ELD-007 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 09-4748
___________
TED A. MCCRACKEN,
Appellant
v.
EXXON/MOBIL; SUN OIL COMPANY (SUNOCO); SHELL OIL COMPANY;
TEXACO; BRITISH PETROLEUM; CONOCOPHILLIPS, COMPANY; HESS OIL
COMPANY; JOHN DOE VICE PRESIDENT, MARKETING EXXON/MOBIL
COMPANY, HIS PREDECESSOR AND SUCCESSOR; JOHN DOE 1 VICE
PRESIDENT, ENGINEERING, EXXON/MOBIL COMPANY, HIS PREDECESSOR
AND SUCCESSOR
____________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil No. 08-CV-02932)
District Judge: Honorable Mitchell S. Goldberg
____________________________________
Submitted for Possible Summary Action
Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
October 28, 2010
Before: FUENTES, SMITH and VANASKIE, Circuit Judges
(Opinion filed: November 8, 2010)
_________
OPINION
_________
PER CURIAM
Ted A. McCracken appeals from an order of the United States District Court for
the Eastern District of Pennsylvania that granted defendants’ motions to dismiss his
complaint. Appellees (defendants below) have filed motions to summarily dismiss the
appeal or to summarily affirm the District Court’s order.
McCracken, proceeding pro se, filed a complaint on June 26, 2008 against several
gasoline and oil companies. The District Court construed McCracken’s complaint as
alleging that the companies “sold him gasoline, which he used to fuel his vehicles,
allowing them to travel at increased speeds, and exposing him to heightened levels of
radiation causing him to contract thyroid cancer.” Dist. Ct. Op. at 3. McCracken sued
based on several theories of liability, most of which sounded in personal injury. Id. at 6.
The District Court noted that McCracken also raised claims alleging breach of express
and implied warranties of merchantability. Id. at 9. 1
Defendants filed various motions to dismiss, asking that the complaint be
dismissed for lack of subject matter jurisdiction,2 because it failed to state a claim, and
because the claims were barred by the statute of limitations. McCracken filed four
motions to amend his complaint, seeking to remove Sunoco from the complaint, so that
there would be complete diversity of citizenship. See 28 U.S.C. § 1332. McCracken’s
responses to the motions to dismiss also opposed dismissal on statute of limitations
grounds, because he believed a three-year statute of limitations applied to his personal
injury claims.
1
McCracken has not contested the District Court’s understanding of his
allegations or his theories of liability.
2
Defendants argued that jurisdiction could not be based on diversity of
citizenship, because McCracken and one of the defendants (Sunoco) were both
2
The District Court recognized that there was not complete diversity between the
Plaintiff and the Defendants in the complaint as filed. The Court determined that
amendment would be futile, however, because McCracken’s proposed amendments did
not cure the other deficiencies of the complaint; i.e., the untimeliness of the personal
injury claims, and the lack of merit as to the remaining timely-filed claims. The District
Court also dismissed without prejudice claims for breach of warranty of merchantability
filed against Texaco and Hess Oil Company. 3 McCracken timely appealed. 4
A District Court order dismissing a complaint without prejudice is not a final and
appealable order where the plaintiff can cure the deficiency and refile the complaint.
Ahmed v. Dragovich, 297 F.3d 201, 207 (3d Cir.2002). Where the statute of limitations
has run by the time the court orders dismissal without prejudice, the plaintiff cannot cure
the deficiency, and the order is final and appealable. Brennan v. Kulick, 407 F.3d 603,
606 (3d Cir. 2005). We agree with the District Court that the claims for breach of
warranty of merchantability are subject to a four-year statute of limitations under
Pennsylvania law. 13 Pa. Con. Stat. Ann. § 2725(a). Pursuant to § 2725(b) of that
statute, the period of limitations runs from the time the allegedly defective product was
sold. McCracken’s complaint alleged that he purchased gasoline from the defendants
Pennsylvania citizens.
3
The Court dismissed those claims without prejudice under Fed. R. Civ. P. 4(m)
and 41(b) for failure to effect service.
4
This appeal was originally listed for possible dismissal because it appeared to be
untimely filed. Although the District Court docketed the Notice of Appeal on the
31st day following the District Court’s order, a date stamp on the Notice of appeal
supports McCracken’s allegation that he placed the notice of appeal in the District
Court’s after-hours drop box on the 30th day. The appeal is thus timely. Fed. R.
3
from October 1997 until the date he was diagnosed with cancer on June 21, 2005.
Complaint, ¶ 20. We agree with the District Court that the latest date for bringing the
breach of warranty claims was four years from June 21, 2005; about June 22, 2009. 5
The statute of limitations had thus expired by the time the District Court dismissed
without
prejudice the breach of warranty claims filed against Texaco and Hess Oil Company on
November 16, 2009. As McCracken could no longer cure the deficiency as to those
claims, the District Court’s order is final and appealable.
The District Court properly found that McCracken’s personal injury claims would
be barred by Pennsylvania’s two-year statute of limitations for such claims. See 42 Pa.
Con Stat. Ann. § 5524 (West 2002). McCracken argues that the period of limitations
should run from when he discovered his cancer, on June 21, 2005. However, as the
District Court noted, McCracken’s claims are time-barred even if one applies the date
when McCracken discovered his cancer, rather than some earlier date when the injury
was sustained. McCracken argues that a three-year period of limitations applies, but he
provides no legal support for his argument. We further agree with the District Court that
McCracken’s claims for breach of warranty claims were timely when filed, but that they
are without merit. 6 The Court thus was correct to find, given the problems with the
App. P. 4(a)(1).
5
June 21, 2009 was a Sunday.
6
In any event, McCracken’s summary action response does not challenge the
District Court’s findings regarding the breach of warranty claims;
rather, he asks that this Court remand the matter so that he could amend the
complaint and redraft those claims. McCracken has waived any argument that the
4
personal injury claims and breach of warranty claims, that allowing McCracken to amend
his complaint to create diversity of citizenship would be futile.
For the foregoing reasons, we will affirm the District Court’s judgment.
District Court incorrectly concluded that his breach of warranty claims were
without merit. F.D.I.C. v. Deglau, 207 F.3d 153, 169-70 (3d Cir. 2000).
5