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Gilbert v. Diplomat Property MGR LLC

United States District Court, E.D. Pennsylvania

September 11, 2019

BRUCE A. GILBERT, Plaintiff,
v.
DIPLOMAT PROPERTY MGR LLC, et al., Defendants.

          MEMORANDUM

          CHAD F.KENNEY, JUDGE

         I. INTRODUCTION

         Currently 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.

         II. BACKGROUND

         Plaintiff, 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).

         Because 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).

         III. DISCUSSION

         When 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.

         "A 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 attacks.

         A. Federal Question Jurisdiction.

         Pursuant 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.

         Plaintiff 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, Plaintiff ...


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