The opinion of the court was delivered by: JOYNER
Though five motions in this matter are ready for decision, today we address only the Motion of Defendant Charles W. Kite ("Kite") to Dismiss for Lack of Subject Matter Jurisdiction. For the following reasons, we conclude that we lack subject matter jurisdiction over what remains of this action and deny all other motions as moot.
Plaintiff Amin A. Rashid doing business as ("d/b/a") Amin A. Rashid & Associates ("Plaintiff") is a pro se litigant currently serving a 14-year federal prison sentence. This lawsuit concerns Plaintiff's business dealings prior to his conviction with Defendants Charles W. Kite d/b/a International Isotope Enrichment Corporation ("Kite") and Timothy Kurtz d/b/a International Isotope Enrichment Corporation ("Kurtz"). Kite is a citizen of Tennessee and, according to the Complaint, both Plaintiff and Kurtz are citizens of Pennsylvania.
Plaintiff's Complaint, filed January 24, 1996, originally stated three causes of action (two state and one federal) against six defendants. Plaintiff invoked both federal question and diversity jurisdiction over his Complaint. We have dismissed various claims and defendants by orders dated June 26, 1996, see Rashid v. Kite, 934 F. Supp. 144 (E.D.Pa. 1996)(dismissing federal and one state cause of action against Kite); June 28, 1996 (dismissing federal cause of action against remaining three defendants); and January 7, 1997 (dismissing Defendant John P. Newton, Jr.). What remains of Plaintiff's Complaint are Count I for breach of contract against Kite and Kurtz and Count II for fraud and misrepresentation against Kurtz alone. Kite has also asserted a state law counterclaim against Plaintiff, as has Defendant Newton.
The allegations relevant to Counts I and II are as follows. On January 10, 1990, Plaintiff entered into a Financing Agreement (the "Agreement") with the putative International Isotope Enrichment Corporation ("IIEC"). Kurtz and Kite represented to Plaintiff that IIEC was a Tennessee corporation and Kurtz, who identified himself as IIEC's President, signed the Agreement on IIEC's behalf. Under the Agreement, Plaintiff was to employ his "best efforts" to secure a $ 5.4 million loan to IIEC for the purchase of various equipment from the Department of Energy. Further, as part of the Agreement, IIEC promised not to contact directly any prospective lender introduced to IIEC by Plaintiff without Plaintiff's prior written authorization. IIEC also agreed that, in the event of such contact, the contract would terminate Plaintiff's duties under the Agreement and render Plaintiff's fees due and payable.
Plaintiff alleges in this action, however, that no such corporation called IIEC ever existed. Plaintiff contends also that Kite and Kurtz made numerous other false representations about the corporation and the transaction for which they were attempting to secure financing. In addition, Plaintiff alleges that Kite and Kurtz, both allegedly doing business as IIEC, breached the Agreement by directly contacting numerous lenders without Plaintiff's prior approval.
We turn now to the merits of Kite's Motion to Dismiss.
It is well-settled that, in order to sustain diversity jurisdiction under 28 U.S.C. § 1332, all of the parties on one side of the controversy must be citizens of different states than all of the parties on the other side. City of Indianapolis v. Chase Manhattan Bank, 314 U.S. 63, 69, 86 L. Ed. 47, 62 S. Ct. 15 (1941); Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267, 2 L. Ed. 435 (1806). This statute must be strictly construed. City of Indianapolis, 314 U.S. at 76. The burden of proving diverse citizenship falls on the party invoking federal jurisdiction. Enza, Inc. v. We the People, Inc., 838 F. Supp. 975, 977 (E.D.Pa. 1993).
In this case, Plaintiff and Kite are citizens of Pennsylvania and Tennessee, respectively. Kurtz's citizenship is uncertain because he has never been served with the Complaint in this action, and we do not know where he may be found. The United States Marshals attempted service on Kurtz, pursuant to 28 U.S.C. § 1915 and Rule 4(c), at the Pennsylvania address identified at P 3 of Plaintiff's Complaint, but the service of process form was returned unexecuted. According to the service form, Kurtz could not be found at that address. Still, Plaintiff has the burden of proving subject matter jurisdiction, so we accept as true his allegation that Kurtz is a Pennsylvania citizen. Further, Kurtz remains a party to this action even though he was not served. See Howell v. Tribune Entertainment Co., 106 F.3d 215, 1997 U.S. App. LEXIS 2024, 1997 WL 47608, *1 (7th Cir. Feb. 5, 1997) ("in the federal judicial system a party becomes a defendant not when he is served but when the complaint against him is filed"); Fed. R. Civ. P. 3. Thus, as matters stand now, this action consists of two Pennsylvania causes of action brought by a Pennsylvania plaintiff, one against defendants from ...