NERO v. ST. JOSEPH'S REGIONAL MEDICAL HOSPITAL et al
OPINION. Signed by Judge William J. Martini on 5/26/15. (gh, )
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
Civ. No. 2:15-00120 (WJM)
ST. JOSEPH’S REGIONAL MEDICAL
HOSPITAL, et al.
WILLIAM J. MARTINI, U.S.D.J.:
Pro se Plaintiff Willmyra Nero alleges that Defendants failed to provide adequate
care during her pregnancy, causing her bodily injury and the death of her newborn son.
This matter comes before the Court on Defendant St. Joseph’s Regional Medical Hospital’s
unopposed motion to dismiss pursuant to Fed. R. Civ. P. 12 (b)(1) and (b)(6). For the
reasons stated in this Opinion, St. Joseph’s motion is GRANTED. However, Nero will
be granted leave to amend her complaint.
Pro se Plaintiff Willmyra Nero currently resides at Leath Correctional Institution in
Greenwood, South Carolina. Defendant St. Joseph’s Regional Medical Hospital (“St.
Joseph’s”) is located in Paterson, New Jersey. On January 7, 2015, Nero filed the instant
action alleging that St. Josephs, as well as other fictitious entities whose identities have yet
to be determined, failed to provide her with adequate medical care during her pregnancy.
According to Nero, St. Joseph’s negligence resulted in her son’s death, which occurred on
December 5, 2012. St. Joseph’s now moves to dismiss.
St. Joseph’s motion to dismiss has two components. It first asserts that Nero has failed
to allege a federal question or an amount-in-controversy that exceeds $75,000, thereby
depriving this Court of jurisdiction. It then states that Nero’s complaint fails to state a
claim upon which relief can be granted because it is barred by the applicable statute of
limitations. Because the Court cannot currently ascertain whether there is diversity of
citizenship of the parties, it will dismiss Nero’s complaint without prejudice and grant Nero
leave to amend. The Court will not rule on St. Joseph’s statute of limitations defense until
jurisdiction is established.
Federal Rule of Civil Procedure 12(b)(1) provides for the dismissal of a complaint
for lack of subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). There are two types of
challenges to subject-matter jurisdiction: (1) facial attacks, which challenge the allegations
of the complaint on their face; and (2) factual attacks, which challenge the existence of
subject-matter jurisdiction, quite apart from any pleadings. Mortensen v. First Fed. Sav.
& Loan Ass’n, 549 F.2d 884, 891 (3d Cir. 1977). In reviewing a facial attack, like the one
in this case, the court must consider the allegations of the complaint in the light most
favorable to the plaintiff. Gould Electronics Inc. v. United States, 220 F.3d 169, 176 (3d
Cir. 2000); PBGC v. White, 998 F.2d 1192, 1196 (3d Cir. 1993).
Nero’s complaint does not raise a federal question, so her case will belong in this Court
only if it meets the requirements for diversity jurisdiction. 42 U.S.C. §1332(a) provides
that a federal district court shall have jurisdiction over actions between citizens of different
States where the matter in controversy exceeds the sum or value of $75,000. St. Joseph’s
incorrectly assumes that this Court does not have subject-matter jurisdiction because Nero
did not plead a specific amount-in-controversy exceeding $75,000. Contrary to St.
Joseph’s position, where a complaint does not allege a specified amount in controversy, a
district court should “perform its ‘own independent appraisal of the value of the claim.’”
Penn v. Wal-Mart Stores, Inc., 116 F.Supp.2d 557, 561-62 (D.N.J. 2000)(citing Angus v.
Shiley Inc., 989 F.2d 142, 145-46 (3d Cir. 1993)). After conducting an independent
appraisal of Nero’s complaint, the Court concludes that the amount-in-controversy here
exceeds $75,000. Nero alleges that St. Joseph’s negligence caused her severe injury, most
notably, the loss of her son. It is self-evident that severe bodily injury coupled with a loss
of a child’s life exceeds a value of $75,000; therefore, the amount-in-controversy has been
While the Court finds that the amount-in-controversy exceeds $75,000, it is not certain
that there is diversity of citizenship between the parties. Currently, the Court knows that
St. Joseph’s is a hospital located in New Jersey and that Nero is currently serving a prison
term in a Georgia penitentiary. “[F]or the purposes of diversity jurisdiction, citizenship
means domicile, not residence.” Pierro v. Kugel, 368 Fed.Appx. 308, 309 (3d Cir. 2010)
(citing Krasnov v. Dinan, 465 F.2d 1298, 1300 (3d Cir. 1972)). Where a prisoner is a party
to an action, as is the case here, her domicile before imprisonment presumptively remains
her domicile during imprisonment. The prisoner will rebut the presumption only if she
provides sufficient facts demonstrating a bona fide intent to remain in the state of
incarceration upon release. Id. Because St. Joseph’s is a citizen of New Jersey, diversity
jurisdiction will exist only if Nero was domiciled in a state other than New Jersey before
her incarceration, or if she can demonstrate a bona fide intent to remain in Georgia upon
release. 1 As currently drafted, the complaint does not reveal whether either of those
scenarios exist. Consequently, the Court cannot determine if there is diversity of
citizenship between the parties. Nero’s complaint is therefore DISMISSED WITHOUT
PREJUDICE. Nero is granted leave to amend her complaint to include information that
would allow this Court to determine whether the parties are diverse.
For the foregoing reasons, St. Joseph’s motion to dismiss is GRANTED. The Court
will also grant Nero leave to amend her complaint. An appropriate order accompanies this
/s/ William J. Martini
WILLIAM J. MARTINI, U.S.D.J.
Date: May 26th, 2015
“In order to overcome the presumption, the prisoner must offer more than conclusory
statements and unsupported allegations. No single factor is dispositive, and the analysis focuses
not only on the number of contacts with the purported domicile, but also on their substantive
nature.” Pierro, 386 Fed.Appx. at 310 (quoting Hall v. Curran, 599 F.3d 70, 72 (1st Cir. 2010)).
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