United States District Court, E.D. Pennsylvania
BRUCE A. GILBERT, Plaintiff,
DIPLOMAT PROPERTY MGR LLC, et al., Defendants.
before the Court is Defendants, Diplomat Property Manager,
LLC's and Fay Servicing, LLC's (hereinafter,
"Moving Defendants"), Motion to Dismiss Plaintiffs
Complaint Pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6).
Plaintiff did not file a response.
who is proceeding pro se, filed the instant
Complaint against Moving Defendants, as well as Bank of
America and McCabe, Weisberg & Conway LLC
("McCabe"). Plaintiff, according to his Complaint,
resides at 6 Wilden Drive, Easton, Pennsylvania 18045.
Defendants, Diplomat, Fay Servicing, and McCabe, according to
Plaintiffs Complaint, are limited liability corporations.
Plaintiff did not plead the citizenship of all
Defendants' members. Although Plaintiff failed to
properly plead the Defendants' citizenship for
jurisdictional purposes, Plaintiff alleged that the basis for
the Court's jurisdiction is federal question jurisdiction
under "Mortgage fraud on behalf of Bank of America.
Preditory [sic] lending. Discrimination based on race and
age." (ECF No. 2 at 4).
the Plaintiff is proceeding pro se, the Court will
liberally construe his pleadings. Higgs v. Atty. Gen. of
the U.S., 655 F.3d 333, 339 (3d Cir. 2011).
there is a motion to dismiss pursuant to Fed.R.Civ.P.
12(b)(1), a court must first determine whether the motion is
a "facial" or "factual" attack against
subject matter jurisdiction. A facial attack:
[I]s an argument that considers a claim on its face and
asserts that it is insufficient to invoke the subject matter
jurisdiction of the court because, for example, it does not
present a question of federal law, or because there is no
indication of a diversity of citizenship among the parties.
Constitution Party of Pa. v. Aichele, 757 F.3d 347,
358 (3d Cir. 2014). "[A] facial attack calls for a
district court to apply the same standard of review it would
use in considering a motion to dismiss under Rule 12(b)(6),
i.e., construing the alleged facts in favor of the
nonmoving party." Id.
factual attack, on the other hand, is an argument that there
is no subject matter jurisdiction because the facts of the
case ... do not support the asserted jurisdiction."
Id. "A factual attack requires a factual
dispute." Id. "In sum, a facial attack
'contests the sufficiency of the pleadings.'"
Id. (quoting In re Schering Plough Corp.,
678 F.3d 235, 243 (3d Cir. 2012)). '"[W]hereas a
factual attack concerns the actual failure of a [plaintiffs]
claims to comport [factually] with the jurisdictional
prerequisites.'" Id. (alterations in
original) (internal citations omitted) (quoting CNA v.
United States, 535 F.3d 132, 139 (3d Cir. 2008)). The
plaintiff bears the burden of demonstrating that the court
has subject matter jurisdiction. Schneller ex. rel.
Schneller v. Crozer Chester Med. Ctr., 387 Fed.Appx.
289, 292 (3d Cir. 2010) (citing Packard v. Provident
Nat'l Bank, 994 F.2d 1039, 1045 (3d Cir. 1993)).
Here, Plaintiff chose to not file a response. Moving
Defendants' Motion to Dismiss contains clear facial
Federal Question Jurisdiction.
to 28 U.S.C. § 1331, "district courts shall have
original jurisdiction of all civil actions arising under the
Constitution, laws, or treaties of the United States."
Here, according to the Complaint, Plaintiff alleged this
Court has federal question subject matter jurisdiction under
"Mortgage fraud on behalf of Bank of America. Preditory
[sic] lending. Discrimination based on race and age."
(ECF No. 2 at 4). Similarly, on the Designation Form,
Plaintiff indicated federal question jurisdiction by checking
the box labeled "All other Federal Question Cases"
and specified "Mortgage Loan Fraud-Preditory [sic]
Lending-Age/Race Discrimination." Id. at 1.
did not present a violation of federal law. The Complaint
points to no federal statute and does not specify enough
facts to make a determination there was a viable claim for
discrimination under the Constitution or federal statutes.
Therefore, because Plaintiff did not allege a violation of
the Constitution, laws, or treatises of the United States,