JOHNSON v. US DEPARTMENT OF VETERAN AFFAIRS et al
MEMORANDUM OPINION filed. Signed by Judge Mary L. Cooper on 3/4/2014. (jjc)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
ALLEN M. JOHNSON,
CIVIL ACTION NO. 12-4380 (MLC)
NEW JERSEY DOOR WORKS, INC.,
UNITED STATES OF AMERICA,
DEPARTMENT OF VETERANS AFFAIRS,
and JOHN DOE, a fictitious name,
THE PLAINTIFF, Allen M. Johnson, brought this action against
the defendants, New Jersey Door Works, Inc., United States of
America, Department of Veterans Affairs (the “VA”), and John Doe, a
fictitious name (collectively, the “defendants”), to recover
damages for personal injuries.
(See dkt. entry no. 17, 2d Am.
THE PLAINTIFF brought the action on July 13, 2012.
generally dkt. entry no. 1 (noting filing date).)
subject-matter jurisdiction under 28 U.S.C. § (“Section”) 1332.
(See 2d Am. Compl. at 1.)
THE COURT dismissed the claims asserted against the VA on
February 11, 2014.
(See dkt. entry no. 32, 2-11-14 Order & J.)
The Court contemporaneously ordered the plaintiff to show cause why
the remaining claims in this action should not be dismissed for
lack of subject-matter jurisdiction, as the Court noted that the
plaintiff’s jurisdictional allegations were deficient.
entry no. 34, 2-11-14 Order to Show Cause at 1-2.)1
THE COURT noted its intention to dismiss the remaining claims
“unless the plaintiff submit[ted] proof demonstrating (1) that [New
Jersey Door Works, Inc. (“NJDW”)] is indeed a corporation, (2) the
state by which NJDW has been incorporated and the state where NJDW
has its principal place of business, and (3) which state John Doe
is a citizen of.”
(Id. at 3.)
The Court also specifically
instructed the plaintiff to provide definitive responses as to the
citizenship of NJDW and the citizenship of John Doe.
THE COURT intends to dismiss the Second Amended Complaint
without prejudice, as the plaintiff’s response to the Court’s
February 11, 2014 Order to Show Cause is deficient.
entry no. 34, Certification of Counsel.)
See Fed.R.Civ.P. 12(h)(3)
(instructing district court to dismiss complaint if jurisdiction is
THE PLAINTIFF fails to properly respond to the Court’s
February 11, 2014 Order to Show Cause, as it pertains to John Doe’s
Even though the plaintiff asserted subject-matter jurisdiction
under only Section 1332 in his Second Amended Complaint, the Court
did not initially question the plaintiff’s jurisdictional
allegations because there were claims asserted against a federal
defendant, the VA. Once the Court dismissed the VA from the case,
however, the plaintiff’s jurisdictional allegations were deficient.
The plaintiff was required to specifically identify
the citizenship of the fictitious defendant in order to demonstrate
that the Court has subject-matter jurisdiction under Section
See Howell v. Tribune Entm’t Co., 106 F.3d 215, 218
(7th Cir. 1997) (stating that “because the existence of diversity
jurisdiction cannot be determined without knowledge of every
defendant’s place of citizenship, ‘John Doe’ defendants are not
permitted in federal diversity suits”); Abels v. State Farm Fire &
Cas. Co., 770 F.2d 26, 31-32 (3d Cir. 1985) (concluding “that the
Doe allegations here are sufficient on their face to defeat
diversity jurisdiction” because they were asserted “[w]ith [a]
degree of specificity”, and thus “we cannot say that the Doe
defendants are mere ‘phantoms’ who ‘live not and are accused of
The plaintiff’s response is not sufficiently specific,
merely certifying that:
Plaintiff hereby represents that Defendant John Doe is a
corporation, partnership and/or any and all other
individuals located in, having a principal place of
business of, and incorporated in the State of New
(See Certification of Counsel at 2.)
THE PLAINTIFF has failed to show that complete diversity of
citizenship exists here.
See Lincoln Prop. Co. v. Roche, 546
U.S. 81, 89 (2005) (requiring complete diversity between each
plaintiff and each defendant).
Thus, the Court will dismiss the
Second Amended Complaint, but will do so without prejudice to the
plaintiff to exercise one of three options within thirty days: (1)
the plaintiff may recommence the action in state court, as the
limitations period for the cause of action is tolled by the filing
of a federal complaint, see Jaworowski v. Ciasulli, 490 F.3d 331,
333-36 (3d Cir. 2007); Galligan v. Westfield Ctr. Serv., 82 N.J.
188, 191-95 (1980); (2) the plaintiff may move in accordance with
both the Federal Rules of Civil Procedure and the Local Civil Rules
to reopen the action in federal court, with supporting
documentation demonstrating which state John Doe was a citizen of
specifically on July 13, 2012; or (3) the plaintiff may move in
accordance with both the Federal Rules of Civil Procedure and the
Local Civil Rules to reopen the action in federal court without
including John Doe as a defendant, or listing John Doe in the
caption and alleging in the Complaint that it is a mere placeholder
with no substantive allegations against John Doe.
IF THE PLAINTIFF opts to move to reopen in federal court then
he will do so at his own peril, as the Court will not further
extend the thirty-day period to proceed in state court.
plaintiff is also advised that jurisdiction is measured “against
the state of facts that existed at the time of filing,” and thus he
must explicitly allege citizenship of John Doe as it existed on
July 13, 2012.
See Grupo Dataflux v. Atlas Global Grp., 541 U.S.
567, 571 (2004).
THE COURT cautions the plaintiff – if he opts to move to
reopen – against restating the allegations from the Second Amended
Complaint or restating the responses from the Certifications of
The Court advises the plaintiff that an allegation based
upon information and belief, an assertion that is not specific
(e.g., “John Doe is a corporation, partnership and/or any and all
other individuals located in, having a principal place of business
of, and incorporated in the State of New Jersey”), or a request for
time to discern jurisdiction will result in denial of a motion to
reopen, as the plaintiff should have ascertained subject-matter
jurisdiction before choosing to bring the action in federal court.
AS THE PLAINTIFF is represented by counsel, the Court “should
not need to underscore the importance of adequately pleading and
See CGB Occupational Therapy v. RHA Health
Servs., 357 F.3d 375, 382 n.6 (3d Cir. 2004).
The Court will issue
an appropriate order and judgment.
s/ Mary L. Cooper
MARY L. COOPER
United States District Judge
Dated: March 4, 2014
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