The opinion of the court was delivered by: James Knoll Gardner, United States District Judge
This matter is before the court on Defendant, Blue Ridge Cable Technologies, Inc., d/b/a Blue Ridge Communications' Motion to Dismiss Complaint, which motion was filed on January 10, 2012. *fn1 On January 31, 2012 Newport Commons, L.P. and Newport Commons II, L.P.'s Brief in Opposition to Blue Ridge Cable Technologies, Inc.'s Motion to Dismiss Complaint was filed. *fn2
For the reasons articulated below, I grant defendant's motion to dismiss and dismiss plaintiffs' Complaint without prejudice for plaintiffs to resubmit the issues raised therein in pending state court and arbitration proceedings.
Jurisdiction in this case is contested. However, plaintiffs allege jurisdiction pursuant to 28 U.S.C. § 1331, which provides district courts with original jurisdiction of all civil actions "arising under the Constitution, laws, or treaties of the United States, and pursuant to 28 U.S.C. § 1337, which provides original jurisdiction of any civil action "arising under any Act of Congress regulating commerce or protecting trade". *fn3
Venue is proper pursuant to 28 U.S.C. § 1391(a)(2) because a substantial part of the events giving rise to plaintiffs' claims allegedly occurred within this judicial district.
Rule 12(b)(1) of the Federal Rules of Civil Procedure provides in pertinent part:
Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except the following defenses may at the option of the pleader be made by motion: (1) lack of jurisdiction over the subject matter....
There are two types of challenges to subject matter jurisdiction pursuant to Rule 12(b)(1): (1) to the Complaint on its face; and (2) to the existence of subject matter jurisdiction in fact. Daliessio v. DePuy, Inc., No. Civ.A. 96-5295, 1998 WL 24330 at *2 (E.D. Pa. Jan 23, 1998).
In Carpet Group International v. Oriental Rug Importers Association, the United States Court of Appeals for the Third Circuit stated:
When a defendant attacks subject matter jurisdiction "in fact" as opposed to an attack on the allegations on the face of the complaint, the Court is free to weigh the evidence and satisfy itself whether it has power to hear the case. Mortenson v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977). In such a situation, 'no presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims.' Id. In addition, the burden of proving the existence of subject matter jurisdiction lies with the plaintiff. Id. 227 F.3d 62, 69 (3d Cir. 2000).
Here, defendant's motion to dismiss attacks subject matter jurisdiction "in fact".
Based on the pleadings, record papers, affidavits and exhibits, the operative facts are as follows.
Plaintiffs Newport Commons, L.P. and Newport Commons II, L.P. (collectively "Newport") are the owners of an apartment complex known collectively as Newport Commons located in Lancaster County, Pennsylvania. Defendant Blue Ridge Cable Technologies, Inc. ("Blue Ridge") is a corporation in the business of providing cable television services. *fn4
This action arises from a dispute over the extent to which Blue Ridge has the right to access Newport's property in order to provide cable television services to the residents of Newport Commons.
For the past decade Blue Ridge has been providing cable television, internet and phone services to more than 200 tenants at Newport Commons. When the Newport Commons were first constructed, Blue Ridge installed cable ...