City of Newark v. Nathaniel Lawson; Nate’s Transportation, Inc., Nathaniel Lawson

BLD-310 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 09-2081
___________
CITY OF NEWARK,
v.
NATHANIEL LAWSON; NATE’S TRANSPORTATION, INC.,
NATHANIEL LAWSON,
Appellant
____________________________________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil Action No. 2:08-cv-05269
District Judge: Honorable Katharine S. Hayden
____________________________________
Submitted for Possible Dismissal Due to a Jurisdictional Defect
September 11, 2009
Before: McKEE, FISHER and CHAGARES, Circuit Judges
(Opinion filed: September 24, 2009)
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OPINION
_________
PER CURIAM
Appellant Nathaniel Lawson seeks review of the District Court’s order dismissing
his case for lack of subject matter jurisdiction. We conclude that the appeal does not

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Lawson is president of Nate’s Transportation, Inc. Because only Lawson has1
appealed the District Court’s decision, this opinion will refer to Lawson.
2
present a substantial question and will summarily affirm the District Court’s order. See
3d Cir. L.A.R. 27.4; I.O.P. 10.6.
I.
In December 2005, the City of Newark (“the City”) filed a state law ejectment
action against Nate’s Transportation, Inc., concerning the company’s allegedly unlawful1
use of City property. The New Jersey Superior Court granted summary judgment in the
City’s favor and the Appellate Division affirmed. Lawson filed a “notice of removal” in
the United States District Court for the District of New Jersey. In this pleading, Lawson
raised claims concerning the validity of an alleged lease to use the City property at issue
in the state court proceedings, and sought review of the New Jersey courts’ decisions.
The City moved to remand under 28 U.S.C. § 1447(c) or, in the alternative, to
dismiss the action under Fed. R. Civ. P. 12(b)(1). The District Court determined that
removal would be futile because the state proceedings had concluded. It therefore
construed the removal notice as a new complaint and concluded that it lacked subject
matter jurisdiction over it. Accordingly, on February 3, 2009, the District Court entered
an opinion and order dismissing the action with prejudice. Lawson then filed a document
entitled “reconsideration and reverse order,” which the District Court construed as a
motion for reconsideration. On March 5, 2009, the District Court denied reconsideration.

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Lawson filed his notice of appeal more than 30 days after the District Court’s March2
5, 2009, order disposing of his motion for reconsideration. See Fed. R. App. P.
4(a)(4)(A). However, the District Court’s prior February 3, 2009, order dismissing
Lawson’s case was not “set out in a separate document” as required by Fed. R. Civ. P.
58(a). See In re Cendant Corp. Sec. Litig., 454 F.3d 235, 241 (3d Cir. 2006). As a result,
for purposes of filing an appeal, judgment was not formally entered until 150 days after
the February 3, 2009, order. See Fed. R. Civ. P. 58(c)(2)(B); LeBoon v. Lancaster Jewish
Community Center Ass’n, 503 F.3d 217, 224-25 (3d Cir. 2007). Lawson filed his pro se
notice of appeal sixty-nine days after the District Court’s dismissal order, and thus prior
to the formal entry of judgment. The notice of appeal was timely filed, and the fact that
Lawson appealed before the formal entry of judgment does not prevent us from
entertaining the appeal. See LeBoon, 503 F.3d at 224, n.5; Fed. R. App. P. 4(a)(2),
4(a)(7)(B).
3
This pro se appeal followed.
II.
We have jurisdiction under 28 U.S.C. § 1291. We exercise de novo review over2
the District Court’s order dismissing Lawson’s case for lack of subject matter jurisdiction.
See Met. Life Ins. Co. v. Price, 501 F.3d 271, 275 (3d Cir. 2007). We may summarily
affirm if this appeal presents no substantial question. See 3d Cir. L.A.R. 27.4; I.O.P.
10.6.
Because the state court proceedings had already concluded by the time Lawson
filed his notice of appeal, removal was not appropriate. See 28 U.S.C. § 1441(a) (for
removal, the state court action must be “pending”); § 1446(a) (same). Generally, in a case
that has been improperly removed, the District Court will remand the matter to state court,
see 28 U.S.C. § 1447, and remand decisions are not typically reviewable on appeal. See
28 U.S.C. § 1447(d); In re FMC Corp. Packaging Sys. Div., 208 F.3d 445, 448 (3d Cir.

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2000). However, because there was no pending state court action capable of remand, we
find no error in the District Court’s decision to construe Lawson’s pro se notice of
removal as a complaint initiating a new federal action.
Federal district courts have subject matter jurisdiction over civil actions that arise
(1) under the Constitution, laws or treaties of the United States (i.e., federal question
jurisdiction), or (2) between citizens of different states where the matter in controversy
exceeds $75,000 (i.e., diversity jurisdiction). 28 U.S.C. §§ 1331, 1332. For purposes of
federal question jurisdiction, a claim arises under federal law if it is apparent from the
face of the complaint that the cause of action was created by federal law. See Dukes v.
U.S. Healthcare, Inc., 57 F.3d 350, 353 (3d Cir. 1995). For diversity jurisdiction, a
complainant must plead that he is a citizen of a particular state and that the defendants are
citizens of a different state or states. See 5 Wright & Miller, Fed. Prac. & Proc. Civ. 3d §
1208; see also, e.g., Schultz v. Cally, 528 F.2d 470, 472-73 (3d Cir. 1975). In his initial
pleading in the District Court, Lawson raised state law claims concerning the validity of a
lease agreement with the City, and he disputed the state court judgments issued in the
City’s favor. Even affording his pro se pleading a liberal construction, see Dluhos v.
Strasberg, 321 F.3d 365, 369 (3d Cir. 2003), Lawson did not raise any federal question
for purposes of § 1331. Moreover, according to Lawson’s pleading, he is a citizen of the
state of New Jersey. Because the City of Newark is not a citizen of a different state,
Lawson did not plead diversity of citizenship for purposes of § 1332. Accordingly,

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Lawson did not successfully invoke the District Court’s subject matter jurisdiction.
III.
The District Court properly dismissed this matter for lack of subject matter
jurisdiction. We have reviewed the record and conclude that there is no substantial
question to be presented on appeal. Accordingly, we will grant the City’s motion for
summary affirmance and will summarily affirm the judgment of the District Court. See
3d Cir. L.A.R. 27.4; I.O.P. 10.6. Lawson’s motions for summary judgment and to
supplement the District Court record are denied.
5

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