Villanova University School of Law: Digital Repository

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
2-11-2025 
Robert Archie v. Hamilton Township Municipal Court 
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Recommended Citation 
"Robert Archie v. Hamilton Township Municipal Court" (2025). 2025 Decisions. 120. 
https://digitalcommons.law.villanova.edu/thirdcircuit_2025/120 
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         NOT PRECEDENTIAL 
 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
___________ 
 
No. 24-2568 
__________ 
 
ROBERT I. ARCHIE, 
   Appellant 
 
v. 
 
HAMILTON TOWNSHIP MUNICIPAL COURT; STATE OF NEW JERSEY; 
DOUGLASS HOFFMAN 
____________________________________ 
 
On Appeal from the United States District Court 
for the District of New Jersey 
(D.C. Civil Action No. 3:19-cv-20975) 
District Judge:  Honorable Georgette Castner 
____________________________________ 
 
Submitted Pursuant to Third Circuit LAR 34.1(a) 
February 6, 2025 
Before:  SHWARTZ, MONTGOMERY-REEVES, and SCIRICA, Circuit Judges 
 
(Opinion filed: February 11, 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 
 
 Robert I. Archie appeals from District Court’s orders dismissing his complaint as 
to Judge Douglas Hoffman and granting summary judgment in favor of the Hamilton 
Township Municipal Court. For the following reasons, we will affirm. 
I 
 Archie filed suit against Defendants the Hamilton Township Municipal Court and 
the Judge Hoffman1 pursuant to 42 U.S.C. § 1983. Archie alleged that he was punished 
by Judge Hoffman, a judge on the Hamilton County Municipal Court, on a charge that 
had already been dismissed. Archie alleged that Judge Hoffman was specifically liable 
because he was the one who handed down the sentence. He sought Judge Hoffman’s 
removal from the bench and monetary damages.  
 The District Court granted Judge Hoffman’s motion to dismiss, finding that Archie 
had failed to adequately describe how Judge Hoffman had violated his constitutional 
rights and that Judge Hoffman was entitled to judicial immunity. Subsequently, the case 
moved forward to discovery against the sole remaining Defendant, the Hamilton 
Township Municipal Court.  
 Discovery fleshed out the underlying state court proceedings against Archie in the 
Municipal Court. Archie had been charged with assault. A public defender was appointed 
to represent Archie, but Archie was required to pay a $200.00 fee for the public defender 
to represent him. That assault charge was ultimately dismissed. Archie was not through 
 
1 Archie also sued the State of New Jersey. The District Court dismissed the State of New 
Jersey as a Defendant early in this case and it does not appear that Archie appeals that 
decision. Nevertheless, it is worth noting that the State of New Jersey had immunity. See, 
e.g., Edelman v. Jordan, 415 U.S. 651, 662-63 (1974).  
3 
 
though with proceedings in the Municipal Court as he also had two traffic violations for 
which he was ordered to pay fines. Archie did not pay the fines or the fee for his public 
defender, and Judge Hoffman ordered him to perform community service in lieu of the 
fines imposed.  
 Ultimately, after discovery concluded, the Hamilton Township Municipal Court 
moved for summary judgment. The District Court gave multiple reasons for granting 
summary judgment in favor of the Hamilton Township Municipal Court. Among its 
reasons, the District Court held that the Municipal Court could not be held vicariously 
liable for the judicial actions of Judge Hoffman and that Archie failed to show the 
existence of a policy or custom that resulted in a constitutional violation to potentially 
make the Municipal Court liable under Monell v. Dep’t of Soc. Servs. of City of New 
York, 436 U.S. 658 (1978). Archie then filed this appeal.  
II 
We have jurisdiction pursuant to 28 U.S.C. § 1291 and exercise plenary review 
over the District Court’s dismissal and summary judgment orders. See Dondero v. Lower 
Milford Twp., 5 F.4th 355, 358 (3d Cir. 2021); Fleisher v. Standard Ins. Co., 679 F.3d 
116, 120 (3d Cir. 2012). “To survive a motion to dismiss, a complaint must contain 
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its 
face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 
550 U.S. 544, 570 (2007)). Summary judgment is appropriate “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). 
4 
 
III 
 The District Court properly dismissed the claims against Judge Hoffman. As the 
District Court observed, Archie’s conclusory, undeveloped allegations were not “enough 
to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. Further, 
Judge Hoffman retained judicial immunity for his judicial acts even if any “action . . . 
was in error, was done maliciously, or was in excess of [the judge’s] authority.” Stump v. 
Sparkman, 435 U.S. 349, 356 (1978). 
The Court also correctly granted summary judgment in favor of the Municipal 
Court. Assuming arguendo that Archie could overcome the other bars to relief identified 
by the District Court,2 Archie still could not hold the Municipal Court liable under a 
respondeat superior theory of liability for Judge Hoffman’s actions. See Rode v. 
Dellaciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). Furthermore, Archie did not 
sufficiently state, much less demonstrate, any violation resulting from a policy, practice 
or custom under Monell to survive summary judgment on his claim against the Municipal 
Court. See Monell, 436 U.S. 690-91. Thus, we will affirm. 
 
2 We need not consider the District Court’s alternative additional rationales for why the 
Municipal Court was entitled to summary judgment in light of this holding.  


English

Robert Archie v. Hamilton Township Municipal Court

USDC for the Middle District of Pennsylvani

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
2-20-2025 
Omar Folk v. Rick Peddicord 
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Recommended Citation 
"Omar Folk v. Rick Peddicord" (2025). 2025 Decisions. 138. 
https://digitalcommons.law.villanova.edu/thirdcircuit_2025/138 
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Digital Repository. For more information, please contact reference@law.villanova.edu. 
 
 
DLD-065        NOT PRECEDENTIAL 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
___________ 
 
No. 24-2566 
___________ 
 
OMAR SIERRE FOLK, 
                               Appellant 
 
v. 
 
RICK PEDDICORD; JAMES MCBRIDE; YORK CITY POLICE 
____________________________________ 
 
On Appeal from the United States District Court 
for the Middle District of Pennsylvania 
(D.C. Civil Action No. 3:07-cv-01499) 
District Judge:  Honorable Robert D. Mariani 
____________________________________ 
 
Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B) or 
Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6 
January 16, 2025 
 
Before: RESTREPO, FREEMAN, and NYGAARD, Circuit Judges 
 
(Opinion filed: February 20, 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 
 
 Omar Sierre Folk appeals the District Court’s order denying his motion filed 
pursuant to Rule 60(b)(6).  For the reasons that follow, we will summarily affirm the 
District Court’s order. 
In 2007, Folk filed a civil rights complaint against several defendants.  In 2008, 
the District Court granted defendants’ motion for summary judgment as unopposed and 
entered judgment in favor of defendants.  Folk did not file a notice of appeal.  Fifteen 
years later, in 2023, Folk filed a motion pursuant to Fed. R. Civ. P. 60(b)(6) seeking to 
reopen the District Court’s judgment.  The District Court denied the motion as untimely, 
having determined that it was not filed within a reasonable time, and also concluded that 
Folk had failed to show exceptional circumstances warranting Rule 60(b)(6) relief.  Folk 
then filed a motion for reconsideration, and, after the District Court denied that motion, 
he filed a timely notice of appeal. 
We have jurisdiction under 28 U.S.C. § 1291 and review the denial of a Rule 
60(b)(6) motion for an abuse of discretion.  Cox v. Horn, 757 F.3d 113, 118 (3d Cir. 
2014).  Summary action is appropriate if there is no substantial question presented in the 
appeal.  See 3d Cir. L.A.R. 27.4.  We may summarily affirm a District Court’s decision 
“on any basis supported by the record” if the appeal fails to present a substantial question.  
Murray v. Bledsoe, 650 F.3d 246, 247 (3d Cir. 2011) (per curiam). 
A court may reopen a judgment under Rule 60(b)(6) only in extraordinary 
circumstances where extreme hardship would occur without relief.  Cox, 757 F.3d at 120.  
On appeal, Folk argues that the District Court erred in not reopening its judgment based 
on the Supreme Court’s recent decision in Chiaverini v. City of Napoleon, 602 U.S. 556 
 
3 
 
(2024) (holding that probable cause for one charge does not defeat a malicious 
prosecution claim for another charge).  In granting summary judgment for the defendants, 
however, the District Court did not conclude that there was probable cause for one of the 
charges Folk was prosecuted for but not the other.  Rather, the District Court granted 
their motion for summary judgment as unopposed.  Moreover, in light of the evidence 
presented at Folk’s criminal trial, see ECF #24, the District Court did not abuse its 
discretion in determining that Folk had not established that the defendants initiated the 
criminal proceedings without probable cause.  We agree with the District Court that Folk 
did not establish extraordinary circumstances to warrant relief pursuant to Rule 60(b)(6). 
For the above reasons, we will summarily affirm the District Court’s order.  See 
3d Cir. I.O.P. 10.6.  Folk’s “Motion for Briefing Schedule” and any other requests within 
that motion, including his request for appointment of counsel, are denied. 
 


Omar Folk v. Rick Peddicord

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
2-20-2025 
Carl Rodgers v. Pennsylvania State Police 
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Recommended Citation 
"Carl Rodgers v. Pennsylvania State Police" (2025). 2025 Decisions. 141. 
https://digitalcommons.law.villanova.edu/thirdcircuit_2025/141 
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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. 24-1759 
____________ 
 
CARL E. RODGERS, 
                           Appellant 
                                       
v. 
 
PENNSYLVANIA STATE POLICE; JEFFREY STINE; 
DEAN SHIPE; SCOTT DENISCH; SEAN MOYER; 
MARK MAGYAR; JOHN DOES 
____________ 
 
On Appeal from the United States District Court 
for the Middle District of Pennsylvania 
(District Court No. 1:20-cv-02115) 
District Judge:  Honorable Sylvia H. Rambo 
____________ 
 
Submitted Pursuant to Third Circuit L.A.R. 34.1(a) 
January 16, 2025 
____________ 
 
Before:  PHIPPS, FREEMAN, and CHUNG, Circuit Judges 
 
(Filed: February 20, 2025) 
____________ 
 
OPINION1 
____________ 
CHUNG, Circuit Judge. 
 
1 This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does 
not constitute binding precedent. 
2 
 
A grand jury’s issuance of a presentment or indictment creates a presumption of 
probable case.  To succeed on a malicious prosecution claim, a plaintiff must overcome 
that presumption.  Carl Rodgers argues that the District Court erred in granting summary 
judgment to the defendants because he presented sufficient evidence to overcome that 
presumption.  We disagree and will affirm. 
I. BACKGROUND2 
 
On April 23, 1983, Debra Rodgers (“Debra”) went missing.  That same day, her 
husband, Carl Rodgers (“Rodgers”), called Debra’s mother to inquire about Debra’s 
whereabouts.  This prompted Debra’s family to drive to the couple’s farm and begin 
searching for her.  The next morning, Debra’s body was located in the woods off a 
remote road.  Her body had visible signs of trauma, including deep slashes across both 
wrists, indicative of suicide.  A knife and sheath bearing the name “Carl” were recovered 
nearby.  Rodgers was investigated, and a grand jury was convened to consider charging 
him in connection with Debra’s death.  The grand jury was not ultimately requested to 
issue a presentment at that time.   
Over thirty years later, a Pennsylvania State Police task force met to discuss the 
investigation and recommended resuming it.  A grand jury again convened, and this time, 
issued a presentment recommending that the Commonwealth charge Rodgers with 
murder.3  The grand jury found probable cause that Rodgers murdered Debra and that her 
 
2 Because we write for the parties, we recite only facts pertinent to our decision. 
3 Under Pennsylvania law, “[g]rand juries issue both indictments and presentments. 
With indictments, the grand jury sets forth felony charges asserted by the government 
 
3 
 
wrists had been slashed to make her death look like a suicide.  Accordingly, Rodgers was 
charged and later tried for murder.  After deliberating for only an hour, the jury acquitted 
Rodgers.   
Rodgers then brought this 42 U.S.C. § 1983 action against the Pennsylvania State 
Police and various officers alleging malicious prosecution under the Fourth Amendment 
and other causes of action.  After discovery, the defendants moved for summary 
judgment.  The District Court granted summary judgment on the malicious prosecution 
claim, holding that the evidence, viewed in the light most favorable to Rodgers, did not 
undermine defendants’ probable cause to prosecute Rodgers, and Rodgers failed to show 
the required malice to succeed on a malicious prosecution claim.  Rodgers timely 
appealed.   
II. DISCUSSION4 
 
 
after finding probable cause that a person under investigation has committed the alleged 
crime.  With presentments, the grand jury recommends for prosecution charges it has 
initiated, or it issues reports condemning official misconduct not rising to the level of a 
criminal offense.”  Commonwealth v. Slick, 639 A.2d 482, 484 n.1 (Pa. Super. Ct. 1994); 
see also 42 Pa. Cons. Stat. § 4551(a) (discussing presentments). 
4  The District Court possessed subject matter jurisdiction pursuant to 28 U.S.C. 
§ 1331.  We have jurisdiction pursuant to 28 U.S.C. § 1291.  Our review of the District 
Court’s summary judgment decision is plenary.  See Barna v. Bd. of Sch. Dirs. of Panther 
Valley Sch. Dist., 877 F.3d 136, 141 (3d Cir. 2017).  Summary judgment is appropriate 
when 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).  Although the 
nonmovant’s evidence “is to be believed, and all justifiable inferences are to be drawn in 
his favor in determining whether a genuine factual question exists,” summary judgment 
should be granted “unless there is sufficient evidence for a jury to reasonably find for the 
nonmovant.”  Barefoot Architect, Inc. v. Bunge, 632 F.3d 822, 826 (3d Cir. 2011) 
(internal quotation marks omitted). 
4 
 
To succeed on a Fourth Amendment malicious prosecution claim, a plaintiff must 
show that: 
(1) the defendant initiated a criminal proceeding; (2) the criminal 
proceeding ended in [plaintiff’s] favor; (3) the defendant initiated the 
proceeding without probable cause; (4) the defendant acted maliciously 
or for a purpose other than bringing the plaintiff to justice; and (5) the 
plaintiff suffered deprivation of liberty consistent with the concept of 
seizure as a consequence of a legal proceeding.   
 
Johnson v. Knorr, 477 F.3d 75, 82 (3d Cir. 2007).  Under this standard, “[a] finding of 
probable cause is … a complete defense” to a claim of malicious prosecution.  Goodwin 
v. Conway, 836 F.3d 321, 327 (3d Cir. 2016). 
Here, Rodgers was charged as recommended by a grand jury’s presentment.  “[A] 
grand jury indictment or presentment constitutes prima facie evidence of probable cause 
to prosecute ….”  Rose v. Bartle, 871 F.2d 331, 353 (3d Cir. 1989).  Thus, a presentment 
creates a “presumption” of probable cause.  Xi v. Haugen, 68 F.4th 824, 841 (3d Cir. 
2023).  This “presumption may be rebutted by a plausible allegation that the indictment 
was ‘procured by fraud, perjury or other corrupt means.’”  Id. (quoting Rose, 871 F.3d at 
353).   
The presentment contains considerable inculpatory evidence that supports a 
finding of probable cause.  Nonetheless, Rodgers attempts to show the use of “fraud, 
perjury or other corrupt means” by arguing that the defendants failed to present 
exculpatory or potentially exculpatory evidence to the grand jury.  This argument fails for 
two reasons.  First, Rodgers’s argument is based on speculation as to what forensic 
examination would have revealed had certain items of evidence been retained.  These 
5 
 
assertions do not create a genuine issue that the evidence was exculpatory.  Second, we 
have previously held that when a grand jury presentment contains facts supporting 
probable cause, a failure to provide exculpatory evidence to the grand jury does not 
demonstrate that the presentment was procured by fraud, perjury or other corrupt means.  
See Camiolo v. State Farm Fire & Cas. Co., 334 F.3d 345, 363 (3d Cir. 2003) (citing 
United States v. Williams, 504 U.S. 36, 51 (1992)).5  In sum, Rodgers fails to establish a 
genuine issue that the specified evidence was exculpatory or that the grand jury’s 
presentment was obtained by fraud, perjury or other corrupt means. 
Rodgers also points to an email chain including two of the defendants that, 
according to Rodgers, “appears to discuss ‘making-up’ autopsy photos.”  Rodgers Br. 14.    
However, a review of the whole email does not produce a genuine dispute that probable 
cause was lacking, and the District Court properly rejected Rodgers’ argument.  The 
email discusses making enlarged versions of various photos and diagrams to potentially 
be “mounted on board,” and presumably used at trial.  J.A. 148.  The email then states, “I 
can make one up of the autopsy photos also if you think you want them.”  Id.  Clearly, 
 
5 Rodgers attempts to rebut this presumption by showing that the 
officer “knowingly and deliberately, or with a reckless disregard for the truth, made 
materially false statements or omissions” Xi, 68 F.4th at 841 (emphasis added) (brackets 
omitted) (quoting Sherwood v. Mulvihill, 113 F.3d 396, 399 (3d Cir. 1997)).  As Rodgers 
concedes, this language “concerns a search warrant,” but he “submit[s] the rebuttal also 
applies to Grand Jury presentments.”  Rodgers Br. 16.  This broader application, 
however, is foreclosed by our holding in Camiolo.  334 F.3d at 363.  While other circuits 
have held that a failure to disclose exculpatory evidence to a grand jury can rebut the 
presumption of probable cause founded upon a grand jury’s indictment, see, e.g., Harris 
v. Town of Southern Pines, 110 F.4th 633, 643–44 (4th Cir. 2024). 
6 
 
this was an offer to create an enlarged version of the existing autopsy photos.  Thus, the 
District Court properly rejected Rodgers’ proposed reading as unreasonable.  See Halsey 
v. Pfeiffer, 750 F.3d 273, 287 (3d Cir. 2014) (“In considering a summary judgment 
motion, a court must view the evidence in the light most favorable to the non-moving 
party and give that party the benefit of all reasonable inferences that can be drawn from 
the evidence.” (emphasis added)).  In any event, this email was sent months after the 
grand jury issued its presentment.  Therefore, the email does not establish a genuine 
dispute that the presentment was “procured by fraud, perjury or other corrupt means.”  
Rose, 871 F.2d at 353. 
Rodgers also alleges various inaccuracies in the Pennsylvania State Police crime 
report and grand jury presentment.  However, Rodgers fails to show that that any alleged 
misstatements in the report were knowingly false or were material to the grand jury’s 
finding of probable cause.  Id.  Rodgers also takes issue with the strategies the police 
used to investigate him.  However, none of the purported deficiencies in the investigation 
negate the evidence supporting the grand jury’s finding of probable cause.  Id. 
III. CONCLUSION 
 
For the forgoing reasons, we will affirm the judgement of the District Court.6 
 
6 Because we can affirm on the basis of probable cause alone, we need not reach the 
defendants’ immunity arguments or arguments related to the involvement of particular 
defendants, nor do we reach the issue of whether the defendants acted with the required 
malice to support a malicious prosecution claim. 


Carl Rodgers v. Pennsylvania State Police

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
2-20-2025 
Bruce Dorr v. GCT Global Container Terminals Inc 
Follow this and additional works at: https://digitalcommons.law.villanova.edu/thirdcircuit_2025 
Recommended Citation 
"Bruce Dorr v. GCT Global Container Terminals Inc" (2025). 2025 Decisions. 144. 
https://digitalcommons.law.villanova.edu/thirdcircuit_2025/144 
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Digital Repository. For more information, please contact reference@law.villanova.edu. 
NOT PRECEDENTIAL 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
_______________ 
No. 24-1632 
_______________ 
BRUCE DORR; 
CAROLE DORR 
 
v. 
 
GCT GLOBAL CONTAINER TERMINALS INC; 
GCT BAYONNE, LP 
 
Bruce Dorr, 
                   Appellant 
_______________ 
On Appeal from the United States District Court  
for the Middle District of Pennsylvania 
(D.C. No. 1:23-cv-00723) 
District Judge: Honorable Sylvia H. Rambo 
_______________ 
Submitted Under Third Circuit L.A.R. 34.1(a)  
on February 18, 2025 
Before: CHAGARES, Chief Judge, and BIBAS and RENDELL, Circuit Judges 
(Filed: February 20, 2025) 
 
_______________ 
OPINION* 
_______________ 
 
*  This disposition is not an opinion of the full Court and, under I.O.P. 5.7, is not binding 
precedent. 
2 
BIBAS, Circuit Judge.  
Bruce Dorr was a truck driver and independent contractor for a Pennsylvania delivery 
company. His delivery company sent him an order to pick up a load in New Jersey from 
GCT Bayonne, operated by GCT Global Container Terminals, and drive it to central Penn-
sylvania. He drove there, and GCT Bayonne and GCT Global’s employees put the con-
tainer on his truck. Though he did not know it, the shipping container was overloaded and 
too heavy for him to transport. 
Dorr drove the load to central Pennsylvania. While he was driving within the speed 
limit, his truck rolled over and caught fire, seriously and permanently injuring him. He and 
his wife sued GCT Bayonne and GCT Global in federal court in Pennsylvania for negli-
gence and loss of consortium. The District Court dismissed without prejudice for lack of 
personal jurisdiction. Fed. R. Civ. P. 12(b)(2). 
We review that dismissal de novo. N. Penn Gas Co. v. Corning Nat. Gas Corp., 897 
F.2d 687, 688 (3d Cir. 1990). Because the GCT companies raised personal jurisdiction as 
a defense, Dorr has the burden “to come forward with sufficient facts to establish that juris-
diction is proper.” Danziger & De Llano, LLP v. Morgan Verkamp LLC, 948 F.3d 124, 129 
(3d Cir. 2020) (internal quotation marks omitted). Because the District Court did not hold 
an evidentiary hearing, Dorr need only “establish a prima facie case of personal jurisdic-
tion” and is “entitled to have [his] allegations taken as true and all factual disputes drawn 
in [his] favor.” Miller Yacht Sales, Inc. v. Smith, 384 F.3d 93, 97 (3d Cir. 2004). Still, he 
has not met his burden.  
3 
Pennsylvania’s long-arm statute extends to the Constitution’s limits, so the Due Process 
Clause defines the bounds of the District Court’s personal jurisdiction. 42 Pa. Cons. Stat. 
§ 5322(b).  
As the District Court properly held, it lacked general personal jurisdiction over the com-
panies. General personal jurisdiction exists if the companies have such “continuous and 
systematic” links to Pennsylvania “as to render them essentially at home” there. Daimler 
AG v. Bauman, 571 U.S. 117, 127 (2014) (internal quotation marks omitted).  
Both companies are incorporated (or registered) and have their principal places of busi-
ness outside Pennsylvania. GCT Global’s general counsel swore that his company is orga-
nized and does business in Canada, has never done or solicited business in Pennsylvania, 
and has never had any property or employees in Pennsylvania. A vice president of GCT 
Bayonne’s parent company swore that GCT Bayonne is registered in Delaware, has its 
headquarters and principal place of business in New Jersey, has never done or solicited 
business in Pennsylvania, and has never had any property or employees in Pennsylvania. 
Under Rule 12(b)(2), we may look at such sworn affidavits outside the pleadings. Patterson 
ex rel. Patterson v. FBI, 893 F.2d 595, 603–04 (3d Cir. 1990). Dorr pleaded no specific 
facts contradicting that evidence. He alleges only that GCT Global is a Canadian corpora-
tion and GCT Bayonne is a Delaware and New Jersey limited partnership. So Dorr has not 
met his burden of showing general personal jurisdiction.  
Nor did the District Court have specific personal jurisdiction. Dorr did not come for-
ward with any facts showing that either company took any act in Pennsylvania or otherwise 
“engaged in conduct purposefully directed at” it. J. McIntyre Mach., Ltd. v. Nicastro, 564 
4 
U.S. 873, 886 (2011) (plurality opinion). He alleges only that the companies’ employees 
loaded the container onto the truck. Even taking these allegations as true, they do not show 
that the companies chose where the goods would go. As the attachment to Dorr’s own 
complaint shows, neither company was the shipper. That fact distinguishes this case from 
the one on which Dorr primarily relies. Merced v. Gemstar Grp., No. 10-cv-3054, 2011 
WL 5865964, at *1, *4 (E.D. Pa. Nov. 22, 2011) (finding specific personal jurisdiction 
over foreign shippers because they “knowingly shipped their products into Pennsylvania 
on at least three occasions”). 
Because Dorr has not carried his burden of showing that either company did anything 
in or directed toward Pennsylvania, we will affirm the District Court’s dismissal without 
prejudice for lack of personal jurisdiction.   


Bruce Dorr v. GCT Global Container Terminals Inc

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
2-20-2025 
USA v. Jose Mercado-Colon 
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Recommended Citation 
"USA v. Jose Mercado-Colon" (2025). 2025 Decisions. 146. 
https://digitalcommons.law.villanova.edu/thirdcircuit_2025/146 
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Digital Repository. For more information, please contact reference@law.villanova.edu. 
 
NOT PRECEDENTIAL 
 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
____________ 
 
No. 23-3267 
____________ 
 
UNITED STATES OF AMERICA 
 
v. 
 
JOSE ESTEBAN MERCADO-COLON, 
Appellant 
____________ 
 
On Appeal from the United States District Court 
for the Middle District of Pennsylvania 
(D.C. Crim. No. 3:22-cr-00026-01) 
District Judge:  Honorable Robert D. Mariani 
____________ 
 
Submitted Pursuant to Third Circuit L.A.R. 34.1(a) 
February 18, 2025 
____________ 
 
Before:  CHAGARES, Chief Judge, BIBAS, and RENDELL, Circuit Judges 
 
(Filed: February 20, 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 
CHAGARES, Chief Judge. 
 Jose Mercado-Colon was sentenced to 51 months of imprisonment after he pled 
guilty to assault with a dangerous weapon.  His attorney has filed a motion to withdraw 
under Anders v. California, 386 U.S. 738 (1967).  For the reasons below, we will grant 
the motion and affirm the judgment of sentence.   
I. 
 We write primarily for the parties and so recite only those facts pertinent to our 
decision.  Mercado-Colon slashed a fellow inmate multiple times with a sharpened object 
after that inmate punched him, and the inmate lost his left eye.   
 A grand jury returned an indictment on January 25, 2022, which charged 
Mercado-Colon with (1) assault with a dangerous weapon, (2) assault resulting in serious 
bodily injury, and (3) possession of contraband in prison.  Mercado-Colon entered into a 
plea agreement pursuant to which he pled guilty to assault with a dangerous weapon in 
violation of 18 U.S.C. § 113(a)(3), which carries a maximum term of imprisonment of ten 
years.  Mercado-Colon was represented by counsel and attested that he was satisfied with 
defense counsel’s representation in the plea agreement.   
The recommended term of imprisonment pursuant to the United States Sentencing 
Guidelines (“Guidelines”) was 77 to 96 months.  The presentence investigation report 
(“PSR”) calculated the applicable criminal history category to be category VI because 
Mercado-Colon was a career offender.  It further noted that, for each of his criminal 
convictions as an adult, Mercado-Colon was either represented by counsel or waived his 
right to counsel.  The plea agreement stipulated that the applicable offense level was 21, 
3 
and the victim’s conduct warranted a departure pursuant to § 5K2.10.1  The parties 
further agreed that a modified sentencing range, from six months below the bottom of the 
applicable Guidelines range to the bottom of the Guidelines range, was appropriate given 
“the defendant’s agreement to a fast-track resolution of this case.”  Appendix 23. 
Accordingly, the final, recommended Guidelines range was 51 to 57 months.   
In addition to the sentencing submissions filed by defense counsel, Mercado-
Colon filed a pro se objection to the PSR’s criminal history calculation because the PSR 
failed to specify the charges for which he was represented by counsel.  At the sentencing 
hearing, the District Court noted that a PSR issued in conjunction with a prior conviction 
indicated that he was represented by counsel for earlier convictions.  The District Court 
sentenced Mercado-Colon to a term of imprisonment of 51 months.   
Mercado-Colon filed a pro se motion for reconsideration on the grounds that 
(1) counsel was ineffective because he did not argue that the PSR incorrectly calculated 
his criminal history and (2) his plea was not knowing or voluntary because the hearing 
was not conducted in his native language of Spanish.  He further requested to be assigned 
a Spanish-speaking attorney and judge.  The District Court dismissed his motion for lack 
of jurisdiction.   
Mercado-Colon timely appealed.  On January 8, 2024, he filed a pro se amended 
notice of appeal and a motion for a change of counsel.  Mercado-Colon asserts that (1) he 
 
1 The plea agreement initially incorrectly calculated the offense level to be 22, and the 
parties orally amended the calculation to be an offense level of 21 at the change of plea 
hearing.   
4 
did not enter a voluntary and informed guilty plea because he did not have access to 
adequate translation services; (2) the criminal history calculation erroneously included his 
prior convictions without specifying that he was represented by counsel; and (3) his 
counsel was ineffective.   
We granted his motion for new counsel, and Mercado-Colon’s new counsel now 
seeks to withdraw because there is no viable basis for appeal.  The Government agrees.   
II.2 
 Under Anders, court-appointed counsel may — after finding any appeal “to be 
wholly frivolous” after careful examination of the record — file a brief so “advis[ing] the 
court and request[ing] permission to withdraw.”  386 U.S. at 744.  This Court must 
consider “(1) whether counsel adequately fulfilled the requirements of Third Circuit 
Local Appellate Rule 109.2(a), and (2) whether an independent review of the record 
presents any nonfrivolous issues.”  Simon v. Gov’t of Virgin Islands, 679 F.3d 109, 114 
(3d Cir. 2012) (cleaned up).  “We exercise plenary review to determine whether there are 
any such issues” and review factual findings for clear error.  Id.   
The withdrawing counsel’s brief must “satisfy the court that counsel has 
thoroughly examined the record in search of appealable issues” and “explain why the 
issues are frivolous.”  United States v. Youla, 241 F.3d 296, 300 (3d Cir. 2001).  An 
appeal is frivolous if “the appeal lacks any basis in law or fact.”  McCoy v. Ct. of 
Appeals of Wis., Dist. 1, 486 U.S. 429, 438 n.10 (1988).  If “the Anders brief initially 
 
2 The District Court had jurisdiction under 18 U.S.C. § 3231.  We have jurisdiction to 
pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).   
5 
appears adequate on its face,” the second step of our inquiry is guided “by the Anders 
brief itself.”  Youla, 241 F.3d at 301 (quotation omitted).  “[A] complete scouring of the 
record” is unnecessary.  Id. 
Because the Anders brief in this case is facially adequate, we confine our review 
to the issues identified by the brief.  Mercado-Colon’s counsel has identified two areas 
for review:  (1) whether the use of an interpreter during the change of plea hearing was 
proper and (2) whether the District Court correctly calculated Mercado-Colon’s criminal 
history and imposed a reasonable sentence.  Mercado-Colon did not file a pro se brief in 
response.   
First, the District Court provided Mercado-Colon with adequate translation 
services by a sworn interpreter.  We have held that translation services are sufficient to 
address any language barrier, and a Spanish-speaking defendant has no right to a 
Spanish-speaking attorney.  See Gov’t of Virgin Islands v. Martinez, 847 F.2d 125, 127 
(3d Cir. 1988).  At the outset of the change of plea hearing, Mercado-Colon affirmed that 
he could understand the proceedings and answer the District Court’s questions 
intelligently.  He further confirmed that an interpreter had read the plea agreement to him 
in Spanish and was available to assist Mercado-Colon in discussing any questions 
regarding the agreement with defense counsel.  He then listened to a translated summary 
of the plea agreement and stated that he understood the terms of the agreement and had 
no questions.  And though there were brief audio issues that interfered with the 
translation, the District Court repeated itself and had the transcript translated back to the 
defendant before proceeding to ensure that Mercado-Colon was able to follow along.   
6 
Second, the District Court imposed a reasonable sentence.  We review the 
reasonableness of a sentence for abuse of discretion and will affirm unless no reasonable 
court would have imposed such a sentence.  United States v. Tomko, 562 F.3d 558, 567–
68 (3d Cir. 2009) (en banc).  A sentencing court must follow three procedural steps:  
(1) calculate the appropriate Guidelines range; (2) rule on any departure motions; and 
(3) exercise discretion by considering the relevant 18 U.S.C. § 3553(a) factors.  See 
United States v. Flores-Mejia, 759 F.3d 253, 256 (3d Cir. 2014) (en banc).  We discern 
no procedural or substantive error here.  The District Court considered submissions and 
argument from the government, defense counsel, and Mercado-Colon.  It correctly 
calculated the Guidelines range; granted the motion for a departure based on the victim’s 
conduct; and considered the § 3553(a) factors.  The District Court then imposed a 
sentence of 51 months, well below the statutory maximum of ten years.  That sentence 
was reasonable in light of the severe physical harm that Mercado-Colon inflicted during 
the assault. 
Although Mercado-Colon argued that the PSR did not specify for which charges 
he was represented by counsel, the PSR clearly stated that he either had counsel or 
waived counsel for all previous adult convictions.  Mercado-Colon does not allege that he 
was denied the right to counsel as part of any convictions, and thus, “the presumption of 
regularity attaches to the conviction[s].”  United States v. Jones, 332 F.3d 688, 697 (3d 
Cir. 2003).  Even if the record were silent as to whether his Sixth Amendment right to 
counsel was upheld as part of his prior convictions, which it is not, we would not read 
such silence to imply that Mercado-Colon was denied his right to counsel.  See id.   
7 
Finally, we decline to review Mercado-Colon’s claim that his counsel provided 
ineffective assistance.  We entertain claims of ineffective assistance of counsel on direct 
review only where “the record is sufficient to allow determination of ineffective 
assistance of counsel” so that “an evidentiary hearing to develop the facts is not needed.”  
United States v. McLaughlin, 386 F.3d 547, 556 (3d Cir. 2004) (quoting United States v. 
Headley, 923 F.2d 1079, 1083 (3d Cir. 1991)).  That is not the case here.  Mercado-Colon 
may, however, pursue his ineffective assistance of counsel claim and seek to develop the 
record in the District Court in a motion made pursuant to 28 U.S.C. § 2255. 
In sum, we conclude that counsel has fulfilled the requirements of Anders by 
making a thorough examination of the record.  We have independently reviewed the 
record and do not identify any non-frivolous issues on direct appeal.  
III. 
For the foregoing reasons, we will grant counsel’s motion to withdraw and will 
affirm the District Court’s judgment of sentence.  In addition, we certify that the issues 
presented lack legal merit and that counsel is not required to file a petition for writ of 
certiorari with the Supreme Court.  3d Cir. L.A.R. 109.2(b) (2011). 


USA v. Jose Mercado-Colon

USDC for the Eastern District of Pennsylvani

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
2-25-2025 
Jim Kennedy v. Pei-Genesis 
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"Jim Kennedy v. Pei-Genesis" (2025). 2025 Decisions. 163. 
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NOT PRECEDENTIAL 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
_______________ 
No. 24-1563 
_______________ 
JIM KENNEDY, 
   Appellant 
v. 
PEI-GENESIS 
_______________ 
On Appeal from the United States District Court  
for the Eastern District of Pennsylvania 
(D.C. No. 2:23-cv-00164) 
District Judge: Honorable Joshua D. Wolson 
_______________ 
Submitted Under Third Circuit L.A.R. 34.1(a)  
on February 20, 2025 
Before: CHAGARES, Chief Judge, and BIBAS and FISHER, Circuit Judges 
(Filed: February 25, 2025) 
_______________ 
OPINION* 
_______________ 
BIBAS, Circuit Judge.  
Jim Kennedy worked as a software developer for Pei-Genesis. His employer required 
employees to take a COVID-19 vaccine unless they qualified for a medical or religious 
 
*  This disposition is not an opinion of the full Court and, under I.O.P. 5.7, is not binding 
precedent. 
 
2 
exemption. At first, Kennedy said he did not want to because he thought the vaccine was 
unsafe and ineffective. Several days later, he asked for a religious exemption. When he met 
with his supervisor and a human-resources manager to discuss it, they found him rude and 
fired him for insubordination during the meeting.  
Kennedy sued Pei-Genesis under Title VII, the Pennsylvania Human Relations Act, and 
the Americans with Disabilities Act. He claimed religious discrimination, a hostile work 
environment, failure to accommodate his religious practice, and disability discrimination. 
The District Court granted summary judgment for Pei-Genesis, ruling that no reasonable 
jury could find that his opposition to the vaccine was religious.  
Kennedy now appeals. He insists that his beliefs are religious, and he also objects to 
the District Court’s allowing discovery into his medical records and denying his request 
for a protective order. He no longer presses his claim of disability discrimination. We re-
view the District Court’s grant of summary judgment de novo and its discovery rulings for 
abuse of discretion. Tundo v. County of Passaic, 923 F.3d 283, 286 (3d Cir. 2019); Brum-
field v. Sanders, 232 F.3d 376, 380 (3d Cir. 2000). 
Start with discovery. The District Court’s rulings were proper. In denying Kennedy’s 
request for a protective order, it carefully balanced the relevant factors under Pansy v. Bor-
ough of Stroudsburg, 23 F.3d 772, 786–92 (3d Cir. 1994). The District Court concluded 
that discovery into Kennedy’s medical records was appropriate for two reasons: (1) the 
evidence is relevant to whether he in fact holds the anti-medication, anti-vaccine religious 
beliefs that he now espouses, and (2) Kennedy chose to put those beliefs at issue by bring-
ing this lawsuit. That was not an abuse of discretion. 
 
3 
And as the District Court held, no reasonable jury could find Kennedy’s beliefs were 
sincerely religious. That is fatal not only to his religious-discrimination claim, but also to 
his hostile-work-environment claim. For both claims, he must show that he “suffered in-
tentional discrimination because of religion.” Abramson v. William Paterson Coll. of N.J., 
260 F.3d 265, 276 (3d Cir. 2001) (cleaned up). A religious belief must be broader than 
disconnected moral teachings; it must “lay claim to an ultimate and comprehensive truth.” 
Africa v. Pennsylvania, 662 F.2d 1025, 1035 (3d Cir. 1981) (cleaned up). Kennedy claims 
that his religious belief is: “you got to watch what you put in your temple.” App. 108. But 
when his supervisor first brought up the vaccine, Kennedy did not mention his religion, but 
only safety. The single reason that the COVID-19 vaccine violates his supposed beliefs is 
that he thinks this one vaccine is “unsafe” and “dangerous.” App. 216–17. When a friend 
messaged him to “forget religion and all that” and focus on how the vaccine is “untested[,] 
unproven[,] possibly unsafe,” Kennedy responded “I’m with you 100% .… It just seems 
like common sense.” App. 487. Given his belated, inconsistent invocation of religion and 
his private message to his friend, no reasonable juror could find his isolated moral objection 
to be part of a “comprehensive truth.” Africa, 662 F.2d at 1035 (cleaned up); Fallon v. 
Mercy Catholic Med. Ctr., 877 F.3d 487, 492–93 (3d Cir. 2017) (rejecting similar health 
concerns about flu vaccine as a medical concern or “isolated moral teaching”). We will 
thus affirm.  


Jim Kennedy v. Pei-Genesis

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
2-26-2025 
BankUnited NA v. William Scism 
Follow this and additional works at: https://digitalcommons.law.villanova.edu/thirdcircuit_2025 
Recommended Citation 
"BankUnited NA v. William Scism" (2025). 2025 Decisions. 168. 
https://digitalcommons.law.villanova.edu/thirdcircuit_2025/168 
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NOT PRECEDENTIAL 
 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
____________ 
 
No. 24-1671 
____________ 
 
BANKUNITED, N.A. 
 
v. 
 
WILLIAM SCISM; KAREN SCISM; GC OF VINELAND, LLC. 
 
v. 
 
GOLDEN CORRAL CORPORATION; GOLDEN CORRAL FRANCHISING 
SYSTEMS, INC. 
 
(D.C. No. 2:18-cv-12879) 
 
 
GOLDEN CORRAL FRANCHISING SYSTEMS, INC. 
 
v. 
 
WILLIAM SCISM; KAREN SCISM; GC OF VINELAND, LLC. 
 
(D.C. No. 2:20-cv-02994) 
 
                  GC of Vineland; William Scism; and Karen Scism, 
                                Appellants 
____________ 
 
On Appeal from the United States District Court 
for the District of New Jersey 
District Court Nos. 2:18-cv-12879 and 2:20-cv-02994  
District Judges:  Honorable Evelyn Padin and Honorable Cathy L. Waldor  
____________ 
 
Submitted Pursuant to Third Circuit L.A.R. 34.1(a) on December 10, 2024 
____________ 
2 
 
 
Before:  BIBAS, CHUNG, and ROTH, Circuit Judges 
 
(Filed: February 26, 2025) 
____________ 
 
OPINION1 
____________ 
CHUNG, Circuit Judge. 
William Scism, Karen Scism, and their business entity, GC of Vineland, LLC 
(“GCV”), challenge the District Court’s partial grant of Golden Corral Corporation and 
Golden Corral Franchising Systems, Inc.’s (collectively, “Golden Corral”) motion to 
dismiss, denial of leave to file a motion pursuant to Rule 54(b), and lost-profits award at 
summary judgment.  For the reasons presented below, we will affirm.  
I. BACKGROUND2 
Golden Corral entered into a Franchise Agreement with the Scisms on May 24, 
2007, under which the Scisms would operate a Golden Corral restaurant in Vineland, 
New Jersey.  As part of the agreement, the Scisms paid Golden Corral a $50,000 initial 
franchise fee.  On April 20, 2011, Golden Corral, the Scisms, and GCV entered into an 
Assignment of Franchise Agreement (“Assignment Agreement”).  Under the Assignment 
Agreement, the Scisms assigned their rights under the Franchise Agreement to GCV with 
the consent of Golden Corral.  As a condition of Golden Corral’s consent, the Scisms 
 
1 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does 
not constitute binding precedent. 
2 Because we write for the parties, we recite only facts pertinent to our decision. 
3 
 
released “any and all claims” against Golden Corral “arising out of or related to” the 
Franchise Agreement “at any time prior to and including the date of [] Assignment.”  
Appx. 110. 
The Scisms ran the restaurant from October 19, 2011 to May 22, 2018, although 
the Franchise Agreement specified it would be run for 15 years.  After being sued for 
defaulting on their loan, the Scism parties (i.e., the Scisms and GCV) filed a third-party 
suit against Golden Corral in the District of New Jersey on December 12, 2018.  The 
Scism parties alleged that Golden Corral did not disclose known deficiencies of the 
restaurant site to the Scism parties before it entered into the Franchise Agreement.  
Golden Corral moved to dismiss on January 7, 2019.  Golden Corral then sued the Scism 
parties for breach of the Franchise Agreement in the United States District Court for the 
Eastern District of North Carolina.  The two actions were consolidated in the District of 
New Jersey.  The New Jersey District Court partially granted Golden Corral’s motion to 
dismiss on December 3, 2019.  The District Court then denied the Scism parties’ motion 
for leave to file a Rule 54(b) motion on June 15, 2022.  The District Court granted 
Golden Corral’s motion for summary judgment on March 27, 2024, and awarded Golden 
Corral damages for lost profits.   
II. DISCUSSION3 
 
3 The District Court had jurisdiction pursuant to 28 U.S.C. § 1332.  We have 
jurisdiction pursuant to 28 U.S.C. § 1291.  We review the District Court’s denial of 
summary judgment, grant of a motion to dismiss for failure to state a claim, interpretation 
of state law, and interpretation of a contract de novo.  Liberty Mut. Ins. Co. v. Sweeney, 
689 F.3d 288, 292 (3d Cir. 2012) (summary judgment); Newark Cab Ass’n v. City of 
 
4 
 
The Scism parties raise four issues on appeal.  We address each in turn.  
A. Lost Future Royalties 
 
The Scism parties argue that under Section IV.A.1.c of the Franchise Agreement, 
the initial franchise fee was remitted to compensate for any lost future royalties suffered 
by Golden Corral and that, accordingly, they owe Golden Corral no lost royalties.4  They 
contend that it would not make sense to pay an initial $50,000 franchise fee for “lost 
future royalties” only to have Golden Corral further recover in the event of contract 
default and termination.  We disagree.  The Section’s plain language makes clear that the 
“lost future royalties” referenced are losses associated with the opportunity cost to 
Golden Corral in franchising with the Scisms rather than with another party.  Appx. 068.  
This interpretation is confirmed when reading the Franchise Agreement as a whole, 
which sets forth the Scism parties’ future royalty obligations in later sections.  Appx. 65 
 
Newark, 901 F.3d 146, 151 (3d Cir. 2018) (motions to dismiss); Coleman v. Kaye, 87 
F.3d 1491, 1497 (3d Cir. 1996) (interpretation of state law); Carlyle Inv. Mgmt. LLC v. 
Moonmouth Co. SA, 779 F.3d 214, 218 (3d Cir. 2015) (contract interpretation).  We 
review a district court’s findings of fact for clear error.  In re Sharon Steel Corp., 871 
F.2d 1217, 1222 (3d Cir. 1989). 
 
4 Section IV.A.1.c of the Franchise Agreement provides:  
“The initial franchise fee (and each portion thereof) described in this Section 
IV.A.1. shall be deemed fully earned and non-refundable in consideration for, 
among other things, the administrative and other expenses incurred by Franchisor 
in furnishing assistance and services to Franchisee and for Franchisor’s lost future 
royalties or deferred opportunity to franchise others.”  Appx. 068. 
 
The Franchise Agreement also contains a choice of law provision specifying that 
North Carolina law applies.  Appx. 103.  However, none of the parties challenge on 
appeal the District Court’s application of New Jersey law.  Thus, we will review the 
District Court’s contract interpretation under New Jersey law.  
5 
 
(Section II), 68 (Section IV.A.2); Travelers Indem. Co. v. Dammann & Co., 594 F.3d 
238, 255 (3d Cir. 2010).  Were we to agree with the Scism parties, they could evade all 
future royalty payments in exchange for the $50,000 initial fee.  This interpretation would 
obviate the need to specify royalty obligations in later sections and render those sections 
meaningless, contrary to New Jersey contract law.  See MacDonald v. CashCall, Inc, 883 
F.3d 220, 228–29 (3d Cir. 2018) (“Under New Jersey law…contract provisions are to be 
interpreted so as to give each provision meaning, rather than rendering some provisions 
superfluous.” (cleaned up)).  We conclude that the District Court did not err in rejecting 
the Scism parties’ interpretation of this clause.  
B. The Dismissal of Counts 1-5 
 
The District Court dismissed counts 1-5 of the complaint, finding these claims 
were released.  Appx. 039.  The Scism parties argue that, as an assignee of the Franchise 
Agreement, GCV did not release its own claims against Golden Corral. This argument is 
forfeited because the Scism parties did not raise it in their district court briefing.5   See 
Birdman v. Off. of the Governor, 677 F.3d 167, 173 (3d Cir. 2012).6  We will thus affirm 
the District Court’s dismissal of counts 1-5.  
C. The Scism Parties’ Rule 54(b) Motion  
 
 
5 Similarly forfeited is the Scism parties’ argument, raised for the first time in their 
reply brief, that counts 1-5 were not released because these claims had not accrued at the 
time the Franchise Agreement was executed.  Reply Br. at 3-7; Gambino v. Morris, 134 
F.3d 156, 161 n.10 (3d Cir. 1998). 
6 The Scism parties have presented no exceptional circumstances that would warrant 
review of this argument, despite its forfeiture. 
6 
 
Pursuant to Rule 54(b), the Scism parties requested leave to file a motion for 
revision of the District Court’s order dismissing counts 1-5 of the Third-Party Complaint 
against Golden Corral.  Dist. Ct. Dkt. No. 36, 98.  The District Court denied this motion.  
Dist. Ct. Dkt. No. 105.  We will affirm.   
When an order “adjudicates fewer than all the claims,” Rule 54(b) allows a 
District Court to revise a judgment at “any time before the entry of a judgment 
adjudicating all the claims.”  Fed. R. Civ. P. 54(b).  “A proper motion to alter or amend 
judgment [per Rule 54(b)] must rely on one of three major grounds: (1) an intervening 
change in controlling law; (2) the availability of new evidence not previously available; 
or (3) a need to correct clear error of law or prevent manifest injustice.” N. River Ins. Co. 
v. CIGNA Reinsurance, Co., 52 F.3d 1194, 1218 (3d Cir. 1995) (cleaned up). 
The Scism parties argue that they cited new evidence, warranting revision, that 
was previously unavailable to them.  Opening Br. at 24.  We perceive no clear error in the 
District Court’s finding that the evidence was not new.  Six months before the District 
Court partially granted the motion to dismiss, the Scism parties were provided a 
document that included all of the information alleged to be new.  Appx. 46-7.  Although 
the Scism parties did not have deposition testimony reiterating that information until 
April 12, 2022, the Scism parties possessed the relevant information at the time the 
motion to dismiss was litigated.  Id.  
The Scism parties also argued in their Rule 54 motion that revision was warranted 
to correct the District Court’s clear error of law and to prevent manifest injustice in 
applying the release to GCV.  We conclude that the Scism parties failed to meet their 
7 
 
burden in establishing clear error because the release was effective as to GCV and counts 
1-5.  Under the Assignment Agreement, the Scisms released “any and all claims,” such as 
counts 1-5, “arising out of or related to” the Franchise Agreement prior to the date of 
Assignment.  Appx 110.  Because the Scisms relinquished such claims, they could not 
have assigned them to GCV.  Medtronic AVE, Inc. v. Advanced Cardiovascular Sys., 
247 F.3d 44, 60 (3d Cir. 2001) (“[A]bsent a provision stating otherwise, assignment...will 
result in the assignee stepping into the shoes of the assignor with regard to the rights that 
the assignor held and not in an expansion of those rights.”).   
Based on the foregoing, we will affirm the District Court’s denial of the Scism 
parties’ motion for revision. 
D. The Lost-Profits Award 
 
The Scism parties argue that the damages awarded for lost future profits should 
have been reduced by the value of $320,000—the value of the equipment, fixtures, and 
furnishings at the franchised location, over which Golden Corral had a lien.7 
We perceive no clear error in the District Court’s finding that Golden Corral did 
not fail to mitigate losses.  The Scism parties contend that Golden Corral transferred the 
 
7  Golden Corral argues that the Scism parties forfeited this argument because they 
only raised it in their reply to the motion for summary judgment.  However, in their cross 
motion for summary judgment and opposition to Golden Corral’s summary judgment 
motion, the Scism parties argued that Golden Corral should have mitigated damages by 
selling the equipment.  Dist. Ct. Dkt. No. 130-3, at 17-18.  Because it is preserved, we 
will review for clear error.  Prusky v. ReliaStar Life Ins. Co., 532 F.3d 252, 257 (3d Cir. 
2008) (“The District Court's determination that [Appellants] did not adequately mitigate 
losses and that reasonable efforts would have reduced their damages are findings of fact 
reviewed for clear error.”). 
8 
 
equipment, fixtures, and furnishings to a new restaurant that opened in GCV’s prior 
space.  The District Court found, however, that although Golden Corral tried to find a 
buyer for the equipment, it was unsuccessful in “liquidat[ing] the Restaurant’s 
furnishings, equipment, and fixtures.”  Appx. 30-31.  The Scism parties cite to no 
evidence that contradicts this finding, nor any evidence that the Scisms do not retain 
ownership of the equipment.  There is no basis to conclude the District Court clearly 
erred, and we will affirm. 
III. CONCLUSION 
For the foregoing reasons, we will affirm.  


BankUnited NA v. William Scism

Situ Wilkinson v. Attorney General United States

Miller Termat, Meghan E.

Revving Up or Stalling Out? Examining the Effectiveness of Electric Vehicles in Combating Climate Change

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
3-20-2025 
Commonwealth of Pennsylvania v. Urve Maggitti 
Follow this and additional works at: https://digitalcommons.law.villanova.edu/thirdcircuit_2025 
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        NOT PRECEDENTIAL 
 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
_____________ 
 
No. 24-1702 
_____________ 
  
 
COMMONWEALTH OF PENNSYLVANIA 
  
v. 
 
URVE MAGGITTI, 
Appellant 
 
_____________ 
 
 
On Appeal from the United States District Court  
for the Eastern District of Pennsylvania 
(D.C. Criminal No. 2:24-cr-00144-001) 
District Judge: Hon. Nitza I. Quiñones Alejandro 
 
_____________ 
 
 
Submitted Pursuant to Third Circuit L.A.R. 34.1(a) 
February 3, 2025 
 
Before: RESTREPO, MONTGOMERY-REEVES, SCIRICA, Circuit Judges 
 
(Filed: March 20, 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 
Appellant Urve Maggitti appeals the District Court’s remand of her state court 
criminal proceeding to the Pennsylvania Court of Common Pleas, Chester County.  For 
the reasons that follow, we will affirm.  
I.1 
On June 15, 2023, Maggitti was arraigned in the Chester County Court of Com-
mon Pleas and charged with one count of Unlawful Use of an Audio or Video Device in 
Court under 18 Pa. Cons. Stat. § 5103.1.  On April 10, 2024, she filed a notice of removal 
in the Eastern District of Pennsylvania seeking to remove her pending state criminal case 
to federal court under 28 U.S.C. §§ 1455, 1446, 1443.  The District Court remanded on 
April 16, and Maggitti timely appealed. 
II. 
We begin with whether the District Court’s remand order is reviewable.  Gener-
ally, remand orders are “not reviewable on appeal or otherwise, except that an order re-
manding a case to the State court from which it was removed pursuant to section 1442 or 
1443 of this title shall be reviewable.”  28 U.S.C. § 1447(d).  Because Maggitti asserted, 
at least in part, that removal was proper under § 1443, the entire remand order is reviewa-
ble on appeal.  See BP P.L.C. v. Mayor & City Council of Balt., 141 S. Ct. 1532, 1538 
(2021) (noting that a party’s reliance on § 1443 for removal permits review of the 
 
1  Since we write primarily for parties already familiar with this case, we include only 
those facts necessary to reach our conclusion.   
 
3 
“whole” remand order).  We exercise plenary review over the underlying legal basis for 
remand.  See Lazorko v. Pa. Hosp., 237 F.3d 242, 247 (3d Cir. 2000).   
III. 
Under 28 U.S.C. § 1455, state criminal defendants can remove certain prosecu-
tions to federal court.  Among other requirements, defendants must file a notice of re-
moval “not later than 30 days after the arraignment in the State court, or at any time be-
fore trial, whichever is earlier, except that for good cause shown the United States district 
court may enter an order granting the defendant or defendants leave to file the notice at a 
later time.”  § 1455(b)(1).       
The District Court remanded Maggitti’s state criminal proceedings because she 
missed the 30-day deadline, provided no reason for the delay in her notice of removal, 
and failed to seek leave to file an untimely notice.  Thus her attempt at removal under § 
1455 was futile.  And because she sought removal of a criminal prosecution, not a civil 
action, Maggitti’s citing of 28 U.S.C. § 1446 and our case law interpreting that removal 
statute in the civil context is unavailing.  We find no error in the District Court’s decision 
to remand, so we will affirm.  


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