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Michelle Johnson v. Rite Aid

June 28, 2011


The opinion of the court was delivered by: Hon. Dennis M. Cavanaugh




This matter comes before the Court upon the motion of Defendant Rite Aid Drug Palace, Inc. ("Rite Aid")*fn1 to dismiss the Complaint on the basis of lack of subject matter jurisdiction and insufficient service of process and to dismiss or transfer this action for improper venue. No oral argument was heard pursuant to Rule 78. For the reasons stated below, Allen's motion is denied and Plaintiffs' cross-motion to transfer is granted.


Plaintiff, a resident of New Jersey, suffered a slip and fall accident in a Rite Aid store in lower Manhattan on May 23, 2009. She instituted this diversity action on April 21, 2010 to recover damages for her injuries. The Complaint states that Rite Aid is "located at 408 Grand Street, New York," which is the address of the store where Plaintiff fell. Plaintiff served Rite Aid on July 7, 2010 by effectuating service on Tonya Brunson, a shift supervisor at the Manhattan store. In addition to naming Rite Aid as a Defendant, Plaintiff also sues ABC Corps. 1-3, "fictitious names which represent the unknown owners [] in possession, operation, control of certain premises and responsible for the condition, maintenance and upkeep of the property in question," and John Doe 1-3, "fictitious names which represent unknown agents, employees, contractors, and/or subsidiary responsible for the condition, maintenance, and upkeep of the property in question." Compl. Third Count, ¶ 2; Fourth Count, ¶ 2.


A. Subject Matter Jurisdiction For the purposes of diversity jurisdiction, "a corporation shall be deemed to be a citizen of any State by which it has been incorporated and of the State where it has its principal place of business." 28 U.S.C. § 1332(c)(1). The phrase "principal place of business," which will "typically be found at a corporation's headquarters," has been interpreted by the Supreme Court to mean "the place where the corporation's high level officers direct, control, and coordinate the corporation's activities," The Hertz Corp. v. Friend, 130 S. Ct. 1181, 1186 (2010).

Rite Aid argues that it is a citizen of New Jersey because it has one store in this state. The Court disagrees. Rite Aid has not offered any information regarding where its corporate headquarters are located. However, in an affidavit prepared by its Vice President of Tax, Rite Aid represents that it was incorporated in Delaware and operates "certain pharmacies within New York State . . . [and] one pharmacy within the State of New Jersey." Gleason Decl., Ex. C ¶¶ 1, 5, 6, 7. Because Rite Aid concedes that it does "only minimal business in the State of New Jersey," the Court finds that Rite Aid is not a citizen of New Jersey for the purposes of diversity jurisdiction. Def.'s Br. 11. Accordingly, as Plaintiff and Rite Aid are citizens of different States, the requirements in § 1332 have been satisfied.

The citizenship of Rite Aid does not end the Court's jurisdictional inquiry as the Court must next determine whether the joinder of fictitious parties defeats diversity jurisdiction. Plaintiff does not list the citizenship of the fictitious Defendants in the Complaint, presumably because she does not yet know the identity of those Defendants. Nonetheless, the Court finds that Plaintiff has met the burden of persuasion for establishing diversity jurisdiction. While the Third Circuit has not addressed the issue of fictitious defendants in the original diversity jurisdiction context, several courts have held that the presence of such defendants "neither creates a presumption that diversity is destroyed, nor requires Doe defendants to be named, abandoned, or dismissed in order for a diversity-based claim to be brought in federal court under § 1332." Merrill Lynch Bus. Fin. Servs., Inc. v. Heritage Packaging Corp., No. CV-06-3951, 2007 WL 2815741, at *3 (E.D.N.Y. Sept. 25, 2007) (quoting Weber, Co., Inc. v. Kosack, No. 96-CV-9581, 1997 WL 666246, at *2 (S.D.N.Y. Oct. 24, 1997) (internal quotation marks omitted)); see Doe v. Ciolli, 611 F. Supp. 2d. 216, 220 (D. Conn. 2009) ("'[T]he mere inclusion of John Doe defendants does not destroy complete diversity' until 'it is later found that one or more of the unknown defendants is domiciled such that there is not complete diversity.'" (quoting Merrill Lynch, 2007 WL 2815741, at *3)); Macheras v. Ctr. Art Galleries-Hawaii, Inc., 776 F. Supp. 1436, 1440 (D. Haw. 1991); see also Abels v. State Farm Fire & Casualty Co., 770 F.2d 26, (3d Cir. 1985) ("In determining whether diversity jurisdiction exists, the citizenship of purely 'nominal' parties may be disregarded."). Accordingly, the Court finds that merely including the fictitious Defendants will not defeat diversity jurisdiction at this time. Plaintiff should be aware, however, that she "runs of the risk of having the case dismissed entirely should an indispensable party, who is not diverse, later surface." Macheras, 776 F. Supp. at 1440.

B. Transfer of Venue

The venue statute provides that:

A civil action wherein jurisdiction is founded only on diversity of citizenship may, except as otherwise provided by law, be brought only in (1) a judicial district where any defendant resides, if all defendants reside in the same State, (2) a judicial district in which a substantial part of the events or omissions giving rise to the venue occurred, or a substantial part of property that is the subject of the action is situated, or (3) a judicial district in which any defendant is subject to personal jurisdiction at the time the action is commenced, if there is no district in which the action may otherwise be brought.

28 U.S.C. 1391(a). A corporation is "deemed to reside in any judicial district in which it is subject to personal jurisdiction at the time the action is commenced." 28 U.S.C. 1391(c). Despite seeking to dismiss this action for improper venue, Rite Aid concedes that it would be considered to reside in New Jersey for the purposes of venue. Def.'s Br. 5. Therefore, venue is proper in New Jersey. Venue is also proper in ...

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