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
Allied Retail Properties' motion to dismiss the Amended
Complaint pursuant to Rule 12(b)(1). (D.I. 23). 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). The original complaint named
William Nutter as the defendant. The Court granted
Nutter's Rule 12(b)(1) motion to dismiss because it was
unclear if the parties were diverse when the action was
commenced. (D.I. 15, 16). Plaintiff was given leave to file
an amended complaint to properly allege a basis for
jurisdiction over the dispute. (Id.).
August 23, 2018, Plaintiff filed an Amended Complaint, named
Zurich Insurance as the defendant and removed Nutter as a
defendant. (D.I. 17). On September 19, 2018, the Court
entered an order for Plaintiff to file an Amended Complaint
with a proper defendant and allegations against each proper
defendant, noting that the August 23, 2018 Amended Complaint
was deficient as providing no facts to support a claim
against Zurich Insurance. (D.I. 20). Plaintiff filed another
Amended Complaint on October 9, 2018, which named Allied
Retail Properties as the defendant and removed Zurich
Insurance as a defendant. (D.I. 21).
original Complaint provided a Philadelphia, Pennsylvania
address for Plaintiff in the Complaint's caption and in
Paragraph I, "Parties in this Complaint," while an
exhibit to the Complaint, dated November 7, 2017, stated,
"Plaintiff is a resident of the State of Delaware."
(D.I. 2 at pp.1-2; D.I. 2-1). A Wilmington, Delaware address
was provided for Nutter. (Id. at p.2).
response to Nutter's motion to dismiss (D.I. 11) for lack
of subject matter jurisdiction on the grounds that the
parties were not diverse, Plaintiff stated that her residency
in Delaware spanned 71/2 years, that
she had lived, worked, and voted in the cities of Wilmington,
Delaware, and Dover, Delaware, but she was forced to leave
Dover in 2017. (D.I. 12 at 1). Plaintiff stated that she
moved to Philadelphia, Pennsylvania, for help from relatives,
and that all her records and belongings remained in Dover,
March 30, 2018, Plaintiff notified the Court of a new address
and her return to Delaware. (D.I. 13). In August 2018, when
Plaintiff made her first attempt to file an amended
complaint, she filed documents regarding her domicile.
(See D.I. 18). Plaintiff stated that the last two
years of her life had been unsettling, and that her
"life resemble[d] that of a 25 year old with no
roots." (D.I. 18 at 2). She stated that on an unknown
date she attempted to purchase a house in Dover, but the
purchase collapsed. (Id.). Plaintiff provided a
number of documents showing she changed her address from
Delaware to Philadelphia during the time she resided in
Philadelphia. In addition, Plaintiff stated that she
purchased a home in Wilmington, Delaware. It is the same
address provided to the Court in March 2018. (D.I. 13, D.I.
18 at 2). Another document provided is a residential loan
application dated December 18, 2017, for purchase of the
Wilmington home. (D.I. 18 at 13). Finally, Plaintiff provided
a payment report from a storage facility in Dover showing
that she used the storage facility from March 28, 2017
through April 3, 2018. (Id. at 10).
Retail Properties moves for dismissal pursuant to Rule
12(b)(1) on the grounds that the parties are not diverse,
Plaintiff did not cure the pleading deficiencies with the
filing of the October 9, 2018 Amended Complaint, and she has
not provided information regarding diversity as instructed by
the Court in its July 24, 2018 Memorandum Opinion. (D.I. 23).
Plaintiff responds that she terminated her residency in March
2017 and established residency in Pennsylvania in April 2017.
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 ...