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Thompson v. D'Emilio

United States District Court, Third Circuit

November 15, 2013



MAUREEN P. KELLY, Magistrate Judge.

Plaintiff Leonard Thompson ("Plaintiff"), a pro se litigant, commenced this action against Defendants Matthew D'Emilio, Esq. and Deanne H. D'Emilio (collectively, "Defendants") relative to the incorporation of a company known as Triple I.

Presently before the Court is a Motion to Dismiss Complaint submitted on behalf of Defendants. ECF No. 6. For the reasons that follow, the Motion will be granted.


According to the Complaint, sometime in November of 1993, Plaintiff and a business partner, Tom Michaels, hired the Defendants to incorporate Triple I, which subsequently became known as Quad I, Inc. ("Quad I"). ECF No. 3, ¶¶ 5-6. Plaintiff claims that, of the one thousand shares that were issued, 300 were issued to him and held in trust by Defendant Deanne H. D'Emilio. Id. at ¶ 7. After an unspecified amount of time during which Plaintiff secured a line of credit and purchased "a 60 ft. container of latex gloves" from a medical supply manufacturer, it appears that Plaintiff became ill and required major surgery. Id. at ¶¶ 8-10. Upon his recovery, and after several failed attempts to meet with Tom Michaels regarding Plaintiff's financial stake in Quad I, Plaintiff contacted Defendant Matthew D'Emilio requesting that he return Plaintiff's shares to him. Id. at ¶¶ 11-13. Plaintiff's attempts to obtain the shares from Matthew D'Emilio apparently proved unfruitful and Plaintiff, consequently, initiated two disciplinary proceedings against Matthew D'Emilio. Id. at ¶ 14. According to Plaintiff, Matthew D'Emilio told the disciplinary counsel investigating the first disciplinary complaint that he turned over the minute books for Quad I to Tom Michaels; Mr. D'Emilio, however, apparently made no mention of the stock certificates. Id. at ¶ 15. During the second investigation, however, Matthew D'Emilio told the disciplinary counsel that he turned over all the stock certificates at the time the company was formed, and that at no time did he or his wife, Deanne H. D'Emilio, hold any stock on Plaintiff's behalf. Id. at ¶¶ 16-17. Matthew D'Emilio also stated that Quad I filed a final tax return in the late 1990's and ceased to operate at that time. Id. at ¶ 18. Plaintiff alleges that he subsequently contacted State Senator Jim Furlow [sic] regarding the matter and was informed that the Secretary of State could not find any information on Quad I. Id. at ¶¶ 19-21. Plaintiff claims "it was therefore concluded that there has never been any corporation by the name of Quad I, Inc." Id. at ¶ 22.

Plaintiff filed the instant Complaint on January 17, 2013. Plaintiff does not set forth a specific legal claim or basis for relief in the Complaint but simply asks that judgment be entered against Defendants for damages and any other relief that the Court deems just.

On March 19, 2013, Defendants filed a Motion to Dismiss Complaint ("the Motion"), ECF No. 6, in which they argue that the Complaint should be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(1) as the Court is without subject matter jurisdiction. Alternatively, Defendants argue that the Complaint is properly dismissed under Federal Rule of Civil Procedure 12(b)(6) because Plaintiff has failed to state a claim. Plaintiff filed a Brief in Support of Opposition to Motion to Dismiss Complaint, ECF No. 15, on April 12, 2013. As such, the Motion is ripe for review.


Federal Rule of Civil Procedure 12(b)(1) authorizes dismissal of a complaint for lack of jurisdiction over the subject matter or if the plaintiff lacks standing to bring his claim. Motions brought under Rule 12(b)(1) may present either a facial or factual challenge to the court's subject matter jurisdiction. In reviewing a facial challenge under Rule 12(b)(1), the standards relevant to Rule 12(b)(6) apply. In this regard, the court must accept all factual allegations in the complaint as true, and the court may only consider the complaint and documents referenced in or attached to the complaint. See Gould Electronics, Inc. v. United States , 220 F.3d 169, 176 (3d Cir. 2000).

In reviewing a factual challenge to the Court's subject matter jurisdiction, which is at issue here, the Court is not confined to the allegations of the complaint, and the presumption of truthfulness does not attach to the allegations in the complaint. See Mortensen v. First Fed. Sav. and Loan Ass'n , 549 F.2d 884, 891 (3d Cir. 1977). Instead, the Court may consider evidence outside the pleadings, including affidavits, depositions and testimony, to resolve any factual issues bearing on jurisdiction. See Gotha v. United States , 115 F.3d 176, 179 (3d Cir. 1997). Once the court's subject matter jurisdiction over a complaint is challenged, the plaintiff bears the burden of proving that jurisdiction exists. Mortensen v. First Fed. Sav. and Loan Ass'n , 549 F.2d at 891.


In his Complaint, Plaintiff asserts that while he and Defendant Deanne H. D'Emilio are residents of Pennsylvania, Defendant Matthew D'Emilio is a resident of Delaware, and that this Court has diversity jurisdiction over this matter pursuant to 28 U.S.C. § 1332. Plaintiff also asserts that this Court has "federal question" jurisdiction pursuant to 28 U.S.C. § 1311. Defendants, however, argue that subject matter jurisdiction is lacking under either statute thereby requiring that the Complaint be dismissed. The Court agrees.

A. Diversity Jurisdiction Pursuant to 28 U.S.C. § 1332

For a federal court to exercise diversity jurisdiction over an action, the parties must be citizens of different states and the amount in controversy must exceed $75, 000. 28 U.S.C. § 1332(a)(1). Complete diversity is lacking when the plaintiff is a citizen of one state and a defendant is a citizen of that same state. See Zambelli Fireworks Mfg. Co. v. Wood , 592 F.3d 412, 420 (3d Cir. 2010). Citizenship of a natural person is ...

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