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Smith v. Allied Retail Properties

United States District Court, D. Delaware

August 8, 2019

HELENA SMITH, Plaintiff,
v.
ALLIED RETAIL PROPERTIES, Defendant.

          Helena Smith, Wilmington, Delaware; Pro Se Plaintiff.

          Michael James Logullo, Esquire, Rawle & Henderson LLP, Wilmington, Delaware, Counsel for Defendant.

          MEMORANDUM OPINION

          ANDREWS U.S. District Judge

         Plaintiff 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.

         BACKGROUND

         Plaintiff 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.).

         On 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).

         The 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).

         In 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, Delaware. (Id.).

         On 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).

         Allied 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. (D.I. 24).

         LEGAL STANDARDS

         Rule 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 ...


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