DEJESUS v. MOHAMMAD et al
Filing
11
OPINION. Signed by Judge Noel L. Hillman on 11/7/2013. (dmr)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
RICARDO DEJESUS,
Civil No. 12-7007(NLH/KMW)
Plaintiff,
OPINION
v.
DR. SHAKIL MOHAMMAD, M.D., et
al.,
Defendants.
HILLMAN, District Judge
This matter comes before the Court by way of Plaintiff Ricardo
DeJesus=s motion [Doc. No. 10] seeking to reinstate the complaint.
The Court has considered Plaintiff=s submission and the proposed third
amended complaint and decides this matter pursuant to Federal Rule
of Civil Procedure 78.
For the reasons expressed below, Plaintiff=s motion will be
denied.
I.
BACKGROUND
Plaintiff filed the original complaint [Doc. No. 1] in this
action on November 12, 2012, averring that the Court could exercise
jurisdiction pursuant to 28 U.S.C. § 1332 based on the diversity of
citizenship of the parties and an amount in controversy in excess
of $75,000.
(Compl. [Doc. No. 1] & A.)
After reviewing Plaintiff=s
original complaint, the Court issued an Order to Show Cause on
November 16, 2012 outlining several pleading deficiencies with
respect to the citizenship of Defendant Westfield Hospital1
(AWestfield@) and Defendant Shakil Orthopedic Associates.
Show Cause [Doc. No. 3] 2-4.)
(Order to
The complaint as submitted to the Court
did not allege sufficient facts to establish complete diversity of
citizenship existed between the parties.
(Id. at 4.)
Rather than
dismiss the complaint outright, the Court’s Order to Show Cause
specifically instructed Plaintiff on the requirements for properly
pleading the citizenship of the parties in order to correct these
deficiencies.
(Id. at 2-4.)
The Court directed Plaintiff to file
an amended complaint within ten days or face dismissal of the
complaint for lack of subject matter jurisdiction.
(Id. at 5.)
In response to the Order to Show Cause, Plaintiff filed an
amended complaint [Doc. No. 4] on November 27, 2012.2
After
1
Plaintiff later identified this Defendant as Westfield
Medical Center, L.P., doing business as, Westfield Hospital.
2
The Court notes that the Amended Complaint filed on November
27, 2012 was filed beyond the time provided for in the November 15,
2012 Order to Show Cause. At the latest, Plaintiff=s Amended
Complaint should have been filed by November 26, 2012. Despite
Plaintiff=s counsel=s failure to file a timely amended complaint
pursuant to the Court=s Order to Show Cause, the Court did not
immediately enter an Order dismissing the complaint for lack of
subject matter jurisdiction.
2
reviewing Plaintiff=s amended complaint, the Court issued a second
Order to Show Cause on December 4, 2012.
The Court=s December 4, 2012
Order to Show Cause specifically outlined additional pleading
deficiencies regarding the citizenship of Defendant Westfield,3
Defendant Shakil Orthopedic Associates, Inc.,4 and Defendant Shakil
Mohammad.5
(Order to Show Cause [Doc. No. 5] 2-6, Dec. 4, 2012.)
Additionally, the Court noted that jurisdictional allegations made
Aupon information and belief@ are insufficient to convince the Court
that diversity existed between the parties.
(Id. at 6) (citing Vail
v. Doe, 39 F. Supp. 2d 477, 477-78 (D.N.J. 1999)).
Despite being
provided the opportunity to amend, Plaintiff in his amended complaint
3
With regard to Westfield, the Court noted that Plaintiff
identified this Defendant as both a limited partnership and as a
corporation, but failed to properly aver the citizenship of either
because the Amended Complaint did not set forth the identity and
citizenship of each limited partner (assuming Westfield is a limited
partnership), nor did the Amended Complaint set forth Aits@ principal
place of business (assuming Westfield is a corporation). (Order to
Show Cause [Doc. No. 5] 2-4, Dec. 4, 2012.)
4
With regard to Shakil Orthopedic Associates, Inc., the Court
found that Plaintiff failed to properly identify this Defendant=s
business entity status, i.e., corporation, limited partnership,
limited liability company, etc., and that even assuming this
Defendant was a corporation, Plaintiff still failed to properly aver
Aits@ principal place of business. (Order to Show Cause [Doc. No.
5] 4-5, Dec. 4, 2012.)
5
The Court concluded that Plaintiff=s Amended Complaint clouded
the issue regarding Defendant Mohammad=s citizenship by first
averring that Defendant Mohammad was a resident of Pennsylvania, but
later averring that he was a citizen of Pennsylvania. (Order to Show
Cause [Doc. No. 5] 5-6, Dec. 4, 2012.)
3
failed to allege sufficient facts to establish that diversity of
citizenship existed between the parties.
Again, rather than dismiss
the amended complaint for lack of subject matter jurisdiction, the
Court directed Plaintiff to file a second amended complaint within
ten days or face dismissal for lack of subject matter jurisdiction.
(Id. at 6-7.)
The time within which Plaintiff was required to file a second
amended complaint pursuant to the December 4, 2012 Order to Show Cause
expired on December 14, 2012.
As before, Plaintiff failed to file
the second amended complaint, or to seek an extension, within the
allotted time frame.
Approximately one week after the deadline for
filing Plaintiff=s second amended complaint expired, the Court
entered an Order dismissing Plaintiff=s case without prejudice for
lack of subject matter jurisdiction. (Order [Doc. No. 6] 1, Dec. 21,
2012.)
Six days later, Plaintiff filed a motion to reinstate the
complaint.
(Pl.=s First Mot. to Reinstate the Compl. [Doc. No. 7],
Dec. 27, 2012.)
After reviewing Plaintiff=s motion to reinstate the
complaint, the Court issued an Order denying the motion based on
persistent pleading deficiencies. (Order [Doc. No. 9] 2, Jan. 10,
2013.)
As noted in the Opinion denying the motion, Plaintiff’s
motion to reinstate sought the filing of the second amended
4
complaint, a document the Court had already found deficient.6
Nearly four months after Plaintiff=s case had been terminated,
Plaintiff filed a second motion to reinstate the complaint, which
is presently before the Court.
II.
ANALYSIS
Although Plaintiff does not specify the authority under which
he seeks relief, the Court construes the motion as seeking to vacate
its dismissal of Plaintiff=s complaint pursuant to Federal Rule of
Civil Procedure 60(b).7
Rule 60(b) provides, in relevant part, that
A[o]n motion and just terms, the court may relieve a party or its legal
representative from a final judgment, order, or proceeding for ...
(1) mistake, inadvertence, surprise, or excusable neglect; [or] ...
6
As the Court previously noted, the second amended complaint
attached to Mr. Benedetto=s certification was the exact same document
filed with the Court on November 27, 2007, and contained the exact
same pleading deficiencies regarding diversity jurisdiction.
7
A motion to reopen a case may be treated as a motion for relief
from a final judgment pursuant to Rule 60(b) or as a motion for
reconsideration pursuant to Rule 59(e) and Local Civil Rule 7.1(i).
Choi v. Kim, 258 F. App'x 413, 414-15 (3d Cir. 2007). In the present
case, because Plaintiff failed to file the motion within fourteen
days of the Court=s Order dismissing the matter, the Court will
construe Plaintiff=s motion as a motion for relief from final judgment
pursuant to Rule 60(b). Motions made under Rule 60 “must be made
within a reasonable time … [and for motions made under subsections]
(1), (2), and (3) no more than a year after the entry of the judgment.”
FED. R. CIV. P. 60(c). Here, Plaintiff is well within the time limits
imposed by Rule 60.
5
(6) any other reason that justifies relief.@
FED. R. CIV. P. 60(b).
Rule 60(b)=s purpose Ais to strike a proper balance between the
conflicting principles that litigation must be brought to an end and
that justice must be done.@
Boughner v. Sec'y of Health, Ed. &
Welfare, U. S., 572 F.2d 976, 977 (3d Cir. 1978).
Additionally, the Court notes that Rule 60(b) applies to final
orders.
The Third Circuit has concluded that an order denying a
motion to reinstate a complaint is considered final.
See Constr.
Drilling, Inc. v. Chusid, 131 F. App'x 366, 369 (3d Cir. 2005)
(stating that denials of motions made pursuant to Rule 60(b) are final
orders under 28 U.S.C. § 1291).
Here, the Court previously denied
Plaintiff=s motion to reinstate his complaint in an Opinion and Order
[Doc. Nos. 8 and 9] dated January 10, 2012.
Therefore, Rule 60(b)
is applicable to the present motion.8
Plaintiff contends that his delay in amending the complaint to
correct jurisdictional deficiencies was caused by his inability to
access the website to obtain a PDF copy of the Court=s Order to Show
Cause.
This contention potentially implicates the excusable
neglect standard under subsection (1) or the catchall provision under
subsection (6) of Rule 60(b).
To the extent Plaintiff seeks to
vacate judgment pursuant to subsection (6), that request must fail.
8
At this stage, the Court makes no determination as to the
timeliness of Plaintiff’s complaint.
6
The catchall provision under Rule 60(b)(6) is available only under
extraordinary circumstances and only if relief is not warranted under
Rule 60(b)(1-5).
See Gonzalez v. Crosby, 545 U.S. 524, 535B36
(2005); see also Budget Blinds, Inc. v. White, 536 F.3d 244, 251 (3d
Cir. 2008) (holding that “extreme and unexpected hardship”
constitutes extraordinary circumstances while a party’s voluntary
choices does not).
Furthermore, relief under subsection (6) is not
available unless the party seeking relief is Afaultless in the delay
[and] [i]f a party is partly to blame for the delay, relief must be
sought within one year under subsection (1).@
Pioneer Inv. Services
Co. v. Brunswick Associates Ltd. Partnership, 507 U.S. 380, 393
(1993).
Therefore, the Court finds subsection (6) inapplicable here
and must consider Plaintiff=s motion as a motion brought pursuant to
subsection (1).
Whether neglect is excusable under Rule 60(b) is an equitable
determination that involves a totality of the circumstances test.
Pioneer Inv. Servs. Co. v. Brunswick Associates Ltd. P'ship, 507 U.S.
380, 389 (1993).
In particular, the excusable neglect standard
consists of four factors: (1) prejudice to the opposing party; (2)
the length of the delay and its potential impact on judicial
proceedings; (3) the reason for the delay and whether it was within
the movant=s control; and (4) whether the movant acted in good faith.
See Nara v. Frank, 488 F.3d 187, 193-94 (3d Cir. 2007) (citing Pioneer
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Inv. Servs. Co., 507 U.S. at 395 (1993) and adopting Pioneer=s analysis
for bankruptcy proceedings in Rule 60(b) contexts generally).
The
Third Circuit has cautioned against giving any one of these four
factors dispositive weight.
See, e.g., George Harms Const. Co.,
Inc. v. Chao, 371 F.3d 156, 164 (3d Cir. 2004) (stating that Athe
>control= factor does not necessarily trump all the other relevant
factors.@).
Turning to the application of the excusable neglect factors,
there can be little doubt that the cause for the delay here was
reasonably within Plaintiff’s control.
As the Court noted in its
January 10, 2013 Opinion, Plaintiff=s counsel had missed the deadline
for filing the second amended complaint by six days before he first
contacted the Court with regard to technical difficulties in
retrieving and reviewing the December 4, 2012 Order to Show Cause.
Furthermore, counsel was directed by the Court to contact the Clerk=s
Office to resolve any technical difficulties in retrieving and
opening the relevant electronic file for the Order to Show Cause,
and it is unknown whether he acted on the Court=s instructions.
Moreover, Plaintiff’s counsel failed to file a request for an
extension of time to amend the complaint pursuant to the December
4, 2012 Order to Show Cause.
Thus, because of these numerous
failings, the Court has no choice but to conclude that the reason
for the delay was within Plaintiff’s control.
8
Next, the Court turns to the question of whether granting
Plaintiff=s motion will result in prejudice to the opposing party.
The issue of undue prejudice involves consideration of Athe hardship
to the [opposing party] if the amendment were permitted@ and Awhether
allowing an amendment would result in additional discovery, cost,
and preparation to defend against new facts or new theories.@
Cureton v. NCAA, 252 F.3d 267, 273 (3d Cir. 1984).
Here, since
Plaintiff seeks to reinstate and amend his complaint in an effort
to correct jurisdictional deficiencies, there is no apparent threat
of hardship to the opposing party who has not yet been served with,
let alone answered, the complaint.
Similarly, reinstatement of
Plaintiff=s complaint will not impose any additional
discovery-related burden on the opposing party since discovery has
not commenced.
Furthermore, the length of the delay, from January 10, 2013 to
April 3, 2013, while significant, is not deemed to have an adverse
impact on the judicial proceedings here since the case is in its
earliest stages.
Finally, regarding the final factor, the Court
must determine "whether the motion itself is being made in bad faith,
not whether the original complaint was filed in bad faith or whether
conduct outside the motion to amend amounts to bad faith."
Trueposition, Inc. v. Allen Telecom, Inc., No. 01-823 GMS, 2002 WL
1558531, at *2 (D. Del. July 16, 2002) (citing J.E. Mamiye & Sons,
9
Inc. v. Fidelity Bank, 813 F.2d 610, 614 (3d Cir. 1987)).
Here,
although Plaintiff=s delay was caused by reasons fully within his
control, there is no indication that the present motion itself was
filed in bad faith.
Having considered all the Pioneer factors, the Court finds that
Plaintiff=s neglect in timely answering the Court’s Order to Show
Cause was excusable.
Although the Court finds Plaintiff=s proffered
reasons for failing to timely comply with the Court=s December 4, 2012
Order to Show Cause unpersuasive at best, the remaining factors weigh
in favor of granting Plaintiff=s motion to reinstate the complaint.
That being said, Plaintiff still bears the burden to demonstrate that
the Court’s jurisdiction in this matter has been properly invoked.
Accordingly, the Court now turns to the substance of Plaintiff=s
proposed third amended complaint, which Plaintiff submitted in
support of the present motion to reinstate the complaint.
Despite
the issuance of two Orders to Show Cause which explicitly set forth
the necessary requirements for adequately pleading diversity
jurisdiction pursuant to 28 U.S.C. ' 1332, Plaintiff fails to tailor
the third amended complaint to comply with the statute=s requirements.
Even after reading Exhibit A, Plaintiff’s third amended complaint,
as a whole, the Court is unable to determine whether diversity of
citizenship exists.
We glean the following from the third amendment complaint.
10
Plaintiff is an individual who is a citizen of New Jersey (Third
Amended Complaint, Jurisdiction and Venue, Introductory paragraph).
Defendant Shakil Mohammad is an individual who is a citizen of
Pennsylvania (Third Amended Complaint, Count 1, ¶ 2)9.
Defendant
Shakil Orthopedic Associates, Inc. is a corporation incorporated in10
and having its principal place of business in Pennsylvania (Third
Amended Complaint, Jurisdiction and Venue, Introductory paragraph).
The problem arises with the jurisdictional allegations
regarding the Defendant Westfield Medical Center, L.P.
Plaintiff
asserts that this entity is a limited partnership and that its general
partner, WMC, Inc.,
11
is a corporation, incorporated in and with its
9
As before, Plaintiff clouds the issue regarding Defendant
Mohammad=s citizenship by first averring in the “Jurisdictional”
section of the third amended complaint that Defendant Mohammad is
a “resident” of Pennsylvania only to later aver in the body of Count
1 that Mohammad is a “citizen” of Pennsylvania. As we previously
explained, the Defendant’s residence is not a relevant
jurisdictional fact (although it may be relevant in conjunction with
other facts in determining domicile or citizenship). No other facts
are alleged regarding Mohammad’s citizenship. Although not found
in the “Jurisdictional” allegations of the third amended complaint,
we accept as sufficient for jurisdictional purposes the allegation
that Mohammad is a citizen of Pennsylvania.
10
The actual allegation is that Shakil Orthopedic Associates
is “formed and located in” Pennsylvania. Although the allegation
is ambiguous, we take it to be an allegation that Shakil Orthopedic
Associates was incorporated in and under the laws of the Commonwealth
of Pennsylvania and accept that fact for jurisdictional purposes.
11
It is unclear from Plaintiff’s allegations whether the
appropriate title of Westfield Medical Center, L.P.’s general
partner is WMC, Inc. or WMC Management, Inc., or indeed whether the
two are separate and distinct entities since the names appear to be
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principal place of business in Pennsylvania.
However, for diversity
purposes, “the citizenship of partnerships is determined by the
citizenship of all of its partners, not just the general partners.”
See Swiger v. Allegheny Energy, Inc., 540 F.3d 179, 187 (3d Cir. 2008)
(citing Carden v. Arkoma Assocs., 494 U.S. 185, 195-96 (1990)).
Furthermore, partnerships are defined as consisting of “two or more
persons.”
Kramer v. Scientific Control Corp., 534 F.2d 1085, 1092
n.15 (3d Cir. 1976).
Plaintiff makes no factual allegations
regarding the identity and citizenship of the limited partners of
Defendant Westfield Medical Center, L.P.
Therefore, Plaintiff’s
allegation that WMC, Inc. is the “only listed partner of Westfield
Medical Center, L.P.” constitutes an insufficient pleading. (Third
Amended Complaint, Count 1, ¶ 1).
is unclear.
What plaintiff means by “listed”
What is clear is that Plaintiff fails to allege the
citizenship of all of the partners of Westfield Medical Center, L.P.
and in particular the unnamed limited partners.
Until diversity
jurisdiction is appropriately pled the Court is unable to determine
whether it has jurisdiction over the matter.
III. CONCLUSION
It appears to the Court from the responses to the Orders to Show
Cause and the proposed amended complaints that Plaintiff filed in
used interchangeably.
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federal court, and has continued to try to pursue this matter in this
Court, before determining the citizenship of the various defendants
he sought to sue.
Despite now having had four bites at the apple,
he still fails to properly allege subject matter jurisdiction through
diversity.
A procedure of this kind, and pleadings that reflect this
approach, are defective and subject to dismissal.
“It is well
established that ‘the basis upon which jurisdiction depends must be
alleged affirmatively and distinctly and cannot be established
argumentatively or by mere inference.”
S. Freedman & Co., Inc. v.
Raab, 180 F. App'x 316, 320 (3d Cir. 2006) (citations omitted); see
also Thomas v. Bd. of Trs. of Ohio State Univ., 195 U.S. 207, 210
(1904) (diversity jurisdiction, “or the facts upon which, in legal
intendment, it rests, must be distinctly and positively averred in
the pleadings, or should appear affirmatively and with equal
distinctness in other parts of the record”).
Moreover, as both the Supreme Court and the Third Circuit have
recognized, “[i]t is ... well established that when jurisdiction
depends upon diverse citizenship the absence of sufficient averments
or of facts in the record showing such required diversity of
citizenship is fatal and cannot be overlooked by the court, even if
the parties fail to call attention to the defect, or consent that
it may be waived.”
Carlsberg Res. Corp. v. Cambria Sav. & Loan Ass'n,
554 F.2d 1254, 1256 (3d Cir. 1977) (citing Thomas, 195 U.S. at 211).
13
“Jurisdictional statutes are to be strictly construed and the burden
of proof is upon the plaintiff to affirmatively establish diversity
of citizenship.”
Vail v. Doe, 39 F. Supp. 2d 477 (D.N.J. 1999)
(citing Ramsey v. Mellon Nat’l Bank, 350 F.2d 874, 878-79 (3d Cir.
1965)).
“Unless affirmatively demonstrated, a Federal Court is
presumed to lack subject matter jurisdiction.”
Clavin v. Potter,
No. 05-CV-2812, 2006 WL 1044821 DMC, at *2 (D.N.J. Apr. 19, 2006)
(citing Philadelphia Federation of Teachers v. Ridge, 150 F.3d 319,
323 (3d Cir. 1998)).
Federal courts are courts of limited jurisdiction and the lower
courts may only exercise that jurisdiction conferred upon them by
Congress.
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.
See Adamczewski v. Emerson Elec. Co.,
No. 10-04862 SRC, 2011 WL 1045162 (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 Svcs., Inc., 545 U.S. 546 (2005)); see also Zambelli
Fireworks Mfg. Co. v. Wood, 592 F.3d 412, 418 (3d Cir. 2010) (“Federal
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 resolve such doubts, one way or the other, before
proceeding to a disposition on the merits.’”) (citing Carlsberg Res.
14
Corp. v. Cambria Sav. & Loan Ass'n, 554 F.2d 1254, 1256 (3d Cir.
1977)).
Here, despite numerous opportunities to do so, Plaintiff
has failed to allege the citizenship of the relevant parties in
sufficient and necessary detail.
For the reasons set forth herein,
Plaintiff=s motion [Doc. No. 10] to reinstate the complaint will be
denied.
An Order consistent with this Opinion will be entered.
Date: November 7, 2013
At Camden, New Jersey
s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
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