DICKE v. LI

Filing 12

OPINION. Signed by Judge Kevin McNulty on 7/5/2016. (ld, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
ALLISON DICKE,
Civ. No. 16-cv-2 163 (1KM) (MAH)

Plaintiff,
V.

MEMORANDUM OPINION

JIALIN LI,
Defendant

KEVIN MCNULTY, U.S.D.J.:
The plaintiff, Allison Dicke, commenced this pro se action for a
declaratory judgment, to recover damages from her ex-boyfriend, Jialin Li, for
damages arising out of his alleged responsibility for giving her a sexuallytransmitted disease, and for a restraining order against Li. Li has moved to
dismiss the claim for lack of subject matter jurisdiction pursuant to FED. R.
Civ. P. 12(b)(l). (Dkt. No. 8) For the reasons set forth below, the motion is
granted and the complaint is dismissed without prejudice.
Motions to dismiss for lack of subject matter jurisdiction pursuant to
FED.

R. Civ. P. 12(b)(1) may be raised at any time. Iwanowa v. Ford Motor Co.,

67 F. Supp. 2d 424, 437-38 (D.N.J. 1999). Rule 12(b)(1) challenges may be
either facial or factual attacks. See 2 MOORE’S FEDERAL PRACTICE

§ 12.30[4] (3d

ed. 2007); Mortensert v. First Fed. Say. & Loan Ass’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. Iwariowa, 67 F. Supp. 2d at
438. A court considering such a facial challenge assumes that the allegations
in the complaint are true, and may dismiss the complaint only if it nevertheless
appears that the plaintiff will not be able to assert a colorable claim of subject
matter jurisdiction. Constitution Party of Pa. v. Aichele, 757 F.3d 347, 358—59
1

(3d Cir. 2014); Cardio—Med. Assoc., Ltd. v. Crozer—Chester Med. Ctr., 721 F.2d
68, 75 (3d Cir. 1983); Iwanowa, 67 F. Supp. 2d at 438.
No grounds for this Court’s subject matter jurisdiction are pled or are
apparent. The claims asserted in the complaint sound in intentional infliction
of emotional distress, negligent infliction of emotional distress,
misrepresentation and defamation. All of these are state law claims. There is no

§ 1331.
Furthermore, no basis for diversity jurisdiction appears. See 28 U.S.C. § 1332.
indication that this case presents a federal question. See 28 U.S.C.

The complaint does not plead diversity of citizenship or an amount in
controversy exceeding $75,000. Rather, the complaint alleges that both Dicke
and Li are citizens of New Jersey. (Compi. (Dkt. No. 1)

¶J 9—10) Dicke argues

that there is a question as to the location of Li’s actual residence, but nowhere
does she plead that Li resides in a state other than New Jersey.
I glean from the executed summons states that Li lives in Princeton, New
Jersey, not Plainfield, New Jersey, as originally stated. (Dkt. No. 7) If that is the
dispute to which Dicke refers, it is of no consequence; both Plainfield and
Princeton are in New Jersey. Because both Dicke and Li are citizens of New
Jersey, complete diversity between the parties is lacking. In her opposition
papers, Dicke asserts that the amount in controversy exceeds $75,000.
Without diversity of citizenship, however, the amount in controversy is
insufficient to confer jurisdiction.
CONCLUSION
As the complaint reveals no basis for this Court’s subject matter
jurisdiction, the complaint will be dismissed. Such dismissal is without
prejudice to the filing, within 30 days, of an amended complaint that sets forth
a basis for federal court jurisdiction.
Dated: July 5 2016

KEVIN MCNULTY
United States District Jud

2