JAMES J. POLIDORO, Plaintiff,
MARIA R. ALVAREZ-PRIETO, M.D. and NEUROLOGY & PAIN TREATMENT CENTER, P.C., Defendants.
KEVIN McNULTY, District Judge.
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.
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) ¶¶ 31-58. These claims relate to the alleged failure of Dr. Alvarez-Prieto to testify as an expert witness in a personal injury suit brought by the Plaintiff regarding a 2003 car accident.
Polidoro alleges that he received significant injuries in a car accident in Belleville, New Jersey on July 4, 2003. Id. ¶¶ 10-11. His injuries included "closed head injury, " loss of hearing in his left ear, sinus fracture, ocular 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 SAC brings counts against Dr. Alvarez-Prieto and her practice, Neurology & Pain Treatment Center, P.C., for breach of express contract (Count 1), breach of implied contract (Count 2), fraud (Count 3), intentional infliction of emotional distress (Count 4), and negligent infliction of emotional distress (Count 5). Id. ¶¶ 31-58.
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:
Id. Ms. Onofrietto, at the Fairfield address, is Plaintiff's mother. Polidoro Decl. (Docket No. 24-2) ¶ 9. The Complaint purported to base jurisdiction on "diversity of residence" and alleged damages in excess of $75, 000. Compl. ¶ 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 ...