The opinion of the court was delivered by: Stengel, J.
Carmen Mattola brings this medical malpractice action individually and as administratrix*fn2 of the estate of Maria L. Mercado, her deceased mother, who died while recovering from a knee operation at the defendant's transitional care center. Questioning the complete diversity of the parties, the defendant has filed a motion to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. For the following reasons, I will grant the motion.
Mrs. Mercado suffered from severe obstructive sleep apnea*fn3 and was prescribed a device known as a CPAP*fn4 which is worn during sleep to assist in breathing. On January 29, 2007, when Mrs. Mercado entered the defendant hospital for a total right knee arthroplasty, she brought the CPAP and informed the hospital staff of her need to employ the device during sleep. See Compl. ¶¶ 12-14.
On February 2, 2007, a few days after the operation, Mrs. Mercado was discharged from the defendant hospital and transferred to its Transitional Care Center for further monitoring and rehabilitation services. Id. ¶ 16. She brought the CPAP device with her to the center. Id. At the time of her transfer, Mrs. Mercado's medical record contained orders from her treating physicians at the defendant hospital indicating the need for her continual use of the CPAP device during sleep as a required treatment of her sleep apnea. Id. ¶ 20. While at the center, however, Mrs. Mercado was permitted to refuse to wear the CPAP device during sleep despite the treating physicians' orders. Id. ¶ 21. On the evening of February 4, 2007, the staff at the center did not give Mrs. Mercado the CPAP device, and they allegedly did not monitor her sleep during the night specifically for the complications arising from the sleep apnea. Id. ¶ 22. At 4:30 the next morning, Mrs. Mercado was found cold and unresponsive, and pronounced dead a few minutes later. Id. ¶ 23.
The plaintiff subsequently filed this complaint including various counts of negligence, a wrongful death count, and a survival action count.
A Rule 12(b)(1) motion may be treated as either a facial or factual challenge to the court's subject matter jurisdiction. Gould Elecs. Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000). Facial attacks contest the sufficiency of the pleadings, and the trial court must accept the complaint's allegations as true. Dismissal under a facial challenge is proper only when the claim appears to be immaterial and made solely for the purpose of obtaining jurisdiction, or is wholly insubstantial and frivolous. Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1408-1409 (3d Cir. 1991).
In contrast, a trial court considering a factual attack, i.e., an attack based on the sufficiency of jurisdictional fact, accords a plaintiff's allegations no presumption of truth. Turicentro, S.A. v. Am. Airlines, Inc., 303 F.3d 293, 300 n.4 (3d Cir. 2002). Where subject matter jurisdiction "in fact" is challenged, the trial court's very power to hear the case is at issue, and the court is therefore "free to weigh the evidence and satisfy itself as to the power to hear the case." Mortensen v. First Federal Savings and Loan Assoc., 549 F.2d 884, 891 (3d Cir. 1977).
With respect to a factual challenge, a court is not limited to considering only the allegations on the face of the complaint. Carpet Group Int'l v. Oriental Rug Importers Ass'n, 227 F.3d 62, 69 (3d Cir. 2000)). Review is not confined to the allegations in the complaint and courts can look beyond the pleadings to decide factual matters relating to jurisdiction. Cestonaro v. United States, 211 F.3d 749, 754 (3d Cir. 2000). Additionally, because no presumptive truthfulness attaches to the allegations in the complaint, disputed material facts do not prevent the court from evaluating the merits of the lack of jurisdiction claims. Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977). The court is free to weigh the evidence and satisfy itself whether it has the power to hear the case. Carpet Group, 227 F.3d at 69.
In its motion to dismiss, the defendant is challenging the court's subject matter jurisdiction.*fn5 Although the complaint bases the court's jurisdiction upon the diversity of citizenship of the parties pursuant to 28 U.S.C. § 1332(a)(1),*fn6 the defendant argues that complete diversity of citizenship does not exist. I am constrained to agree.
In order to sustain jurisdiction based on diversity of the parties, there must exist an actual, substantial controversy between citizens of different states, all of whom on one side of the controversy are citizens of different states from all parties on the other side. Employers Ins. of Wausau v. Crown Cork and Seal Co., 905 F.2d 42, 45 (3d Cir. 1990); see also Grand Union Supermarkets of the V.I., Inc. v. H.E. Lockhart Mgmt., 316 F.3d 408, 410 (3d Cir. 2003) (no plaintiff can be a citizen of the same state as any of the defendants).
Here, Miss Mattola alleges that she is a citizen of the state of New York. The defendant concedes that it is a citizen of the Commonwealth of Pennsylvania. At first blush, it would seem that the citizenship of the parties is diverse. There is a complicating factor, however, which makes diversity jurisdiction not so clear. Miss Mattola not only brings this case individually, but also as administratrix of the estate of her mother. The legal representative of a decedent's estate is deemed to be a citizen only of the same state as the decedent. See 28 U.S.C. § 1332(c)(2).*fn7 Miss Mattola concedes that at the time of her death, Mrs. Mercado was a citizen of the Commonwealth of Pennsylvania. See Document #9 at 2. Accordingly, the citizenship of Miss Mattola in any action brought as administratrix of ...