Abuhouran v. Kaiserkane, Inc. et al
Filing
74
OPINION. Signed by Judge Noel L. Hillman on 12/19/2011. (TH, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
HITHAM ABUHOURAN,
Civil No. 10-6609 (NLH/KMW)
Plaintiff,
OPINION
v.
KAISERKANE, INC., et al.,
Defendants.
APPEARANCES:
Hitham Abuhouran
No. 18939-050
FPC Schuylkill
P.O. Box 670
Minersville, Pennsylvania 17954
Pro Se
Robert L Ritter, Esquire
Schiffman, Berger, Abraham, Kaufman & Ritter, P.C.
Three University Plaza
P.O. Box 568
Hackensack, New Jersey 07602
Attorney for Defendants KaiserKane, Inc. and KaiserKane
Richard C. Wischusen, Esquire
Reilly, Supple & Wischusen, LLC
Murray Hill Office Center
571 Central Avenue
New Providence, New Jersey 07974
Attorney for Defendants Briggs Contracting Services, Inc.
and Rod Richardson
Paul Joseph Smyth, Esquire
Sean X. Kelly, Esquire
Sebastian A. Goldstein, Esquire
Marks, O'Neill, O'Brien & Courtney PC
6981 North Park Drive
Suite 300
Pennsauken, New Jersey 08109
Attorneys for Defendants North American Roofing
and David Donaldson
Eric A. Portuguese, Esquire
Aaron Brouk, Esquire
Lester, Schwab, Katz & Dwyer
24 Lackawanna Plaza
Millburn, New Jersey 07041
Attorneys for Defendant American Safety Indemnity Company
David A. Laughlin
Birdsall & Laughlin, LLC
1720 Highway 34 North
P.O. Box 1380
Wall, New Jersey 07719
Attorney for Defendant Companion Property & Casualty
Insurance
HILLMAN, District Judge
Presently before the Court are several motions by Defendants
seeking summary judgment and dismissal of Plaintiff’s complaint.
Defendants North American Roofing and David Donaldson have filed
a motion [Doc. No. 37] for summary judgment, in which Defendant
KaiserKane, Inc. joins.
Defendants American Safety Indemnity
Company and Companion Property and Casualty Insurance have filed
respective motions [Doc. Nos. 38, 39] to dismiss Plaintiff’s
complaint pursuant to Federal Rule of Civil Procedure 12(b)(6).
Defendants Briggs Contracting Services, Inc. and Ron Richardson
have filed a cross-motion [Doc. No. 67] for summary judgment.
Also before the Court are Plaintiff’s motion [Doc. No. 50] for
entry of default and two motions [Doc. Nos. 54, 57] for
extensions of time to file a sur-reply in opposition to the
summary judgment motion filed by North American Roofing.
The
Court has considered the parties’ submissions and decides this
matter pursuant to Federal Rule of Civil Procedure 78.
2
For the reasons expressed below, the pending motions [Doc.
Nos. 37, 38, 39, 50, 54, 57, 67] are denied without prejudice.
I.
JURISDICTION
Plaintiff alleges that the Court has subject matter
jurisdiction over this action based on federal question
jurisdiction pursuant to 28 U.S.C. § 1331 because he asserts a
claim arising from violations of the Clean Air Act, 42 U.S.C. §
7401 et seq.
(Pl.’s Compl. [Doc. No. 1] 2.)
Plaintiff also
contends that the Court has jurisdiction over his state law
claims based on diversity of citizenship pursuant to 28 U.S.C. §
1332.
(Id.)
Finally, Plaintiff seeks to invoke the Court’s
supplemental jurisdiction over his pendent state law claims
pursuant to 28 U.S.C. § 1367.
II.
(Id.)
BACKGROUND
A. Plaintiff’s Complaint
Plaintiff, currently an inmate at the Federal Correctional
Camp at Schuylkill (“FCC-Schuylkill”), generally alleges that
during his previous confinement at the Federal Correctional
Institution in Fort Dix, New Jersey (“FCI-Fort Dix”) he was
exposed to asbestos because Defendants violated various state and
federal laws in conducting a re-roofing and asbestos abatement
project on several buildings at FCI-Fort Dix.
1-39.)
(Pl.’s Compl. ¶¶
Plaintiff brings his claims against the following
Defendants: (1) KaiserKane, Inc. and KaiserKane (“KaiserKane”),
3
the general contractor for the re-roofing project; (2) Briggs
Contracting Services, Inc. (“Briggs”), the subcontractor on the
project which conducted the asbestos abatement at FCI-Fort Dix;
(3) Rod Richardson (“Richardson”), the project manager for
Briggs; (4) North American Roofing (“NAR”), the subcontractor on
the project which performed the re-roofing work; (5) David
Donaldson (“Donaldson”), an officer of NAR; (6) American Safety
Indemnity Company1 (“American Safety”), an insurance company
listed on an insurance binder for KaiserKane; and (7) Companion
Property and Casualty Insurance2 (“Companion”).
(Id. ¶¶ 2-9.)
Based on a series of alleged violations committed by Defendants
during the re-roofing and asbestos abatement project, Plaintiff
asserts the following four counts: (1) Count One - Gross
Negligence; (2) Count Two - Common Law Fraud; (3) Count Three Violations of the Clean Air Act; and (4) Count Four - Negligence.
1. Plaintiff misidentified this Defendant in the complaint as
“American Safety.” (Pl.’s Compl. ¶ 8.)
2. The Court notes that Companion’s name only appears in the
caption of Plaintiff’s complaint and not in the body of the
complaint. (See generally Pl.’s Compl.) However, in paragraph
nine, Plaintiff refers to “Defendant American Property and
Casualty” and notes that this entity is being sued in its
capacity as an insurer for Defendants. (Pl.’s Compl. ¶ 9.) It
appears logical that Plaintiff may have misidentified the entity
in paragraph nine as “American” Property and Casualty, rather
than “Companion” Property and Casualty, since the preceding
paragraph refers to Defendant American Safety. Here, the Court
assumes that paragraph nine should have named Companion as a
Defendant. This assumption does not alter the Court’s
determination set forth infra regarding subject matter
jurisdiction.
4
(Id. ¶¶ 39-48.)
Plaintiff originally filed his complaint in the United
States District Court for the Middle District of Pennsylvania
(“the Middle District”) on November 3, 2010.
By Order dated
December 20, 2010, the Honorable A. Richard Caputo, United States
District Judge for the Middle District of Pennsylvania, adopted
the November 29, 2010 Report and Recommendation of the Honorable
Thomas M. Blewitt, United States Magistrate Judge for the Middle
District of Pennsylvania, recommending that Plaintiff’s case be
transferred to the District of New Jersey pursuant to 28 U.S.C. §
1404.
(Order [Doc. No. 15] 1, Dec. 20, 2010.)
The November 29,
2010 Report and Recommendation adopted by the Middle District
found that Plaintiff failed to meet “his burden of proving [that]
diversity of citizenship exists in this case” because Plaintiff
failed to allege his own citizenship, or that of Defendants.
(Report and Recommendation [Doc. No. 9] 6, 10-11, Nov. 29, 2010.)
The Middle District recognized that it did not appear from the
complaint that the “citizenship of all Defendants [was] diverse
from that of Plaintiff[.]”3
(Id.)
With respect to Plaintiff’s
claim under the Clear Air Act, the Middle District recommended
that the issue of whether “Plaintiff properly allege[d] a
3. The Middle District, in deciding whether to transfer the
case, alternatively found that even if diversity of citizenship
existed, a transfer was appropriate since the District of New
Jersey was a more convenient forum. (Id. at 7.)
5
violation of the Clean Air Act which is necessary for
jurisdiction over his action in federal court” be determined by
the District of New Jersey as the transferee court.4
(Id. at 8
n.3.)
B.
Pending Motions
(1) Motions to Dismiss Pursuant to Rule 12(b)(6)
Both Defendants American Safety and Companion (“the
Insurance Company Defendants”) move to dismiss Plaintiff’s
complaint pursuant to Federal Rule of Civil Procedure 12(b)(6)
for failure to state a claim upon which relief can be granted.
The Insurance Company Defendants essentially argue that
Plaintiff’s complaint fails to make any specific factual
allegations against either of these Defendants regarding the
asbestos abatement project and Plaintiff’s alleged exposure to
asbestos.
(Mem. of Law of Def. American Safety Indemnity Co. in
Supp. of Dismissal of the Compl. Under Rule 12(b)(6) [Doc. No.
38-2] (hereinafter, “American Safety’s Mot. to Dismiss”), 1-2;
4. The Middle District cited Goodman v. PA D.E.P., No. 07-4779,
2008 WL 2682698, at *1 (E.D. Pa. Jun. 30, 2008), for the
proposition that “‘individuals can sue in federal court regarding
violations of the Clean Air Act’s emission standards. ... These
individuals must then ultimately prove which and how the Clean
Air Act’s emission standards were violated.’” (Report and
Recommendation [Doc. No. 9] 8, Nov. 29, 2010.)
In leaving the
determination of whether Plaintiff sufficiently alleged a claim
under the Clean Air Act to this Court, the Middle District
declined to conduct an in-depth analysis of Goodman or of
Plaintiff’s Clean Air Act allegations. For the reasons set forth
infra, Goodman is not determinative of the outcome of Plaintiff’s
claim under the Clean Air Act which seeks monetary damages.
6
Br. of Def. Companion Property & Casualty Insurance Co. in Supp.
of Its 12(b)(6) Mot. to Dismiss the Compl. with Prejudice [Doc.
No. 39-1] (hereinafter, “Companion’s Mot. to Dismiss”), 3-4.)
The Insurance Company Defendants also argue that Plaintiff’s
claims against them fail under New Jersey law because a personal
injury plaintiff lacks standing to bring a direct action against
his tortfeasor’s liability insurer until the plaintiff has
obtained a judgment against the insured.
(American Safety’s Mot.
to Dismiss 2-3; Companion’s Mot. to Dismiss 6-8.)
(2) Motions for Summary Judgment
Defendants NAR and Donaldson filed a motion for summary
judgment on May 2, 2011.
(Mot. for Summ. J. by David Donaldson
and North American Roofing [Doc. No. 37].)
By letter dated May
20, 2011, KaiserKane advised the Court that KaiserKane joined the
summary judgment motion filed by NAR and “adopt[ed] all of its
arguments.”5
(Letter from Robert Ritter, Esq. [Doc No. 43] 1,
May 20, 2011.)
While NAR’s summary judgment motion was pending,
Defendants Briggs and Richardson filed a cross-motion for summary
judgment on September 14, 2011.
(Cross Mot. for Summ. J. by
Briggs Contracting services, Inc. and Rod Richardson [Doc. No.
67] (hereinafter, “Briggs’ summary judgment motion”)).
Plaintiff
filed opposition [Doc. No. 44] to the original summary judgment
5. For purposes of this opinion, the Court will refer to the
motion for summary judgment filed by NAR and Donaldson, and
joined by KaiserKane as “NAR’s summary judgment motion.”
7
motion by NAR, and subsequently filed a second opposition [Doc.
No. 58] after KaiserKane joined in the motion.
Plaintiff also
filed opposition [Doc. No. 71] to Briggs’ summary judgment
motion.
Defendants NAR, Donaldson, KaiserKane, Briggs, and
Richardson (“the Contractor Defendants”) seek summary judgment in
their favor and the dismissal of Plaintiff’s complaint with
prejudice.
(NAR’s Proposed Order [Doc. No. 37-3] 1; Briggs’
Proposed Order [Doc. No. 67-5] 1.)
In moving for summary
judgment, the Contractor Defendants essentially argue that
Plaintiff cannot maintain causes of action for gross negligence,
common law fraud, violations of the Clean Air Act, and
negligence.
(Br. in Supp. of the NAR’s Summ. J. Mot. [Doc. No.
37-1] (hereinafter, “NAR’s Summ. J. Mot.”) 3-8; Br. in Supp. of
Defs.’ Briggs Contracting Services and Rod Richardson’s Cross
Mot. for Summ. J. [Doc. No. 67-1] (hereinafter, “Briggs’ Summ. J.
Mot.”), 3-8.)
Specifically, the Contractor Defendants contend
that they are entitled to summary judgment on: (1) the cause of
action for gross negligence because their conduct was not
flagrant and did not grossly deviate from the ordinary standard
of care, (NAR’s Summ. J. Mot. 3-4; Briggs’ Summ. J. Mot. 3-5);
(2) the cause of action for common law fraud because the
Contractor Defendants did not make any misrepresentations of fact
to Plaintiff regarding asbestos removal and Plaintiff cannot
8
demonstrate the required elements of this claim, (NAR’s Summ. J.
Mot. 4-5; Briggs’ Summ. J. Mot. 5-6); (3) the cause of action for
damages under the Clear Air Act because Plaintiff failed to
provide notice of any alleged violations to the Contractor
Defendants, (NAR’s Summ. J. Mot. 5-8; Briggs’ Summ. J. Mot. 6-8);
and (4) the cause of action for negligence because the Contractor
Defendants did not owe a duty to Plaintiff, and even if they did,
that duty was not breached.
(NAR’s Summ. J. Mot. 8; Briggs’
Summ. J. Mot. 3-5.)
Despite the multiple arguments presented in the pending
motions to dismiss and for summary judgment, neither the
Insurance Company Defendants nor the Contractor Defendants
challenge the exercise of jurisdiction over Plaintiff’s claims by
this Court, an issue which was initially raised by the Middle
District.6
III. DISCUSSION
As the Third Circuit has held, “[f]ederal courts are courts
of limited jurisdiction, and when there is a question as to our
authority to hear a dispute, ‘it is incumbent upon the courts to
6. The Middle District left to this Court the determination of
whether Plaintiff alleged a claim under the Clean Air Act
sufficient to provide a basis for federal question jurisdiction
under 28 U.S.C. § 1331. (Report and Recommendation [Doc. No. 9]
8 n.3, Nov. 29, 2010.) Moreover, the Middle District previously
determined that Plaintiff failed to meet his burden to
demonstrate that diversity of citizenship pursuant to 28 U.S.C. §
1332 exists in this action. (Id. at 6, 10-11.)
9
resolve such doubts, one way or the other, before proceeding to a
disposition on the merits.’”
Zambelli Fireworks Mfg. Co. v.
Wood, 592 F.3d 412, 418 (3d Cir. 2010) (citing Carlsberg Res.
Corp. v. Cambria Sav. & Loan Ass'n., 554 F.2d 1254, 1256 (3d Cir.
1977)).
Accordingly, federal courts have an independent
obligation to address issues of subject matter jurisdiction sua
sponte and may do so at any stage of the litigation.
Adamczewski
v. Emerson Elec. Co., No. 10-4862, 2011 WL 1045162, at *1 (D.N.J.
Mar. 22, 2011) (citing Meritcare Inc. v. St. Paul Mercury Ins.
Co., 166 F.3d 214, 217 (3d Cir. 1999), overruled on other grounds
by Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546
(2005)).
Therefore, although the parties have not specifically
raised the issue of the Court’s subject matter jurisdiction at
this time, the Court must determine as a threshold matter whether
the exercise of jurisdiction is proper in this case before ruling
on the merits of the pending motions.
In re Caterbone, 640 F.3d
108, 111 (3d Cir. 2011) (noting courts must “‘determine whether
subject-matter jurisdiction exists, even in the absence of a
challenge from any party’”) (citation omitted).
IV.
ANALYSIS
To determine whether federal question jurisdiction exists in
this case, the Court must review Count Three of Plaintiff’s
complaint which purportedly raises a claim under the Clean Air
Act, 42 U.S.C. § 7401 et seq.
10
As explained by the Third Circuit, “Section 7604 [of the
Clean Air Act] permits citizens to commence civil suits in the
district court against persons who violate either emission
standards or limitations promulgated under various sections of
the Act or orders issued by the EPA or a state concerning those
standards or limitations.”
Delaware Valley Citizens Council for
Clean Air v. Davis, 932 F.2d 256, 264 (3d Cir. 1991).
Thus, so
called “citizen suits” which seek enforcement of emissions
standards or limitations promulgated under the Clean Air Act are
permissible and confer federal question jurisdiction in the
district courts.
However, as multiple federal courts have
recognized, the Clean Air Act does not authorize a private cause
of action for compensatory damages for alleged violations of the
Act, and thus federal question jurisdiction does not exists for
such claims.
See, e.g., Powell v. Lennon, 914 F.2d 1459, 1462
n.7 (11th Cir. 1990) (recognizing “there is not any private right
of action under the Clean Air Act” in circumstances where the
plaintiff, a federal prisoner, sought monetary relief based on
allegations that he was exposed to asbestos in a federal prison
which caused respiratory problems); Balazinski v. Webster Lines,
No. 07-2121, 2009 WL 799285, at *3 n.3 (D.N.J. Mar. 25, 2009)
(noting that “the plaintiffs are barred from bringing a private
cause of action to recover damages for personal injuries under
the Clean Air Act”); Torres Maysonet v. Drillex, S.E., 229 F.
11
Supp. 2d 105, 109 (D.P.R. 2002) (concluding that the court lacked
“subject matter jurisdiction to entertain a damages claim under”
the Clean Air Act because “the citizen suit provision[] of the
Clean Air Act ... simply provide[ed] for injunctive remedies”);
Satterfield v. J.M. Huber Corp., 888 F. Supp. 1567, 1571 (N.D.
Ga. 1995) (granting summary judgment for defendant on negligence
per se claims based on finding that both “the federal and Georgia
Clean Air Acts do not provide for an action for private
recovery.”); Bowling v. United States, 93 Fed. Cl. 551, 559-60
(Fed. Cl. 2010) (finding that the Clean Air Act “allows any
person to bring suit for the enforcement of emissions standards
or limitations ... including those that relate to asbestos” but
does not provide “a private right of action for personal injury
claims” and thus cannot serve as a jurisdictional basis for
personal injury claims in the district courts).7
In Count Three, Plaintiff specifically asserts that the
“acts and omission of the defendants in violating the ... Clean
7. See also Abarca v. Chevron U.S.A., Inc., 75 F. Supp. 2d 566,
571 (E.D. Tex. 1999) (“[N]one of these statutes [including the
Clean Air Act] provides for a private cause of action for
compensatory damages. While each provides a cause of action for
enforcement of the regulations, such provisions are insufficient
to confer federal-question jurisdiction.”); Gutierrez v. Mobil
Oil Corp., 798 F. Supp. 1280, 1285 (W.D. Tex. 1992) (“Clean Air
Act does not provide similar or comparable remedies to those
sought by plaintiffs in common law actions for damages”); Adams
v. Republic Steel Corp., 621 F. Supp. 370, 376 (W.D. Tenn. 1985)
(“[A]ctions seeking compensatory damages under the Clean Air Act
do not state a claim for which federal question jurisdiction
exists.”)
12
Air Act ... constitute a crime and a breach of fiduciary duty to
maintain[] [a] clean environment and [to] be free from toxic
exposure by asbestos.”
(Pl.’s Compl. ¶ 45.)
Plaintiff further
contends that “[a]s a result of these violations, [he] suffered
and will continue to suffer respiratory problems and lung disease
from being exposed to asbestos abatement” by Defendants.
46.)
(Id. ¶
According to Plaintiff, these “violations were the
proximate cause of [his] injuries, medical expenses, [and the
need] medical monit[o]ring for the remainder of his life.”
(Id.)
Thus, Plaintiff seeks a judgment against Defendants “awarding
plaintiff all damages for medical care, and future medical
monit[o]ring which were caused by” Defendants’ alleged violations
of the Act.
(Pl.’s Compl. 11, Wherefore clause.)
Plaintiff
seeks “punitive damages, pre and post-judgment interest, cost[s]
of suit, legal fees, and ... other future relief ... in the
amount of $10,000,000.”
(Id.)
Based on the specific allegations of Count Three, it is
clear that Plaintiff brings this claim as a private action
seeking compensatory and punitive damages for injuries allegedly
caused by Defendants’ asbestos abatement procedures which
purportedly violated the Clean Air Act.
Plaintiff is not
bringing this claim as a citizen suit to seek enforcement of
emission standards or limitations under the Clean Air Act.
Accordingly, the Court finds that Count Three of Plaintiff’s
13
complaint impermissibly seeks compensatory and punitive damages
under the Clean Air Act and thus fails to state a claim for which
federal question jurisdiction exists.
376.
See Adams, 621 F. Supp. at
Therefore, Count Three of Plaintiff’s complaint is
dismissed with prejudice as permitting amendment would be
futile.8
Although there is no federal question jurisdiction in this
case, Plaintiff also asserts that the Court can exercise
jurisdiction over Plaintiff’s remaining state law claims for
negligence, gross negligence, and common law fraud under
diversity of citizenship jurisdiction pursuant to 28 U.S.C. §
1332.
Because Plaintiff is proceeding pro se in this action, the
Court construes the complaint liberally.
Huertas v. Galaxy Asset
8. The Court notes that the remaining counts of Plaintiff’s
complaint assert state law claims for negligence, gross
negligence, and common law fraud. (Pl.’s Compl. ¶¶ 39-43, 4748.) Having determined that federal question jurisdiction is
lacking in this case, the Court need not address Plaintiff’s
request that the Court invoke supplemental jurisdiction over
these state law claims. However, even if the dismissal of Count
Three could be construed as an exercise of the Court’s
jurisdiction, pursuant to 28 U.S.C. § 1367(c)(3), the Court would
decline to exercise supplemental jurisdiction over any state law
claims raised in Plaintiff’s complaint because considerations of
judicial economy, convenience, and fairness would not
affirmatively justify such an exercise. See Oras v. City of
Jersey City, 328 F. App’x 772, 775 (3d Cir. 2009) (noting that
“[w]here the claim over which the district court has original
jurisdiction is dismissed before trial, the district court must
decline to decide the pendent state claims unless considerations
of judicial economy, convenience, and fairness to the parties
provide an affirmative justification for doing so.”) (citing
Hedges v. Musco, 204 F.3d 109, 123 (3d Cir. 2000)) (internal
quotations omitted) (emphasis in original).
14
Mgmt., 641 F.3d 28, 32 (3d Cir. 2011) (citing Erickson v. Pardus,
551 U.S. 89, 94 (2007)).
Even though Plaintiff’s complaint is
held to a less stringent standard than formal pleadings drafted
by lawyers, see Mitchell v. Horn, 318 F.3d 523, 529 (3d Cir.
2003), Plaintiff, “as the party asserting federal jurisdiction,
‘must specifically allege each party's citizenship, and these
allegations must show that the plaintiff and defendant[s] are
citizens of different states.’”
Gay v. Unipack, Inc., No. 10-
6221, 2011 WL 5025116, at *4 (D.N.J. Oct. 20, 2011) (citation
omitted).
As the Middle District previously recognized, the Court
finds that Plaintiff has failed to meet his burden to demonstrate
that diversity of citizenship exists here.
It is clear from the
face of the complaint that Plaintiff does not sufficiently allege
either his own citizenship, or that of Defendants.
As to his own
citizenship, Plaintiff merely alleges that he is currently a
federal prisoner at FCC-Schuylkill in Minersville, Pennsylvania
and that he was previously a federal prisoner at FCI-Fort Dix in
Fort Dix, New Jersey.
(Pl.’s Compl. ¶ 1.)
However, such
allegations of are insufficient to allege Plaintiff’s
citizenship.
For purposes of diversity jurisdiction, a
prisoner’s citizenship is not based on his state of
incarceration, but rather is based on the prisoner’s “domicile
... before his imprisonment [which] presumptively remains his
15
domicile during his imprisonment.”
308, 309 (3d Cir. 2010).
Pierro v. Kugel, 386 F. App’x
A prisoner may rebut this presumption
“by showing a bona fide intent to remain in the state of
incarceration on release.”
Id.
Plaintiff’s complaint does not
allege either his domicile prior to his incarceration, or a bona
fide intent to remain in the state where he is incarcerated after
he is released.
Thus, Plaintiff fails to properly allege his own
citizenship.
With respect to the citizenship of Defendants, Plaintiff’s
complaint is similarly defective.
As to Defendants Donaldson and
Richardson, Plaintiff fails to set forth the citizenship of these
individual Defendants.
(See Pl.’s Compl. ¶¶ 5, 7.)
As to
KaiserKane, Briggs, and NAR, Plaintiff merely alleges either
where these Defendants are located or where they have their
principal place of business.
(See Pl.’s Compl. ¶¶ 2-3, 4, 6.)
With respect to American Safety and Companion, Plaintiff makes
absolutely no allegations of the citizenship of these Defendants.
For purposes of diversity jurisdiction, “[a] corporation is a
citizen both of the state where it is incorporated and of the
state where it has its principal place of business.”
Swiger v.
Allegheny Energy, Inc., 540 F.3d 179, 182 (3d Cir. 2008) (citing
28 U.S.C. § 13329(c)).
By comparison, “the citizenship of an LLC
is determined by the citizenship of each of its members.”
Zambelli Fireworks Mfg. Co. v. Wood, 592 F.3d 412, 418 (3d Cir.
16
2010).
Accordingly, to the extent certain Defendants9 are
corporations, Plaintiff’s complaint fails to properly allege both
the state of incorporation and the principal place of business
for each such Defendant.
Moreover, to the extent certain
Defendants may be organized as limited liability companies,
Plaintiff’s complaint fails to allege the citizenship of each
member of the LLC.10
As a result of these failures, Plaintiff’s complaint is
essentially silent as to the citizenship of the parties, and at
this time, the complaint is subject to dismissal for lack of
jurisdiction.
See Gay, 2011 WL 5025116, at *5.
However, because
Plaintiff is appearing pro se in this action and because
Plaintiff may be able to allege facts sufficient to demonstrate
that this Court has subject matter jurisdiction to entertain his
state law claims under diversity of citizenship jurisdiction, the
Court will order Plaintiff to show cause why Counts One, Two, and
9. Plaintiff alleges that KaiserKane and Briggs are
corporations. (Pl.’s Compl. ¶¶ 2, 4.) However, as to NAR,
American Safety, and Companion, the business entity status of
these Defendants is not alleged.
10. Moreover, if a member of the LLC is also an LLC or a
corporation, then each member of the LLC must be identified and
its citizenship plead, and for any such member that is a
corporation, the state of incorporation and the principal place
of business must be identified and plead. See Zambelli, 592 F.3d
at 420 (“[W]here an LLC has, as one of its members, another LLC,
‘the citizenship of unincorporated associations must be traced
through however many layers of partners or members there may be’
to determine the citizenship of the LLC.”)(quoting Hart v.
Terminex Int'l, 336 F.3d 541, 543 (7th Cir. 2003)).
17
Four of his complaint should not be dismissed for lack of subject
matter jurisdiction by filing an amended complaint in this action
within thirty days of the date of this Opinion.
In light of the Court’s findings supra that jurisdiction is
lacking at this time, the pending motions cannot be determined on
the merits and therefore are denied without prejudice.
V.
CONCLUSION
For the foregoing reasons, Count Three of Plaintiff’s
complaint alleging a claim under the Clean Air Act is dismissed
with prejudice, and the pending motions [Doc. Nos. 37, 38, 39,
50, 54, 57, 67] are denied without prejudice for lack of subject
matter jurisdiction.
An Order and an Order to Show Cause
consistent with this Opinion will be entered.
Dated: December 19, 2011
At Camden, New Jersey
/s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
18
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?