Esq., P.C., 852 F. Supp. 1246, 1249 (E.D. Pa. 1994). When a complaint's allegations are defective but it appears that they can be cured, courts should not dismiss, but should grant leave to amend to cure the defects. Mimbs v. Commercial Life Ins. Co., 818 F. Supp. 1556, 1559 (S.D. Ga. 1993); 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1350 at 217 (1990).
Given the above, we first look to whether the parties are diverse from each other. The Complaint alleges that Plaintiff resides in Pennsylvania and that Tri-Star has offices in Pennsylvania. With respect to Defendant Whitney, the Complaint alleges that she resides in the state of Florida. It is apparently uncontested that she is a citizen of that state and is therefore diverse from Plaintiff.
There are, however, no allegations that Tri-Star is a citizen of a different state and that therefore, Tri-Star is diverse from Plaintiff. Evidence proffered by Plaintiff, however, indicates that Defendant may be a citizen of Florida. For this reason, we presume that such an allegation can be made and grant Plaintiff leave to amend to make the proper jurisdiction allegations, if he can.
Assuming that the Complaint will be amended to allege Florida citizenship, we turn to Tri-Star's remaining arguments why there is no diversity of citizenship. Tri-Star contends that although it is a Florida corporation, its principal and only place of business is in Pennsylvania. For purposes of diversity jurisdiction, a corporation is deemed a citizen of both its state of incorporation and the state of its principal place of business. 28 U.S.C. § 1332(c)(1). In Pennsylvania, the location of a corporation's principal place of business is a fact question. Midatlantic Nat'l Bank v. Hansen, 48 F.3d 693, 696 (3d Cir. 1995). Courts ask where the corporation's "headquarters of day-to-day corporate activity and management" are located to make this decision. Kelly v. United States Steel Corp., 284 F.2d 850, 854 (3d Cir. 1960).
Because it contends that its principal place of business is in Pennsylvania, Tri-Star asserts that it is not diverse from Plaintiff. Defendant has not, however, proffered any evidence to support this assertion, not even an affidavit of its owner or manager.
In contrast, Plaintiff points to Defendant's Answer, wherein Tri-Star "denied as stated" Plaintiff's allegation that Tri-Star is a "corporation with offices" in Pennsylvania. Tri-Star clarified the matter by alleging that it "is a Florida corporation which rents a small warehouse" in Pennsylvania. Plaintiff also directs the Court's attention to Tri-Star's Pennsylvania Department of Labor and Industry documents which Plaintiff alleges show that Tri-Star's principal place of business is in Florida, not Pennsylvania. Finally, Plaintiff submits an affidavit averring facts that indicate that Tri-Star's principal place of business is in Florida.
In this situation, we find that Defendant has not adequately raised a question of lack of diversity jurisdiction and also find that Plaintiff has adequately met his burden of showing diversity jurisdiction. For this reason, assuming that Plaintiff will adequately amend his Complaint to allege diversity jurisdiction, we find that there is full diversity between Plaintiff and Tri-Star.
Our next question, then, is whether Plaintiff has adequately pleaded an amount in controversy of over $ 50,000. Count Two claims damages of $ 75,000 for violating the PHRA. This Count, therefore, meets 28 U.S.C. § 1332's jurisdictional minimum. In contrast, Count Three only claims damages of about $ 3,700. This Court may exercise supplemental jurisdiction over that claim under 28 U.S.C. § 1367 if the two claims are part of the "same case or controversy."
Plaintiff alleges that he was discharged on the basis of his disability and that Defendants improperly stopped payment on his last paycheck. It is this last allegation on which the PWPCL claim is based. Although the legal issues are different, it seems that many fact questions are shared between the two claims. Based on that, we find that Plaintiff's PWPCL claim is so related to his disability claim that it forms part of the same action or controversy. See e.g. Rehki v. Wildwood Indus., Inc., 816 F. Supp. 1308 (N.D. Ill. 1992) (claim under wage collection act and claim under civil rights act for retaliatory discharge arose from same "nucleus of operative facts"); Glaziers & Glassworkers Union v. Newbridge Secs., Inc., 823 F. Supp. 1191 (E.D. Pa. 1993). For that reason, we employ our discretion to exercise supplemental jurisdiction over Count Three.
An appropriate Order follows.
AND NOW, this 25th day of July, 1996, upon consideration of Defendants' Motion for Summary Judgment and responses thereto, the Motion is hereby GRANTED in Part and Denied in Part as follows and in accordance with the attached Memorandum. Summary Judgment is hereby GRANTED in favor of Defendant Tri-Star and against Plaintiff on Count One. Summary Judgment is hereby DENIED with respect to Counts Two and Three on condition that Plaintiff amends his Complaint to make adequate jurisdictional allegations within thirty days of the date of this Order's entry.
BY THE COURT:
J. CURTIS JOYNER, J.