“A facial attack concerns an alleged pleading deficiency whereas a factual attack concerns the actual failure of a plaintiff’s claims to comport factually with the jurisdictional prerequisites.”
How later courts described this case
- “A facial attack concerns an alleged pleading deficiency whereas a factual attack concerns the actual failure of a plaintiff’s claims to comport factually with the jurisdictional prerequisites.”
Written by the judges who cited it.
The opinion
Not for Publication
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
ELMICIA DIMANCHE,
Plaintiff, Civil Action No. 21-cv-09596
v.
OPINION & ORDER
LA BRISE GENERAL CONTRACTOR,
Defendant.
John Michael Vazquez, U.S.D.J.
Pro se Plaintiff Elmicia Dimanche seeks to bring this action in forma pauperis pursuant to
28 U.S.C. § 1915. D.E. 1-2. For the reasons discussed below, the Court DENIES Plaintiff’s
application to proceed in forma pauperis without prejudice and DISMISSES his Complaint
without prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B).
Under § 1915, this Court may excuse a litigant from prepayment of fees when the litigant
“establish[es] that he is unable to pay the costs of his suit.” Walker v. People Express Airlines,
Inc., 886 F.2d 598, 601 (3d Cir. 1989). Here, Plaintiff claims an average monthly income of
$2,000.00. D.E. 1-2 at 1. However, except for listing “Griswold Special Care” as his employer –
albeit without completing the address, dates of employment, or gross monthly pay columns under
that section – the remainder of Plaintiff’s application is completely blank. Plaintiff has failed to
establish he is unable to pay the costs of suit. This denial is without prejudice and Dimanche may
refile his application. If Plaintiff chooses to refile his application, he should complete the entire
form so that the Court can determine whether he qualifies to proceed in forma pauperis.
Moreover, even if the Court permitted Plaintiff’s application to proceed in forma pauperis,
his Complaint is nevertheless deficient. When allowing a plaintiff to proceed in forma pauperis,
a court must review the complaint and dismiss the action if it determines that the action (i) is
frivolous or malicious, (ii) fails to state a claim upon which relief may be granted, or (iii) seeks
monetary relief against a defendant who is immune. 28 U.S.C. § 1915(e)(2)(B). When
considering dismissal under § 1915(e)(2)(B)(ii) for failure to state a claim upon which relief can
be granted, the Court must apply the same standard of review as that for dismissing a complaint
under Federal Rule of Civil Procedure 12(b)(6). Schreane v. Seana, 506 F. App’x 120, 122 (3d
Cir. 2012). Because Plaintiff is proceeding pro se, the Court construes the Complaint liberally and
holds it to a less stringent standard than papers filed by attorneys. Haines v. Kerner, 404 U.S. 519,
520 (1972). The Court, however, need not “credit a pro se plaintiff’s ‘bald assertions’ or ‘legal
conclusions.’” Grohs v. Yatauro, 984 F. Supp. 2d 273, 282 (D.N.J. 2013) (quoting Morse v. Lower
Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997)).
To state a claim that survives a Rule 12(b)(6) motion to dismiss, a complaint must contain
“enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Although the plausibility standard “does
not impose a probability requirement, it does require a pleading to show more than a sheer
possibility that a defendant has acted unlawfully.” Connelly v. Lane Const. Corp., 809 F.3d 780,
786 (3d Cir. 2016) (internal quotations and citations omitted). As a result, a plaintiff must “allege
sufficient facts to raise a reasonable expectation that discovery will uncover proof of her claims.”
Id. at 789. In other words, although a plaintiff need not plead detailed factual allegations, “a
plaintiff’s obligation to provide the grounds of his entitlement to relief requires more than labels
and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell
Atl. Corp., 550 U.S. at 555 (internal quotations omitted).
In addition, regardless of whether the issue is raised by the parties, the “Court has the ability
and obligation to address concerns of subject-matter jurisdiction sua sponte.” Doughtery, Clifford
& Wadsworth Corp. v. Magna Grp. Inc., No. 07-1068, 2007 WL 2300719, at *1 (D.N.J. Aug. 6,
2007). Importantly, “[o]ne of the most basic principles of our jurisprudence is that subject-matter
jurisdiction cannot be conferred upon a court by consent of the parties.” Gosa v. Mayden, 413
U.S. 665, 707 (1973). Although the diversity section of the Complaint is blank, D.E. 1 at 2, based
on the other allegations in the Complaint, this appears to be a contract dispute while also potentially
raising other state law issues, such as fraud. Id. at 4. Plaintiff does not assert federal question
jurisdiction pursuant to 28 U.S.C. § 1331, nor does his Complaint reflect any basis for such
jurisdiction. Accordingly, this Court’s jurisdiction must be based on diversity jurisdiction under
28 U.S.C. § 1332(a).
To properly invoke subject-matter jurisdiction under 28 U.S.C. § 1332(a), a plaintiff must
“show that there is complete diversity of citizenship among the parties and an amount in
controversy exceeding $75,000.” Schneller ex rel. Schneller v. Crozer Chester Med. Ctr., 387 F.
App'x 289, 292 (3d Cir. 2010). Complete diversity means that a plaintiff must be a citizen of state
different than that of each defendant. Gay v. Unipack, Inc., 2011 WL 5025116, at *4 (D.N.J. Oct.
20, 2011). “Whether diversity jurisdiction exists is determined by examining the citizenship of
the parties at the time the complaint was filed.” Midlantic Nat. Bank v. Hansen, 48 F.3d 693, 696
(3d Cir. 1995); see also Scott v. Cohen, 528 Fed. App’x 150, 152 (3d Cir. 2013) (“Federal
jurisdiction is determined from the facts as they exist when the complaint is filed.”). Here, the
Court evaluates the Complaint’s facial compliance with the diversity requirements, as opposed to
its factual compliance. See Young v. United States, 152 F. Supp. 3d 337, 345 (D.N.J. 2015) (“A
facial attack concerns an alleged pleading deficiency whereas a factual attack concerns the actual
failure of a plaintiff’s claims to comport factually with the jurisdictional prerequisites.”).
Plaintiff indicates that he lives in New Jersey. D.E. 1 at 1. Plaintiff continues that
Defendant, a general contractor, is also located in New Jersey. D.E. 2. Plaintiff alleges that he
hired Defendant to renovate his home after a fire. D.E. 1 at 3. Plaintiff continues that Defendant
did not get the proper permits and never finished the job, leaving Plaintiff without a “heating and
air systems.” Id. Plaintiff contends that Defendant has retained the money Plaintiff paid for the
job. Id. Plaintiff requests the Court “to revoke [Defendant’s] licensing1 for fraud and have [it]
pay for the unfinished work along with the damages accrued from the cheap material that was used
and the cost of utilities that were made during the time of construction.” Id. at 4.
It does not appear that this Court has subject-matter jurisdiction as Plaintiff appears to
indicate that both he and Defendant are citizens of New Jersey. It is also unclear whether Plaintiff
seeks the required amount necessary to confer jurisdiction on the Court, that is, over $75,000.
Plaintiff provides no allegations as to this Court’s jurisdiction. See id. at 2. Accordingly, the Court
dismisses this matter because Plaintiff has failed to adequately plead a basis for this Court’s
subject-matter jurisdiction. However, because Defendant is an LLC, see D.E. 1 at 1, its citizenship
1 Plaintiff’s request to revoke Defendant’s license is more appropriately directed to the relevant
state licensing agency, in this case, the New Jersey Department of Community Affairs. This Court
does not engage in state licensing.
“is determined by the citizenship of its members.” Lincoln Ben. Life Co. v. AEI Life, LLC, 800
F.3d 99, 105 (3d Cir. 2015). Accordingly, if Plaintiff can in good faith allege that all of
Defendant’s members are not citizens of New Jersey and that the amount in controversy is above
$75,000.00, Plaintiff may be able to establish diversity jurisdiction under 28 U.S.C. § 1332(a).
But Plaintiff has failed to plead any facts as to jurisdiction at this time.
Federal courts are courts of limited jurisdiction, while state courts (such as the Superior
Court of New Jersey) are courts of general jurisdiction. Thus, if Plaintiff does not believe that he
can establish this Court’s subject-matter jurisdiction, he may be able to file this matter in state
court. That is not to say that Plaintiff has a meritorious case or that he will prevail. Instead, the
Court merely informs Plaintiff of where he may be able to file suit if he is unable to establish
subject-matter jurisdiction in federal court.
For the reasons stated above, the Court finds that Plaintiff has failed to establish he is
unable to pay the costs of suit and has failed to adequately demonstrate that this Court has subject-
matter jurisdiction over this case. Therefore, and for good cause shown,
IT IS on the 23rd day of April, 2021,
ORDERED that Plaintiff’s application to proceed in forma pauperis, D.E. 1-2, is
DENIED without prejudice. The Court grants Plaintiff leave to file an amended application
within thirty (30) days; and it is further
ORDERED that Plaintiff’s Complaint, D.E. 1, is DISMISSED without prejudice
pursuant to 28 U.S.C. § 1915(e)(2)(B) for lack of subject-matter jurisdiction. The Court grants
Plaintiff leave to file an amended complaint within thirty (30) days provided that he provides
adequate allegations concerning this Court’s subject-matter jurisdiction based on the standard
describe above; and it is further
ORDERED that the Clerk shall serve this Order and Opinion upon Plaintiff by regular and
certified mail.
srvOOVn)
Joh, Michael Vazquez, U.$.D.S.