UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

HITHAM ABUHOURAN,

 Plaintiff,

v.

KAISERKANE, INC., et al.,

 Defendants.

Civil No. 10-6609 (NLH/KMW)

OPINION

APPEARANCES:

Hitham Abuhouran

No. 18939-050

FPC Schuylkill

P.O. Box 670

Minersville, Pennsylvania 17954

Pro Se

Robert L Ritter, Esquire

Schiffman, Berger, Abraham, Kaufman & Ritter, P.C.

Three University Plaza 

P.O. Box 568 

Hackensack, New Jersey 07602

Attorney for Defendants KaiserKane, Inc. and KaiserKane

Richard C. Wischusen, Esquire

Reilly, Supple & Wischusen, LLC 

Murray Hill Office Center 

571 Central Avenue 

New Providence, New Jersey 07974 

Attorney for Defendants Briggs Contracting Services, Inc.

and Rod Richardson

Paul Joseph Smyth, Esquire

Sean X. Kelly, Esquire

Sebastian A. Goldstein, Esquire 

Marks, O'Neill, O'Brien & Courtney PC

6981 North Park Drive 

Suite 300 

Pennsauken, New Jersey 08109

Attorneys for Defendants North American Roofing 

and David Donaldson

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Eric A. Portuguese, Esquire

Aaron Brouk, Esquire

Lester, Schwab, Katz & Dwyer 

24 Lackawanna Plaza 

Millburn, New Jersey 07041

Attorneys for Defendant American Safety Indemnity Company

David A. Laughlin 

Birdsall & Laughlin, LLC 

1720 Highway 34 North 

P.O. Box 1380 

Wall, New Jersey 07719

Attorney for Defendant Companion Property & Casualty

Insurance

HILLMAN, District Judge

Presently before the Court are several motions by Defendants

seeking summary judgment and dismissal of Plaintiff’s complaint. 

Defendants North American Roofing and David Donaldson have filed

a motion [Doc. No. 37] for summary judgment, in which Defendant

KaiserKane, Inc. joins. Defendants American Safety Indemnity

Company and Companion Property and Casualty Insurance have filed

respective motions [Doc. Nos. 38, 39] to dismiss Plaintiff’s

complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). 

Defendants Briggs Contracting Services, Inc. and Ron Richardson

have filed a cross-motion [Doc. No. 67] for summary judgment. 

Also before the Court are Plaintiff’s motion [Doc. No. 50] for

entry of default and two motions [Doc. Nos. 54, 57] for

extensions of time to file a sur-reply in opposition to the

summary judgment motion filed by North American Roofing. The

Court has considered the parties’ submissions and decides this

matter pursuant to Federal Rule of Civil Procedure 78. 

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For the reasons expressed below, the pending motions [Doc.

Nos. 37, 38, 39, 50, 54, 57, 67] are denied without prejudice. 

I. JURISDICTION

Plaintiff alleges that the Court has subject matter

jurisdiction over this action based on federal question

jurisdiction pursuant to 28 U.S.C. § 1331 because he asserts a

claim arising from violations of the Clean Air Act, 42 U.S.C. §

7401 et seq. (Pl.’s Compl. [Doc. No. 1] 2.) Plaintiff also

contends that the Court has jurisdiction over his state law

claims based on diversity of citizenship pursuant to 28 U.S.C. §

1332. (Id.) Finally, Plaintiff seeks to invoke the Court’s

supplemental jurisdiction over his pendent state law claims

pursuant to 28 U.S.C. § 1367. (Id.)

II. BACKGROUND

A. Plaintiff’s Complaint

Plaintiff, currently an inmate at the Federal Correctional

Camp at Schuylkill (“FCC-Schuylkill”), generally alleges that

during his previous confinement at the Federal Correctional

Institution in Fort Dix, New Jersey (“FCI-Fort Dix”) he was

exposed to asbestos because Defendants violated various state and

federal laws in conducting a re-roofing and asbestos abatement

project on several buildings at FCI-Fort Dix. (Pl.’s Compl. ¶¶

1-39.) Plaintiff brings his claims against the following

Defendants: (1) KaiserKane, Inc. and KaiserKane (“KaiserKane”),

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the general contractor for the re-roofing project; (2) Briggs

Contracting Services, Inc. (“Briggs”), the subcontractor on the

project which conducted the asbestos abatement at FCI-Fort Dix;

(3) Rod Richardson (“Richardson”), the project manager for

Briggs; (4) North American Roofing (“NAR”), the subcontractor on

the project which performed the re-roofing work; (5) David

Donaldson (“Donaldson”), an officer of NAR; (6) American Safety

Indemnity Company (“American Safety”), an insurance company 1

listed on an insurance binder for KaiserKane; and (7) Companion

Property and Casualty Insurance (“Companion”). (Id. ¶¶ 2-9.) 2

Based on a series of alleged violations committed by Defendants

during the re-roofing and asbestos abatement project, Plaintiff

asserts the following four counts: (1) Count One - Gross

Negligence; (2) Count Two - Common Law Fraud; (3) Count Three -

Violations of the Clean Air Act; and (4) Count Four - Negligence. 

1. Plaintiff misidentified this Defendant in the complaint as

“American Safety.” (Pl.’s Compl. ¶ 8.) 

2. The Court notes that Companion’s name only appears in the

caption of Plaintiff’s complaint and not in the body of the

complaint. (See generally Pl.’s Compl.) However, in paragraph

nine, Plaintiff refers to “Defendant American Property and

Casualty” and notes that this entity is being sued in its

capacity as an insurer for Defendants. (Pl.’s Compl. ¶ 9.) It

appears logical that Plaintiff may have misidentified the entity

in paragraph nine as “American” Property and Casualty, rather

than “Companion” Property and Casualty, since the preceding

paragraph refers to Defendant American Safety. Here, the Court

assumes that paragraph nine should have named Companion as a

Defendant. This assumption does not alter the Court’s

determination set forth infra regarding subject matter

jurisdiction. 

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(Id. ¶¶ 39-48.) 

Plaintiff originally filed his complaint in the United

States District Court for the Middle District of Pennsylvania

(“the Middle District”) on November 3, 2010. By Order dated

December 20, 2010, the Honorable A. Richard Caputo, United States

District Judge for the Middle District of Pennsylvania, adopted

the November 29, 2010 Report and Recommendation of the Honorable

Thomas M. Blewitt, United States Magistrate Judge for the Middle

District of Pennsylvania, recommending that Plaintiff’s case be

transferred to the District of New Jersey pursuant to 28 U.S.C. §

1404. (Order [Doc. No. 15] 1, Dec. 20, 2010.) The November 29,

2010 Report and Recommendation adopted by the Middle District

found that Plaintiff failed to meet “his burden of proving [that]

diversity of citizenship exists in this case” because Plaintiff

failed to allege his own citizenship, or that of Defendants. 

(Report and Recommendation [Doc. No. 9] 6, 10-11, Nov. 29, 2010.) 

The Middle District recognized that it did not appear from the

complaint that the “citizenship of all Defendants [was] diverse

from that of Plaintiff[.]” (Id.) With respect to Plaintiff’s 3

claim under the Clear Air Act, the Middle District recommended

that the issue of whether “Plaintiff properly allege[d] a

3. The Middle District, in deciding whether to transfer the

case, alternatively found that even if diversity of citizenship

existed, a transfer was appropriate since the District of New

Jersey was a more convenient forum. (Id. at 7.)

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violation of the Clean Air Act which is necessary for

jurisdiction over his action in federal court” be determined by

the District of New Jersey as the transferee court. (Id. at 8 4

n.3.) 

B. Pending Motions

(1) Motions to Dismiss Pursuant to Rule 12(b)(6)

Both Defendants American Safety and Companion (“the

Insurance Company Defendants”) move to dismiss Plaintiff’s

complaint pursuant to Federal Rule of Civil Procedure 12(b)(6)

for failure to state a claim upon which relief can be granted. 

The Insurance Company Defendants essentially argue that

Plaintiff’s complaint fails to make any specific factual

allegations against either of these Defendants regarding the

asbestos abatement project and Plaintiff’s alleged exposure to

asbestos. (Mem. of Law of Def. American Safety Indemnity Co. in

Supp. of Dismissal of the Compl. Under Rule 12(b)(6) [Doc. No.

38-2] (hereinafter, “American Safety’s Mot. to Dismiss”), 1-2;

4. The Middle District cited Goodman v. PA D.E.P., No. 07-4779,

2008 WL 2682698, at *1 (E.D. Pa. Jun. 30, 2008), for the

proposition that “‘individuals can sue in federal court regarding

violations of the Clean Air Act’s emission standards. ... These

individuals must then ultimately prove which and how the Clean

Air Act’s emission standards were violated.’” (Report and

Recommendation [Doc. No. 9] 8, Nov. 29, 2010.) In leaving the

determination of whether Plaintiff sufficiently alleged a claim

under the Clean Air Act to this Court, the Middle District

declined to conduct an in-depth analysis of Goodman or of

Plaintiff’s Clean Air Act allegations. For the reasons set forth

infra, Goodman is not determinative of the outcome of Plaintiff’s

claim under the Clean Air Act which seeks monetary damages. 

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Br. of Def. Companion Property & Casualty Insurance Co. in Supp.

of Its 12(b)(6) Mot. to Dismiss the Compl. with Prejudice [Doc.

No. 39-1] (hereinafter, “Companion’s Mot. to Dismiss”), 3-4.) 

The Insurance Company Defendants also argue that Plaintiff’s

claims against them fail under New Jersey law because a personal

injury plaintiff lacks standing to bring a direct action against

his tortfeasor’s liability insurer until the plaintiff has

obtained a judgment against the insured. (American Safety’s Mot.

to Dismiss 2-3; Companion’s Mot. to Dismiss 6-8.) 

(2) Motions for Summary Judgment

Defendants NAR and Donaldson filed a motion for summary

judgment on May 2, 2011. (Mot. for Summ. J. by David Donaldson

and North American Roofing [Doc. No. 37].) By letter dated May

20, 2011, KaiserKane advised the Court that KaiserKane joined the

summary judgment motion filed by NAR and “adopt[ed] all of its

arguments.” (Letter from Robert Ritter, Esq. [Doc No. 43] 1, 5

May 20, 2011.) While NAR’s summary judgment motion was pending,

Defendants Briggs and Richardson filed a cross-motion for summary

judgment on September 14, 2011. (Cross Mot. for Summ. J. by

Briggs Contracting services, Inc. and Rod Richardson [Doc. No.

67] (hereinafter, “Briggs’ summary judgment motion”)). Plaintiff

filed opposition [Doc. No. 44] to the original summary judgment

5. For purposes of this opinion, the Court will refer to the

motion for summary judgment filed by NAR and Donaldson, and

joined by KaiserKane as “NAR’s summary judgment motion.” 

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motion by NAR, and subsequently filed a second opposition [Doc.

No. 58] after KaiserKane joined in the motion. Plaintiff also

filed opposition [Doc. No. 71] to Briggs’ summary judgment

motion. 

Defendants NAR, Donaldson, KaiserKane, Briggs, and

Richardson (“the Contractor Defendants”) seek summary judgment in

their favor and the dismissal of Plaintiff’s complaint with

prejudice. (NAR’s Proposed Order [Doc. No. 37-3] 1; Briggs’

Proposed Order [Doc. No. 67-5] 1.) In moving for summary

judgment, the Contractor Defendants essentially argue that

Plaintiff cannot maintain causes of action for gross negligence,

common law fraud, violations of the Clean Air Act, and

negligence. (Br. in Supp. of the NAR’s Summ. J. Mot. [Doc. No.

37-1] (hereinafter, “NAR’s Summ. J. Mot.”) 3-8; Br. in Supp. of

Defs.’ Briggs Contracting Services and Rod Richardson’s Cross

Mot. for Summ. J. [Doc. No. 67-1] (hereinafter, “Briggs’ Summ. J.

Mot.”), 3-8.) Specifically, the Contractor Defendants contend

that they are entitled to summary judgment on: (1) the cause of

action for gross negligence because their conduct was not

flagrant and did not grossly deviate from the ordinary standard

of care, (NAR’s Summ. J. Mot. 3-4; Briggs’ Summ. J. Mot. 3-5);

(2) the cause of action for common law fraud because the

Contractor Defendants did not make any misrepresentations of fact

to Plaintiff regarding asbestos removal and Plaintiff cannot

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demonstrate the required elements of this claim, (NAR’s Summ. J.

Mot. 4-5; Briggs’ Summ. J. Mot. 5-6); (3) the cause of action for

damages under the Clear Air Act because Plaintiff failed to

provide notice of any alleged violations to the Contractor

Defendants, (NAR’s Summ. J. Mot. 5-8; Briggs’ Summ. J. Mot. 6-8);

and (4) the cause of action for negligence because the Contractor

Defendants did not owe a duty to Plaintiff, and even if they did,

that duty was not breached. (NAR’s Summ. J. Mot. 8; Briggs’

Summ. J. Mot. 3-5.) 

Despite the multiple arguments presented in the pending

motions to dismiss and for summary judgment, neither the

Insurance Company Defendants nor the Contractor Defendants

challenge the exercise of jurisdiction over Plaintiff’s claims by

this Court, an issue which was initially raised by the Middle

District.6

III. DISCUSSION

As the Third Circuit has held, “[f]ederal courts are courts

of limited jurisdiction, and when there is a question as to our

authority to hear a dispute, ‘it is incumbent upon the courts to

6. The Middle District left to this Court the determination of

whether Plaintiff alleged a claim under the Clean Air Act

sufficient to provide a basis for federal question jurisdiction

under 28 U.S.C. § 1331. (Report and Recommendation [Doc. No. 9]

8 n.3, Nov. 29, 2010.) Moreover, the Middle District previously

determined that Plaintiff failed to meet his burden to

demonstrate that diversity of citizenship pursuant to 28 U.S.C. §

1332 exists in this action. (Id. at 6, 10-11.) 

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resolve such doubts, one way or the other, before proceeding to a

disposition on the merits.’” Zambelli Fireworks Mfg. Co. v.

Wood, 592 F.3d 412, 418 (3d Cir. 2010) (citing Carlsberg Res.

Corp. v. Cambria Sav. & Loan Ass'n., 554 F.2d 1254, 1256 (3d Cir.

1977)). Accordingly, federal courts have an independent

obligation to address issues of subject matter jurisdiction sua

sponte and may do so at any stage of the litigation. Adamczewski

v. Emerson Elec. Co., No. 10-4862, 2011 WL 1045162, at *1 (D.N.J.

Mar. 22, 2011) (citing Meritcare Inc. v. St. Paul Mercury Ins.

Co., 166 F.3d 214, 217 (3d Cir. 1999), overruled on other grounds

by Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546

(2005)). Therefore, although the parties have not specifically

raised the issue of the Court’s subject matter jurisdiction at

this time, the Court must determine as a threshold matter whether

the exercise of jurisdiction is proper in this case before ruling

on the merits of the pending motions. In re Caterbone, 640 F.3d

108, 111 (3d Cir. 2011) (noting courts must “‘determine whether

subject-matter jurisdiction exists, even in the absence of a

challenge from any party’”) (citation omitted). 

IV. ANALYSIS

To determine whether federal question jurisdiction exists in

this case, the Court must review Count Three of Plaintiff’s

complaint which purportedly raises a claim under the Clean Air

Act, 42 U.S.C. § 7401 et seq. 

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As explained by the Third Circuit, “Section 7604 [of the

Clean Air Act] permits citizens to commence civil suits in the

district court against persons who violate either emission

standards or limitations promulgated under various sections of

the Act or orders issued by the EPA or a state concerning those

standards or limitations.” Delaware Valley Citizens Council for

Clean Air v. Davis, 932 F.2d 256, 264 (3d Cir. 1991). Thus, so

called “citizen suits” which seek enforcement of emissions

standards or limitations promulgated under the Clean Air Act are

permissible and confer federal question jurisdiction in the

district courts. However, as multiple federal courts have

recognized, the Clean Air Act does not authorize a private cause

of action for compensatory damages for alleged violations of the

Act, and thus federal question jurisdiction does not exists for

such claims. See, e.g., Powell v. Lennon, 914 F.2d 1459, 1462

n.7 (11th Cir. 1990) (recognizing “there is not any private right

of action under the Clean Air Act” in circumstances where the

plaintiff, a federal prisoner, sought monetary relief based on

allegations that he was exposed to asbestos in a federal prison

which caused respiratory problems); Balazinski v. Webster Lines,

No. 07-2121, 2009 WL 799285, at *3 n.3 (D.N.J. Mar. 25, 2009)

(noting that “the plaintiffs are barred from bringing a private

cause of action to recover damages for personal injuries under

the Clean Air Act”); Torres Maysonet v. Drillex, S.E., 229 F.

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Supp. 2d 105, 109 (D.P.R. 2002) (concluding that the court lacked

“subject matter jurisdiction to entertain a damages claim under”

the Clean Air Act because “the citizen suit provision[] of the

Clean Air Act ... simply provide[ed] for injunctive remedies”);

Satterfield v. J.M. Huber Corp., 888 F. Supp. 1567, 1571 (N.D.

Ga. 1995) (granting summary judgment for defendant on negligence

per se claims based on finding that both “the federal and Georgia

Clean Air Acts do not provide for an action for private

recovery.”); Bowling v. United States, 93 Fed. Cl. 551, 559-60

(Fed. Cl. 2010) (finding that the Clean Air Act “allows any

person to bring suit for the enforcement of emissions standards

or limitations ... including those that relate to asbestos” but

does not provide “a private right of action for personal injury

claims” and thus cannot serve as a jurisdictional basis for

personal injury claims in the district courts).7

In Count Three, Plaintiff specifically asserts that the

“acts and omission of the defendants in violating the ... Clean

7. See also Abarca v. Chevron U.S.A., Inc., 75 F. Supp. 2d 566,

571 (E.D. Tex. 1999) (“[N]one of these statutes [including the

Clean Air Act] provides for a private cause of action for

compensatory damages. While each provides a cause of action for

enforcement of the regulations, such provisions are insufficient

to confer federal-question jurisdiction.”); Gutierrez v. Mobil

Oil Corp., 798 F. Supp. 1280, 1285 (W.D. Tex. 1992) (“Clean Air

Act does not provide similar or comparable remedies to those

sought by plaintiffs in common law actions for damages”); Adams

v. Republic Steel Corp., 621 F. Supp. 370, 376 (W.D. Tenn. 1985)

(“[A]ctions seeking compensatory damages under the Clean Air Act

do not state a claim for which federal question jurisdiction

exists.”)

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Air Act ... constitute a crime and a breach of fiduciary duty to

maintain[] [a] clean environment and [to] be free from toxic

exposure by asbestos.” (Pl.’s Compl. ¶ 45.) Plaintiff further

contends that “[a]s a result of these violations, [he] suffered

and will continue to suffer respiratory problems and lung disease

from being exposed to asbestos abatement” by Defendants. (Id. ¶

46.) According to Plaintiff, these “violations were the

proximate cause of [his] injuries, medical expenses, [and the

need] medical monit[o]ring for the remainder of his life.” (Id.) 

Thus, Plaintiff seeks a judgment against Defendants “awarding

plaintiff all damages for medical care, and future medical

monit[o]ring which were caused by” Defendants’ alleged violations

of the Act. (Pl.’s Compl. 11, Wherefore clause.) Plaintiff

seeks “punitive damages, pre and post-judgment interest, cost[s]

of suit, legal fees, and ... other future relief ... in the

amount of $10,000,000.” (Id.) 

Based on the specific allegations of Count Three, it is

clear that Plaintiff brings this claim as a private action

seeking compensatory and punitive damages for injuries allegedly

caused by Defendants’ asbestos abatement procedures which

purportedly violated the Clean Air Act. Plaintiff is not

bringing this claim as a citizen suit to seek enforcement of

emission standards or limitations under the Clean Air Act. 

Accordingly, the Court finds that Count Three of Plaintiff’s

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complaint impermissibly seeks compensatory and punitive damages

under the Clean Air Act and thus fails to state a claim for which

federal question jurisdiction exists. See Adams, 621 F. Supp. at

376. Therefore, Count Three of Plaintiff’s complaint is

dismissed with prejudice as permitting amendment would be

futile.8

Although there is no federal question jurisdiction in this

case, Plaintiff also asserts that the Court can exercise

jurisdiction over Plaintiff’s remaining state law claims for

negligence, gross negligence, and common law fraud under

diversity of citizenship jurisdiction pursuant to 28 U.S.C. §

1332. Because Plaintiff is proceeding pro se in this action, the

Court construes the complaint liberally. Huertas v. Galaxy Asset

8. The Court notes that the remaining counts of Plaintiff’s

complaint assert state law claims for negligence, gross

negligence, and common law fraud. (Pl.’s Compl. ¶¶ 39-43, 47-

48.) Having determined that federal question jurisdiction is

lacking in this case, the Court need not address Plaintiff’s

request that the Court invoke supplemental jurisdiction over

these state law claims. However, even if the dismissal of Count

Three could be construed as an exercise of the Court’s

jurisdiction, pursuant to 28 U.S.C. § 1367(c)(3), the Court would

decline to exercise supplemental jurisdiction over any state law

claims raised in Plaintiff’s complaint because considerations of

judicial economy, convenience, and fairness would not

affirmatively justify such an exercise. See Oras v. City of

Jersey City, 328 F. App’x 772, 775 (3d Cir. 2009) (noting that

“[w]here the claim over which the district court has original

jurisdiction is dismissed before trial, the district court must

decline to decide the pendent state claims unless considerations

of judicial economy, convenience, and fairness to the parties

provide an affirmative justification for doing so.”) (citing

Hedges v. Musco, 204 F.3d 109, 123 (3d Cir. 2000)) (internal

quotations omitted) (emphasis in original). 

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Mgmt., 641 F.3d 28, 32 (3d Cir. 2011) (citing Erickson v. Pardus,

551 U.S. 89, 94 (2007)). Even though Plaintiff’s complaint is

held to a less stringent standard than formal pleadings drafted

by lawyers, see Mitchell v. Horn, 318 F.3d 523, 529 (3d Cir.

2003), Plaintiff, “as the party asserting federal jurisdiction,

‘must specifically allege each party's citizenship, and these

allegations must show that the plaintiff and defendant[s] are

citizens of different states.’” Gay v. Unipack, Inc., No. 10-

6221, 2011 WL 5025116, at *4 (D.N.J. Oct. 20, 2011) (citation

omitted). 

As the Middle District previously recognized, the Court

finds that Plaintiff has failed to meet his burden to demonstrate

that diversity of citizenship exists here. It is clear from the

face of the complaint that Plaintiff does not sufficiently allege

either his own citizenship, or that of Defendants. As to his own

citizenship, Plaintiff merely alleges that he is currently a

federal prisoner at FCC-Schuylkill in Minersville, Pennsylvania

and that he was previously a federal prisoner at FCI-Fort Dix in

Fort Dix, New Jersey. (Pl.’s Compl. ¶ 1.) However, such

allegations of are insufficient to allege Plaintiff’s

citizenship. For purposes of diversity jurisdiction, a

prisoner’s citizenship is not based on his state of

incarceration, but rather is based on the prisoner’s “domicile

... before his imprisonment [which] presumptively remains his

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domicile during his imprisonment.” Pierro v. Kugel, 386 F. App’x

308, 309 (3d Cir. 2010). A prisoner may rebut this presumption

“by showing a bona fide intent to remain in the state of

incarceration on release.” Id. Plaintiff’s complaint does not

allege either his domicile prior to his incarceration, or a bona

fide intent to remain in the state where he is incarcerated after

he is released. Thus, Plaintiff fails to properly allege his own

citizenship.

With respect to the citizenship of Defendants, Plaintiff’s

complaint is similarly defective. As to Defendants Donaldson and

Richardson, Plaintiff fails to set forth the citizenship of these

individual Defendants. (See Pl.’s Compl. ¶¶ 5, 7.) As to

KaiserKane, Briggs, and NAR, Plaintiff merely alleges either

where these Defendants are located or where they have their

principal place of business. (See Pl.’s Compl. ¶¶ 2-3, 4, 6.) 

With respect to American Safety and Companion, Plaintiff makes

absolutely no allegations of the citizenship of these Defendants. 

For purposes of diversity jurisdiction, “[a] corporation is a

citizen both of the state where it is incorporated and of the

state where it has its principal place of business.” Swiger v.

Allegheny Energy, Inc., 540 F.3d 179, 182 (3d Cir. 2008) (citing

28 U.S.C. § 13329(c)). By comparison, “the citizenship of an LLC

is determined by the citizenship of each of its members.” 

Zambelli Fireworks Mfg. Co. v. Wood, 592 F.3d 412, 418 (3d Cir.

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2010). Accordingly, to the extent certain Defendants are 9

corporations, Plaintiff’s complaint fails to properly allege both

the state of incorporation and the principal place of business

for each such Defendant. Moreover, to the extent certain

Defendants may be organized as limited liability companies,

Plaintiff’s complaint fails to allege the citizenship of each

member of the LLC.10

As a result of these failures, Plaintiff’s complaint is

essentially silent as to the citizenship of the parties, and at

this time, the complaint is subject to dismissal for lack of

jurisdiction. See Gay, 2011 WL 5025116, at *5. However, because

Plaintiff is appearing pro se in this action and because

Plaintiff may be able to allege facts sufficient to demonstrate

that this Court has subject matter jurisdiction to entertain his

state law claims under diversity of citizenship jurisdiction, the

Court will order Plaintiff to show cause why Counts One, Two, and

9. Plaintiff alleges that KaiserKane and Briggs are

corporations. (Pl.’s Compl. ¶¶ 2, 4.) However, as to NAR,

American Safety, and Companion, the business entity status of

these Defendants is not alleged. 

10. Moreover, if a member of the LLC is also an LLC or a

corporation, then each member of the LLC must be identified and

its citizenship plead, and for any such member that is a

corporation, the state of incorporation and the principal place

of business must be identified and plead. See Zambelli, 592 F.3d

at 420 (“[W]here an LLC has, as one of its members, another LLC,

‘the citizenship of unincorporated associations must be traced

through however many layers of partners or members there may be’

to determine the citizenship of the LLC.”)(quoting Hart v.

Terminex Int'l, 336 F.3d 541, 543 (7th Cir. 2003)).

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Four of his complaint should not be dismissed for lack of subject

matter jurisdiction by filing an amended complaint in this action

within thirty days of the date of this Opinion.

In light of the Court’s findings supra that jurisdiction is

lacking at this time, the pending motions cannot be determined on

the merits and therefore are denied without prejudice. 

V. CONCLUSION

For the foregoing reasons, Count Three of Plaintiff’s

complaint alleging a claim under the Clean Air Act is dismissed

with prejudice, and the pending motions [Doc. Nos. 37, 38, 39,

50, 54, 57, 67] are denied without prejudice for lack of subject

matter jurisdiction. An Order and an Order to Show Cause

consistent with this Opinion will be entered.

Dated: December 19, 2011 /s/ Noel L. Hillman 

At Camden, New Jersey NOEL L. HILLMAN, U.S.D.J.

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