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ROSE v. GRANITE CITY POLICE DEPT.

January 4, 1993

JAMES EDWARD ROSE, JR., Plaintiff
v.
GRANITE CITY POLICE DEPARTMENT and CITY OF GRANITE CITY, ILLINOIS, Defendants



The opinion of the court was delivered by: DANIEL H. HUYETT, 3RD

MEMORANDUM

 HUYETT, J.

 January 4, 1993

 Plaintiff James Edward Rose, Jr. is a resident of Pennsylvania and is proceeding pro se and in forma pauperis. Defendants are an Illinois municipality and its police department. Plaintiff claims that when he was arrested by Defendant Granite City Police Department in June 1987, it took possession of his 1974 Dodge motor home. Plaintiff alleges that the motor home was in good condition at that time, but that when another person went to claim the motor home on his behalf over one year later the motor home was vandalized and several valuable items in the vehicle were missing. Plaintiff contends that the damage to the motor home and the loss of the personal property from inside the motor home occurred while the vehicle was in the exclusive control of the police department and that Defendants failed to exercise proper control and authority over the vehicle to prevent the damage and the loss of personal property. Plaintiff's complaint can be read to allege subject matter jurisdiction based upon diversity of citizenship and amount in controversy. Plaintiff demands judgment against Defendants in the amount of $ 47,100 actual damages, plus punitive damages, interest, costs, and attorney's fees.

 Defendants have filed a motion to dismiss Plaintiff's complaint for lack of subject matter jurisdiction, Fed. R. Civ. P. 12(b)(1), lack of personal jurisdiction, Fed. R. Civ. P. 12(b)(2), and improper venue, Fed. R. Civ. P. 12(b)(3). In response, Plaintiff maintains that he cannot put forth a response to Defendants' motion without documents that he requested from Defendants. Plaintiff moves the Court to stay its decision on Defendants' motion to dismiss until Defendants have complied with his request for documents. *fn1" The Court will deny plaintiff's motion for a temporary stay and grant Defendants' motion to dismiss for the following reasons.

 I. Subject Matter Jurisdiction

 Federal district courts "have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $ 50,000, exclusive of interest and costs, and is between . . . citizens of different states. 28 U.S.C. § 1332(a). Defendants contend that the Court lacks jurisdiction over the subject matter of this action because the matter in controversy does not exceed $ 50,000 exclusive of interest and costs. They point to Plaintiff's complaint which alleges actual damages of $ 47,100 and assert that the complaint fails to state a cause of action for punitive damages, and that even if it did, the Court may not consider punitive damages for purposes of determining whether the amount in controversy meets the jurisdictional threshold. Defendants' Motion to Dismiss P 1.

 The Supreme Court has held that to justify dismissal "it must appear to a legal certainty that the claim is really for less than the jurisdictional amount . . . ." St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 288, 82 L. Ed. 845, 58 S. Ct. 586 (1938). The general rule is that the party seeking to invoke the jurisdiction of a federal court has the burden of proving that the court has jurisdiction by showing that it does not appear to a legal certainty that the party's claim is for less than the jurisdictional amount. 14A Charles Alan Wright, et al., Federal Practice and Procedure § 3702, at 19 (2d ed. 1985) (citing cases).

 Plaintiff has claimed actual damages of $ 47,100 plus an unspecified amount of punitive damages. Defendants' statement that punitive damages may not be considered for purposes of determining whether the amount in controversy meets the jurisdictional requirement is simply wrong. On the contrary, the rule is that punitive damages can be included to satisfy the amount in controversy requirement if, under the governing law of the suit, they are recoverable. State Farm Mut. Auto. Ins. Co. v. Schambelan, 738 F. Supp. 926, 929 n.5 (E.D. Pa. 1990); Hamilton v. Hartford Accident & Indem. Co., 425 F. Supp. 224 (E.D. Pa. 1977); Allstate Ins. Co. v. Hilbun, 692 F. Supp. 698, 701 (S.D. Miss. 1988). Defendants allege that Plaintiff's complaint fails to state a cause of action for punitive damages, but they offer no factual or legal support for their position. On the other hand, Plaintiff has not offered any substantive response to Defendants' motion.

 The Court declines to decide the issue of whether it lacks subject matter jurisdiction over this action. A court always possesses jurisdiction, or the power, to determine whether it has jurisdiction over the parties, see 13A Charles Alan Wright et al., Federal Practice and Procedure, § 3536, at 535 (2d ed. 1984); In re Uranium Antitrust Litigation, 480 F. Supp. 1138, 1151 (N.D. Ill. 1979), and the Court determines that it lacks jurisdiction over the persons of Defendants.

 II. Personal Jurisdiction

 On a motion to dismiss for lack of personal jurisdiction the plaintiff bears the burden to establish the court's jurisdiction over the defendants. McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189, 80 L. Ed. 1135, 56 S. Ct. 780 (1936). A plaintiff must sustain his burden of proof in establishing jurisdictional facts through sworn affidavits or other competent evidence. A plaintiff may not rely on the bare pleadings alone in order to withstand dismissal. Time Share Vacation Club v. Atlantic Resorts, Ltd., 735 F.2d 61 (3d Cir. 1984). Here, Plaintiff fails to provide the Court with affidavits or other evidence. Instead, he asks the Court for a temporary stay of a decision on the motion until he can obtain requested discovery from Defendants. A district court has discretion whether to hold in abeyance a decision on a motion to dismiss for lack of personal jurisdiction to enable a party to employ discovery on the jurisdictional issue. 5A Charles Alan Wright et al., Federal Practice and Procedure, § 1351, at 253-259 (2d ed. 1990). The Court chooses to exercise its discretion here and deny Plaintiff's motion requesting discovery because Plaintiff has failed to make even a threshold prima facie showing that the Court has jurisdiction over the persons of Defendants. See Lehigh Valley Indus. Inc. v. Birenbaum, 527 F.2d 87 (2d Cir. 1975)

 The in personam jurisdiction of this Court is coextensive with that of the Pennsylvania courts. Fed. R. Civ. p. 4(e). In Pennsylvania, jurisdiction over a person must be based upon 42 Pa. Cons. Stat. Ann. § 5301 (Supp. 1992) (general jurisdiction) or 42 Pa. Cons. Stat. Ann. § 5322 (1981) (long-arm jurisdiction. The Court lacks jurisdiction over Defendants under section 5301. The Granite City Police Department and the City of Granite City are not incorporated or formed under the laws of the Commonwealth of Pennsylvania, they do not consent to jurisdiction, nor do they carry on a continuous and systematic part of their general business within the Commonwealth of Pennsylvania. 42 Pa. Cons. Stat. Ann. § 5301(a) (Supp. 1992).

 Since the Court lacks general jurisdiction over Defendants under section 5301 the Court must turn to the Pennsylvania long-arm statute, section 5322, to determine whether the Court can exercise in personam jurisdiction over Defendants. This analysis involves two steps. First, the statute must give the Court authority to exercise jurisdiction over Defendants. Second, if the statute authorizes jurisdiction, the ...


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