Abboud v. Yelen

Filing 26

MEMORANDUM (Order to follow as separate docket entry) re 23 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Jennifer Angelo Yelen. Signed by Magistrate Judge Joseph F. Saporito, Jr on 2/7/24. (dw)

· UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
. CARINE ABBOUD,
Plaintiff,

CIVIL ACTION NO. 3:22-cv-01983

v.

(SAPORITO, M.J)

, JENNIFERANGELOYELEN,
Defendant.

MEMORANDUM
The plajntiff

1~ this cas~, Carine Abboud, 1s a social media

·influencer with a "vlog" on YouTube, focused orr motherhood. She resides
in the United Arab Emirates.
Abboud has brought this fee-paid civil action againstthe defendant,
Jennifer Angelo Yelen, a resident of Luzerne County, Pennsylvania,·
asserti11'g state· law defamation, false light invasion of privacy, a:nd public··
discl9sure of private facts invasion of privacy tort claims, based on certain.
posts or comments made. by· Yelen on social media; Abboud· seeks an:·
award of compensatory and punitive damages.
Rather than filing a lawsuit in state court, Abboud.has brought this
. action in f~deral district court, asserting diversity jurisdiction under 28.
U.S.C. § 1332(a)(2). But the plaintiff has failed to satisfy her bur.den of

pleading the existence of this federal district court's subject matter
I

jurisdiction. See Chem. Leaman Tank Lines, Inc. v. Aetna Cas. •& Sur.
Co., 177 F.3d 210, 222 n.13 (3d Cir. 1999) ("The plaintiff has the burden
of pleading the existence of the court's jurisdiction, and, in a diversity
action, the plaintiff must state all parties' citizenships such that the •
existence of complete diversity can be confirmed.") (citation omitted).. The
amended complaint alleges that Yelen is a resident of Pennsylvania, arid
that Abboud is

a resident of the United Arab Emirates. But "diversity •

jurisdiction is_ based on citizenship, not residence." Brooks v. Hickman,.
101 F.R.D. 16, 18 (W.D. Pa. 1984); see also Whitaker v. Herr Foods, Inc:;
198 F. Supp. 3d 476,483 n.3 (E.D. Pa; 2016) ("[T]he diversity requirement
is one of citizenship. Residence is not equivalent to citizenship.") (citation
omitted); Forman v. BRI Corp., 532 F. Supp. 49, 51 (E.D. Pa. 1982)
("[A]llegations ••of residency does not properly invoke this Court's
jurisdiction when premised upon diversity of citizenship.");· Fleming v..
Mack Trucks, Inc., 508 F. Supp. 917, 919 (E.D. Pa. 1981) ("Residence and
domicile cannot be equated. For diversity purposes citizenship. means
domicile; mere residence will not suffice.") (citation omitted).
Moreover, proper exercise of diversity jurisdiction also requires a

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complaint to allege an amount in controversy that exceeds $75:ooo. See
..28 U;S.C. § 1332(a). The original, now superseded, complaint included
only a generalized allegation that "the matter in controversy exceeds. the
sum or value of $75,000.00." Compl.

,r 3,

Doc. 1. It failed to otherwise

.plead any facts regarding the amount in controversy.
The defendant moved to dismiss the original co~plaint for lack of
'

'

subject ·matter jurisdiction, highlighting this very issue. See Def.'s 1st
Mot. to Dismiss

,r 3, Doc. 4; Def.'s Br. in Supp. of 1st Mot. to Dismiss 4-

6, Doc. 15. In response, the plaintiff filed an amended complaint as a
matter of course, rendering the defendant's motion moot. See Am.
CompL, Doc. 21; Order, Doc. 22.
The defendant has moved to dismiss the amended complaint as well
for lack of subject matterjurisdiction. See Def.'s 2d Mot. to Dismiss

,r 7,

boc. 23; Def.'s Br. in Supp. of 2d Mot. to Dismiss ~7, Doc. 24. The
•plaintiff has •filed a brief in opposition, .arguing that the amount in
controversy is sufficiently· alleged. See Pl.'s Br. in Opp'n to 2d Mot. to
Dismiss 9-14; Doc. 25-1. The defendant has not filed a reply brief. :Thus,·
•

'

the second motion to dismiss is fully briefed and ripe for decision. , .
In her amended complaint, the ·plaintiff has added two specific

allegations with respect to damages, which. she argues support ·her
assertion that this action.meets the amount~in·controversy requirement
•for .exercise of diversity jurisdiction. First, Abboud has added an .
allegation that: "As a direct and proximate result of Yelen's publication of
the posts, Abboud. has been forced to incur ongoing costs for therapy and·
medications in excess of $2,000 a month." Am. Compl.

,r 35'..

Second,

Abboud has added an allegation that: "As a direct and proximate result
of Yelen's publication of the posts, Abboud has lost job opportunities
paying over $100,000 per annum." Id.

,r 36 ..

The amended complaint

pleads-no other facts.regarding her medical arid. financial
injuries.
•
'

These vague and conclusory allegations, however,· are insufficiently
detailed to plausibly allege that the amount in controversy exceeds the
jurisdictional thr~shold of $75,000.- See Lapaglia v. Transamerica Gas.

Ins. Co., 155 F. Supp. 3d 153, 155 (D. Conn. 2016) (finding that the Iqbal•Twombly plausibility requirement "govern[sl the evaluation of factual .

,

I

I
.

.

allegations that support federal subject matter jurisdiction, such as to
evaluate facts alleged concerning an amount in controversy for purposes -_
of federal diversity jurif;ldiction'') (citing Ashcroft v. Iqbal, 556 :U.S. 662,
• 678 (2009), and Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see

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also Turban v. Bar Giacosa Corp., No. 19-CV-1138, 2019 WL 3_495947, at
• _*2-*3 (S.D.N.-Y. Aug. 1, 2019); Penrod v. K&N Eng'g, •Inc., No.· 18-cv·
02907, 2019 WL 1958652, at *3 (D. Minn. May 2; 2019);· cf. Dart Cherokee

-· Basin Operating Co. v. Owens, 574 U.S. 81, 89 (2014) (requiring a
• defendant's notice of removal to include "a plausible allegation that the _
amount· in controversy exceeds .the jurisdictional threshold") (emphasis
• added).
A complaint may, with the permission of the court, be amended to
show jurisdictional facts. See 28 U.S.C. § 1653; Chem. Leaman Tank

• Lines, 177 F.3d at 222 n.13. Under the circumstances presented, we find
it appropriate to grant the plaintiff leave to file a second amended
complaint that attempts to cure the jurisdictional pleading defects
identified above.
Accordingly, the defendant's motion to dismiss will be granted and.
the amended complaint._ will be_ dismissed for lack of subject matter
jurisdiction, _pursuant to Rule· 12(h)(l) of the Federal Rules of Civil
Procedure, but the plaintiff will be granted leave to file a second amended
complaint,. pursuant
to 28 U.S.C. § 1653 .
.
•

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An appropriate order follows.

_
Dated: February _7

_, 2024