UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

WADIA PHILLIP,

 Plaintiff,

v.

ATLANTIC CITY MEDICAL CENTER,

et al.,

 Defendants.

Civil No. 11-2468 (NLH/KMW)

OPINION

APPEARANCES:

Wadia Phillip

1932 Cologne Avenue 

Unit M-12 

Mays Landing, New Jersey 08330

Pro Se Plaintiff

Eric M. Wood, Esquire 

Fox Rothschild LLP 

Midtown Building 

1301 Atlantic Avenue 

Suite 400 

Atlantic City, New Jersey 08401

Attorney for Defendants AtlantiCare Health System, Inc., J.

Merendino, R.N., Ellen C. Angtuaco, R.N., Jean Craig, R.N.,

Barbara Bergman, R.N., and Teri Scheider 

Timothy M. Crammer, Esquire 

Crammer, Bishop, Marczyk & O'Brien, PC 

508 New Jersey Avenue 

Suite B3 

Absecon, New Jersey 08201 

Attorney for Defendant Dr. Jonathan Gewirtz, M.D.

HILLMAN, District Judge

Presently before the Court are two motions [Doc. Nos. 45,

46] to dismiss Plaintiff’s Second Amended Complaint pursuant to

Federal Rule of Civil Procedure 12(b)(1) for lack of subject

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matter jurisdiction by Defendants AtlantiCare Health System,

Inc., J. Merendino, R.N., Ellen C. Angtuaco, R.N., Jean Craig,

R.N., Barbara Bergman, R.N., Teri Scheider, and Dr. Jonathan

Gewirtz, M.D. Plaintiff opposes Defendants’ motions. The Court

has considered the parties’ submissions and decides this matter

pursuant to Federal Rule of Civil Procedure 78. 

For the reasons expressed below, the pending motions are

granted, and Plaintiff’s Second Amended Complaint is dismissed

without prejudice. 

I. BACKGROUND

A. Pleadings Filed by Plaintiff

Plaintiff appears in this case pro se, and over the course

of this litigation has filed an Original Complaint, an Amended

Complaint, and a Second Amended Complaint. These pleadings

reflect Plaintiff’s multiple attempts to explain, in essence,

that she believed she was pregnant with twins in 1992 and that

one of the twins allegedly died at birth as a result of the

actions of the medical personnel who treated her during the

pregnancy and the delivery. None of these pleadings alone set

forth a clear or comprehensive picture of Plaintiff’s claims or

the facts of the case. As a result, the Court must describe each

pleading with some detail in order to properly address the

pending motions regarding the Court’s subject matter

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jurisdiction. 

1

As the Court set forth in its March 20, 2012 Opinion [Doc.

No. 35], Plaintiff’s Original Complaint in this action was

received by the Clerk of Court on April 29, 2011, along with her

application to proceed in forma pauperis. (See Compl. [Doc. No.

1], IFP Application [Doc. No. 1-1].) By Order dated June 2,

2011, the Court granted Plaintiff’s application to proceed in

forma pauperis and directed the Clerk to file the Original

Complaint in this matter. (Order [Doc. No. 5] 1, June 2, 2011.) 

After summonses were issued, but prior to the time the Original

Complaint was served, Plaintiff filed an Amended Complaint on

June 13, 2011. (See Am. Compl. [Doc. No. 8].) 

The Original Complaint consists of the following: (1) the

first page of a hand-written complaint for medical malpractice

Generally, once an amended complaint is filed, the amended 1

complaint is the operative pleading and it replaces all prior

versions of the complaint. Snyder v. Pascack Valley Hosp., 303

F.3d 271, 276 (3d Cir. 2002) (“An amended complaint supercedes

the original version in providing the blueprint for the future

course of a lawsuit.”) However, because Plaintiff is proceeding

pro se in this action, the Court must construe Plaintiff’s

complaint and any additional submissions liberally. Wallace v.

Fegan, No. 11-3572, 2011 WL 6275996, at *1 (3d Cir. Dec. 16,

2011) (“Pleadings and other submissions by pro se litigants are

subject to liberal construction[.]) (citing Higgs v. Att'y Gen.,

655 F.3d 333, 339 (3d Cir. 2011)). 

Plaintiff’s Second Amended Complaint states “[t]his

Plaintiff incorporates herein all defenses asserted by self or

hereinafter filed.” (Second Am. Compl. 4.) Given Plaintiff’s pro

se status, the Court liberally construes the Original Complaint,

the Amended Complaint, the Second Amended Complaint together in

ruling on the pending motions. See Dukes v. Lancer Ins. Co., No.

08-4948, 2009 WL 3128467, at *1 n.2 (D.N.J. Sept. 24, 2009). 

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dated May 16, 1994 against Atlantic City Medical Center and

Atlantic Women’s Care, a complaint which Plaintiff previously

filed in the Superior Court of New Jersey Law Division in

Atlantic County, docket number ATL-L-001916-94, (see Compl. 1);

(2) a four-page typed “Statement of Facts” which, as far as the

Court can discern, is taken from a previous submission Plaintiff

filed on appeal to the New Jersey Superior Court Appellate

Division, (see id. at 2-5); (3) a one-page document consisting of

four ultrasound pictures dated March 3, 1992 taken for Plaintiff

at Atlantic City Medical Center, which appear to identify the

“head” and “body” of a fetus, (see id. at 6); and (4) a medical

chart, the nature of which is not specified and the Court remains

unable to determine at this time. (See id. at 7.) 

In Plaintiff’s June 13, 2011 Amended Complaint, under “Title

of Action,” Plaintiff entitled her case as one for “wrongful

death.” (Am. Compl. 1.) The Amended Complaint named the

following Defendants: AtlantiCare Health System, Inc.; Dr. Wayne

G. Danclar, M.D., OB/GYN; Dr. Jonathan Gewirtz, M.D.; Dr. Allan

R. Wentt, M.D.; Elizabeth Huges, R.N.; Susan Reber; Clara Brown,

R.N.; Diane Sutherland, R.N.; J. Merendino, R.N.; Jean Craig,

R.N.; Barbara Bergman, R.N.; Tracie M Ferra, R.N.; Ellen C.

Angtuaco, R.N.; F. Florio; and Teri Scheider. (Id.) Several

Defendants moved for dismissal of the Amended Complaint [Doc.

Nos. 18, 19, 25] and in an Order dated March 20, 2012 [Doc. No.

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36], the Court denied the motion in part, granted the motion in

part, and permitted Plaintiff thirty days leave to file a Second

Amended Complaint.2

By Order dated June 7, 2012, the Court granted Plaintiff one

final extension of time and ordered that the Second Amended

Complaint be filed by no later than August 6, 2012. Plaintiff

filed the Second Amended Complaint on August 7, 2012, and

subsequently filed an addendum on August 20, 2012. (See Second

Am. Compl. and Addendum [Doc. Nos. 42, 43].) The Second Amended

Complaint, a five-page hand-written letter, includes ten

“affirmative defenses,” a “demand for statement of damages,” a

“demand for contribution,” a “demand for jury trial and notice,”

and an attached letter to the Court acknowledging the expiration

of the now sixty days leave. (Second Am. Compl. 2-5; Letter to

the Court 6-7.) Plaintiff’s addendum to the Second Amended

Complaint includes a modified damages demand. (Addendum Second

Am. Compl. 2.)

The Court’s March 20, 2012 Opinion [Doc. No. 35] detailed

the underlying facts and allegations of Plaintiff’s case. 

Finding that the Amended Complaint failed to make 2

sufficient allegations to support either the exercise of federal

question jurisdiction or diversity of citizenship jurisdiction,

the Court dismissed Plaintiff’s Amended Complaint for lack of

subject matter jurisdiction. See March 20, 2012 Opinion [Doc.

No. 35] 23-24. Additionally, the Court found that it lacked

authority to rule on the merits of Defendants’ alternative

arguments. Id. 

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Accordingly, the Court sets forth herein only those facts

relevant to ruling on the present motion. As stated in the

Original Complaint, Plaintiff alleges that in early March of

1992, Plaintiff was “diagnosed” as being pregnant with twins. 

(Compl. at 1-3.) Plaintiff contends that she went into pre-term

labor on May 15, 1992, and that during the course of her labor,

Defendants gave her the drug Demerol. (Am. Compl. 1). Plaintiff

alleges that after suffering from a “drastic” increase in blood

pressure she was told that she was “having only one baby and one

fibroid.” (Compl. 4.) Plaintiff alleges the Demerol put the

babies in “distress” during labor, causing “Baby B” to die in

utero. (Am. Compl. 1.) Plaintiff contends that the “doctor

murdered ‘Baby B’ and never told [Plaintiff] what he did with her

body.” (Id.)

Plaintiff’s Second Amended Complaint sets forth ten

“affirmative defenses” but does not contain any factual 3

allegations. (Second Am. Compl. 4.) 4

Ordinarily, an affirmative defense is asserted by a 3

defendant in response to a plaintiff’s stated claims. Here,

Plaintiff appears to use the term to rebut defenses she

anticipates the defense will raise in their responsive pleadings. 

For example, Plaintiff’s sixth affirmative defense within 4

her Second Amended Complain states that “Recovery on the claims

set forth in the Complaint should not be barred by the

contributory wantonness of the injured [P]laintiff.” (Second Am.

Compl. 3.) Plaintiff’s ninth affirmative defense states that

“The Complaint should not be dismissed at this Court. Heart rate

and [p]ictures don’t lie.” (Id.)

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II. JURISDICTION

Plaintiff does not allege a specific basis for the

jurisdiction of this Court in either the Original, the Amended,

or the Second Amended Complaint. The Court previously noted that

no federal question jurisdiction exists pursuant to 28 U.S.C. §

1331. See March 20, 2012 Opinion [Doc. No. 35] 19-20 (concluding

“that Plaintiff’s complaint fail[ed] to set forth a sufficient

basis for the exercise of federal question jurisdiction”).

IV. DISCUSSION

As set forth supra, currently pending before the Court are

two motions to dismiss Plaintiff’s complaint pursuant to Federal

Rule of Civil Procedure 12(b)(1) for lack of subject matter

jurisdiction. The first motion [Doc. No. 45] was filed by

Defendant Dr. Jonathan Gewirtz, M.D. Defendant Gewirtz argues

that Plaintiff’s Second Amended Complaint fails to set forth any

allegations of fact regarding Plaintiff’s citizenship or the

citizenship of the various defendants. (Def. Gewirtz’s Mot. to

Dismiss [Doc. No. 45] 35.) Defendant Gewirtz argues that because

the Court has determined that is does not have federal question

jurisdiction pursuant to 28 U.S.C. § 1331, and because Plaintiff

has failed to allege sufficient facts regarding the citizenship

of the parties, the Court cannot assert subject matter

jurisdiction on the basis of diversity of citizenship

jurisdiction pursuant to 28 U.S.C. § 1332. (Id. at 6-7.)

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The second motion [Doc. No. 46] to dismiss filed by

Defendants Craig, Merendino, Scheider, Bergman, Angtonor and

AtlantiCare Health System, Inc. is virtually identical in form

and substance to the motion filed by Defendant Gewirtz, and

presents the same arguments in support of dismissal. As these

arguments are duplicative of Defendant Gewirtz’s arguments, the

Court does not set forth the individual arguments of Defendants

Craig, Merendino, Scheider, AtlantiCare Health System, Inc.,

Angtonor, and Bergman in this Opinion. 

A motion to dismiss pursuant to Federal Rule of Civil

Procedure 12(b)(1) challenges the existence of a federal court's

subject matter jurisdiction. “When subject matter jurisdiction

is challenged under Rule 12(b)(1), the plaintiff must bear the

burden of persuasion.” Symczyk v. Genesis HealthCare Corp., 656

F.3d 189, 191 n.4 (3d Cir. 2011) (citing Kehr Packages, Inc. v.

Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991)). A motion to

dismiss for lack of subject matter jurisdiction may either (1)

“attack the complaint on its face” or (2) “attack the existence

of subject matter jurisdiction in fact, quite apart from any

pleadings.” Mortensen v. First Fed. Sav. & Loan Ass’n, 549 F.2d

884, 891 (3d Cir. 1977). “The defendant may facially challenge

subject matter jurisdiction by arguing that the complaint, on its

face, does not allege sufficient grounds to establish subject

matter jurisdiction.” D.G. v. Somerset Hills School Dist., 559

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F. Supp. 2d 484, 491 (D.N.J. 2008). On a facial attack, “the

court must consider the allegations of the complaint as true.” 

Mortensen, 549 F.2d at 891. “A defendant can also attack subject

matter jurisdiction by factually challenging the jurisdictional

allegations set forth in the complaint.” D.G., 559 F. Supp. 2d

at 491. 

Upon a factual attack, by contrast, the court need not

presume the truth of the allegations and “is free to weigh the

evidence and satisfy itself as to the existence of its power to

hear the case.” Mortensen, 549 F.2d at 891. Moreover, when

considering a factual challenge to the Court’s jurisdiction under

Rule 12(b)(1), the Court is “not confined to the allegations in

the complaint ... and can look beyond the pleadings to decide

factual matters relating to jurisdiction.” Cestonaro v. U.S.,

211 F.3d 749, 752 (3d Cir. 2000) (citing Mortensen, 549 F.2d at

891). The defendant may factually attack subject matter

jurisdiction at any stage in the litigation, including before the

answer has been filed. D.G., 559 F. Supp. 2d at 491.

IV. ANALYSIS

The basic statutory grants of federal court subject-matter

jurisdiction are contained in 28 U.S.C. § 1331, which provides

for federal question jurisdiction, and § 1332, which provides for

diversity of citizenship jurisdiction. Arbaugh v. Y&H Corp., 546

U.S. 500, 501 (2006). The Court previously ruled that there is

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no federal question jurisdiction over Plaintiff’s claims pursuant

to 28 U.S.C. § 1331. (See March 20, 2012 Opinion [Doc. No. 35]

19-20.) Plaintiff’s Second Amended Complaint does not alter the

Court’s analysis in that regard because nothing in Plaintiff’s

Second Amended Complaint, even liberally construed, can be said

to allege a federal claim rather than a state law claim. 

The Court now turns to the question of whether the Court may

properly exercise jurisdiction over Plaintiff’s state law claims

under diversity of citizenship jurisdiction. As the Court

previously explained, to establish diversity jurisdiction under

28 U.S.C. § 1332(a), “the party asserting jurisdiction must show

that there is complete diversity of citizenship among the parties

and an amount in controversy exceeding $75,000.” Schneller, 387

F. App’x at 292. In this regard, a plaintiff relying on

diversity of citizenship as the asserted basis for 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)

(internal citations omitted). Thus, the Court may properly

dismiss a complaint for lack of subject matter jurisdiction in

the absence of complete diversity –- i.e., where the plaintiff

and any defendant are citizens of the same state. Schneller, 387

F. App’x at 292 (affirming district court’s determination that it

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lacked diversity jurisdiction where plaintiff and eleven

defendants were citizens of the same state).

Moreover, as both the Supreme Court and the Third Circuit

have recognized, “[i]t is ... well established that when

jurisdiction depends upon diverse citizenship the absence of

sufficient averments or of facts in the record showing such

required diversity of citizenship is fatal and cannot be

overlooked by the court, even if the parties fail to call

attention to the defect, or consent that it may be waived.” 

Carlsberg Res. Corp. v. Cambria Sav. & Loan Ass'n, 554 F.2d 1254,

1256 (3d Cir. 1977) (citing Thomas v. Bd. of Trs. of Ohio State

Univ., 195 U.S. 207, 211 (1904)). Thus, the Court can only

“properly determine whether complete diversity of the parties in

fact exists and thus whether the Court has jurisdiction to

adjudicate the matter[,]” when the plaintiff, even if proceeding

pro se, affirmatively pleads facts regarding the citizenship of

individual defendants and the dual citizenship of corporate

defendants. Poling v. K. Hovnanian Enters., 99 F. Supp. 2d 502,

515 (D.N.J. 2000). Therefore, a court may also properly dismiss

a complaint where the plaintiff fails to allege sufficient facts

for the court to evaluate whether diversity of citizenship

exists. See Poling, 99 F. Supp. 2d at 515-16 (dismissing, in its

entirety, action by pro se plaintiffs for lack of subject matter

jurisdiction where plaintiffs failed to allege sufficient facts

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for the court to evaluate the existence of diversity

jurisdiction). 

Here, Defendants facially challenge the Court’s jurisdiction

arguing that Plaintiff has made no averments in any of her

complaints to show complete diversity of citizenship between the

parties. (See Def. Gewirtz’s Br. in Supp. of Mot. for to Dismiss

[Doc. No. 45] 7; Defs. AtlantiCare Health System, Inc., Craig,

Merendino, Scheider, Bergman and Angtuaco’s Br. in Supp. of Mot.

to Dismiss [Doc. No. 46] 7.) In considering Defendants’ facial

jurisdictional challenge, this Court “must consider the

allegations of the complaint as true.” Mortensen, 549 F.2d at

891. Although the Court must construe Plaintiff’s pro se

complaint liberally and accept Plaintiff’s allegations as true 5

on this facial challenge, Plaintiff still bears the burden of

asserting jurisdiction and “must specifically allege each party's

citizenship, and these allegations must show that the plaintiff

and defendant[s] are citizens of different states.” Gay, 2011 WL

5025116, at *4. 

Here, even construing the pleadings liberally, neither the

Even though Plaintiff’s complaint is held to a less 5

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 jurisdiction[,] bears the burden of showing

that the case is properly before the court at all stages of the

litigation.” Schneller ex rel. Schneller v. Crozer Chester Med.

Ctr., 387 F. App’x 289, 292 (3d Cir. 2010) (citing Packard v.

Provident Nat’l Bank, 994 F.2d 1039, 1045 (3d Cir. 1993)).

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Original, the Amended or the Second Amended Complaint make any

affirmative averments regarding the citizenship of any of the

parties. For example, with respect to Plaintiff’s citizenship,

the Court notes that in all her pleadings, Plaintiff alleges only

that her address is in the state of New Jersey. Specifically,

Plaintiff’s Second Amended Complaint states her mailing address

as 1932 Cologne Ave, Unit M-12, Mays Landing, New Jersey, but

fails once again to assert her domicile or citizenship as opposed

to a residence or mailing address. See McNair v. Synapse Group

Inc., 672 F.3d 213, 219. “[F]or purposes of diversity

jurisdiction, citizenship [of an individual] means domicile, not

residence.” Pierro v. Kugel, 386 F. App’x 308, 309 (3d Cir.

2010) (citing Krasnov v. Dinan, 465 F.2d 1298, 1300 (3d Cir.

1972)). The Court pointed out this same deficiency in the March

20, 2012 Opinion, and despite granting Plaintiff leave to file a

Second Amended Complaint to correct this error, Plaintiff has

failed to do so. As a result, the Court remains unable to

determine at this time whether Plaintiff is a citizen of New

Jersey because she simply lists a New Jersey address for herself,

but fails to specifically aver whether she merely resides at that

New Jersey address or is a New Jersey domiciliary. See McNair 6

The Court again recognizes the likelihood that Plaintiff is 6

in fact a citizen of New Jersey, but at this time, the Original,

Amended, and Second Amended Complaints lack sufficient averments

to allow the Court to determine Plaintiff’s citizenship. 

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v. Synapse Group Inc., 672 F.3d 213, *4 (3d Cir. 2012)

(recognizing that averments of a party’s “residency” -- as

opposed to “citizenship” or “domicile” -- are “jurisdictionally

inadequate in [a] diversity of citizenship case.”) 

Furthermore, the Second Amended Complaint contains no

averments as to the citizenship of any of the Defendants, and in

no way attempts to correct the deficiencies with Plaintiff’s

pleadings outlined in the Court’s March 20, 2012 Opinion. 

As a result of these continued deficiencies, which remain

uncorrected by Plaintiff, the Second Amended Complaint is, much

like the Original and Amended Complaints, essentially silent as

to the citizenship of the parties, and therefore, the Second

Amended Complaint is once again subject to dismissal for lack of

subject matter jurisdiction. See Gay, 2011 WL 5025116, at *5. 

Because the existence of complete diversity between the parties 

is not apparent from any the pleadings to date, the Court cannot

exercise jurisdiction over this case under Section 1332. See

Burnett v. Lonchar, No. 11-716, 2011 WL 5519720, *3 (D.N.J. Nov.

10, 2011).

In light of the Court’s determination that the Second

Amended Complaint fails to make sufficient allegations to support

the exercise of diversity jurisdiction under Section 1332, the

Court must dismiss Plaintiff’s Second Amended Complaint without

prejudice for lack of subject matter jurisdiction. See Burnett,

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2011 WL 5519720, at *3-4. Accordingly, Defendants’ motions are

granted.

V. CONCLUSION

For the foregoing reasons, Defendants’ pending motions [Doc.

Nos. 45, 46] to dismiss are granted. An Order consistent with

this Opinion will be entered. 

Date: March 21, 2013 s/ Noel L. Hillman 

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

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