Michael O. Livingstone v. U-Haul International, Inc.

BLD-046 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 21-2131
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MICHAEL O. LIVINGSTONE,
Appellant
v.
U-HAUL INTERNATIONAL, INC.; U-HAUL CO. OF PENNSYLVANIA,INC.;
REPWEST INSURANCE COMPANY; MOHAMMED MOHIUDDIN, BEING SUED
IN HIS OFFICIAL CAPACITY AS GENERAL MANAGER OF U-HAUL FACILITY
LOCATED AT 7750 ROOSEVELT BLVD, PHILADELPHIA, PA 19152; JOSHUA
BUZI, BEING SUED IN HIS OFFICAL CAPACITY AS CLAIM ADJUSTER I AT
REP WEST INSURANCE CO.
____________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Action No. 2-21-cv-00250)
District Judge: Honorable Joel H. Slomsky
____________________________________
Submitted on Appellant’s Motion for Summary Action
Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
December 16, 2021
Before: MCKEE, GREENAWAY, Jr., and PORTER, Circuit Judges
(Opinion filed: February 11, 2022)

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_________
OPINION*
_________
PER CURIAM
Pro se appellant Michael Livingstone appeals the District Court’s order dismissing
his complaint and has filed a motion for summary action. While we agree with the
District Court that Livingstone failed to plead a federal claim, we conclude that the Court
should have given Livingstone an opportunity to amend his allegations of diversity
jurisdiction. Therefore, we will grant Livingstone’s motion in part and deny it in part,
and will affirm the District Court’s judgment in part, vacate in part, and remand for
further proceedings.
Livingstone’s claims concern problems he has had with a storage unit he rented in
a U-Haul facility. He claims that the manager of the facility falsely accused him of
sleeping in his unit, and after he denied doing so, the manager surreptitiously installed a
video camera to spy on him. He also says that his unit was infested by mice; the mice
destroyed his expensive textbooks and caused him to contract an illness that prevented
him from attending graduate classes. Livingstone sued the manager of the facility, U-
Haul itself, and the insurance company and its claims adjustor that he said failed to fully
compensate him for his losses. He asserted claims of invasion of privacy, breach of
contract, personal injury, and stalking.
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

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The District Court screened Livingstone’s complaint under 28 U.S.C.
§ 1915(e)(2)(B) and dismissed it. The Court concluded that Livingstone had failed to
state a federal claim, that he had not sufficiently pleaded diversity jurisdiction, and that it
would decline to exercise supplemental jurisdiction over the state-law claims.
Livingstone appealed. He has filed a motion asking this Court to take summary action in
his favor. See 3d Cir. L.A.R. 27.4(a).
We have jurisdiction under 28 U.S.C. § 1291. Our review of the District Court’s
sua sponte dismissal under § 1915(e)(2)(B) is plenary. See Allah v. Seiverling, 229 F.3d
220, 223 (3d Cir. 2000).
The District Court dismissed Livingstone’s complaint without providing leave to
amend. We have held “that inadequate complaints should be dismissed without granting
leave to amend only if amendment would be inequitable or futile,” Grayson v. Mayview
State Hosp., 293 F.3d 103, 106 (3d Cir. 2002), and the same rules apply when the
deficiency concerns the jurisdictional allegations, see Carolina Cas. Ins. Co. v. Team
Equip., Inc., 741 F.3d 1082, 1086 (9th Cir. 2014); Frey v. EPA, 270 F.3d 1129, 1132 (7th
Cir. 2001); see generally GBForefront, L.P. v. Forefront Mgmt. Grp., LLC, 888 F.3d 29,
36 (3d Cir. 2018); Neiderhiser v. Borough of Berwick, 840 F.2d 213, 216 n.6 (3d Cir.
1988).
We agree with the District Court that Livingstone failed to plead a federal cause of
action. As the Court explained, Livingstone appeared to assert federal claims under 42
U.S.C. § 1983. However, to state a claim under § 1983, a plaintiff “must establish that
[]he was deprived of a federal constitutional or statutory right by a state actor.” Kach v.

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Hose, 589 F.3d 626, 646 (3d Cir. 2009) (emphasis added). Livingstone did not claim that
the defendants—businesses and their employees—were acting under color of state law.
See id. Further, given this obstacle, we are satisfied that amendment would be futile.1
We also agree with the District Court that Livingstone failed to plead diversity
jurisdiction. For diversity jurisdiction to exist, “no plaintiff may be a citizen of the same
state as any defendant.” GBForefront, L.P., 888 F.3d at 34 (alterations omitted) (quoting
Zambelli Fireworks Mfg. Co. v. Wood, 592 F.3d 412, 419 (3d Cir. 2010)). Livingstone,
as the plaintiff in this case, was required to plead the grounds for jurisdiction. See Fed.
R. Civ. P. 8(a)(1); Lincoln Benefit Life Co. v. AEI Life, LLC, 800 F.3d 99, 106 (3d Cir.
2015). As the District Court explained, he failed to do so; he provided addresses for
himself in two different states without identifying his state of citizenship, and did not
clearly identify the citizenship of the defendants.
However, we cannot say that it would have been futile for Livingstone to amend
his allegations concerning diversity. If, as he now says, see Mot. at 16, he is a citizen of
New Jersey, he might be diverse from all of the defendants.2 Therefore, the Court should
1 In his filing in this Court, Livingstone identifies several other federal statutes under
which he says he can bring his claims. However, he has failed to explain how these
statutes—the Video Protection and Privacy Act, the Electronic Communications Privacy
Act, and the Stored Communications Act—apply to his claims, and the relevancy of
those statutes is not apparent to us.
2 We do not at this time conclusively determine that the parties are diverse (or that the
$75,000 amount-in-controversy requirement is satisfied); rather, we conclude only that
Livingstone should have been permitted to amend his complaint.

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have given Livingstone the opportunity to amend his complaint. See Neiderhiser, 840
F.2d at 216 n.6.
Accordingly, we deny Livingstone’s motion for summary action to the extent it
challenges the District Court’s dismissal of his federal claims and grant the motion to the
extent it challenges the District Court’s dismissal of his state claims, and we will affirm
in part, vacate in part, and remand for further proceedings.

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