2005 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

12-14-2005

Malarik v. Dinunno Entr Inc

Precedential or Non-Precedential: Non-Precedential

Docket No. 05-2535

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2005 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"Malarik v. Dinunno Entr Inc" (2005). 2005 Decisions. Paper 113.

http://digitalcommons.law.villanova.edu/thirdcircuit_2005/113
NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 05-2535

 

JAMES M. MALARIK,

 Appellant

v.

DINUNNO ENTERPRISES, INC., Pennsylvania

License R-110, owned and operated by 

Antonio and Susan Dinunno, husband and wife, 

a/k/a Toninos Lounge

 

On Appeal From the United States District Court

For the Western District of Pennsylvania 

(D.C. Civ. No. 05-cv-00036)

District Judge: Honorable Thomas M. Hardiman

 

Submitted Under Third Circuit LAR 34.1(a)

December 13, 2005

Before: BARRY, STAPLETON and GREENBERG, Circuit Judges

(Filed December 14, 2005)

 

OPINION

 

PER CURIAM

Appellant James M. Malarik, a resident of Pennsylvania, filed a civil complaint in

United States District Court for the Western District of Pennsylvania against a

Pennsylvania business and its owner-operators, alleging personal injuries. The District
2

Court dismissed the case without prejudice for lack of federal subject matter jurisdiction

in an order entered on April 14, 2005. Malarik appeals.

We will affirm. Our review of the District Court's dismissal of a complaint for

lack of subject matter jurisdiction is plenary. Gould Electronics, Inc. v. United States,

220 F.3d 169, 176 (3d Cir. 2000). Federal subject matter jurisdiction is lacking for the

reasons given by the District Court. Federal courts are courts of limited jurisdiction. 

Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994). Subject

matter jurisdiction is conferred where the parties are from different states, that is, diverse,

and the amount in controversy exceeds $75,000, 28 U.S.C. § 1332, and also when a

federal question is presented, 28 U.S.C. § 1331. 

Malarik’s complaint, if it can be maintained at all, can only be maintained in state

court, because jurisdiction based on diversity of citizenship is not available when the

parties are all Pennsylvania citizens or businesses, as they are here. Moreover, no federal

question is presented by a personal injury lawsuit that alleges only common law torts

against a private party, and does not allege a deprivation of federal constitutional rights or

the elements of a cause of action under a federal statute. We agree with the District Court

that Malarik’s suit, involving injuries suffered as a result of an altercation at a bar, does

not, and could not, satisfy the jurisdictional prerequisites for suit in federal court.

We will affirm the order of the District Court dismissing the action without

prejudice for lack of subject matter jurisdiction.