(KM)(MAH) Plaintiff,

MEMORANDUM OPINION

MARIA R. ALVAREZ-PRIETO, M.D. and

NEUROLOGY & PAIN TREATMENT

CENTER, P.C.,

Defendants.

MCNULTY, U.S.D.J.:

This matter comes before the Court on the motion of the Defendants,

Maria R. Alvarez-Prieto and Neurology & Pain Treatment Center, P.C., to

dismiss the Second Amended Complaint (“SAC”) for lack of subject matter

jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1). Because I find that the

Plaintiff, James J. Polidoro, has failed to establish that subject matter

jurisdiction exists, I will dismiss the Complaint. This dismissal is, however,

without prejudice to restoration if Plaintiff, within 60 days, submits sufficient

evidence that he was a citizen of New York on March 8, 2011 when this action

was filed.

I. Background

The Plaintiff’s SAC brings claims for breach of contract, fraud, intentional

infliction of emotional distress, and negligent infliction of emotional distress

against Dr. Maria R. Alvarez-Prieto and the Neurology and Pain Treatment

Center, P.C. SAC (Docket No. 21) ¶J 31 — 58. These claims relate to the alleged

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paralysis, TMJ dysfunction, thoracic herniation, lumbar herniation, and “circle

damage.” Id. ¶ 11. He also alleges that he can no longer work and is preparing

to file for permanent disability. Id.

Polidoro brought a case against the other driver, Shah Deen, for his

injuries. Id. ¶ 10, 12. His treating physician, Dr. Enrique Hernandez, was to

testify as the “lead expert witness” for the trial, but left practice in 2008 on

disability. Id. ¶ 14. Dr. Hernandez’s wife, Alvarez-Prieto, took over his practice.

Id. ¶ 15. Polidoro alleges that it was then necessary to obtain a re-evaluation

and substitute Alvarez-Prieto as the lead expert witness for his trial. Id.

Polidoro alleges that that Alvarez-Prieto agreed to be his “takeover

neurologist and expert witness.” Id. ¶ 16. She allegedly received $500 at the

time of the re-evaluation and agreed to a $3,000 fee payable on the day of trial.

Id. Alvarez-Prieto created a re-evaluation report for Polidoro on June 5, 2008,

approximately 90 days before the initial scheduled trial date. Id.

The trial date was adjourned to March 9, 2009 after Polidoro obtained

new counsel. Id. ¶ 18. On the date of trial, counsel appeared before the trial

judge but Alvarez-Prieto was not in attendance. Id. ¶ 22. The trial judge was

not willing to adjourn the matter further or allow Polidoro to retain a new

expert. Id. Polidoro alleges that Alvarez-Prieto stated that she “picks and

chooses who she testifies for and that she didn’t have the time,” for his case.

Id. ¶ 23.

Polidoro asserts that Alvarez-Prieto had a fiduciary duty to him and a

contractual obligation to appear as an expert witness at the trial. Id. ¶ 24. His

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The parties agree that, at the time of the accident in 2003, Polidoro was a

citizen of New Jersey, having his domicile in Bloomfield. Police Report (Docket

No. 23-4), Exh. A.

The original Complaint was filed on March 8, 2011, and the case was

assigned to District Judge Dennis M. Cavanaugh. (Docket No. 1). In that

Complaint, the Plaintiff pro se alleged claims against Alvarez-Prieto and Dr.

Ivan R. Dressner. See id. The Complaint listed Polidoro’s addresses as follows:

James J. Polidoro

25 Bay Terrace, Unit 1C

Staten Island, NY 10306

(973) 449-1900

Mailing Address:

C/O Susan Onofrietto

408 Fairfield Road

Fairfield, NJ 07004

Id. Ms. Onofrietto, at the Fairfield address, is Plaintiff’s mother. Polidoro Deci.

(Docket No. 24-2) ¶ 9. The Complaint purported to base jurisdiction on

“diversity of residence” and alleged damages in excess of $75,000. Compi. ¶ 1.

An Amended Complaint was filed on May 26, 2011, dropping Dressner

from the complaint and adding the Neurology & Pain Treatment Center as a

Defendant. (Docket No. 3). The Amended Complaint listed Polidoro’s addresses

as in the original complaint:

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C/O Susan Onofrietto

408 Fairfield Road

Fairfield, NJ 07004

Id. The Amended Complaint also purported to base jurisdiction on “diversity of

residence.” Id. ¶ 3.

On July 20, 2011, Polidoro filed a change of address with the Court. He

stated that his new permanent residence was at the Fairfield, NJ address.

(Docket No. 6).

Polidoro requested the entry of default and default was entered on

August 9, 2011. (Docket No. 8). Judge Cavanaugh vacated the entry of default

on January 26, 2012. (Docket No. 11). Polidoro obtained counsel who entered a

substitution of attorney on March 1, 2012. (Docket No. 12). Polidoro then filed

a motion for entry of default judgment on March 20, 2012 and the Defendantscross-moved to vacate the entry of default judgment on April 2, 2012. (Docket

Nos. 14, 16). The case was reassigned to me on August 2, 2012. (Docket No.

17). I denied the motion for default judgment and denied as moot the cross

motion to vacate on September 12, 2012. (Docket No. 19).

That same day I issued an Order to Show Cause (“OTSC”) ordering the

Plaintiff to show why subject matter jurisdiction existed because the Complaint

did not properly allege the citizenship of the parties. (Docket No. 18). The

Plaintiff’s brief in response addressed the citizenship of the Defendants but not

of the Plaintiff. (Docket No. 20). No further action was taken on the OTSC.

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the SAC for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P.

1 2(b)( 1). (Docket No. 23).

II. DISCUSSION

The Defendants bring their motion on the basis of lack of subject matter

jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1). The Plaintiff has the burden of

establishing that subject matter jurisdiction exists. Gould Elecs. Inc. v. United

States, 220 F.3d 169, 178 (3d Cir. 2000); Mortensen v. First Fed. Say. & Loan

Ass’n, 549 F.2d 884, 891 (3d Cir. 1977). Rule 12(b)(1) challenges may be either

facial or factual attacks. See 2 MOORE’S FEDERAL PRACTICE § 12.30[4} (3d

ed. 2007); Mortensen, 549 F.2d at 891 (3d Cir. 1977). A facial challenge asserts

that the complaint does not allege sufficient grounds to establish subject

matter jurisdiction. Iwanowa v. Ford Motor Co., 67 F. Supp. 2d 424, 438

(D.N.J. 1999). A court considering such a facial challenge assumes that the

allegations in the complaint are true, and may dismiss the complaint only if it

nevertheless appears that the plaintiff will not be able to assert a colorableclaim of subject matter jurisdiction. Cardio—Med. Assoc., Ltd. v. Crozer—Chester

Med. Ctr., 721 F.2d 68, 75 (3d Cir. 1983); Iwanowa, 67 F. Supp. 2d at 438. A

factual challenge, however, attacks subject-matter jurisdiction by challenging

the truth (or completeness) of the jurisdictional allegations set forth in the

complaint. Mortensen, 549 F.2d at 891. Thus a factual jurisdictionalproceeding may not occur until the plaintiff’s allegations have been

The SAC also states that jurisdiction is invoked pursuant to “42 U.S.C. § 12117 and 28 U.S.C. § 1331, 1332, 1342(a)(4).” SAC ¶ 1. However the SAC does not plead

any federal causes of action from which federal question jurisdiction would arise, including any civil rights violations pursuant to 28 U.S.C. § 1342(a)(4). See 28 U.S.C. § 1331. In addition, Polidoro’s Opposition does not assert any bases for jurisdiction other than diversity of citizenship. See Docket No. 24.

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The Defendants’ motion, which includes factual material extraneous to

the SAC, is a factual attack on the Court’s subject matter jurisdiction. Def. Br.

(Docket No. 23-2) at 2. There is no federal question pleaded that would

otherwise give the Court jurisdiction. See 28 U.S.C. § 1331. Diversity

jurisdiction is the only basis for the Court’s subject matter jurisdiction. See 28

U.S.C. § 1332. For diversity jurisdiction to exist, the Parties must be completely

diverse at the time of filing. Grupo Dataflux v. Atlas Global Group, 541 U.S. 567,

570 (2004). As to an individual, “citizenship” is equivalent to domicile, i.e., theindividual’s “true, fixed and permanent home and place of habitation.” McCann

v. Newman Irrevocable Trust, 458 F.3d 281, 286 (3d Cir. 2006) (citing Vlandis v.

Kline, 412 U.S. 441, 454, 93 S.Ct. 2230, 37 L.Ed.2d 63 (1973)).

The SAC alleges that the Plaintiff is a citizen of New York and the

Defendants are citizens of New Jersey. SAC ¶ 5 — 7. Polidoro did not submit

any additional evidence of his citizenship in response to the OTSC. The

Defendants argue that Polidoro has failed to meet his burden of establishing

that diversity jurisdiction exists because he has not produced evidence that heis a citizen of New York. Def. Br. at 2.

In support of their motion to dismiss, the Defendants submitted a

certification of counsel with supporting exhibits. See Docket No 23-3 — 23-8.

Defendants first point out that, as established above, the May 2011 Amended

Complaint listed both a Staten Island, New York address and a Fairfield, New

Jersey “mailing address” for Polidoro. Roberts Certif. (Docket No. 23-3) ¶ 6.

Defendants attach copies of November 2011 correspondence between Polidoro

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address stated in the SAC. Opp. (Docket No. 24) at 1. Polidoro does not dispute

that he lived in New Jersey at the time of the 2003 car accident causing hisinjuries. Opp. at 5. He asserts he moved to the Staten Island address in 2006;

lived there when the original and amended complaints were filed in March/May

2011; and continued to live there until August 2011. Id. In support of his

Opposition, Polidoro attached copies of utility bills from December 2008

through July 2009 and January 2009 through July 2009 showing the Staten

Island address. Id. at 2; Exhs. A, B (Docket No. 24-2). Polidoro also attached a

copy of a New York identification card issued on February 12, 2009. Exh. C

(Docket No. 24-2). He does not explain the reason for the two addresses or his

reasons for receiving his mail in New Jersey despite claiming a New York

domicile.

While the records submitted by the Plaintiff tend to suggest that he lived

in New York in 2008 and 2009, they do not bear on whether he lived in New

York when the original Complaint was filed in March 2011. Moreover, the dual

addresses, and Polidoro’s insistence on continuing to receive his mail in New

Jersey, tend to cut against the conclusion that he had a New York domicile.

Frankly, neither party’s showing is very convincing. Polidoro argues that

the Defendants have failed to put forth any evidence showing that he did not

live in Staten Island in March 2011. Opp. at 5. But the burden of showing that

the Parties are diverse, i.e., that Polidoro was a citizen of New York, is on the

Plaintiff, not on the Defendant. Mortensen, 549 F.2d at 891. Despite multiple

opportunities, Polidoro has not introduced any evidence, in response to the

OTSC or to this motion to dismiss, showing that he lived in New York at the

time of filing. Therefore, the Plaintiff has failed to meet his burden of proof that

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was bona fide.

Out of caution, then, I will not enter a final order of dismissal. I will

dismiss the action without prejudice to reinstatement if Plaintiff submits within

60 days adequate evidence of his New York citizenship as of March 8, 2011. If

appropriate, I will at that time address the need for jurisdictional discovery or

an evidentiary hearing as to jurisdiction. If there is no response or no adequate

response from Plaintiff, this dismissal will become final.

III. CONCLUSION

On the current record, the Plaintiff has not met his burden of

establishing subject matter jurisdiction. Therefore, the action is DISMISSED.

This dismissal is subject to Plaintiff’s submission àf adequate evidence of New

York citizenship within 60 days. Should Plaintiff fail to do so, this dismissal will

become final.

An Order will be entered in accordance with this Opinion.

Dated: January 7, 2014

Hon. Kevin McNulty V

United States District Judge

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