Donald Francis Mackay, Jr. v. KEENAN MERCEDES BENZ On Appeal from the United States District Court for the…

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 09-1825
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DONALD FRANCIS MACKAY, JR.,
Appellant
v.
KEENAN MERCEDES BENZ
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On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Action No. 09-cv-00033 )
District Judge: Honorable Anita B. Brody
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Submitted Pursuant to Third Circuit LAR 34.1(a)
August 4, 2009
Before: RENDELL, FUENTES AND ALDISERT, Circuit Judges
(Opinion filed: August 4, 2009)
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OPINION
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PER CURIAM
Appellant Donald Francis Mackay, Jr. seeks review of the March 6, 2009 order of
the District Court denying reconsideration of its decision to dismiss Mackay’s civil
complaint for lack of subject matter jurisdiction. For the following reasons, we will

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affirm.
In January 2009, Mackay filed a complaint in the United States District Court for
the Eastern District of Pennsylvania alleging that Keenan Mercedes Benz (“Keenan”),
failed to appropriately repair his fully restored 1962 Mercedes Benz. After waiting nearly
two years for Keenan to make the necessary repairs, Mackay filed suit seeking to force
Keenan to pay a different Mercedes Benz dealer to make the proper repairs. The District
Court dismissed Mackay’s complaint for lack of jurisdiction and later denied his motion
for reconsideration.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291, and our review
of the District Court's dismissal for lack of subject matter jurisdiction is plenary. See
Frett- Smith v. Vanterpool, 511 F.3d 396, 399 (3d Cir. 2008).
Upon review, we find that the District Court correctly concluded that it lacked
jurisdiction over Mackay’s complaint. See Fed. R. Civ. P. 12(h)(3). First, Mackay’s
complaint presented no federal question jurisdiction as it did not allege that Keenan
violated any federal statute or the United States Constitution. Second, jurisdiction could
not be based upon diversity of citizenship between the parties because Mackay and
Keenan are both citizens of the Commonwealth of Pennsylvania. See 28 U.S.C. §
1332(a). Therefore, the District Court correctly concluded that it lacked subject matter
jurisdiction over Mackay’s complaint and correctly denied his motion for reconsideration.
For the foregoing reasons, we will affirm the District Court’s decision to dismiss

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Appellant’s complaint. Although the District Court did not specify, the dismissal is
without prejudice. In light of our disposition, we also deny Appellant’s petition for
expedited relief as moot.

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