UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 13-2140

JOHN B. KIMBLE,

Plaintiff – Appellant,

v.

RAJESH K. RAJPAL, M.D.; RAJESH RAJPAL, trading as See 

Clearly Vision & Washington Laser Eye,

Defendants - Appellees.

No. 14-1024

JOHN B. KIMBLE,

Plaintiff – Appellant,

v.

RAJESH K. RAJPAL, M.D.; RAJESH RAJPAL, trading as See 

Clearly Vision & Washington Laser Eye,

Defendants - Appellees.

Appeals from the United States District Court for the Eastern 

District of Virginia, at Alexandria. Claude M. Hilton, Senior

District Judge. (1:13-cv-00298-CMH-IDD)

Submitted: March 31, 2014 Decided: April 17, 2014
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Before NIEMEYER and THACKER, Circuit Judges, and HAMILTON, 

Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

John B. Kimble, Appellant Pro Se. Thomas Clyde Marriner, David 

Randolph Thompson, COWDREY THOMPSON PC, Easton, Maryland, for 

Appellees.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

In these consolidated appeals, John B. Kimble appeals 

the district court’s orders dismissing his civil action for lack 

of subject matter jurisdiction and denying his motion for relief 

from that judgment pursuant to Rule 59(e) of the Federal Rules 

of Civil Procedure. For the reasons that follow, we affirm.

We review questions of subject matter jurisdiction 

de novo. Dixon v. Coburg Dairy, Inc., 369 F.3d 811, 815-16 (4th 

Cir. 2004) (en banc). The plaintiff bears the burden to

establish subject matter jurisdiction. Piney Run Pres. Ass’n v. 

Cnty. Comm’rs of Carroll Cnty., Md., 523 F.3d 453, 459 (4th Cir. 

2008). A defendant may challenge subject matter jurisdiction in 

two ways. Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 

2009). First, he may raise a “facial challenge” by asserting 

that the complaint fails to allege facts sufficient to support 

subject matter jurisdiction. Id. In that instance, the court 

must evaluate the complaint in the same manner utilized in 

assessing a motion to dismiss for failure to state a claim —

that is, viewing the well-pleaded facts in the complaint as 

true. Id.

Alternatively, the defendant may challenge the factual 

basis for subject matter jurisdiction. Id. In considering a 

motion raising such a factual challenge, “the district court is 

to regard the pleadings’ allegations as mere evidence on the 
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issue, and may consider evidence outside the pleadings without 

converting the proceeding to one for summary judgment.” 

Richmond, Fredericksburg & Potomac R. Co. v. United States, 945 

F.2d 765, 768 (4th Cir. 1991). The court should grant the 

motion “only if the material jurisdictional facts are not in 

dispute and the moving party is entitled to prevail as a matter 

of law.” Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 

1999) (internal quotation marks omitted).

District courts have original jurisdiction over civil 

actions in which the amount in controversy exceeds $75,000 and 

the dispute is between citizens of different states. 28 U.S.C. 

§ 1332(a)(1) (2012). If one defendant is a citizen of the same 

state as the plaintiff, complete diversity is nonexistent, and 

federal jurisdiction will not lie. Owen Equip. & Erection 

Co. v. Kroger, 437 U.S. 365, 373-74 (1978). A corporation is 

deemed a citizen of every state by which it is incorporated, as 

well as a state in which it has its principal place of business. 

28 U.S.C. § 1332(c)(1) (2012). 

On appeal, Kimble primarily challenges both the 

dismissal order and the order denying Rule 59(e) relief by 

asserting that complete diversity exists between the parties. 

The district court dismissed Kimble’s action after concluding 

that one of the corporate Defendants, Washington Laser Eye 

Center, was incorporated in Maryland and therefore a citizen of 
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the same state as Kimble. In reaching its conclusion, the

district court appears to have relied upon an opinion issued by 

the United States District Court for the District of Maryland, 

dismissing without prejudice Kimble’s similar medical 

malpractice and related tort claims against Defendants Rajpal 

and See Clearly Vision. In that order, the district court 

declined to substitute Washington Laser Eye Center as a party 

after finding that, as a Maryland corporation, its presence

would defeat diversity jurisdiction.* Although the Maryland 

district court’s determination is not dispositive of the issue 

under the doctrine of collateral estoppel, see In re Microsoft 

Corp. Antitrust Litig., 355 F.3d 322, 326 (4th Cir. 2004) 

(stating requirements for collateral estoppel, including that 

“the issue or fact was critical and necessary to the judgment in 

the prior proceeding”), the court was permitted to consider the 

Maryland district court’s finding in reaching its independent 

determination of the issue. 

 * We have previously affirmed the Maryland district court’s 

dismissal order. Kimble v. Rajpal, 512 F. App’x 352, 353 (4th 

Cir. 2013) (No. 12-2142). While this court is required to 

inquire into its jurisdiction sua sponte, Dickens v. Aetna Life 

Ins. Co., 677 F.3d 228, 230 (4th Cir. 2012) (citing Mt. Healthy 

City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 278 

(1977)), the issue of Washington Laser Eye Center’s citizenship 

was not properly before us in that appeal, as it was not 

relevant either to this court’s jurisdiction or to the issues 

raised by the parties on appeal.
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Ultimately, Kimble bore the burden to establish the 

complete diversity required for subject matter jurisdiction. 

Considering the parties’ pleadings in the district court, we 

conclude that Kimble failed to meet his burden. Additionally, 

we are “not limited to evaluation of the grounds offered by the 

district court to support its decision, but may affirm on any 

grounds apparent from the record.” Suter v. United States, 441 

F.3d 306, 310 (4th Cir. 2006) (internal quotation marks 

omitted). As an additional basis for affirmance, Kimble’s 

complaint failed to allege any facts related to Washington Laser 

Eye Center’s citizenship, and the court was entitled to dismiss 

the action based on Defendants’ facial jurisdictional challenge. 

See Kerns, 585 F.3d at 192. 

In addressing the dismissal order, Kimble raises a 

number of arguments for the first time on appeal or for the 

first time in his appellate reply briefs. These issues are not 

properly before us, and we decline to consider them. See

Yousefi v. INS, 260 F.3d 318, 326 (4th Cir. 2001) (per curiam) 

(recognizing that issues raised in reply brief generally are not 

considered); Muth v. United States, 1 F.3d 246, 250 (4th Cir. 

1993) (stating that issues raised for first time on appeal will 

not be considered absent exceptional circumstances). Thus, we

find no basis to conclude that the district court erred in 

dismissing the action for lack of subject matter jurisdiction. 
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Turning to Kimble’s post-judgment motion, we review

for abuse of discretion the district court’s denial of a Rule 

59(e) motion. Robinson v. Wix Filtration Corp., 599 F.3d 403,

407 (4th Cir. 2010). Under Rule 59(e), the district court may 

alter or amend its judgment if the movant shows an intervening 

change in controlling law, new evidence that was not available 

at trial, or a clear error of law or manifest injustice. 

Mayfield v. Nat’l Ass’n for Stock Car Auto Racing, Inc., 674 

F.3d 369, 378 (4th Cir. 2012). Our review of the record reveals 

that Kimble failed to make this showing, and the district court 

did not abuse its discretion in denying relief from the 

dismissal order under Rule 59(e).

We have reviewed the record in light of Kimble’s 

remaining arguments and find them to be without merit. 

Accordingly, we affirm the district court’s judgment. We 

dispense with oral argument because the facts and legal 

contentions are adequately presented in the materials before 

this court and argument would not aid the decisional process.

AFFIRMED