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CIVIL ACTION NO. 1:16-CV-01875 (M.D. Pa. Jul. 26, 2018)

CIVIL ACTION NO. 1:16-CV-01875


CEMIL KOYUNOGLU, Plaintiff, v. SHARON FALCONE MILLER, et al., Defendants.

(KANE, J.)

Before the Court is a motion to dismiss, filed by Defendants Sharon Falcone Miller, Bruce G. Miller, Kenneth F. Lehrman, III, Masume Assaf, and Ronald Wasco on December 29, 2017. (Doc. 23). Defendants, each an employee of Pennsylvania State University (hereinafter, "Penn State"), argue that the amended complaint, filed by pro se Plaintiff Cemil Koyunoglu on December 19, 2017, should be dismissed on the basis that this Court lacks subject matter jurisdiction over the claims alleged by Plaintiff, and further, that Plaintiff's amended complaint fails to state any plausible claim upon which relief can be granted. For the reasons contained in this Report and Recommendation, the Court recommends that the Defendants' motion to dismiss be GRANTED. I. BACKGROUND AND PROCEDURAL HISTORY

The events leading to this complaint occurred during Koyunoglu's time as a visiting student at Penn State. Koyunoglu, a native of Turkey, received a J-1 visa allowing him to attend Penn State and conduct research under faculty supervision while pursuing his Ph.D. Koyunoglu initiated this action by the filing of a complaint on April 24, 2017 (Doc. 1). Defendants filed a motion to dismiss that complaint (Doc. 10), which this Court recommended be granted (Doc. 17). Plaintiff then filed a document entitled "Complaint for Preliminary Injunction and Permanent Injunctive Relief" on December 19, 2017 (Doc. 18), which this Court construed as an amended complaint (Doc. 19). Defendants filed a motion to dismiss the amended complaint (Doc. 23) on December 29, 2017, and a brief in support thereof on January 12, 2018. (Doc. 24). Koyunoglu has not filed a brief in opposition to the motion to dismiss, though he did fax a number of documents to the Court on January 16, 2018; these documents were not docketed due to repeated instructions to Koyunoglu that documents sent to the clerk of court by fax would not be accepted for docketing. (Doc. 14; Doc. 19).

As required when evaluating a motion to dismiss, the Court accepts as true all well-pleaded facts contained in a complaint. See Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009).

These documents were titled "Brief in Support of Plaintiff's Complaint of Preliminary Injunction and Permanent Injunctive Relief" and do not appear to be a brief in opposition to the motion to dismiss. --------

In his amended complaint (Doc. 22), Koyunoglu seeks preliminary and permanent injunctive relief related to a state administrative proceeding before the Pennsylvania Human Relations Commission. (Doc. 22). Koyunoglu alleges that he sent an email to a Gareth Mitchell, a staff member of the Penn State EMS Energy Institute, regarding his studies in Turkey. (Doc. 22). Plaintiff also makes vague allegations regarding an email from Defendant Assaf to Istanbul Technical University, the possibility of contact by Defendant Sharon Falcone Miller and Defendant Bruce Miller with Istanbul Technical University, and that Defendant Sharon Falcone Miller said to Koyunoglu "you are all muslims." (Doc. 22). II. STANDARD OF REVIEW

Rule 12(b)(6) of the Federal Rules of Civil Procedure authorizes a defendant to move to dismiss for "failure to state a claim upon which relief can be granted." FED. R. CIV. P. 12(b)(6). The United States Court of Appeals for the Third Circuit has noted the evolving standards governing pleading practice in federal court, stating that:

[s]tandards of pleading have been in the forefront of jurisprudence in recent years. Beginning with the Supreme Court's opinion in Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007), continuing with our opinion in Phillips [v. Cnty. of Allegheny, 515 F.3d 224 (3d Cir. 2008)] and culminating recently with the Supreme Court's decision in Ashcroft v. Iqbal, 556 U.S. 662 (2009), pleading standards have seemingly shifted from simple notice pleading to a more heightened form of pleading, requiring a plaintiff to plead more than the possibility of relief to survive a motion to dismiss.

Fowler v
. UPMC Shadyside, 578 F.3d 203, 209-10 (3d Cir. 2009).

In considering whether a complaint fails to state a claim upon which relief may be granted, the court must accept as true all allegations in the complaint and all reasonable inferences that can be drawn therefrom are to be construed in the light most favorable to the plaintiff. Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994). However, a court "need not credit a complaint's 'bald assertions' or 'legal conclusions' when deciding a motion to dismiss." Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). Additionally, a court need not assume that a plaintiff can prove facts that the plaintiff has not alleged. Assoc'd. Gen. Contractors of Cal. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983). A plaintiff must provide some factual grounds for relief, which "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555. "Factual allegations must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555. In Ashcroft v. Iqbal, 556 U.S. 662 (2009), the Supreme Court of the United States held that, when considering a motion to dismiss, a court should "begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." Iqbal, 556 U.S. at 679. In deciding a Rule 12(b)(6) motion, the Court may consider the facts alleged on the face of the complaint, as well as "documents incorporated into the complaint by reference, and matters of which a court may take judicial notice." Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007). III. DISCUSSION

Defendants submit that Koyunoglu's amended complaint should be dismissed for lack of subject matter jurisdiction and for failure to state a claim.


"Under Fed.R.Civ.P. 12(b)(1), a court must grant a motion to dismiss if it lacks subject-matter jurisdiction to hear a claim." In re Schering Plough Corp. Intron/Temodar Consumer Class Action, 678 F.3d 235, 243 (3d Cir.2012). "When a motion under Rule 12 is based on more than one ground, the court should consider the 12(b)(1) challenge first because if it must dismiss the complaint for lack of subject matter jurisdiction, all other defenses and objections become moot." In re Corestates Trust Fee Litig., 837 F.Supp. 104, 105 (E.D.Pa.1993), aff'd 39 F.3d 61 (3d Cir.1994).

"Federal courts are courts of limited jurisdiction." Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). "They possess only that power authorized by Constitution and statute, which is not to be expanded by judicial decree." Id. (internal citations omitted). Federal courts may hear cases "in which a well-plead complaint establishes either that federal law creates the cause of action or that the plaintiff's right to relief necessarily depends on resolution of a substantial question of federal law." Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 28, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983). Nothing in Koyunoglu's amended complaint identifies a federal question giving rise to the subject matter jurisdiction of this Court, and none of the allegations even suggest a federal question.

Further, Koyunoglu fails to allege, in his amended complaint, the citizenship of any of the parties, or the amount in controversy. Federal district courts possess diversity of citizenship jurisdiction pursuant to 28 U.S.C. § 1332(a)(1), which gives district courts original jurisdiction to hear cases where the matter in controversy exceeds the value of seventy-five thousand dollars ($75,000) and is between citizens of different states. In order for jurisdiction to exist, there must be complete diversity, meaning that each defendant must be a citizen of a different state from each plaintiff. Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 373, 98 S.Ct. 2396, 57 L.Ed.2d 274 (1978).

Given that the amended complaint (Doc. 22) fails to establish the subject matter jurisdiction of this Court, it is recommended that this case be dismissed.


Further, the amended complaint fails to state a plausible claim upon which relief may be granted. There are no facts at all alleged against Defendants Lehrman and Wasco, and only cursory mentions of Defendants Falcone Miller, Miller, and Assaf. A complaint must contain "a short and plain statement of the grounds for the court's jurisdiction" and "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(1) and (2). Even though courts are more deferential to and liberally construe pleadings of pro se litigants, the plaintiff must still comply with the pleading standards set forth in the Federal Rules of Civil Procedure. See Frazier v. Southeastern Penn. Transp. Auth., 785 F.2d 65, 67 n. 3 (3d Cir. 1986); Hughes v. Rowe, 449 U.S. 5, 9, 101 S.Ct. 173, 66 L.Ed.2d 163 (1980). "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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). As such, a complaint must include factual allegations to support the legal claims asserted. Id. at 1949, 1953.

The amended complaint (Doc. 22) provides neither understandable factual allegations nor the grounds upon which the claims rest. Defendants, and the Court, are left to speculate as to the grounds of the claims against each of them. No matter how liberally construed, Koyunoglu's amended complaint is plainly insufficient to meet the standards required by the Federal Rules of Civil Procedure. As such, relief simply cannot be granted, and it is recommended that the motion to dismiss be granted, and his amended complaint be dismissed.


The Third Circuit has instructed district courts to permit a curative amendment if a complaint is vulnerable to dismissal for failure to state a claim, unless an amendment would inequitable or futile. Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002). The Court finds amendment at this juncture would be plainly futile, and further, Koyunoglu has previously been given an opportunity to file an amended complaint. Accordingly, the Court does not recommend that leave to amend be granted. IV. RECOMMENDATION

Based on the foregoing, the Court recommends that the Defendants' motion to dismiss (Doc. 23) be GRANTED, and the Clerk of Court be directed to close this case. Dated: July 26, 2018

/s/ _________


United States Magistrate Judge

NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation dated July 26, 2018.

Any party may obtain a review of the Report and Recommendation pursuant to Rule 72.3, which provides:

Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636(b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.

Dated: July 26
, 2018

/s/ _________


United States Magistrate Judge