United States District Court, D. Delaware
Smith, Wilmington, Delaware; Pro Se Plaintiff.
Michael James Logullo, Esquire, Rawle & Henderson LLP,
Wilmington, Delaware, Counsel for Defendant.
ANDREWS, U.S. DISTRICT JUDGE.
Helena Smith, who proceeds pro se, filed this action
on November 8, 2017. (D.I. 1). Before the Court is
Defendant's motion to dismiss pursuant to Rule 12(b)(1).
(D.I. 11). Briefing on the matter is complete.
filed this action to recover damages for an injury she
suffered after falling in the Concord Mall parking lot in
Wilmington, Delaware. (D.I. 2). Plaintiff provides a
Philadelphia, Pennsylvania address in the Complaint's
caption and in Paragraph I, "Parties in this
Complaint." (D.I. 2 at pp.1-2). A Wilmington, Delaware
address is provided for Defendant. (Id. at p.2). The
Complaint and civil cover sheet indicate the basis for
jurisdiction is a federal question. (D.I. 2, D.I. 2-2).
Plaintiff seeks $275, 000 in damages. An exhibit to the
Complaint, dated November 7, 2017, states, "Plaintiff is
a resident of the State of Delaware." (D.I. 2-1).
February 14, 2018, Defendant filed a motion to dismiss
pursuant to Fed. R Civ. P. 12(b)(1) for lack of subject
matter jurisdiction on the grounds that the complaint does
not present a federal question and the parties are not
diverse. (D.I. 11). Plaintiff filed a response on February
26, 2018, that her residency in Delaware spans 7 Vz
years, but she was forced to leave Dover, Delaware in 2017,
and she moved to Philadelphia. (D.I, 12). On March 30, 2018,
Plaintiff notified the Court of a new address and her return
to Delaware. (D.I. 13). On April 26, 2018, Plaintiff asked
the Court to consider forwarding the case to the correct
court "as an option." (D.I. 14).
12(b)(1) allows for dismissal where the court lacks subject
matter jurisdiction over an action. Motions brought under
Rule 12(b)(1) may raise either a facial or factual challenge
to the court's jurisdiction. "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."
Gould Elecs. Inc. v. United States, 220 F.3d 169,
176 (3d Cir. 2000). Factual attacks allow the court to delve
beyond the pleadings to determine if the evidence supports
the court's subject matter jurisdiction. Mortenson v.
First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891
(3d Cir. 1997). The party asserting subject matter
jurisdiction bears "the burden of proof that
jurisdiction does in fact exist." Id.
Plaintiff proceeds pro se, the Court liberally
construes the pleadings and holds her to a less stringent
standard than those filed by attorneys. Haines v.
Kerner, 404 U.S. 519, 520 (1972). Subject matter
jurisdiction can be based on either a federal question, 28
U.S.C. § 1331, or diversity of citizenship, 28 U.S.C.
complaint does not invoke a federal statute or violations of
the United States Constitution. It is a slip and fall
accident in a parking lot case. Even with a liberal
construction, it does not allege a basis for federal question
extent Plaintiff intends to bring a tort claim under Delaware
law, the only independent basis for this Court's
jurisdiction over state law claims arises under 28 U.S.C.
§ 1332(a), which grants a district court jurisdiction
over "all civil actions where the matter in controversy
exceeds the sum or value of $75, 000, exclusive of interest
and costs, and is between .. . citizens of different
jurisdiction requires "complete diversity," which
in turn requires that "no plaintiff be a citizen of the
same state as any defendant." Zambelli Fireworks
Mfg. Co. v. Wood,592 F.3d 412, 419 (3d Cir. 2010). When
determining whether diversity jurisdiction exists, a court
must examine the citizenship of the parties at the time the
complaint was filed. Midlantic Nat'l Bank v.
Hansen,48 F.3d 693, 696 (3d Cir. 1995) (citing
Smith v. Sperling,354 U.S. 91, 93 n.1 (1957))
(jurisdiction is tested by the facts as they exist when the
action is brought). The ...