THOMPSON v. LANDER et al

Filing 5

ORDER granting 4 Motion to Dismiss Complaint. Plaintiff's Complaint is dismissed without prejudice. Ordered by US DISTRICT JUDGE W LOUIS SANDS on 9/2/2015. (bcl)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
ALBANY DIVISION
ANGELICA THOMPSON,

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Plaintiff,
v.
MILLER LANDER, et al.,
Defendants.

CASE NO.: 1:14-CV-190 (WLS)

ORDER
Presently before the Court is Defendant Blachowske Truck Line, Inc.’s Motion to
Dismiss. (Doc. 4.) For the following reasons, Defendant’s Motion is GRANTED.
RELEVANT PROCEDURAL AND FACTUAL BACKGROUND
On December 5, 2014, Plaintiff Angelica Thompson filed her complaint initiating the
above-captioned case. (Doc. 1.) Therein, Plaintiff states she is a resident of the Middle
District of Georgia that Defendant Miller Lander is a resident of Rincon, Georgia, and that
Defendant Blachowske Truck Line is a South Dakota entity. (Id. at ¶¶ 2-3.) Plaintiff does not
indicate a basis for the Court’s jurisdiction in her complaint. (Id. at ¶ 5.) According to
Plaintiff, while Defendant Lander was driving a “Frieghtline semi-truck” within the scope of
his employment for Defendant Blachowske Truck Line he slammed into a vehicle driven by
Plaintiff. (Id. at ¶¶ 6-9.) Plaintiff states that she was in no way responsible for the accident
and that she was injured. (Id. at ¶¶ 10, 16.) On January 9, 2015, Defendant Blachowske
Truck Line, Inc. moved the Court to dismiss Plaintiff’s complaint. (Doc. 4.) Plaintiff did not
respond to Defendant’s Motion.
DISCUSSION
Defendant moves to dismiss Plaintiff’s complaint pursuant to Federal Rules of Civil
Procedure 12(b)1, 12(b)4, and 12(b)5. Defendant first asserts that Plaintiff’s Complaint lacks

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subject matter jurisdiction and should be dismissed in accordance with Fed. R. Civ. P.
12(b)1.
Federal courts are courts of limited jurisdiction. A plaintiff must affirmatively allege in his
complaint the existence of jurisdiction and facts demonstrating its existence. Beavers v. A.O.
Smith Elec. Prods. Co., 265 F. App’x 772, 777 (11th Cir. 2008) (citing Morrison v. Allstate
Indemnity Co., 228 F.3d 1255 (11th Cir. 2000)); see also Fed. R. Civ. P 8(a)(1) (“A pleading that
states a claim for relief must include . . . a short and plain statement of the grounds for the
court’s jurisdiction . . . .”). A plaintiff may do so by alleging one of two types of jurisdiction:
(1) federal question jurisdiction, or (2) diversity of citizenship jurisdiction. 28 U.S.C. §§
1331-32. Plaintiff’s Complaint does not provide the Court with a basis for subject matter
jurisdiction.
Once a complaint is filed, “[a] defendant can move to dismiss a complaint under Rule
12(b)(1) for lack of subject matter jurisdiction by either facial or factual attack.” Stalley v.
Orlando Regional Healthcare Sys., Inc., 524 F.3d 1229, 1232 (11th Cir. 2008). “A ‘facial attack’
on the complaint ‘require[s] the court merely to look and see if [the] plaintiff has sufficiently
alleged a basis of subject matter jurisdiction, and the allegations in his complaint are taken as
true for the purposes of the motion.’” McElmurray v. Consol. Gov’t of Augusta-Richmond County,
501 F.3d 1244, 1251 (11th Cir. 2007) (quoting Lawrence v. Dunbar, 919 F.3d 1525, 1529 (11th
Cir. 1990)); see also Carmichael v. Kellogg, Brown & Root Servs., Inc., 572 F.3d 1271, 1279 (11th
Cir. 2009) (citing Morrison v. Amway Corp., 323 F.3d 920, 925 n.5 (11th Cir. 2003)) (“[T]he
court must, as with a Rule 12(b)(6) motion, take the complaint’s allegations as true.”).
“Factual attacks,” on the other hand, serve to “challenge ‘the existence of subject matter
jurisdiction in fact, irrespective of the pleadings, and matters outside the pleadings, such as
testimony and affidavits are considered.’” McElmurray, 501 F.3d at 1251. Therefore, as the
Eleventh Circuit has acknowledged in distinguishing between the two types of attacks, a
district court’s treatment of a motion to dismiss as a facial attack, rather than factual one,
“consider[s] only the complaint and the attached exhibits.” Id. Defendant levies a facial
challenge against Plaintiff’s Complaint and as a result, the Court will conduct its analysis
accordingly. Specifically, Defendant argues that diversity of citizenship does not exist.

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To establish diversity of citizenship all plaintiffs must be citizens of a different state than
the defendants and the amount in controversy must exceed $75,000. 28 U.S.C. § 1332; Sweet
Pea Marine, Ltd. v. APJ Marine, Inc., 411 F.3d 1242, 1247 (11th Cir. 2005). For the purposes of
diversity, a corporation is a citizen of any State in which it has been incorporated and where
its principal place of business is located. Id. A person is a citizen of the place where his
permanent home is and where he intends to return when absent. McCormick v. Aderholt, 239
F.3d 1254, 1257-1258 (11th Cir. 2002.) The burden of establishing federal subject matter
jurisdiction rests with the party bringing the claim. Id.
Defendant asserts that Plaintiff fails to state the residency of Defendants and therefore
lacks diversity of citizenship. Viewing Plaintiff’s complaint in a light most favorable to her,
the Court disagrees with Defendant that Plaintiff fails to allege the citizenship of the parties.
In fact, the Court finds that Plaintiff’s complaint indicates that she is a citizen of Georgia,
that Miller Lander is a citizen of Georgia, and that Blachowske Truck Line, Inc. is a South
Dakota entity. However, therein the problem yet lies. 28 U.S.C. § 1332 is abundantly clear
that all plaintiffs must be from different states than all defendants for a federal court to have
subject matter jurisdiction based on diversity. Sweet Pea Marine, Ltd., 411 F.3d at 1247.
Plaintiff’s complaint states that she and Defendant Miller Lander are citizens of Georgia, the
same state. As a result, diversity of citizenship is not present and this Court does not have
subject matter over the above-captioned matter. Plaintiff has failed to respond or assert any
other basis for this Court’s consideration and therefore, Defendant’s motion is due to be
GRANTED.
CONCLUSION
Accordingly, the Court hereby GRANTS Defendant’s Motion. (Doc. 4.) Plaintiff’s
Complaint is DISMISSED WITHOUT PREJUDICE. (Doc. 1.)
SO ORDERED, this

2nd

day of September, 2015.
/s/ W. Louis Sands
W. LOUIS SANDS, SR. JUDGE
UNITED STATES DISTRICT COURT

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