JAGER v. FLEET MANAGEMENT ROAD SERVICE et al
OPINION. Signed by Judge Kevin McNulty on 9/14/17. (DD, ) N/M
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
ROBERT JAGER, d/b/a Robert Jager
Civ. No. 14-8130 (KM) (MAH)
FLEET MANAGEMENT ROAD SERVICE,
GERALD VACCA and J&M TOWING,
This matter comes before the Court on a motion to dismiss the
complaint. Because the complaint is facially deficient, the motion will be
granted, without prejudice to the submission of a proposed amended complaint
within 30 days.
The operative allegations of the complaint filed by the plaintiff, Robert
Jager, read in their entirety as follows:
The Plaintiff by way of Complaint says that the above named
Defendants conspired to deprive me of my 1987 Mack Superliner
Mack tractor truck valued at $20,000.00.
The jurisdiction of this Court is involved pursuant to 28 USC
1332 and 18 USC 371; 1962, 6d. This Complaint encompasses
acts of conspiratorial activity engaged in by the Defendants.
Wherefore, Plaintiff demands money damages in the amount
of $20,000.00 plus punitive damages and such other and further
relief as this Honorable Court deems equitable, appropriate and
(Cplt., ECF no. 1)
Defendant J&M Towing has filed a motion to dismiss the complaint
pursuant to Fed. R. Civ. P. 12(b)(l) (lack of diversity jurisdiction) and 12(b)(6)
(failure to state a claim).
A Rule 12(b)(l) challenge to the court’s subject matter jurisdiction may
be either facial or factual attacks. See 2 Moore’s Federal Practice
ed. 2007); MOrteJiSen u. First Fed. Saz’. & LoanAss’n, 549 F,2d 884, 891 (3d Cir.
1977). A facial challenge asserts that the complaint does not allege sufficient
grounds to establish subject matter jurisdiction. Iwanowa v. Ford Motor Co., 67
F. Supp. 2d 424, 438 (D.N.J. 1999). A factual attack may involve the
submission of evidence extrinsic to the pleading. Gould Elecs. Inc. v. United
States, 220 F.3d 169, 178 (3d Cir. 2000), holding modified on other grounds by
Simon v. United States, 341 F.3d 193 (3d Cir. 2003).
“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.”
[citing Gould Elecs. Inc. v. United States, 220 F.3d 169, 176 (3d Cir.
2000).] By contrast, in reviewing a factual attack, “the court must
permit the plaintiff to respond with rebuttal evidence in support of
jurisdiction, and the court then decides the jurisdictional issue by
weighing the evidence. If there is a dispute of a material fact, the
court must conduct a plenary hearing on the contested issues
prior to determining jurisdiction.” [citing McCann v. Newman
Irrevocable Trust, 458 F.3d 281, 290 (3d Cir. 2006) (citations
Lincoln Ben. Life Co.
AElLife, LLC, 800 F.3d 99, 105 (3d Cir. 2015) (footnotes
omitted; case citations in footnotes inserted in text)
Although both sides have attempted to submit extrinsic factual
materials, these do not relate to the question of subject matter jurisdiction. The
Rule 12(b)(1) motion will therefore be treated as a facial attack.
Rule 12(b)(6) provides for the dismissal of a complaint, in whole or in
part, if it fails to state a claim upon which relief can be granted. The moving
party bears the burden of showing that no claim has been stated. Hedges v.
United States, 404 F.3d 744, 750 (3d Cir. 2005). In deciding a motion to
dismiss, a court must take all allegations in the complaint as true and view
them in the light most favorable to the plaintiff. See Warth v. Seldin, 422 U.S.
490, 501 (1975); Trump Hotels & Casino Resorts, Inc. v. Mirage Resorts Inc., 140
F.3d 478, 483 (3d Cir. 1998); see also Phillips v. County of Allegheny, 515 F.3d
224, 231 (3d Cir. 2008) (“reasonable inferences” principle not undermined by
later Supreme Court case of Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
R. Civ. p. 8(a) does not require that a complaint contain detailed
factual allegations. Nevertheless, “a plaintiffs obligation to provide the
‘grounds’ of his ‘entitlement to relief requires more than labels and
conclusions, and formulaic recitation of the elements of a cause of action will
not do.” Bell AtI. Corp. v. Twomhly, 550 U.S. 544, 555 (2007). Thus, the factual
allegations must be sufficient to raise a plaintiffs right to relief above a
speculative level, such that it is “plausible on its face.” See Id. at 570; see also
Umland v. PLANCO Fin. Serv., Inc., 542 F.3d 59, 64 (3d Cir. 2008). A claim has
“facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing
Twombly, 550 U.S. at 556). While “[tjhe plausibility standard is not akin to a
it asks for more than a sheer possibility.” Iqbal,
556 U.S. at 678 (2009).
Where a plaintiff is proceeding pro se, his complaint is “to be liberally
construed,” and, “however inartfully pleaded, must be held to less stringent
standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551
U.S. 89, 93-94 (2007). Nevertheless, “pro se litigants still must allege sufficient
facts in their complaints to support a claim.” Math u. Crown Bay Marina, Inc.,
704 F.3d 239, 245 (3d Cir. 2013). “While a litigant’s pro se status requires a
court to construe the allegations in the complaint liberally, a litigant is not
absolved from complying with Twombly and the federal pleading requirements
merely because s/he proceeds pro se.” Thakar a Tan, 372 F. App’x 325, 328
(3d Cir. 2010) (citation omitted).
The first facial defect of the complaint is its failure to plead any facts
from which this court’s subject matter jurisdiction could be inferred. The
second is its failure to allege facts that would support a viable cause of action.
Federal question jurisdiction! RICO
One jurisdictional possibility is federal-question jurisdiction under 28
U.S.C. § 1331 (“The district courts shall have original jurisdiction of all civil
actions arising under the Constitution, laws, or treaties of the United States.”).
The complaint does cite federal statutes, 18 U.S.C. § 371 and 1962 (the RICO
statute). The allegations are so insubstantial, however, that they fail to
establish jurisdiction. Rather than quibble over whether the allegations reach
the jurisdictional threshold, however, I will simply merge this analysis with the
Rule 12(b)(6) analysis of whether a claim has been stated. Clearly it has not.
Sections 371 (conspiracy) and 1962 (RICO) are criminal statutes. They do
not contain a civil cause of action for damages.
I would read the complaint liberally, however; it may intend to assert a
civil RICO claim under 18 U.S.C. § 1964. Pursuant to 18 U.S.C. § 1964(c), the
federal RICO statute provides for recovery by any person injured in her
business or property by reason of a violation of section 1962. In order to state a
claim under 1964(c), a plaintiff must plead “(1) a section 1962 violation and (2)
an injury to business or property by reason of such injury.” Lightning Lube,
Inc., a Witco Corp., 4 F.3d 1153, 1187 (3d Cir. 1993).
Here, the plaintiff has failed to plead facts from which a
§ 1962 violation
could be inferred. The most likely candidate is a claim under 1962(a), which
requires that “a plaintiff must allege: (1) that the defendant has received money
from a pattern of racketeering activity; (2) invested that money in an enterprise;
and (3) that the enterprise affected interstate commerce.” Id. at 1189 (citation
omitted). Establishing a pattern of racketeering requires allegations of “at least
two acts of racketeering activity within a ten-year period.” 18 U.S.C.
Those predicate “acts” in general consist of a list of state and federal crimes.
This complaint does not identify one such predicate act, let alone two, let
alone two committed as part of a “pattern” in connection with a RICO
“enterprise.” The sole allegation of the complaint is that, on a single occasion,
the defendants “conspired to deprive [plaintiff of his] 1987 Mack Superliner
Mack tractor truck.” This allegation, however liberally construed, comes
nowhere near alleging a RICO claim.
B. Diversity jurisdiction/State law claims
The complaint cites 28 U.S.C.
§ 1332, the diversity jurisdiction statute.1
Title 28, United States Code, section 1332(a), confers subject matter
jurisdiction where the amount in controversy exceeds $75,000, and the action
is between “(1) citizens of different States; [or] (2) citizens of a State and citizens
or subjects of a foreign state” with irrelevant exceptions. See generally
Strawbridge v. Curtiss, 7 U.S. 267 (1806) (complete diversity required as
between plaintiffs and defendants). In such a case, a federal court may hear a
An individual’s citizenship is the state of his or her domicile. “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.” Zambelli Fireworks Mfg. Co.
v. Wood, 592 F.3d 412, 419 (3d Cir. 2010). This complaint does not allege the
Because no substantial federal claim is pled, I would not exercise
supplemental jurisdiction over any state claims pursuant to 28 U.S.C. § 1367.
citizenship of any party. There are indications scattered through the record
that the parties may be diverse, but no forthright allegation or proof.
In addition, the complaint alleges damages in the amount of $20,000, far
below the $75,000 threshold. In response to the motion to dismiss, the plaintiff
sought leave to assert additional lost earnings damages that would meet the
threshold. This deficiency might therefore be remedied by amendment. In that
connection, I note that leave to amend is granted freely. See Fed. R. Civ. P.
More fundamentally, however, the complaint does not identify any
particular state-law claim that the plaintiff wishes the court to hear, even
assuming it possesses diversity jurisdiction. Although I am dismissing for lack
ofjurisdiction, I am doing so based on defective pleading, with leave to amend.
I therefore address the merits of the defendant’s Rule 12(b)(6) motion—which I
would grant, in the alternative—in order to guide the plaintiffs drafting of any
In the event that the plaintiff chooses to amend his complaint, he
should bear the following considerations in mind.
It is possible to read this Complaint as asserting a state-law tort claim of
fraud or conversion. There are two problems with such a theory, however.
First, the complaint as it stands contains almost no facts. It states only
that “Defendants conspired to deprive me of my 1987 Mack Superliner Mack
tractor truck.” The basic who, what, when, and where are missing. Even read
liberally in light of the plaintiffs pro se status, these allegations do not meet the
pleading standards of Twombly and Iqbal, cited above. So even if I possessed
jurisdiction, I would necessarily dismiss any hypothetical state-law tort claim
on Rule 12(b)(6) grounds. Although both sides attempt to fill out the factual
picture by attaching various factual statements, these are not properly
considered on a Rule 12(b)(6) motion. Any amended complaint must state what
claims it is asserting, and support such claims with adequate factual
Second, there are indications that any fraud or conversion claim would
be untimely under the statute of limitations. The complaint does not state
when the alleged fraud or conversion occurred, even by year. Again, the parties
improperly rely on extrinsic evidence and statements in an attempt to pin down
the date, but I cannot consider such evidence on a Rule 12(b)(6) motion.
A statute of limitations defense will support a Rule 12(b)(6) dismissal
only if the time bar is established on the face of the complaint. Fried a JP
Morgan Chase & Co., 850 F.3d 590, 604 (3d Cir. 2017). Otherwise, the issue
will have to await a motion for summary judgment, which permits the parties
to submit evidence. The plaintiff should be aware, however, that leaving the
relevant dates out of the complaint may only delay the inevitable. If
appropriate, I will authorize an early summary judgment motion once discovery
has fairly established the relevant dates.
On that subject, the parties will have to establish which state’s statute of
limitations applies.2 The defendant’s brief appears to assume that New Jersey’s
statute of limitations applies, but that is by no means obvious. Certain of the
statements attached to the parties’ submissions, for example, suggest that all
of the relevant events occurred in the State of New York. The difference may be
consequential. Compare Def. Brf. 3 (citing New Jersey’s six year statute of
limitations, N.J. Stat. Ann.
2A:14-1) with N.Y. C.P.L.R.
214(4) (New York
statute of limitations of three years for actions in tort). Depending on the dates,
however, the difference may not matter; this action was filed on December 31,
2014, so any cause of action that accrued before December 31, 2008, would be
untimely under either a three-year or six-year statute.3
To choose which state’s law applies, this court will adopt the choice-of-law rules
of New Jersey. See Klaxon a Stentor, 313 U.S. 487, 496 (1941); P.14 u. Camp Jaycee,
197 N.J. 132, 144 (2008) (New Jersey employs the “most significant relationship” test).
In a close case, the parties may have to address counting rules. The defendant
states, but cites no authority for, the proposition that an action filed on the
anniversary of the tort is untimely—i.e., that the day of the tort counts as day one, not
day zero, in the calculation.
As I say, the statute of limitations is an issue for another day; I state
these principles for the parties’ guidance.
For the reasons stated in this Opinion, the motion to dismiss the
Complaint for lack of jurisdiction, and in the alternative for failure to state a
claim, is granted. Because this is an initial dismissal, it is granted without
prejudice to the filing of a proposed amended complaint within 30 days. A
separate Order is filed herewith.
Dated: September 14, 2017
U. S. D. J
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