Opinion
02 CV 5866 (SJ).
February 16, 2005
Jerome H. Diamond, New York, NY, Attorney for Plaintiffs.
RUBIN, FIORELLA FRIEDMAN, Edward F. Kenny, New York, NY, Attorney for Defendant Wayne J. Hasenmayer.
Koors and Jednak, Paul W. Koors, Bronx, NY, Attorney for Defendant and Cross-Claimant Dario Ortiz.
MEMORANDUM AND ORDER
Plaintiffs Jairo A. Osorio, Gloria Martinez, and Jose E. Blanco (collectively, "Plaintiffs") bring this action against Defendants Wayne J. Hasenmeyer, Dario Ortiz, George T. Ackary, and Robert A. Casey (collectively, "Defendants") seeking recovery for personal injuries. Presently before this Court is Defendant Hasenmeyer's Motion to Dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1), 12(b)(2), 12(b)(3), and 12(b)(5). For the reasons stated herein, the Motion is GRANTED under Federal Rule of Civil Procedure 12(b)(1). Although the remaining Defendants have not joined in the Motion to Dismiss, the Court finds that it lacks subject matter jurisdiction over the action and therefore the case must be dismissed with respect to all Defendants.
Because the Court finds that the case must be dismissed on this basis, it is not necessary to reach Defendant's remaining arguments regarding dismissal under 12(b)(2), 12(b)(3), or 12(b)(5).
STANDARD OF REVIEW
Rule 12(b)(1) of the Federal Rules of Civil Procedure provides for the dismissal of a claim when the federal court "lacks jurisdiction over the subject matter." Fed.R.Civ.P. 12(b)(1). In considering a 12(b)(1) motion to dismiss for lack of subject matter jurisdiction, a court must assume as true factual allegations in the complaint. Shipping Fin. Servs. Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir. 1998) (citing Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). The Plaintiff must then prove the Court's jurisdiction by a preponderance of the evidence.Id. A court may consider affidavits and other material beyond the pleadings to resolve jurisdictional questions under Rule 12(b)(1). Robinson v. Gov't of Malaysia, 269 F.3d 133, 141 n. 6 (2d Cir. 2001).
BACKGROUND
According to Plaintiffs' Complaint, Plaintiffs were passengers in a motor vehicle operated by Defendant Ortiz when the vehicle was involved in an accident with vehicles operated by Defendants Hasenmeyer, Ackary, and Casey, on Route I-95 in Jacksonville, Florida. (Compl. ¶¶ 10-12.) As a result of this accident Plaintiffs suffered personal injuries and disability. (Id. ¶ 16.)
DISCUSSION
According to Plaintiffs' Complaint, this Court has jurisdiction over the case based on diversity of citizenship. (Compl. ¶ 19.) The statute that grants Federal District Courts jurisdiction over diversity actions provides that the action must be between "citizens of different states." 28 U.S.C. § 1332. It is well-established that this is a complete diversity requirement, meaning that when multiple defendants are involved, the plaintiff must establish diversity with respect to every defendant. E.g. Handelsman v. Bedford Village Associates Ltd. Partnership, 213 F.3d 48, 51 (2d Cir. 2000); Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267, 2 L.Ed. 435 (1806). It is apparent that complete diversity is lacking in this action, as the Plaintiffs are all residents of New York and one of the Defendants, Defendant Ortiz, is also a resident of New York. (Compl. ¶¶ 1, 3.)
Although limited information is available regarding Defendant Ortiz's citizenship or domicile, the Court notes that in the context of 12(b)(1) motions to dismiss, the burden is on a plaintiff to demonstrate jurisdiction after a defendant has made a showing that jurisdiction is lacking. Shipping Fin. Servs. Corp., 140 F.3d at 131. In the present case, Plaintiffs' Memorandum of Law in Opposition to Defendant's Motion to Dismiss did not even address the jurisdictional issue, focusing only on venue. Plaintiffs' Affidavit in Opposition to the Motion to Dismiss appears to argue that Defendant Ortiz is not actually a Defendant in the action, because Defendant Ortiz is "also a plaintiff." (Pls.' Aff. ¶ 2.) The Affidavit further asserts that "at present, the only lawsuit extant is between eight claimants (and/or their estates) versus Hasenmayer." (Id. ¶ 5.) However, Defendant Ortiz is named as a Defendant in the Complaint, is listed as a Defendant in the captions to Plaintiffs' submissions in opposition to the Motion to Dismiss (Pls.' Mem. Law Opp'n Def.'s Mot. Dismiss; Pls.' Aff.), and was evidently served with a Summons and Complaint (Aff. Service Summons Compl.). Plaintiffs have not moved to amend the Complaint. Additionally, Defendant Ortiz's filing of a Cross-Claim makes him a Cross-Claimant, not a Plaintiff, and does not provide the Court with diversity jurisdiction.
Finally, there is no indication that Plaintiffs lack an adequate remedy in the form of a lawsuit initiated in state court. Plaintiffs have expressed concern about the difficulties of litigating in state court and the prejudice they expect to encounter there (Pls.' Aff. ¶ 7), but the Court notes that the vast majority of personal injury lawsuits are litigated in state courts, and the Court cannot exercise jurisdiction over the case in order to protect Plaintiffs from discrimination; rather, the Court can only exercise jurisdiction over cases that fall within the areas of jurisdiction defined by Congress.
CONCLUSION
For the reasons stated herein, Defendant's Motion to Dismiss is GRANTED with respect to all Defendants. The case is dismissed without prejudice. The Clerk of Court is directed to enter a final judgment of dismissal and to close the case.
SO ORDERED.