Action No. 2:19-cv-00698) 
District Judge:  Honorable William S. Stickman IV 
____________________________________ 
 
Submitted Pursuant to Third Circuit LAR 34.1(a) 
August 21, 2025 
 
Before:  SHWARTZ, MONTGOMERY-REEVES, and SCIRICA, Circuit Judges 
 
(Opinion filed: August 22, 2025) 
___________ 
 
OPINION* 
___________ 
 
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 
constitute binding precedent. 
2 
 
PER CURIAM 
 Profit Point Tax Technologies, Inc. (“PPTT”), is a business that help companies 
calculate income tax incentives for federal income tax purposes.  John Manning and 
Daniel Steele are tax professionals who worked for PPTT as independent contractors 
before forming their own tax services company, the DPAD Group, LLP (“DPAD”).  In 
2019, PPTT, through counsel, sued Manning, Steele, and DPAD, raising, in the first 
amended complaint, breach of contract and tort claims based on allegations that the 
defendants used PPTT’s confidential information and other resources to solicit its clients 
and take its business.  The defendants filed countersuit, bringing claims against PPTT and 
its sole shareholder, Patrick Sweet, relating to allegedly unpaid fees on tax-services 
projects.1 
 In the several years of litigation that followed, some claims were dismissed, and 
many discovery disputes were resolved.  In one early motion, Manning, Steele, and 
DPAD sought a protective order related to discovery requests made by PPTT.  The 
Magistrate Judge to whom the motion had been referred granted in part and denied in part 
the motion.  In her ruling, she provided notice to the parties that they could appeal the 
decision to the District Judge (and warned them that a failure to appeal constitutes a 
waiver of any appellate rights).  Manning, Steele, and DPAD filed objections to appeal to 
the District Judge, but neither PPTT nor Sweet challenged the ruling, which the District 
 
1 All counterclaims were brought against both PPTT and Sweet except Count II, which 
was asserted against PPTT only.   
3 
 
Court later adopted.  A Special Master was later appointed to handle discovery dispute 
disputes.  Among other things, he recommended denying a motion that PPTT had filed to 
compel the continuation of Manning’s and Steele’s depositions.  PPTT did not object to 
the recommendation (and neither did Sweet), and the District Court adopted it.   
The parties filed cross-motions for summary judgment, which the District Court 
awarded to Manning, Steele, and DPAD on the claims in the first amended complaint.  
The District Court denied the motions for judgment related to the counterclaims, adopting 
a Magistrate Judge report and recommendation over PPTT’s and Sweet’s objections and 
stating that two of those claims would proceed to trial.2 3   
Additionally, PPTT and Sweet sought sanctions and judgment against the 
defendants for what they described as spoliation, interference with the litigation process, 
and failure to comply with court orders.  The District Court, adopting the Special 
Master’s report and recommendation over PPTT’s objections, denied Sweet and PPTT’s 
motion.   
 The parties then entered into what became protracted settlement discussions, 
memorializing terms in a November 2023 email but continuing to discuss how Manning 
and Steele would disavow participation in alleged whistleblower claims.  In June 2024, 
 
2 The District Court concluded that two other counterclaims were moot. 
 
3 The District Court entered a partial judgment regarding the rulings on the claims and 
counterclaims, see ECF No. 313, and PPTT filed an appeal that was dismissed for lack of 
jurisdiction.  See C.A. No. 23-1575, order entered June 5, 2024. 
4 
 
Manning, Steele, and DPAD filed a motion to enforce the settlement, as they understood 
it to be set forth in the terms in the email, and sought attorneys’ fees and costs.  PPTT and 
Sweet opposed the motion.  After holding a hearing, the District Court granted the motion 
to enforce the settlement and denied the request for fees and costs.     
Sweet filed pro se a notice of appeal.4  In his brief, he mainly challenges two 
orders.  He contends that the District Court erred when it adopted the Special Master’s 
report and denied his request for sanctions, including a judgment, based on what he 
believed to be violations in the discovery process.  He also argues that the District Court 
erred in enforcing the settlement agreement.   
We have jurisdiction pursuant to 28 U.S.C. § 1291.5  We turn first to the challenge 
to the order enforcing the settlement agreement.  In the District Court, the parties agreed 
that the November 2023 email memorialized the material terms of the settlement, see, 
e.g. ECF Nos. 369 at 2; 373 at 4 & Ex. A; 374; & 386 at 2, and they narrowed the issue 
 
4 He subsequently amended it to specify that he wished to challenge the denial of the 
motion for sanctions, the order granting summary judgment in favor of Manning, Steele, 
and DPAD on the claims in the first amended complaint, the order denying summary 
judgment in favor of him and PPTT on the counterclaims, the partial judgment order 
entered after the rulings on summary judgment, and the order granting the motion to 
enforce the settlement agreement.   
  
5 However, we do not review any issues that Sweet did not raise in his brief; his mention 
of other orders in his notice of appeal or amended notice of appeal is not sufficient to put 
them before us.  See M.S. ex rel. Hall v. Susquehanna Twp. Sch. Dist., 969 F.3d 120, 124 
n.2 (3d Cir. 2020) (holding that the appellant forfeited claims by failing to raise them in 
the opening brief).  
 
5 
 
down to whether Material Term No. 4, “Attestation by Manning and Steele related to 
whistleblower claims,” ECF No. 374, required affidavits from Manning and Steele, see 
ECF No. 384 at 2, & 386 at 3-4.6  Accordingly, the parties presented, and the District 
Court answered, a legal question about how their agreement should be constructed.  
Accordingly, our review of that ruling is plenary.  See Coltec Indus., Inc. v. Hobgood, 
280 F.3d 262, 269 (3d Cir. 2002).   
Upon review, we agree with the District Court’s analysis and its decision to 
enforce the settlement because the declarations that Manning and Steele provided in this 
case served as the required “attestations” under Material Term 4.7  More specifically, 
with their supplemental brief regarding enforcement of the settlement, Manning and 
Steele each submitted a declaration signed under penalty of perjury and pursuant to 28 
 
6 In a reply brief, PPTT and Sweet backtracked, calling Material Term 4 “an 
undetermined matter,” and also argued that the declarations did not address “the 
disclosure of confidential information for the purposes of pursuing a whistleblower 
claim” or include the content that they agreed to.  ECF No. 397 at 2.  The District Court, 
looking at Material Term 4, which, like the rest of the terms, had been drafted by PPTT 
and Sweet’s counsel, saw no mention of the disclosure of confidential information, so it 
focused “only on how the actual terms of Material Term No. 4 may be satisfied.”  ECF 
No. 398 at 5.  In light of the parties’ repeated earlier reports to the District Court that they 
had reached a settlement and their agreement (before Manning and Steele submitted their 
declarations) that the November email memorialized its material terms (one of which 
they requested the District Court to interpret), we will do the same.   
  
7 We do not address Sweet’s argument that the settlement cannot be enforced against him 
as an individual because the November 2023 email did not identify him as a party to it.  
He forfeited that argument by not presenting it to the District Court.   See Simko v. U.S. 
Steel Corp., 992 F.3d 198, 205 (3d Cir. 2021) (“[A]rguments raised for the first time on 
appeal are not properly preserved for appellate review.”). 
  
6 
 
U.S.C. § 1746 disavowing the filing of any whistleblower claim, past, present, or future, 
related to any PPTT client or prospective client and any awareness of any such filing.  
See ECF Nos. 384-1 & 384-2.   
Such documents prepared pursuant to § 1746 are typically considered equivalents 
to affidavits in federal court proceedings.  See § 1746; Nissho-Iwai Am. Corp. v. Kline, 
845 F.2d 1300, 1306 (5th Cir. 1988) (explaining that unsworn declarations may substitute 
for an affidavit under §1746 when the statement is made under penalty of perjury and 
verified as true and correct).  And the declarations satisfy the ordinary meaning of 
“attestation,” which was not defined by the parties in their agreement.  See generally 
Sanford Inv. Co. v. Ahlstrom Mach. Holdings, Inc., 198 F.3d 415, 421, 422 (3d Cir. 
1999) (describing how a court interprets a contract); Lamb v. CVS Pharmacy LLC, 704 
F. Supp. 3d 606, 615 (E.D. Pa. 2023) (same); see also ATTEST, Black’s Law Dictionary 
(12th ed. 2024) (listing “attestation” as a derivative of “attest,” which means “[t]o affirm 
to be true or genuine; to authenticate by signing as a witness”);8 Attestation, Merriam-
Webster Dictionary (11th ed. 2023); Attestation, Oxford English Dictionary (3d ed. 
 
8 We note that not everyone makes the distinction that Sweet does between a sworn 
declaration and an affidavit.  See AFFIDAVIT, Black’s Law Dictionary (12th ed. 2024) 
(defining affidavit as “[a] voluntary declaration of facts written down and sworn to by a 
declarant, usu. before an officer authorized to administer oaths.” (emphasis added). 
 
7 
 
2024).  For these reasons, we agree with the District Court’s decision to enforce the 
settlement.9 
 Finally, we consider the District Court’s order denying Smith’s motion for 
sanctions, including a judgment, for alleged discovery violations.  Because Sweet did not 
raise an objection to the Special Master’s recommendation on this motion, we review the 
 
9 We have considered Sweet’s argument that the District Court would have reached a 
different result had two earlier orders not inappropriately limited discovery.  But that 
does not change the analysis of the terms of the agreement the parties reached.  If the 
arguments in his brief are construed liberally, Sweet can also be understood as assigning 
error to the Magistrate Judge’s ruling on Manning, Steele, and DPAD’s motion for a 
protective order related to discovery requests made by PPTT, and the District Court’s 
adoption of the Special Master’s ruling on PPTT’s motion to compel the continuation of 
Manning’s and Steele’s depositions.  There is a question whether a challenge to these 
rulings can be brought by Sweet, who was neither a signatory to either motion nor the 
party against whom the District Court ruled.  See IPSCO Steel (Ala.), Inc. v. Blaine 
Constr. Corp., 371 F.3d 150, 155 (3d Cir. 2004) (“Ordinarily, only a party aggrieved by a 
judgment or order of a district court may exercise the statutory right to appeal 
therefrom.”); cf. Kauffman v. Dreyfus Fund, Inc., 434 F.2d 727, 732 (3d Cir. 1970) (“A 
stockholder of a corporation does not acquire standing to maintain an action in his own 
right, as a shareholder, when the alleged injury is inflicted upon the corporation and the 
only injury to the shareholder is the indirect harm which consists in the diminution in 
value of his corporate shares resulting from the impairment of corporate assets.”).  To the 
extent that Sweet has standing based on his claim of harm from the orders, our review is 
only for plain error because he raised no objection to those orders in the District Court.  
See E.E.O.C. v. City of Long Branch, 866 F.3d 93, 100 (3d Cir. 2017).  Plain error 
review is discretionary review used very sparingly in the civil context, and we do not 
discern any serious and flagrant error that requires correction in this case.  See Fashauer 
v. N.J. Transit Rail Operations, Inc., 57 F.3d 1269, 1289 (3d Cir. 1995). 
 
8 
 
District Court’s ruling for plain error.10  See E.E.O.C., 866 F.3d at 100.  Upon review, we 
discern none.11   
 For these reasons, we will affirm the District Court’s judgment.   
 
 
 
10 Because the Special Master used “PPTT” as shorthand for PPTT and Sweet in relation 
to the adjudication of this motion, we considered whether PPTT’s use of the same term in 
its objections included Sweet in them.  However, a comparison of PPTT and Sweet’s 
joint filing of the motion with the objections filed by PPTT in response to the Special 
Master’s recommendation reveals that Sweet was not a party to the objections.  And 
Sweet cannot pursue this line of argument (or anything else in this appeal) on behalf of 
PPTT.  See Simbraw, Inc. v. United States, 367 F.2d 373, 373-74 (3d Cir. 1966) (per 
curiam).  Additionally, we also do not consider the order as it relates to any allegations 
about other discovery-related misconduct because Sweet does not discuss anything but 
his ESI-related spoliation arguments in briefing his challenge to the order.  See M.S. ex 
rel. Hall, 969 F.3d at 124 n.2. 
 
11 Sweet argued that judgment should be entered in his favor and against Manning, 
Steele, and DPAD because of their alleged spoliation of electronically stored information 
(ESI).  The District Court, adopting the Special Master’s recommendation to deny the 
motion, acknowledged that Sweet referred to documents that he expected would be 
produced and which he regarded as missing.  However, the District Court concluded that 
those references, as well as the descriptions from a forensic review, bordered on 
speculation and did not establish that ESI had been lost.  Sweet maintains that the District 
Court erred because Steele had disposed of a hard drive in 2018 that he had used to store 
client files.  However, although Sweet could show, through Steele’s representations that 
he had a hard drive in addition to storing documents and emails on a server, see, e.g., 
ECF No. 279 at 3, the District Court did not plainly err in agreeing with the Special 
Master that, among other things, Sweet did not show what ESI was missing or that ESI 
was irretrievably lost when Steele disposed of a hard drive in 2018.   


Profit Point Tax Technologies Inc v. Dpad Group LLP

USDC for the Eastern District of Pennsylvani

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
8-27-2025 
In re: NFL Players Concussion Injury Litigation 
Follow this and additional works at: https://digitalcommons.law.villanova.edu/thirdcircuit_2025 
Recommended Citation 
"In re: NFL Players Concussion Injury Litigation" (2025). 2025 Decisions. 715. 
https://digitalcommons.law.villanova.edu/thirdcircuit_2025/715 
This August 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 Charles Widger School of Law Digital Repository. It has been accepted for 
inclusion in 2025 Decisions by an authorized administrator of Villanova University Charles Widger School of Law 
Digital Repository. For more information, please contact reference@law.villanova.edu. 
          NOT PRECEDENTIAL 
 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT  
_____________ 
 
No. 24-2839 
_____________ 
 
IN RE: NATIONAL FOOTBALL LEAGUE PLAYERS  
CONCUSSION INJURY LITIGATION  
 
Goldberg, Persky & White, P.C., 
Appellant 
_____________ 
 
 
On Appeal from the United States District Court 
for the Eastern District of Pennsylvania 
(D.C. No. 2:12-md-02323) 
District Judge: Honorable Anita B. Brody 
 
_____________ 
 
Submitted Pursuant to Third Circuit L.A.R. 34.1(a) 
on July 7, 2025 
 
Before: RESTREPO, BIBAS, and CHUNG, Circuit Judges 
 
(Filed: August 27, 2025) 
_________ 
 
OPINION* 
_________ 
 
 
 
*  This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does 
not constitute binding precedent. 
 
2 
RESTREPO, Circuit Judge 
A law firm filed a charging lien asserting it was entitled to fees for its efforts in 
representing a retired player in the NFL concussion injury litigation.  Applying Pennsyl-
vania lien law, the court-appointed special master recommended the firm receive only its 
reasonably incurred costs but no slice of the fee.  The District Court adopted the recom-
mendation, and because it did not abuse its discretion in doing so, we will affirm.   
I. 
In 2011, a retired NFL player (Player) retained Goldberg, Persky & White, P.C. 
(Goldberg) to represent him in his suit against the NFL for damages connected to head 
injuries from his professional playing career.  All concussion-related lawsuits against the 
NFL were consolidated in a multidistrict litigation (MDL) in the Eastern District of Penn-
sylvania.  See In re Nat'l Football League Players Concussion Inj. Litig., 821 F.3d 410, 
421 (3d Cir. 2016).  After years of negotiations, the cases settled for nearly $1 billion.  Id. 
at 447.   
The administration of this settlement is complex, so most players individually re-
tain counsel to assist with obtaining an award.  Goldberg registered Player to receive an 
award in 2017, but his initial neurological tests did not reveal a qualifying impairment.  
In March 2022, the District Court approved an agreement eliminating race-based norming 
in the settlement program and establishing a new scoring method for the neurological 
tests.  Under this agreement, Player qualified for expanded testing and could have his ini-
tial neurological tests rescored under the new method.  Goldberg scheduled an appoint-
ment for Player, but after the expanded testing, he again failed to qualify for an award. 
 
3 
By March 2023, Player grew frustrated with Goldberg and felt “abandoned” and 
“neglected.”  In re Nat'l Football League Players Concussion Inj. Litig., No. 2:12-md-
02323-AB, 2024 WL 2012241, at *4 (E.D. Pa. Apr. 29, 2024) [hereinafter R&R], report 
and recommendation adopted, No. 2:12-md-02323-AB, 2024 WL 4281447 (E.D. Pa. 
Sept. 5, 2024).  He fired Goldberg and hired J.R. Wyatt Law (Wyatt), one of the law 
firms that spearheaded the 2022 agreement that changed the testing and scoring protocol.  
The switch proved to be a gamechanger as Wyatt zipped into action.  The law firm had 
Player’s 2017 neurological results rescored under the new method.  Those updated scores 
revealed a qualifying impairment, so Wyatt promptly submitted a claim on Player’s be-
half.  Within a month of the rescoring, the claims administrator approved a $196,101 
award for Player.  Wyatt is set to receive about $43,000 in legal fees for its work in secur-
ing the award.  R&R at *1.   
Days after its firing, Goldberg filed a charging lien, also known as an attorney 
lien, against any future award to Player based on the efforts it provided from October 
2011 to March 2023.  As described by Goldberg, those efforts amounted to 55.7 hours of 
work over twelve years and just over $3,000 in costs incurred.  Most of the listed time 
(29.3 hours) is undated, and Goldberg’s descriptions make much of it appear to be pre-
settlement.  Just over five hours reflect work on this lien, and an unknown number of 
hours were spent on “poaching issues.”  R&R at *3 n.12.  
Anticipating fights over fees related to the settlement program, the District Court 
early on adopted a set of rules and referred to a magistrate judge all fee petitions filed by 
individually retained counsel.  See In re Nat’l Football League Players’ Concussion Inj. 
 
4 
Litig., 826 F.App’x 136, 138 (3d Cir. 2020).  Two years ago, that magistrate judge re-
tired, and the District Court appointed a special master to take his place.  The special 
master authored a new set of rules, which the District Court approved.  In this dispute, the 
special master applied a different approach from the one applied by the magistrate judge 
to similar disputes.  Under this new approach, he recommended the District Court apply 
Pennsylvania charging lien law and find that Wyatt should receive the full contingency 
fee, and that Goldberg should receive only its reasonably incurred costs.1  The District 
Court issued an order adopting that recommendation while noting that other circum-
stances might still justify dividing the fee.  Goldberg appeals that order.  We review the 
order adopting the recommendation for abuse of discretion.  See In re NFL Players’ Con-
cussion Inj. Litig., 962 F.3d 94, 101 (3d Cir. 2020). 
II.2 
Goldberg objects to the special master’s new approach to lien disputes and his ap-
plication of that approach here.  Because both are sensible and legally sound, we hold 
that the District Court did not abuse its discretion in adopting the recommendation.  
A. The special master’s new approach to charging lien disputes.  
A district court may assess the reasonableness of contingency fees in class action 
lawsuits and MDLs.  See Dunn v. H.K. Porter Co., 602 F.2d 1105, 1114 (3d Cir. 1979).  
 
1  If the District Court rejected that recommendation because it preferred the prior ap-
proach to lien adjudication, the special master recommended the following fee split: 85 
percent to Wyatt and 15 percent to Goldberg.   
 
2 The District Court had jurisdiction under 28 U.S.C. § 1332, and we have jurisdiction 
under 28 U.S.C. § 1291. 
 
5 
In this MDL, the District Court capped the contingency fees earned by individually re-
tained counsel like Goldberg and Wyatt at 22 percent.  In re Nat'l Football League Play-
ers' Concussion Inj. Litig., No. 2:12-MD-02323-AB, 2018 WL 1658808, at *1 (E.D. Pa. 
Apr. 5, 2018).  In doing so, it applied the so-called McKenzie framework for analyzing 
the reasonableness of contingency fees.  The McKenzie framework calls for considera-
tion, among other things, of the “circumstances existing at the time the arrangement is en-
tered into, . . . the quality of the work performed, the results obtained, and whether the at-
torney’s efforts substantially contributed to the result.”  McKenzie Constr., Inc. v. 
Maynard, 823 F.2d 43, 45 (3d Cir. 1987).  Following the District Court’s lead, the magis-
trate judge then applied the McKenzie framework to all disputes relating to the contin-
gency fees—including twenty-six lien disputes between current and former individually 
retained attorneys over dividing the contingency fee.   
In his recommendation, the special master departed from this approach.  After ask-
ing for supplemental briefing from the parties on what substantive law should apply, he 
determined that the more legally sound approach was to apply state substantive law to 
disputes turning on the recognition of charging liens—that is, equitable claims by former 
attorneys who no longer represented a player when he received an award.  So in resolving 
the Goldberg’s charging lien claim, he applied state substantive law, rather than the fed-
eral McKenzie standard: 
Goldberg had a contingency fee contract with the Player.  That 
contract creates no post-termination payment rights.  So, 
Goldberg’s entitlement to be paid now must rest on an unjust 
enrichment cause of action, or a statute which would (in some 
 
6 
states) create an equivalent charging lien.  Whether there’s 
merit to such an equitable claim is quintessentially a question 
of state law.  Goldberg admits as much in its briefing when it 
states that it seeks to vindicate a ‘quantum meruit’ right.   
R&R at *10.  This approach is legally sound because, as the special master noted, there is 
“no free-floating federal right to a charging lien.”  Id. at *11.  If Goldberg is entitled to a 
portion of Player’s award, the special master concluded that “state law must be at [the] 
root” of its equitable claim.  Id.  We see no issue with the District Court exercising its 
wise discretion to approve of this approach.  
B. The law-of-the-case doctrine does not bar the District Court from adopting 
the new approach because each lien dispute is a distinct action. 
Goldberg questions this departure, contending the special master erred in not ap-
plying the McKenzie-based framework.  Invoking the law-of-the-case doctrine, Goldberg 
argues the magistrate judge’s use of the McKenzie framework in the previous charging 
lien disputes should have precedential effect within the settlement program.  And if the 
special master had applied the McKenzie framework, Goldberg contends it would be enti-
tled to some part of Wyatt’s contingency fee. 
But the law-of-the-case doctrine forecloses only “reconsideration of legal issues 
already decided in earlier stages of a case.”  Home Depot USA, Inc. v. Lafarge N. Am., 
Inc., 59 F.4th 55, 61 (3d Cir. 2023) (internal quotations omitted).  And it applies only in 
“the same case” and only to issues already “expressly” or “necessarily resolved” in that 
case.  Id. (internal quotations omitted).  The doctrine “cannot be applied across distinct 
actions in [a] multidistrict proceeding.”  Id.  Simply put, each lien dispute arising from 
this MDL settlement is a distinct action, so the law-of-the-case doctrine does not apply.   
 
7 
C. Goldberg failed to show the outcome would be any different under New York 
law. 
Goldberg next contends—in a single paragraph of its brief—that the special mas-
ter erred in applying Pennsylvania law and should have applied New York law instead.  
Here again, the special master’s reasoning is sound, and it was within the District Court’s 
discretion to adopt it.  If the parties dispute the substantive law that should apply to a 
state-law claim, federal courts must apply the conflict of law rules of the forum state to 
determine which state’s substantive law should govern.  Chin v. Chrysler LLC, 538 F.3d 
272, 278 (3d Cir. 2008) (citing Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 
(1941)).  We have held that the Pennsylvania Supreme Court would apply the principles 
of Griffith v. United Air Lines Inc., 203 A.2d 796 (Pa. 1964), to conflict of laws questions 
in contract cases.  See Hammersmith v. TIG Ins. Co., 480 F.3d 220, 228 (3d Cir. 2007).  
The first step of the Griffith analysis is to determine whether there is a true conflict be-
tween the laws of each state that might apply.  Id. at 229.  Without an actual conflict, no 
further choice-of-law analysis is needed, and the court applies the law of the forum state.  
See id.   
In its briefs before the special master, Goldberg agreed that under a Griffith analy-
sis, Pennsylvania law would apply.  Yet it also suggested that New York law should ap-
ply per a clause in the settlement agreement.  Because Goldberg neither explained why 
the clause applied to this dispute nor identified an actual conflict between Pennsylvania 
and New York law, the special master applied Pennsylvania lien law.  On appeal, Gold-
berg abandons its concession that Pennsylvania law applies under a Griffith analysis and 
 
8 
makes only a cursory argument that the settlement’s choice-of-law clause governs (pre-
sumably, despite Griffith).  But Goldberg again provides no factual or legal support, argu-
ing in conclusory fashion only that this dispute “aris[es] under” the agreement “which re-
quires adherence to New York law.”  Appellant’s Br. at 14.  Nor does it describe New 
York lien law or explain how applying it would change the outcome.   
The special master declined to find a conflict because Goldberg failed to plausibly 
show one existed or that it would make a difference.  The District Court adopted that rec-
ommendation as a proper exercise of its equitable authority to implement the settlement 
agreement.  Goldberg’s one-paragraph ipse dixit before this Court fails to persuade us 
that the District Court relied on an errant conclusion in applying Pennsylvania substantive 
law. 
D. The District Court did not abuse its discretion in adopting the special mas-
ter’s recommendation, which reasonably applied Pennsylvania lien law.  
Goldberg’s final argument is that the special master failed to properly apply Penn-
sylvania lien law to the facts before him.  As the special master stated, before an equita-
ble charging lien is recognized and applied in Pennsylvania, prior counsel must satisfy 
the five-part threshold inquiry set out in Recht v. Urban Redevelopment Authority of the 
City of Clairton, 168 A.2d 134 (Pa. 1961), by establishing: 
(1) that there is a fund in court or otherwise applicable for 
distribution on equitable principles, (2) that the services of the 
attorney operated substantially or primarily to secure the fund 
out of which he seeks to be paid, (3) that it was agreed that 
counsel look to the fund rather than the client for his 
compensation, (4) that the lien claimed is limited to costs, fees 
or other disbursements incurred in the litigation by which the 
fund was raised and (5) that there are equitable considerations 
 
9 
which necessitate the recognition and application of the 
charging lien. 
Id. at 138–39 (emphasis added).  After reviewing post-Recht Pennsylvania case law de-
velopments, the special master reasonably found that the Pennsylvania Supreme Court 
would apply Recht, with an emphasis on the second causation factor, to determine 
whether Goldberg held an enforceable charging lien.   
The special master explained that the “fund” here is Player’s individual award, so 
only work that led directly to that award should be considered.  Though he acknowledged 
Goldberg’s efforts in registering Player for the settlement program and arranging for two 
neurological evaluations, the special master found that Goldberg’s work did not “oper-
ate[] substantially or primarily to secure” the award.  Id. at 139.  It was Wyatt’s expedi-
ence—in re-scoring the 2017 test results, in scheduling a new exam with those results in 
hand, and in preparing and submitting the successful claim—that provided “the engine of 
recovery.”  R&R at *19.  Relying on the equitable considerations of Recht’s fifth factor, 
however, the special master recommended finding Goldberg was entitled to a limited 
charging lien for its costs incurred in the representation.   
Goldberg challenges the special master’s Recht analysis and focuses its argument 
on the fifth factor.  It urges that the special master ignored the important work it per-
formed: (1) as an early mover in the NFL concussion litigation, (2) as class counsel once 
the cases were consolidated, and (3) as Player’s attorney in the initial stages of the claim 
process.  Appellant’s Br. at 15–17.  But the first two categories of work did not “operate[] 
substantially or primarily” to secure this specific award.  Recht, 168 A.2d at 139.  And 
 
10 
the special master’s recommendation did recognize the third, finding it would be unjust to 
leave Goldberg without a limited charging lien for the reasonable value of its time and 
costs “tightly linked” to the award.  R&R at *21.  However, because the precise hours 
that Goldberg spent that could be substantially or primarily attributed to the award were 
de minimis, Goldberg only received its costs incurred.    
Goldberg merely disputes the special master’s reasonable conclusions rather than 
point to any legal or factual error in his analysis.  Thus, its final argument meets the same 
fate as its first two.  In the end, Goldberg fails to show the District Court abused its dis-
cretion in adopting the special master’s recommendation.  
III. 
For the reasons above, we will affirm the District Court’s order. 


In re: NFL Players Concussion Injury Litigation

USDC for the Middle District of Pennsylvani

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
9-2-2025 
Armoni Johnson v. Bienkoski 
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Recommended Citation 
"Armoni Johnson v. Bienkoski" (2025). 2025 Decisions. 726. 
https://digitalcommons.law.villanova.edu/thirdcircuit_2025/726 
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         NOT PRECEDENTIAL 
 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
___________ 
 
Nos. 24-1049 & 24-1276 
___________ 
 
ARMONI MASUD JOHNSON, 
   Appellant 
 
v. 
 
SGT. BIENKOSKI, Dallas State Prison Staff Member; 
OFFICER CHUBA, Dallas State Prison Staff; ADA, Teacher Aid; 
RICHARD DEVERS; BART JOSEFOWICZ, Dallas State Prison Staff; 
JOSEPH ZAKARAUKAS; MIKE GOYNE; LORI WHITE; DALLAS SCI 
____________________________________ 
 
On Appeal from the United States District Court 
for the Middle District of Pennsylvania 
(D.C. Civil Action No. 3:18-cv-00592) 
District Judge:  Honorable Julia K. Munley 
____________________________________ 
 
Submitted Pursuant to Third Circuit LAR 34.1(a) 
August 21, 2025 
Before:  HARDIMAN, MATEY, and CHUNG, Circuit Judges 
 
(Opinion filed: September 2, 2025) 
___________ 
 
OPINION* 
___________ 
 
PER CURIAM 
 
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 
constitute binding precedent. 
 
2 
 
Pro se appellant Armoni Johnson appeals from the District Court’s judgment in his 
prison civil rights action. We will affirm.  
I.  
Johnson’s operative second amended complaint alleged that he suffered various 
violations of his First Amendment rights when he was incarcerated at SCI Dallas.1 He 
specifically alleged that three defendants conspired to retaliate against him for exercising 
his First Amendment right to access the courts. He stated that, in March 2016, he 
represented himself at a Pennsylvania state criminal jury trial, and defendant Richard 
Devers, a machinist trade instructor at SCI Dallas, sat on the jury that found him guilty. 
When he returned to SCI Dallas after the trial, defendant Sergeant Edmund Bienkowski 
seized his deodorant and toothpaste and issued him a misconduct citation for possessing 
“contraband” and making threats. Sometime that month, a defendant identified only as 
“Ada, Teacher aid” confiscated Johnson’s legal materials while he was in the law library. 
In late May 2016, Officer David Cuba2 confiscated Johnson’s religious beads, and 
Johnson alleged that that violated his First Amendment right to free exercise of religion. 
Finally, in June 2016, Johnson was placed in administrative custody (AC) after SCI 
Dallas discovered that Devers was on Johnson’s jury. Johnson alleged that he was 
previously unaware that Devers was on his jury; at that point, he realized that the above 
 
1 In September 2016, Johnson transferred to his current institution, SCI Coal Township. 
2 Johnson’s spelling, Chuba, is reflected in the caption; defense-appellee filings reflect 
that the correct spelling is Cuba. 
 
3 
 
acts constituted “a conspiracy against plaintiff . . . and harassment and retaliation for 
defendant Richard Devers.” ECF No. 35 at 6. Johnson also alleged vague supervisory 
liability claims against four defendants,3 and a municipal liability claim against SCI 
Dallas. 
After Johnson’s first two complaints were dismissed without prejudice, the 
District Court dismissed with prejudice Johnson’s supervisory and municipal liability 
claims, and ordered service of Johnson’s second amended complaint upon the remaining 
defendants. Bienkowski, Devers, and Cuba moved for summary judgment, arguing that 
Johnson failed to exhaust his administrative remedies. The District Court granted 
Devers’s and Bienkowski’s motions for summary judgment, because Johnson conceded 
in a deposition that he did not file grievances against them. The District Court 
subsequently granted Cuba’s second motion for summary judgment, finding based on an 
expanded record that Johnson did not appeal from the denial of his relevant grievance. 
Finally, the District Court dismissed the remaining claim against “Ada,” whom Johnson 
had failed to identify after five years of litigation. 
Johnson timely appealed from the District Court’s judgment (at C.A. No. 24-
1049). Meanwhile, the District Court denied Johnson’s two post-judgment motions 
challenging the District Court’s judgment. Johnson then filed a second appeal (at C.A. 
No. 24-1276). We subsequently consolidated the appeals. 
 
3 The supervisory defendants are Bart Josefowicz, Joseph Zakarauskas, Mike Goyne, and 
Lori White.  
4 
 
II.  
We have jurisdiction under 28 U.S.C. § 1291. We exercise plenary review over the 
District Court’s decisions to sua sponte dismiss a claim under 28 U.S.C. § 1915(e), see 
Dooley v. Wetzel, 957 F.3d 366, 373 (3d Cir. 2020), and grant motions for summary 
judgment, see Anglemeyer v. Ammons, 92 F.4th 184, 188 (3d Cir. 2024). We review the 
denial of Johnson’s post-judgment motions for abuse of discretion. See Brown v. Phila. 
Hous. Auth., 350 F.3d 338, 342 (3d Cir. 2003); Max’s Seafood Cafe ex rel. Lou-Ann, 
Inc. v. Quinteros, 176 F.3d 669, 673 (3d Cir. 1999).  
III.  
We repeat our concern from a prior appeal that Johnson’s briefings and other 
filings are too difficult to follow: “His arguments are vague, it is difficult to identify 
which issues he seeks to raise on appeal, and we are unable to discern where his brief 
ends and his exhibits begin.” Johnson v. McGinley, No. 22-3288, 2023 WL 5670700, at 
*1 (3d Cir. 2023) (per curiam).4 Again, “Johnson has arguably forfeited all review,” but 
nonetheless, we will address those arguments that he seems to raise. Id.5 We warn 
 
4 Additionally, we observe that (1) we cannot see where Johnson’s arguments end and his 
excerpts of court opinions begin, and (2) he refers to many other state and district court 
cases and appeals that are beyond the narrow scope of this appeal.  
 
5 See also Barna v. Bd. of Sch. Dirs. of Panther Valley Sch. Dist., 877 F.3d 136, 145 (3d 
Cir. 2017) (stating that Court typically refuses to “consider ill-developed arguments or 
those not properly raised and discussed in the appellate briefing”); Geness v. Cox, 902 
F.3d 344, 355 (3d Cir. 2018) (similar); Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 
245 (3d Cir. 2013) (noting pro se litigants “must abide by the same rules that apply to all 
other litigants”). 
5 
 
Johnson that if he submits similarly defective briefs in a future appeal, we may affirm the 
District Court’s judgment without further reasoning.  
We generally agree with the District Court’s disposition of Johnson’s claims: First, 
the District Court appropriately dismissed with prejudice Johnson’s claims against SCI 
Dallas and the four supervisory defendants, for precisely the reasons stated by the 
Magistrate Judge and District Court. See Downey v. Pa. Dep’t of Corr., 968 F.3d 299, 
310 (3d Cir. 2020) (holding that Pennsylvania’s sovereign immunity bars § 1983 claims 
against state prisons and state prison employees named in their official capacities); 
Santiago v. Warminster Twp., 629 F.3d 121, 129 n.5 & 130 (3d Cir. 2010) (discussing 
recognized theories of supervisory liability, none of which are alleged here). Second, we 
discern no error in the District Court’s dismissal of claims against Ada pursuant to Rule 
21 of the Federal Rules of Civil Procedure, particularly where Johnson had an 
opportunity for discovery and yet did not identify her, and even now only vaguely asserts 
that the defendants “hid” or “withheld” Ada’s identity. 
That leaves the District Court’s determination at summary judgment that Johnson 
failed to adequately exhaust his grievances against Bienkowski, Devers, and Cuba. A 
prisoner cannot raise a § 1983 claim unless he has exhausted that claim through his 
available administrative remedies according to applicable prison regulations. 42 U.S.C. 
§ 1997e(a); Woodford v. Ngo, 548 U.S. 81, 83 (2006). Pennsylvania generally requires 
that state prisoners comply with a three-stage grievance process that includes an initial 
written grievance and appeals to the Facility Manager and then to the Secretary’s Office 
6 
 
of Inmate Grievances and Appeals (SOIGA). See DC-ADM 804 (Pennsylvania 
Department of Corrections policy titled “Inmate Grievance System”).  
Here, the District Court properly concluded, based on the expanded summary-
judgment record, that Johnson did not exhaust his claims against Cuba, based on an 
affidavit swearing that SOIGA had no records of a final appeal related to Johnson’s initial 
grievance regarding the seizure of his prayer beads. The District Court determined that 
Johnson never filed grievances against Devers and Bienkowski, and Johnson does not 
challenge that finding on appeal. Although Johnson suggested several reasons for 
excusing his failure to administratively exhaust his claims, none of his arguments 
persuade us that the District Court erred in holding that the grievance system was 
available to Johnson.6 Accordingly, we will not disturb the District Court’s judgment that 
Johnson failed to administratively exhaust his claims. 
Finally, we discern no abuse of discretion in the District Court’s denials of 
Johnson’s post-judgment motions. Whether construed as arising under either Rule 59(e) 
 
6 An administrative remedy is unavailable when: (1) “it operates as a simple dead 
end[,]with officers unable or consistently unwilling to provide any relief to aggrieved 
inmates,” (2) it is “so opaque that it becomes, practically speaking, incapable of use,” or 
(3) “prison administrators thwart inmates from taking advantage of a grievance process 
through machination, misrepresentation, or intimidation.” Ross v. Blake, 578 U.S. 632, 
643-44 (2016). Arguably, DC-ADM 804 § 1(A)(7) might reflect that the grievance 
procedure is unavailable for claims challenging misconduct citations or AC status, cf. 
Prater v. Dep’t of Corr., 76 F.4th 184, 204 (3d Cir. 2023), but the appellees correctly 
assert that Johnson has forfeited review of that possible issue. Nor has Johnson 
persuasively argued on appeal that the grievance system was unavailable to him for any 
other reason outlined in Ross, or that he satisfied any exception to DC-DM 804 such that 
his claims fall outside the scope of that grievance procedure. 
7 
 
or Rule 60(b) of the Federal Rules of Civil Procedure, Johnson’s post-judgment motions 
were meritless.  
Consequently, we will affirm the District Court’s judgment. 


Armoni Johnson v. Bienkoski

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
9-12-2025 
Andrew Fullman v. City of Philadelphia 
Follow this and additional works at: https://digitalcommons.law.villanova.edu/thirdcircuit_2025 
Recommended Citation 
"Andrew Fullman v. City of Philadelphia" (2025). 2025 Decisions. 758. 
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Law Digital Repository. For more information, please contact reference@law.villanova.edu. 
 
 
  NOT PRECEDENTIAL 
 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
___________ 
 
Nos. 24-1473, 24-1544, 24-2716 & 24-2812 (consolidated) 
___________ 
 
ANDREW FULLMAN, 
   Appellant 
 
v. 
 
CITY OF PHILADELPHIA;  
PHILADELPHIA PARKING AUTHORITY (PPA); 
BUREAU OF ADMINISTRATIVE ADJUDICATION (BAA);  
STEVEN C. BOC; JOHN DOE #1; P/O JOHN DOE #2;  
JOSEPH MCCARTHY; P/O JOHN DOE #3;P/O JOHN DOE #4;  
P/O JOHN DOE #5; P/O JOHN DOE #6 
____________________________________ 
 
On Appeal from the United States District Court 
for the Eastern District of Pennsylvania 
(D.C. Civil Action No. 2:24-cv-00682) 
District Judge:  Honorable Wendy Beetlestone 
____________________________________ 
 
Submitted Pursuant to Third Circuit LAR 34.1(a) 
March 4, 2025 
 
Before: KRAUSE, PHIPPS, and ROTH, Circuit Judges 
 
(Opinion filed: September 12, 2025) 
___________ 
 
OPINION* 
___________ 
 
 
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 
constitute binding precedent. 
 
 
2 
PER CURIAM 
 Andrew Fullman sought to file a complaint in forma pauperis (“IFP”) in the 
District Court.1  The District Court denied his motion, concluding that he had “sufficient 
ability to pay” the fees.  Fullman filed a motion for reconsideration and an amended IFP 
motion, both of which the District Court denied.2  Fullman filed a notice of appeal, which 
opened C.A. No. 24-1473.   
Fullman also continued to press the District Court to grant him IFP status, filing 
another IFP motion and a “miscellaneous motion” to request a payment plan to pay the 
fees in installments given how little money he has at the end of each month.  The District 
Court denied both motions.  Fullman filed another notice of appeal, which opened C.A. 
No. 24-1544.   
Fullman filed three additional IFP applications, and the District Court again denied 
him IFP status.  The District Court also warned him that, if he did not remit the fees 
within 10 days, his case was subject to dismissal for failure to prosecute.  Ten days later, 
Fullman moved for reconsideration, explaining that his paying for food took his checking 
account balance below the amount that would allow him to pay the fees.  He also stated 
that he had to close a credit card account because of financial hardship, and explained 
 
1 He wishes to bring suit to vindicate alleged civil rights violations relating to the 
Philadelphia Parking Authority’s issuance of parking tickets that were subsequently 
dismissed or voided and other mistreatment and discrimination that has interfered with 
his ability to park in reserved handicapped parking in the City of Philadelphia.   
2 The District Court also dismissed an additional IFP motion as moot. 
 
 
 
3 
that he had tens of thousands of dollars in credit card debt.  The District Court denied the 
motion for reconsideration.  Fullman filed a notice of appeal to challenge the additional 
denial of IFP status and the denial of reconsideration, which opened C.A. No. 24-2716. 
The District Court dismissed Fullman’s case for failure to prosecute.  Fullman 
filed two timely motions for reconsideration, one again challenging earlier IFP denials 
and the reconsideration of those decisions and one seeking reconsideration of the order 
dismissing his case for failure to prosecute.  The District Court denied the motions as 
moot (on the basis that jurisdiction had attached in this Court).  Fullman filed a notice of 
appeal to challenge the dismissal for failure to prosecute and the denial of 
reconsideration, which opened C.A. No. 24-2812.3   
  We have jurisdiction under 28 U.S.C. § 1291.  We review the District Court’s 
rulings largely for abuse of discretion.  See Jones v. Zimmerman, 752 F.2d 76, 78 (3d 
Cir. 1985) (“Our standard of review is whether the district court was guilty of an abuse of 
discretion in requiring [Fullman] to pay . . . the filing fee as a prerequisite to being 
granted status in forma pauperis and, therefore, erred in dismissing his complaint because 
of his failure to do so.”) (cleaned up) (citation omitted); Sinwell v. Shapp, 536 F.2d 15, 
18 (3d Cir. 1976); Howard Hess Dental Lab’ys Inc. v. Dentsply Int’l, Inc., 602 F.3d 237, 
246 (3d Cir. 2010) (“We review a denial of a motion for reconsideration for abuse of 
 
3 We have consolidated Fullman’s four appeals, and we previously granted his requests to 
proceed IFP.   
 
 
4 
discretion, but we review the District Court’s underlying legal determinations de novo 
and factual determinations for clear error.”). 
 Upon review, we must conclude that the District Court abused its discretion in 
denying Fullman IFP status and otherwise disallowing him to proceed without 
prepayment of the fees, declining to grant reconsideration, and dismissing Fullman’s case 
for failure to pay the fees.  Under 28 U.S.C. § 1915, a court may allow a litigant, who 
attests to indigency, to commence a suit “without prepayment of fees or security 
therefor.”  28 U.S.C. § 1915(a).  The purpose of the IFP statute “is to provide an entr[é], 
not a barrier, to the indigent seeking relief in the federal court.”  See Souder v. McGuire, 
516 F.2d 820, 823 (3d Cir. 1975).  As the District Court recognized, a person need not be 
“absolutely destitute” to proceed IFP.  Adkins v. E.I. DuPont de Nemours & Co., 335 
U.S. 331, 339 (1948).  Fullman needed to show that he was “economically eligible” for 
IFP status, Sinwell, 536 F.2d at 19 (citation omitted), that is, that he was unable to pay 
the fees, see Walker v. People Express Airlines, Inc., 886 F.2d 598, 601 (3d Cir. 1989).   
As a basis for denying Fullman IFP status, the District Court concluded that 
Fullman could pay the fees because he “earns substantially more than the poverty 
guidelines set forth by the Department of Health and Human Services for his size 
household.”  See, e.g., ECF No. 4 at 1 n.1; ECF No. 9 at 1 n.1.  However, his regular 
expenses claim almost all his income, his assets are negligible, and his debt relatively 
significant.  Fullman, whose checking account balance dropped below what would cover 
the fees, established that he was unable to prepay the fees.  Under the circumstances, the 
 
 
5 
District Court abused its discretion in denying Fullman’s applications (and requests for 
reconsideration) and dismissing his case.4  See Adkins, 335 U.S. at 339 (rejecting an 
interpretation of that statute that would “say that no persons are entitled to the statute’s 
benefits until they have sworn to contribute to payment of costs, the last dollar they have 
or can get”); Martinez v. Kristi Kleaners, Inc., 364 F.3d 1305, 1307-08, 1308 n.5 (11th 
Cir. 2004) (per curiam) (concluding that a litigant’s sworn statements that she was a 
pauper and unable to pay court costs were sufficient on their face to demonstrate that she 
was eligible for IFP status even though her income was above the federal poverty line); 
In re Smith, 600 F.2d 714, 716 (8th Cir. 1979) (“We cannot endorse [any] interpretation 
or application of § 1915 that so rigidly employs the filing fee as a talisman which 
demarcates paupers from those considered to have funds sufficient to be able to pay it.”); 
cf. Jones, 752 F.2d at 79 (reaffirming that “prisoners are not required to surrender those 
small amenities of life which they are permitted to acquire in a prison in order to litigate 
in forma pauperis in the district court”) (internal quotation marks and citation omitted).  
For these reasons, we will vacate the District Court’s orders denying IFP status5 
and reconsideration and dismissing this case for failure to pay the fees.  We will remand 
this matter for further proceedings consistent with this opinion.**  On remand, the District 
 
4 The District Court also made a legal error in denying “as moot” Fullman’s last two 
timely motions for reconsideration.  See Venen v. Sweet, 758 F.2d 117, 122 & n.6 (3d 
Cir. 1985).  
5 We include the order denying Fullman’s “miscellaneous motion” within these orders.   
** Judge Phipps dissents because in his view the District Court did not abuse its discretion 
in denying IFP status. 
 
 
6 
Court is directed to grant Fullman IFP status and proceed to screening Fullman’s 
complaint under 28 U.S.C. 1915(e). 


Andrew Fullman v. City of Philadelphia

Honda Lease Trust v. Malanga\\u27s Automotive

Barzilay, Arianne Renan

Overriding Overtime in Decentralized Work

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
6-24-2025 
Ayyakkannu Manivannan v. DOE 
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"Ayyakkannu Manivannan v. DOE" (2025). 2025 Decisions. 517. 
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         NOT PRECEDENTIAL 
 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
___________ 
 
No. 24-2337 
___________ 
 
AYYAKKANNU MANIVANNAN, 
 
v. 
 
U.S. DEPARTMENT OF ENERGY 
     (D.C. No. 2:18-cv-00297) 
 
AYYAKKANNU MANIVANNAN, 
 
v. 
 
UNITED STATES OF AMERICA 
     (D.C. No. 2:19-cv-00828) 
 
Ayyakkannu Manivannan, 
               Appellant 
____________________________________ 
 
On Appeal from the United States District Court 
for the Western District of Pennsylvania 
(W.D. Pa. Civil Action Nos. 2:18-cv-00297 & 2:19-cv-00828) 
Magistrate Judge: Honorable Maureen P. Kelly  
____________________________________ 
 
Submitted Pursuant to Third Circuit LAR 34.1(a) 
June 23, 2025 
 
Before:  BIBAS, FREEMAN, and NYGAARD, Circuit Judges 
 
(Opinion filed: June 24, 2025)
 
2 
 
 _________ 
 
OPINION* 
   ____________ 
 
PER CURIAM 
Pro se appellant Ayyakkannu Manivannan appeals from the District Court’s grant 
of summary judgment for defendants on three of his claims.1  For the reasons that follow, 
we will affirm the District Court’s judgment. 
I. 
 Manivannan was employed by the DOE as a materials specialist at the National 
Energy Technology Laboratory (“NETL”) in Morgantown, West Virginia from 2005 
until 2016.2  In 2014, the Court of Common Pleas of Centre County, Pennsylvania, issued 
a Protection from Abuse order against Manivannan.  The order prohibited Manivannan 
from having contact with a former DOE student intern. Manivannan was eventually 
criminally charged in Centre County with stalking and harassing the intern.   
 Soon after the criminal proceedings began, the DOE launched an internal 
investigation of Manivannan and placed him on administrative leave.  In January 2016, 
 
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 
constitute binding precedent. 
 
1  A United States Magistrate Judge presided over the case as the District Court pursuant 
to the parties’ consent.  See 28 U.S.C. § 636(c)(1). 
 
2  Because we write primarily for the parties, we will recite only the facts necessary for 
this discussion.  These facts are undisputed unless otherwise noted. 
 
3 
 
the investigation resulted in the production of a 30-page report supported by over 1,500 
pages of interview transcripts and documents.  Later that month, Manivannan was 
additionally criminally charged in Centre County with five felony counts of unlawful use 
of a computer.     
 After learning of the criminal charges, NETL attorney Mark Hunzeker contacted 
the Centre County District Attorney’s (“DA’s”) Office; he testified that he reached out to 
help prepare for any potential forthcoming administrative action within the agency 
regarding Manivannan.  In March 2016, the DA’s Office sent the DOE a subpoena 
requesting documents relating to the criminal charges against Manivannan.3  Hunzeker 
collected responsive documents and his supervisor returned them to the DA’s Office.   
 A jury trial was held in April 2016.  A DOE employee testified about several 
documents, including documents that were disclosed to the DA’s Office by the DOE.    
These documents included hotel and rental car receipts regarding some of Manivannan’s 
business travel expenses and emails from the intern and from Manivannan.    
Manivannan’s defense exhibits also included documents that were disclosed by the DOE.   
Manivannan was acquitted of the stalking charge but convicted of harassment and 
 
3  The subpoena requested: (1) “agency records between June 2014 and July 2014 
reflecting any official travel and/or other time and attendance data for that time frame 
for . . . Manivannan”; and (2) “official electronic communications between . . . 
Manivannan and [the intern] from January 2014 through August 2014, including emails, 
IP addresses, text messages, and phone calls using [DOE] issued equipment provided 
to . . . Manivannan” or the intern.  Appellant’s App. at 97. 
 
4 
 
the unlawful use of computer charges.  His convictions were then vacated on appeal due 
to an expert testimony issue.  Commonwealth v. Manivannan, 186 A.3d 472, 488 (Pa. 
Super. Ct. 2018).  The case ended in a nolle prosequi disposition at the request of the 
Commonwealth.  By then, Manivannan had resigned from the DOE.   
 Manivannan has filed several lawsuits regarding these events.  As relevant here, in 
2018, Manivannan initiated a lawsuit against the DOE alleging violations of the Privacy 
Act, 5 U.S.C. § 552a.  In 2019, he filed another action against the United States bringing 
claims under the Federal Tort Claims Act (“FTCA”).  Both cases were counseled and 
were subsequently consolidated.  The District Court initially dismissed Manivannan’s 
claims for lack of subject matter jurisdiction, concluding that they were not reviewable 
pursuant to the Civil Service Reform Act (“CSRA”) because they arose in the context of 
Manivannan’s federal employment. 
On appeal, we affirmed in part and reversed in part.  Manivannan v. U.S. Dep’t of 
Energy, 42 F.4th 163, 166 (3d Cir. 2022).  We concluded that while many of 
Manivannan’s claims were precluded, the District Court had jurisdiction over three of his 
claims because they did not concern employment actions covered by the CSRA.  These 
remaining claims alleged: (1) that defendants violated the Privacy Act by disclosing 
records to the DA’s Office; (2) intentional infliction of emotional distress (“IIED”); and 
(3) conversion of Manivannan’s personal property after he resigned from the DOE. 
 On remand, the District Court dismissed the conversion claim as time-barred and 
 
5 
 
dismissed the IIED claim in part; the IIED claim could proceed only to the extent that it 
was based on the agency’s participation in Manivannan’s criminal proceedings.  The 
District Court later granted summary judgment for defendants on Manivannan’s 
remaining claims.  Manivannan timely appealed and proceeds pro se on appeal.   
II. 
We have jurisdiction pursuant to 28 U.S.C. § 1291.  We exercise plenary review 
over the District Court’s dismissal of a claim pursuant to Federal Rule of Civil Procedure 
12(b)(6).  See Fowler v. UPMC Shadyside, 578 F.3d 203, 206 (3d Cir. 2009).  We also 
exercise plenary review over the District Court’s summary judgment ruling.  See Blunt v. 
Lower Merion Sch. Dist., 767 F.3d 247, 265 (3d Cir. 2014).  Summary judgment is 
proper “if the movant shows that there is no genuine dispute as to any material fact and 
the movant is entitled to judgment as a matter of law.”  Fed. R. Civ. P. 56(a).  A genuine 
dispute of material fact exists if the evidence is sufficient for a reasonable factfinder to 
return a verdict for the nonmoving party.  Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 
248 (1986).  We may affirm on any basis in the record.  See Murray v. Bledsoe, 650 F.3d 
246, 247 (3d Cir. 2011) (per curiam). 
III. 
We agree with the District Court’s resolution of Manivannan’s claims.  First, the 
District Court appropriately dismissed his conversion claim under the FTCA as time-
barred.  The FTCA “provides that a tort claim against the United States shall be forever 
 
6 
 
barred unless it is presented to the appropriate Federal agency within two years after such 
claim accrues’ and then brought to federal court within six months after the agency acts 
on the claim.”  United States v. Wong, 575 U.S. 402, 405 (2015) (internal quotation 
marks and citation omitted).  The six-month limitations period to bring an FTCA claim in 
federal court is triggered by the mailing date of the agency’s final denial of an 
administrative claim.  See 28 U.S.C. § 2401(b). 
In 2018, Manivannan filed an administrative claim seeking the return of personal 
property that he alleged was retained by the DOE after he resigned.  He filed several 
other administrative claims that year.  On June 11, 2018, the agency denied 
Manivannan’s personal property claim.  Manivannan sought reconsideration, which was 
denied on January 10, 2019, noting that Manivannan had not provided evidence to 
support his personal property damage claim.  The denial notice stated that it was a final 
denial sent by certified mail and that Manivannan had six months after the mailing date 
of the denial to bring an FTCA claim in federal court.  
Manivannan initiated his lawsuit bringing a conversion claim on July 11, 2019, 
one day past the six-month deadline.  Attached to his complaint, he included his 
administrative claims and the responses to those claims, including the January 10, 2019 
final denial.  The District Court concluded that it was undisputed and apparent from the 
documents attached to Manivannan’s complaint that Manivannan did not bring his 
 
7 
 
conversion claim in federal court within 6 months of the January 10, 2019 notice denying 
reconsideration of his personal property claim.     
On appeal, Manivannan argues that the District Court erred by failing to analyze 
the merits of his conversion claim, and he maintains that the mailing date of the 
reconsideration notice was not apparent on the face of his complaint.4  However, in our 
review of the denial of his claim, we consider Manivannan’s complaint, any “document 
integral to or explicitly relied upon” in framing the complaint, Schmidt v. Skolas, 770 
F.3d 241, 249 (3d Cir. 2014) (internal citation and emphasis omitted), and any 
“undisputedly authentic document that a defendant attaches as an exhibit to a motion to 
dismiss if the plaintiff’s claims are based on the document,” Pension Benefit Guar. Corp. 
v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993).  Manivannan’s 
counseled complaint included the January 10, 2019 notice as an attachment.  Although 
the FTCA statute of limitations can be equitably tolled, see D.J.S.-W. by Stewart v. 
United States, 962 F.3d 745, 749-50 (3d Cir. 2020), Manivannan makes no arguments in 
support of equitable tolling in his opening brief.  Accordingly, the District Court correctly 
concluded that this claim was time-barred. 
Next, the District Court properly granted summary judgment for defendants on 
Manivannan’s Privacy Act claim.  Manivannan has maintained that the DOE violated the 
 
4  We do not consider arguments Manivannan raises for the first time in his reply brief 
regarding any of his claims.  See Barna v. Bd. of Sch. Dirs. of Panther Valley Sch. Dist., 
877 F.3d 136, 146 (3d Cir. 2017). 
 
8 
 
Privacy Act when it provided documents from his employment to state prosecutors 
during his criminal prosecution.  Subject to twelve enumerated statutory exceptions, the 
Privacy Act prohibits federal agencies from disclosing a “record which is contained in a 
system of records” without an individual’s consent.  See 5 U.S.C. § 552a(b).  To establish 
a Privacy Act claim, a plaintiff must produce evidence that: “(1) the information is 
covered by the Act as a ‘record’ contained in a ‘system of records’; (2) the agency 
‘disclose[d]’ the information; (3) the disclosure had an ‘adverse effect’ on the 
plaintiff[;] . . . and (4) the disclosure was ‘willful or intentional.’”  Quinn v. Stone, 978 
F.2d 126, 131 (3d Cir. 1992). 
Here, the District Court concluded that summary judgment was appropriate on five 
alternative grounds, as it determined that, regardless of whether the disclosed documents 
were records covered by the Privacy Act: (1) three enumerated disclosure exceptions 
applied under 5 U.S.C. § 552a(b); (2) Manivannan could not show that the disclosure was 
willful or intentional; and (3) he could not establish actual damages.  The Government 
argues on appeal that Manivannan has forfeited any challenge to the resolution of this 
claim because his opening brief does not address several of the District Court’s 
alternative rulings.  C.A. 27 at 46-49.  We agree. 
In his opening brief, Manivannan challenges the District Court’s application of 
one of the three enumerated statutory exceptions — the routine use exception, 5 U.S.C. 
§ 552a(b)(3) — and makes conclusory assertions that the disclosure was willful or 
 
9 
 
intentional.  However, he does not discuss or challenge the District Court’s three 
alternative conclusions, each of which presents an independent barrier to relief.    
Generally, litigants forfeit issues that they fail to develop in an opening brief, see In re 
Wettach, 811 F.3d 99, 115 (3d Cir. 2016), and that rule applies to Manivannan’s deficient 
briefing. 
Although we may reach forfeited issues when “truly exceptional circumstances” 
are presented, such circumstances are very limited.  See Barna v. Bd. of Sch. Dirs. of 
Panther Valley Sch. Dist., 877 F.3d 136, 147 (3d Cir. 2017).  Exceptional circumstances 
can arise “when public interest requires that the issue[s] be heard or when a manifest 
injustice would result from the failure to consider the new issue[s].”  Id. (citation omitted) 
(alterations in original).  However, no extraordinary circumstances are present here.  Cf. 
Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013) (explaining that pro 
se litigants “must abide by the same rules that apply to all other litigants”).  In any event, 
for the reasons provided by the District Court, we agree that Manivannan did not 
establish that the disclosures were “intentional or willful” such that the conduct was “so 
patently egregious and unlawful that anyone undertaking [it] should have known it 
unlawful.”  See Laningham v. U.S. Navy, 813 F.2d 1236, 1242 (D.C. Cir. 1987) (internal 
quotation marks and citation omitted). 
Finally, for Manivannan’s remaining IIED claim, the District Court concluded that 
he had not establish one of the threshold requirements — “extreme and outrageous 
 
10 
 
conduct” by the DOE.5  See Hoy v. Angelone, 720 A.2d 745, 753 (Pa. 1998).  His only 
mention of this issue in his opening brief is his assertion that the DOE “created false and 
inaccurate records and then worked to subpoena itself all in the hopes that Dr. 
Manivannan would suffer harm as a result.”  Appellant’s Br. at 20.  He cites no authority 
or record evidence to support this argument.  As discussed above, the record shows that 
the DOE provided some of Manivannan’s work travel records and certain emails to the 
DA’s Office in response to a subpoena regarding a pending criminal prosecution.  He has 
not established that this conduct was “so outrageous in character, and so extreme in 
degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, 
and utterly intolerable in a civilized society.”  See Hoy, 720 A.2d at 754 (citation 
omitted).  Summary judgment was thus appropriately granted on his IIED claim. 
Accordingly, we will affirm the judgment of the District Court. 
 
5  Manivannan does not challenge the partial dismissal of his IIED claim prior to the 
District Court’s grant of summary judgment on the remainder of the claim and has thus 
forfeited that portion of his claim on appeal.  See Wettach, 811 F.3d at 115. 


Ayyakkannu Manivannan v. DOE

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
6-24-2025 
Sergei Kovalev v. WalMart Inc 
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"Sergei Kovalev v. WalMart Inc" (2025). 2025 Decisions. 519. 
https://digitalcommons.law.villanova.edu/thirdcircuit_2025/519 
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NOT PRECEDENTIAL 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
___________ 
No. 24-1459 
__________ 
SERGEI KOVALEV, 
    Appellant 
v. 
WALMART INC; WALMART STORES EAST INC; 
WALMART STORES EAST LP; 
BROSNAN RISK CONSULTANTS, LTD 
____________________________________ 
On Appeal from the United States District Court 
for the Eastern District of Pennsylvania 
(D.C. No. 2:22-cv-01217) 
District Judge: Honorable Nitza I. Quinones Alejandro 
____________________________________ 
Submitted Pursuant to Third Circuit LAR 34.1(a) 
June 13, 2025 
Before: KRAUSE, PHIPPS, and ROTH, Circuit Judges 
(Opinion filed June 24, 2025) 
___________ 
OPINION* 
___________ 
PER CURIAM 
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
2 
 In February 2022, Sergei Kovalev, a serial pro se litigant, filed a complaint in the 
Court of Common Pleas of Philadelphia County against three Walmart entities 
(collectively “Walmart”) and Walmart’s security provider, Brosnan Risk Consultants, 
Ltd. (“Brosnan”).  He alleged that on February 10, 2020, while he was waiting in the 
checkout line at a Walmart store, another customer hit him with her shopping cart, 
causing him to sustain physical and emotional injuries.  He claimed that Walmart and 
Brosnan were liable for his injuries because they failed to provide sufficient safety and 
security measures at the store and refused to intervene in the alleged attack.  He asserted 
multiple causes of action, including assault and battery, negligence, gross negligence, 
negligent infliction of emotional distress, reckless endangerment, negligence per se, civil 
conspiracy, and violations of the Pennsylvania Unfair Trade Practices and Consumer 
Protection Law (“UTPCPL”).  He sought compensatory damages as well as $1,000,000 
in punitive damages.  
Walmart removed the case to the District Court based on diversity jurisdiction.  
Kovalev challenged the District Court’s jurisdiction and moved to remand the case to 
state court, but the District Court denied relief.  Walmart and Brosnan then filed separate 
motions to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6).  The District 
Court granted the motions in part and denied them in part, dismissing all of Kovalev’s 
claims except his negligence claim under Restatement (Second) of Torts § 344.  
The case proceeded to discovery.  In November 2022, the District Court set a 
discovery deadline of May 28, 2023, as requested by Kovalev.  After motions practice, 
3 
the District Court entered an order directing the defendants to produce responsive 
documents on or before March 3, 2023.  The defendants complied with this order and 
produced responsive documents.  Kovalev did not raise any objections in the subsequent 
three months.  When Kovalev failed to appear for his noticed deposition, the District 
Court granted the defendants’ motion to compel the deposition.  Kovalev again failed to 
appear.   
After the discovery deadline had passed, Kovalev filed a set of motions to compel 
the defendants to produce additional documents responsive to his requests.  The District 
Court denied the motions as untimely.1  The defendants then moved for summary 
judgment.  In response to their motions, Kovalev filed motions pursuant to Federal Rule 
of Civil Procedure 56(d) seeking to extend the discovery deadline so that he could gather 
evidence to oppose the summary judgment motions.  The District Court denied relief, 
again explaining that the discovery deadline had passed, and Kovalev had not provided a 
reasonable explanation for his untimely request.  
The District Court then granted the defendants’ motions for summary judgment.  
The court rejected Kovalev’s objection to the defendants’ motion as untimely, as well as 
his argument that the allegations in his complaint were sufficient to withstand summary 
judgment.  The court concluded that Kovalev had not produced evidence to establish any 
of the essential elements of his negligence claims under § 344.  
 
1 Kovalev appealed.  We dismissed those appeals for lack of jurisdiction because the 
orders were not yet appealable.  See C.A. Nos. 23-2144 and 23-2203. 
 
4 
Meanwhile, Kovalev had filed a second motion to remand.  He argued that the 
District Court no longer had jurisdiction over the case because he had offered to settle the 
suit for $74,999.  The District Court rejected this argument and denied relief.  Kovalev 
appealed.  
 We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291.  We have 
reviewed the record and see no error in the District Court’s orders denying Kovalev’s 
motions to remand, managing discovery, and granting summary judgment in favor of the 
defendants.   
Kovalev first contends that the District Court lacked diversity jurisdiction over the 
case and was required to remand it to the state court.2  A defendant in state court may 
remove an action to federal court if “the district courts of the United States have original 
jurisdiction” over the action.  28 U.S.C. § 1441(a).  Federal district courts have original 
jurisdiction over all civil actions between citizens of different states if the amount in 
controversy exceeds $75,000.  Id. § 1332(a)(1).  When diversity jurisdiction exists, the 
defendant may remove the suit to the district court, provided that no defendant is a citizen 
of the forum state.  42 U.S.C. § 1441(b)(2). 
 
2 We exercise plenary review over issues of jurisdiction.  Grand Union Supermarkets of 
the V.I., Inc. v. H.E. Lockhart Mgmt., Inc., 316 F.3d 408, 410 (3d Cir. 2003).  Under that 
standard, we review determinations of law de novo and a court’s factual findings 
regarding domicile or citizenship for clear error.  McCann v. Newman Irrevocable Trust, 
458 F.3d 281, 286 (3d Cir. 2006).  
  
5 
 The District Court properly asserted diversity jurisdiction here.  First, the District 
Court correctly determined that there was complete diversity among the parties because 
Kovalev is a citizen of Pennsylvania and defendants are citizens of different states.3  
Second, the District Court correctly concluded that the amount-in-controversy 
requirement was satisfied, as Kovalev sought $1,000,000 in punitive damages.  See 
Huber v. Taylor, 532 F.3d 237, 244 (3d Cir. 2008) (claims for punitive damages may go 
toward satisfying the amount-in-controversy requirement as long as they are not patently 
frivolous).  Moreover, Kovalev’s subsequent settlement demand of $74,999 did not affect 
the District Court’s jurisdiction, as the amount in controversy is based on the demand in 
the complaint at the time the removal petition is filed.4  See Werwinski v. Ford Motor 
Co., 286 F.2d 661, 666 (3d Cir. 2002).  Accordingly, the District Court correctly denied 
Kovalev’s motions to remand.  
 Kovalev next contends that the District Court abused its discretion by denying his  
motions to (1) compel the defendants to provide more complete responses to his 
document requests; and (2) extend the discovery deadline to allow him to conduct 
 
3 We refer the parties to the District Court’s findings as to each defendant’s states of 
citizenship in ECF Nos. 23 and 27.  We see no clear error in these findings. 
 
4 To the extent that Kovalev argues that the District Court was not permitted to assert 
diversity jurisdiction over the case because “Congress never affirmatively ousted the state 
courts of jurisdiction over [his] claims,” Br. 24, ECF No. 27-1 (citing Tafflin v. Levitt, 
493 U.S. 455, 459 (1990)), he misunderstands the applicable jurisdictional doctrines.  
While he is correct that the state court could have retained jurisdiction over his case, that 
does not mean that the federal court could not adjudicate it under § 1332(a)(1).   
 
6 
additional discovery in order to oppose the defendants’ summary judgment motions.  We 
perceive no abuse of discretion.5  First, the District Court reasonably denied the motions 
to compel because Kovalev did not file them until after discovery had already closed.  
Second, to the extent that Kovalev argues that the District Court abused its discretion in 
denying his motion to extend the discovery deadline, he has not met his burden of 
demonstrating how the additional discovery would have allowed his claims to survive 
summary judgment.  See Crosbie v. Highmark Inc., 47 F.4th 140, 146 (3d Cir. 2022).   
 Lastly, Kovalev challenges the District Court’s orders granting the defendants’ 
motions for summary judgment.  Summary judgment is appropriate “against a party who 
failed to make a showing sufficient to establish the existence of an element essential to 
that party’s case, and on which that party will bear the burden of proof at trial.”  Celotex 
Corp. v. Catrett, 477 U.S. 317, 322–23 (1986).  As the District Court explained, in order 
to withstand summary judgment on his negligence claim under § 344, Kovalev was 
required to provide evidence demonstrating that the defendants had reason to anticipate 
the tortious conduct of a customer standing in a checkout line such that it had a duty to 
take precautions to prevent it.  See Restatement (Second) of Torts § 344 cmt. F (Am. Law 
Inst. 1965).  Kovalev did not rebut the defendants’ motions with any facts in the record 
on the issue of notice.  Contrary to his contention, he was required to go beyond his 
allegations in the pleadings, and he failed to do so.   
 
5 This Court reviews the district court’s discovery orders for an abuse of discretion.  See 
Anderson v. Wachovia Mortg. Corp., 621 F.3d 261, 281 (3d Cir. 2010). 
7 
We have considered Kovalev’s remaining arguments and conclude that they are 
meritless.  Accordingly, we will affirm.  
 
  
  


Sergei Kovalev v. WalMart Inc

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
6-25-2025 
In Re: Marta Lyall 
Follow this and additional works at: https://digitalcommons.law.villanova.edu/thirdcircuit_2025 
Recommended Citation 
"In Re: Marta Lyall" (2025). 2025 Decisions. 522. 
https://digitalcommons.law.villanova.edu/thirdcircuit_2025/522 
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CLD-149        NOT PRECEDENTIAL 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
___________ 
 
No. 25-1718 
___________ 
 
IN RE: MARTA LYALL, 
    Petitioner 
____________________________________ 
 
On a Petition for Writ of Mandamus from the 
United States District Court for the Western District of Pennsylvania 
(Related to D.C. No. 2:25-cv-00417) 
____________________________________ 
 
Submitted Pursuant to Rule 21, Fed. R. App. P. 
May 15, 2025 
 
Before: KRAUSE, PHIPPS, and SCIRICA, Circuit Judges 
 
(Opinion filed: June 25, 2025) 
_________ 
 
OPINION* 
_________ 
 
PER CURIAM 
 Marta Lyall seeks a writ of mandamus directing the District Court to, inter alia, 
void its order dismissing her complaint without prejudice for failure to comply with court 
rules.  We will deny the petition. 
 Lyall commenced the matter underlying her mandamus petition on March 24, 
2025, by filing a complaint against her former employer, Carnegie Mellon University 
 
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 
constitute binding precedent. 
 
2 
(“CMU”), and others in the United States District Court for the Eastern District of 
Pennsylvania.  The complaint promptly was transferred to the Western District because 
CMU is located, and the events giving rise to Lyall’s lawsuit allegedly occurred, in that 
district.  Lyall subsequently filed a motion to, among other things, have the Clerk of 
Court “correct” the “Nature of Suit” (NOS) code assigned to her complaint from “230 – 
Rent Lease & Ejectment” to “440 – Civil Rights: Other” or “950 – Constitutional – State 
Statute,” as appropriate.  She also notified the court that she would not be seeking in 
forma pauperis status and that her filing fee would be arriving by mail from Seattle, 
Washington, where she resides.   
On March 28, the District Court dismissed Lyall’s complaint without prejudice, 
ordered the Clerk to mark the matter closed, and identified several issues that Lyall 
would have to address before the case would be reopened, including paying the filing fee.  
Lyall responded one week later by filing an amended complaint and emergency motions 
to reopen the case and for a hearing on the same, which the District Court denied because 
she had not cured the deficiencies it previously had outlined.  Lyall appealed, and 
simultaneously filed the instant petition.1 
A writ of mandamus is a “drastic remedy” that may be granted only in 
“extraordinary circumstances in response to an act amounting to a judicial usurpation of 
power.”  In re Diet Drugs Prods. Liab. Litig., 418 F.3d 372, 378 (3d Cir. 2005) (citation 
 
1 We deferred action on Lyall’s petition pending proof of service on each party to 
the underlying proceeding.  She has provided the requisite proof, thereby mooting her 
motion to strike our noncompliance order. 
 
3 
omitted).  Petitioners must show that they have no other adequate means to obtain the 
relief desired, that they have a clear and indisputable right to the writ, and that the writ 
would be appropriate under the circumstances.  See Haines v. Liggett Grp. Inc., 975 F.2d 
81, 89 (3d Cir. 1992); see also Hollingsworth v. Perry, 558 U.S. 183, 190 (2010) (per 
curiam). 
Lyall has not met this exacting burden.  The District Court administratively 
terminated her motion to correct the NOS code designation when it closed the case, and it 
denied her motion to reopen because she had neither paid the filing fee nor moved to 
proceed in forma pauperis.  She disclaimed resorting to the latter option and informed the 
court that her fee would be forthcoming.  Although it does not appear from the record 
that the fee was received, we note that Lyall recently filed a motion to proceed in forma 
pauperis on appeal, which the District Court granted.  Lyall thus has alternative means to 
obtain her desired relief: upon satisfying the remainder of the District Court’s deficiency 
order, the propriety of which she does not dispute, she may renew her motions to reopen 
and to correct the NOS code designation in that court.  Accordingly, we will deny her 
mandamus petition. 


In Re: Marta Lyall

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
7-2-2025 
In Re: Benjamin S. Rich 
Follow this and additional works at: https://digitalcommons.law.villanova.edu/thirdcircuit_2025 
Recommended Citation 
"In Re: Benjamin S. Rich" (2025). 2025 Decisions. 531. 
https://digitalcommons.law.villanova.edu/thirdcircuit_2025/531 
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DLD-169        NOT PRECEDENTIAL 
 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
___________ 
 
No. 25-1939 
___________ 
 
IN RE: BENJAMIN S. RICH, 
    Petitioner 
____________________________________ 
 
On a Petition for Writ of Mandamus from the 
United States District Court for the District of New Jersey 
(Related to D.N.J. Crim. No. 2:21-cr-00503-01) 
____________________________________ 
 
Submitted Pursuant to Rule 21, Fed. R. App. P. 
June 18, 2025 
Before:  RESTREPO, FREEMAN, and NYGAARD, Circuit Judges 
 
(Opinion filed: July 2, 2025) 
_________ 
 
OPINION* 
_________ 
 
PER CURIAM 
 Benjamin S. Rich has filed a pro se petition for a writ of mandamus compelling 
the District Court to rule on his motion for sanctions and disciplinary action against his 
former standby defense counsel. We will deny the petition. 
 Rich was indicted in 2021 on charges of conspiracy to commit bank fraud and 
aggravated identity theft. Later that year, after several requests by Rich to proceed pro se, 
 
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 
constitute binding precedent. 
 
2 
 
the District Court appointed Isaac Wright, Jr., as pro bono standby counsel. The 
Government produced discovery to Wright. Rich later requested Wright’s removal from 
his case, and in February 2024, the District Court relieved Wright as standby counsel. In 
May 2024, the Government filed a motion to dismiss the indictment, explaining that 
“further prosecution is not in the interests of the United States at this time.” ECF No. 134 
at 2. The District Court granted the motion shortly thereafter.  
Several months later, Rich filed a motion to compel Wright to turn over the 
discovery provided by the Government, explaining that he needed the materials to 
“support civil claims under 42 U.S.C. § 1983.” ECF No. 136 at 3. The District Court 
granted the motion, on the condition that it would also appoint counsel to review the file 
and redact all information subject to a protective order prior to providing the materials to 
Rich directly. Two months later, Rich filed a motion to compel appointed counsel’s 
compliance with the District Court’s order. The appointed attorney filed a response, 
explaining that he could neither redact nor share files he did not have, as the Government 
would not provide the discovery directly, and Wright had yet to produce the file despite 
multiple requests. On March 12, 2025, Rich filed a motion for sanctions and disciplinary 
action against Wright. The District Court has yet to rule on the motion. Rich has filed a 
petition for a writ of mandamus asking us to compel it to do so. 
A writ of mandamus is a drastic remedy that is available only in extraordinary 
cases. See In re Diet Drugs Prods. Liab. Litig., 418 F.3d 372, 378 (3d Cir. 2005). Rich 
must show that he has no other adequate means to obtain relief and that he has a clear and 
indisputable right to the writ. Hollingsworth v. Perry, 558 U.S. 183, 190 (2010) (per 
 
3 
 
curiam). While district courts have discretion over docket management, see In re Fine 
Paper Antitrust Litig., 685 F.2d 810, 817 (3d Cir. 1982), a writ of mandamus may be 
warranted where “undue delay is tantamount to a failure to exercise jurisdiction.” 
Madden v. Myers, 102 F.3d 74, 79 (3d Cir. 1996). We cannot conclude that the current 
delay in ruling on Rich’s pending motion—just over three months at this point—
constitutes a failure to exercise jurisdiction or warrants the extraordinary remedy of 
mandamus. We are confident that the District Court will issue a ruling in due course. 
We will thus deny Rich’s mandamus petition without prejudice to his filing 
another mandamus petition if the District Court does not act without undue delay. 


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