United States District Court, W.D. Virginia, Abingdon Division
Clifton L. Corker, Johnson City, Tennessee, and Thomas C. Jessee, Johnson City, Tennessee, for Plaintiff.
William M. Moffett and P. Danielle Stone, Penn, Stuart & Eskridge, Abingdon, Virginia, for Defendant NHC Healthcare/Bristol, LLC.
JAMES P. JONES, District Judge.
In this personal injury case, I will grant the defendant's Motion to Dismiss for insufficient allegations of subject matter jurisdiction, and the action will be dismissed without prejudice.
Dorothy Arnold, by her attorney-in-fact Patrick Arnold, filed this action against NHC Healthcare/Bristol, LLC ("NHC Healthcare"), a limited liability company which operated a skilled nursing facility in Bristol, Virginia, and against ten unknown John Does who are alleged to be "the administrators of [NHC Healthcare] during the residency of Dorothy Arnold." (Compl. ¶ 31, ECF No. 1.)
The Complaint contains state common law and statutory claims relating to Mrs. Arnold's alleged injury while under the care and supervision of NHC Healthcare.
The plaintiff asserts subject matter jurisdiction of this court on the basis of diversity of citizenship, and in support thereof alleges that Patrick Arnold is a citizen of Tennessee, and that NHC Healthcare is a citizen of Virginia. Defendant NHC Healthcare has moved to dismiss the action pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of such jurisdiction.
The plaintiff has not filed a response to the Motion to Dismiss within the time required under the court's local rules, W.D. Va. Civ. R. 11(c) (requiring response to a motion within 14 days of service), and accordingly the motion is now ripe for decision.
Pursuant to Rule 12(b)(1), a defendant may move to dismiss on the ground that the court lacks subject matter jurisdiction. A challenge to subject matter jurisdiction may proceed in two ways. See Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009). First, a defendant may attack the face of the complaint and contend "that a complaint simply fails to allege facts upon which subject matter jurisdiction can be based." Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982). In evaluating a facial challenge to subject matter jurisdiction, "the plaintiff, in effect, is afforded the same procedural protection as he would receive under a Rule 12(b)(6) consideration." Id.
Second, a defendant may attack subject matter jurisdiction as a matter of fact and argue "that the jurisdictional allegations of the complaint [are] not true." Id. Under those circumstances, a plaintiff receives less procedural protection, and "the district court is to regard the pleadings' allegations as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment." Richmond, Fredericksburg & Potomac R.R. v. United States, 945 F.2d 765, 768 (4th Cir. 1991).
In either circumstance, the plaintiff bears the burden. See Strawn v. AT&T Mobility LLC, 530 F.3d 293, 296 (4th Cir. 2008) ("[A] party seeking to adjudicate a matter in federal court must allege and, when challenged, must demonstrate the federal court's jurisdiction over the matter.").
Because in this case the jurisdictional allegations of the Complaint are facially insufficient, it is not necessary for me to ...