trial, knowing that we may be compelled to return to this point and begin anew. Accordingly, we will grant the defendants' motion to stay the proceedings pending the outcome of Ms. Killian's appeal. Further, we will deny the plaintiffs' motion for class certification without prejudice, opting instead to entertain, at a later date, a class certification motion that reflects the Third Circuit's resolution of Ms. Killian's appeal.
C. Defendant Sylvester's Motion to Dismiss
As we noted above, Defendant Sylvester has submitted a motion to dismiss the third amended complaint pursuant to Rule 12(b)(1). Mr. Sylvester bases his Rule 12(b)(1) motion upon his contention that the Court lacks supplemental jurisdiction over the claims asserted against him. Prior to our January 17 ruling, the Court exercised subject matter jurisdiction over the claims asserted against Mr. Sylvester by virtue of its diversity jurisdiction, since Ms. Killian, Mr. Grossberg and the defendants are all of diverse citizenship. See 28 U.S.C. § 1332. Ms. Stadler, however, is a Pennsylvania resident, as are Defendants McCulloch and DiMarco. Thus, the Court cannot exercise diversity jurisdiction over the claims set forth in the third amended complaint. See Stanley v. Exxon Corp., 824 F. Supp. 52, 53 (E.D. Pa. 1993) (for court to exercise diversity jurisdiction, there must be "complete diversity;" that is, all plaintiffs must be of citizenship different than all defendants).
Since the issue of diversity jurisdiction appears to hinge on Ms. Killian's viability in this case, therefore, we are inclined to defer consideration of Mr. Sylvester's motion to dismiss until the appeal is resolved. Should Ms. Killian prevail before the Third Circuit, the court would have subject matter jurisdiction over the claims asserted against Mr. Sylvester by virtue of its diversity jurisdiction; and Mr. Sylvester's 12(b)(1) motion would be rendered moot. To consider the motion at this juncture and conclude that we could not exercise supplemental jurisdiction over the claims relating to the PPSP would indeed be a meaningless exercise if Ms. Killian were reinstated as a plaintiff. Thus, we conclude that interests in judicial economy favor the inclusion of the 12(b)(1) motion within the bounds of the stay order.
Mr. Sylvester, however, urges us to address his motion now. Indeed, Mr. Sylvester contends that the Federal Rules of Civil Procedure compel us to consider his motion irrespective of any stay order. In support of this argument, Mr. Sylvester points to Rule 12(h)(3) and cases that have addressed it. The rule provides as follows: "Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action." Fed. R. Civ. P. 12(h)(3). Generally, this language has been interpreted to require courts to dismiss an action "if it becomes apparent at any time that [subject matter] jurisdiction is lacking." Lake v. First Nationwide Bank, 156 F.R.D. 615, 621 (E.D. Pa. 1994); see TM Marketing, Inc. v. Art & Antiques Assocs., 803 F. Supp. 994, 997 (D. N.J. 1992) ("When it becomes apparent that subject matter jurisdiction is lacking, the court must dismiss the action regardless of the stage of the litigation.").
However, in In re School Asbestos Litigation, 921 F.2d 1310 (3d Cir. 1990), cert. denied, 499 U.S. 976, 111 S. Ct. 1623 (1991), our Court of Appeals recognized that in light of Rule 12(d), Rule 12(h)(3) does not compel the immediate consideration of a Rule 12(b)(1) motion. Id. at 1315. Rule 12(d) provides, in relevant part, that a Rule 12(b)(1) motion "shall be heard and determined before trial on application of any party, unless the court orders that the hearing and determination thereof be deferred until trial." Thus, Rule 12(d) empowers the court to postpone a decision on a 12(b)(1) motion. In ruling that the district court could defer, until trial, consideration of the issue of whether class members could each satisfy the jurisdictional amount in the diversity context, the Third Circuit held that while "Rule 12(h)(3) invests the district court with the power to dismiss the action . . . Rule 12(d) discloses when this power may be exercised." Asbestos Litigation, 921 F.2d at 1310.
We draw the same conclusion with respect to the case at hand. While we are compelled to address a 12(b)(1) motion if it appears that jurisdiction is lacking, Rule 12(d) requires only that we consider it "before trial" and explicitly empowers us to postpone consideration until trial. Rule 12(d). Thus, we are acting within our discretion when we elect to postpone consideration of the 12(b)(1) motion until the stay is lifted. Further, as we noted above, we believe that by declining to address the issue now, we reduce the chance of expending judicial resources resolving an issue that may be rendered academic. The Federal Rules require us to consider the issue of jurisdiction before proceeding to the merits. Trent Realty Assocs. v. First Federal Sav. & Loan Assoc., 657 F.2d 29, 36 (3d Cir. 1981); Carlsberg Resources Corp. v. Cambria Sav. & Loan Assoc., 554 F.2d 1254, 1256 (3d Cir. 1977). Our action today respects that requirement. Accordingly, we will deny Mr. Sylvester's Rule 12(b)(1) motion without prejudice and allow him to raise the issue again once the stay is lifted, if he should so choose.
For the reasons stated above, the Court will grant Plaintiff Catherine Killian's Motion for Direction of Final Judgment filed pursuant to Fed. R. Civ. P. 54(b) as well as Defendants' Motion to Stay the Proceedings. Moreover, the Court will deny without prejudice both Plaintiffs' Motion for Class Certification and Defendant John Sylvester's Rule 12(b)(1) Motion to Dismiss.
An appropriate order follows.
AND NOW, this 24th day of April, 1995,
1. Upon consideration of Plaintiff Catherine Killian's Motion for Direction of Final Judgment filed pursuant to Fed. R. Civ. P. 54(b), and the response thereto, it is hereby ORDERED, for the reasons set forth in the preceding memorandum, that said Motion is GRANTED. Judgment is hereby entered in favor of Defendants as to all claims brought by Plaintiff Killian.
2. Upon consideration of Defendants' Motion to Stay the Proceedings, and the response thereto, it is hereby ORDERED, for the reasons set forth in the preceding memorandum, that said Motion is GRANTED. The above-captioned action is hereby STAYED pending the resolution of Plaintiff Killian's appeal of this Court's Memorandum and Order of January 17, 1995 to the Third Circuit Court of Appeals.
3. Upon consideration of Plaintiffs' Motion for Class Certification, and the response thereto, it is hereby ORDERED, for the reasons set forth in the preceding memorandum, that said Motion is DENIED without PREJUDICE.
4. Upon consideration of Defendant John Sylvester's Motion to Dismiss filed pursuant to Fed. R. Civ. P. 12(b)(1), and the response thereto, it is hereby ORDERED, for the reasons set forth in the preceding memorandum, that said Motion is DENIED without PREJUDICE.
BY THE COURT:
J. Curtis Joyner, J.
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