Smith v. Nutter

Filing 26

MEMORANDUM OPINION. Signed by Judge Richard G. Andrews on 8/8/2019. (nms)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
HELENA SMITH ,
Plaintiff,
Civil Action No. 17-1606-RGA

V.

ALLIED RETAIL PROPERTIES ,
Defendant.

Helena Smith , Wilmington , Delaware; Pro Se Plaintiff.
Michael James Logullo , Esquire , Rawle & Henderson LLP , Wilmington , Delaware,
Counsel for Defendant.

MEMORANDUM OPINION

August t , 2019
Wilmington, Delaware

~fs-

District Judge:

Plaintiff Helena Smith , who proceeds prose , filed this action on November 8,
2017. (0 .1. 1). Before the Court is Defendant Allied Retail Properties' motion to dismiss
the Amended Complaint pursuant to Rule 12(b)(1). (0 .1. 23) . Briefing on the matter is
complete.

BACKGROUND
Plaintiff filed this action to recover damages for an injury she suffered after falling
in the Concord Mall parking lot in Wilmington , Delaware . (0 .1. 2) . The original
complaint named William Nutter as the defendant. The Court granted Nutter's Rule
12(b)(1) motion to dismiss because it was unclear if the parties were diverse when the
action was commenced. (0 .1. 15, 16). Plaintiff was given leave to file an amended
complaint to properly allege a basis for jurisdiction over the dispute. (/d.) .
On August 23, 2018 , Plaintiff filed an Amended Complaint, named Zurich
Insurance as the defendant and removed Nutter as a defendant. (0.1. 17). On
September 19, 2018 , the Court entered an order for Plaintiff to file an Amended
Complaint with a proper defendant and allegations against each proper defendant,
noting that the August 23 , 2018 Amended Complaint was deficient as providing no facts
to support a claim against Zurich Insurance. (0 .1. 20) . Plaintiff filed another Amended
Complaint on October 9, 2018, which named Allied Retail Properties as the defendant
and removed Zurich Insurance as a defendant. (0.1. 21) .
The original Complaint provided a Philadelphia , Pennsylvania address for
Plaintiff in the Complaint's caption and in Paragraph I, "Parties in this Complaint," while
an exhibit to the Complaint, dated November 7, 2017, stated , "Plaintiff is a resident of

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the State of Delaware ." (D .I. 2 at pp .1-2; D.I. 2-1). A Wilmington , Delaware address
was provided for Nutter. (Id. at p.2).
In response to Nutter's motion to dismiss (D .I. 11) for lack of subject matter
jurisdiction on the grounds that the parties were not diverse , Plaintiff stated that her
residency in Delaware spanned 7 ½ years , that she had lived , worked , and voted in the
cities of Wilmington , Delaware, and Dover, Delaware , but she was forced to leave
Dover in 2017. (D.I. 12 at 1). Plaintiff stated that she moved to Philadelphia,
Pennsylvania , for help from relatives , and that all her records and belongings remained
in Dover, Delaware. (Id.).
On March 30 , 2018 , Plaintiff notified the Court of a new address and her return to
Delaware. (D.I. 13). In August 2018 , when Plaintiff made her first attempt to file an
amended complaint, she filed documents regarding her domicile. (See D.I. 18). Plaintiff
stated that the last two years of her life had been unsettling , and that her "life
resemble[d] that of a 25 year old with no roots ." (D .I. 18 at 2) . She stated that on an
unknown date she attempted to purchase a house in Dover, but the purchase collapsed.
(/d.) . Plaintiff provided a number of documents showing she changed her address from
Delaware to Philadelphia during the time she resided in Philadelphia . In addition ,
Plaintiff stated that she purchased a home in Wilmington , Delaware. It is the same
address provided to the Court in March 2018. (D.I. 13, D.I. 18 at 2). Another document
provided is a residential loan application dated December 18, 2017 , for purchase of the
Wilmington home. (D. I. 18 at 13). Finally, Plaintiff provided a payment report from a
storage facility in Dover showing that she used the storage facility from March 28 , 2017
through April 3, 2018. (Id. at 10).
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Allied Retail Properties moves for dismissal pursuant to Rule 12(b)(1) on the
grounds that the parties are not diverse , Plaintiff did not cure the pleading deficiencies
with the filing of the October 9, 2018 Amended Complaint, and she has not provided
information regarding diversity as instructed by the Court in its July 24 , 2018
Memorandum Opinion . (0 .1. 23) . Plaintiff responds that she terminated her residency
in March 2017 and established residency in Pennsylvania in April 2017. (0 .1. 24) .

LEGAL STAND ARDS
Rule 12(b)(1) allows for dismissal where the court lacks subject matter
jurisdiction over an action . Motions brought under Rule 12(b)(1) may raise either a
facial or factual challenge to the court's jurisdiction. "In reviewing a facial attack, the
court must only consider the allegations of the complaint and documents referenced
therein and attached thereto , in the light most favorable to the plaintiff. " Gould Elecs.
Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000). Factual attacks allow the court

to delve beyond the pleadings to determine if the evidence supports the court's subject
matter jurisdiction . Mortenson v. First Fed. Sav. & Loan Ass'n , 549 F.2d 884, 891 (3d
Cir. 1997). The party asserting subject matter jurisdiction bears "the burden of proof
that jurisdiction does in fact exist. " Id.

DISCUSSION
Because Plaintiff proceeds prose , the Court liberally construes the pleadings
and holds her to a less stringent standard than those filed by attorneys. Haines v.
Kerner, 404 U.S. 519 , 520 (1972) . The Amended Complaint asserts jurisdiction based

upon diversity of citizenship , see 28 U.S.C. § 1332, which grants a district court
jurisdiction over "all civil actions where the matter in controversy exceeds the sum or
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value of $75 ,000, exclusive of interest and costs , and is between . .. citizens of
different States. "
Diversity jurisdiction requires "complete diversity," which in turn requires that "no
plaintiff be a citizen of the same state as any defendant. " Zambelli Fireworks Mfg. Co.

v. Wood, 592 F.3d 412, 419 (3d Cir. 2010) . When determining whether diversity
jurisdiction exists , a court must examine the citizenship of the parties at the time the
complaint was filed . Mid/antic Nat'/ Bank v. Hansen, 48 F.3d 693 , 696 (3d Cir. 1995)
(citing Smith v. Sperling, 354 U.S. 91 , 93 n.1 (1957)) Uurisdiction is tested by the facts
as they exist when the action is brought) . An amendment to allege diversity jurisdiction
relates back under Rule 15 of the Federal Rules of Civil Procedure. See LeB/anc v.

Cleveland, 248 F.3d 95 , 99-100 (2d Cir. 2001 ); accord, Synfuel Technologies, Inc. v.
OHL Express (USA) , Inc., 190 F. App 'x 490 , 491 (7th Cir. 2006) .
Defendant contends the parties are citizens of the same state - Delaware . Each
of the pleadings (i.e., the Complaint and both Amended Complaints) filed by Plaintiff
state that Defendant is a citizen of the State of Delaware . At issue is the citizenship of
Plaintiff. Therefore, I will examine the citizenship of Plaintiff as of the date that she
commenced this action , November 8, 2017 . See LeB/anc v. Cleveland, 248 F.3d at
100.
In light of Plaintiff's submissions and statement, the record leads to the
conclusion that diversity of citizenship is lacking . See Mccann v. Newman Irrevocable

Tr., 458 F.3d 281 , 286 (3d Cir. 2006) ("Citizenship is synonymous with domicile, and
'the domicile of an individual is his true , fixed and permanent home and place of

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habitation. It is the place to which , whenever he is absent, he has the intention of
returning. "' (quoting Vlandis v. Kline , 412 U.S. 441 , 454 (1973)) .
The record indicates that Plaintiff's stay in Pennsylvania was temporary. At the
time she commenced this action she had moved from Delaware to Pennsylvania in
March 2017 "for help from relatives" but her belongings remained in Delaware as
evidenced by the Dover storage facility receipt. Also , while the Complaint's caption
provided a Pennsylvania address for Plaintiff, in an attachment to the Complaint,
Plaintiff referred to herself as "a resident of the State of Delaware. " (D . I. 2-1 ).
Moreover, Plaintiff states that she sought to purchase a home in Dover, but the sale
collapsed . Lending support to the conclusion that Plaintiff was domiciled in Delaware
when this action was commenced is that fact that in December 2017, a mere one month
after she filed her complaint in November 2017 , Plaintiff applied for a residential loan to
purchase a home in Wilmington , Delaware , where she now resides. The fact that
Plaintiffs belongings remained in Delaware , that she moved to Pennsylvania "for help
from relatives ," that she unsuccessfully sought to purchase a home in Dover and , within
a month after commencing this action , applied for a residential loan for a different home
in Wilmington all lead to the conclusion that her residency in Pennsylvania was
temporary and that Delaware continued to be her domicile, as that is where she
intended to return to.
Having determined that Plaintiff was a citizen of the same state as Defendant at
the time she filed her Complaint, the Court lacks diversity jurisdiction , and cannot
exercise subject matter jurisdiction over this action . To be clear, at no time did Plaintiff

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properly assert diversity jurisdiction in this matter. Therefore , the Court will grant
Defendant's motion to dismiss as this Court lacks jurisdiction.

CONCLUSION
Based upon the above discussion , the Court will grant Defendant's motion to
dismiss without prejudice to Plaintiff to assert her claims in State Court. (D. I. 23).
An appropriate order will be entered

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