Daniel Tilli v. Exxon-Mobil Corporation

ALD-313 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 09-2279
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DANIEL TILLI,
Appellant
v.
EXXON-MOBIL CORPORATION;
REX TILLERSON, CEO
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On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil No. 09-cv-01301)
District Judge: Honorable Robert F. Kelly
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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
September 17, 2009
Before: SLOVITER, FUENTES and JORDAN, Circuit Judges
(Opinion filed: September 29, 2009)
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OPINION
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PER CURIAM
Daniel Tilli filed a complaint alleging that appellees illegally raised the price of
their gas. He argued that this violated the Pennsylvania Consumer Protection Act and the

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The District Court should not have addressed the issue of jurisdiction or the merits of1
the complaint until the filing fee had been paid or the motion to proceed in forma pauperis
had been granted. Sinwell v. Shapp, 536 F.2d 15, 19 (3d Cir. 1976).
2
Interstate Commerce Act and implied that appellees had engaged in price gouging and
price fixing. The District Court denied the in forma pauperis motion as incomplete and1
dismissed the complaint without prejudice pursuant to Fed. R. Civ. P. 12(h)(3). Tilli filed
a notice of appeal.
Where a District Court has dismissed a complaint without prejudice, the dismissal
is generally not appealable under 28 U.S.C. § 1291 unless the litigant cannot cure the
defect or where the litigant declares an intention to stand on the complaint, whereupon the
District Court’s order becomes final. Borelli v. City of Reading, 532 F.2d 950, 951-52
(3d Cir. 1976) (per curiam). After the District Court dismissed his complaint without
prejudice, Tilli filed a document entitled “Demand to Reinstate” in which he argued that
he did state a jurisdictional basis for his claim. Because Tilli has chosen to stand on his
pleading as filed, we have jurisdiction over the appeal.
Because Tilli is proceeding in forma pauperis on this appeal, we must analyze his
appeal for possible dismissal pursuant to 28 U.S.C. § 1915(e)(2)(B). Under §
1915(e)(2)(B), we must dismiss an appeal if the action (i) is frivolous or malicious, (ii)
fails to state a claim upon which relief may be granted, or (iii) seeks monetary damages
from a defendant with immunity.

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3
On appeal, Tilli argues that interstate price gouging is in violation of the Sherman
Act. In order to state a claim under the Sherman Act, a plaintiff must allege facts to
suggest that an unlawful agreement was made. Twombly v. Bell Atlantic, 550 U.S. 544
(2007). Tilli has not stated a claim under the Sherman Act; his complaint consists of
conclusory allegations of price-fixing. This is insufficient under Twombly. Moreover,
the District Court did not err in declining to exercise supplemental jurisdiction over any
state law claims.
For the above reasons, we will dismiss the appeal for failure to state a claim,
pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). Appellant’s motion to transfer the proceedings
is denied.

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