United States District Court, D. New Jersey
matter comes before the Court on a motion to dismiss the
complaint. Because the complaint is facially deficient, the
motion will be granted, without prejudice to the submission
of a proposed amended complaint within 30 days.
operative allegations of the complaint filed by the
plaintiff, Robert Jager, read in their entirety as follows:
The Plaintiff by way of Complaint says that the above named
Defendants conspired to deprive me of my 1987 Mack Superliner
Mack tractor truck valued at $20, 000.00.
The jurisdiction of this Court is involved pursuant to 28 USC
1332 and 18 USC 371; 1962, 6d. This Complaint encompasses
acts of conspiratorial activity engaged in by the Defendants.
Wherefore, Plaintiff demands money damages in the amount of
$20, 000.00 plus punitive damages and such other and further
relief as this Honorable Court deems equitable, appropriate
(Cplt., ECF no. 1)
J&M Towing has filed a motion to dismiss the complaint
pursuant to Fed.R.Civ.P. 12(b)(1) (lack of diversity
jurisdiction) and 12(b)(6) (failure to state a claim).
12(b)(1) challenge to the court's subject matter
jurisdiction may be either facial or factual attacks.
See 2 Moore's Federal Practice § 12.30
(3d ed. 2007); Mortensen v. First Fed. Sav. &
LoanAss'n, 549 F.2d 884, 891 (3d Cir. 1977). A
facial challenge asserts that the complaint does not allege
sufficient grounds to establish subject matter jurisdiction.
Iwanowa v. Ford Motor Co., 67 F.Supp.2d 424, 438
(D.N.J. 1999). A factual attack may involve the submission of
evidence extrinsic to the pleading. Gould Elecs. Inc. v.
United States, 220 F.3d 169, 178 (3d Cir. 2000),
holding modified on other grounds by Simon v. United
States, 341 F.3d 193 (3d Cir. 2003).
"In reviewing a facial attack, the court must only
consider the allegations of the complaint and documents
referenced therein and attached thereto, in the light most
favorable to the plaintiff." [citing Gould Elecs.
Inc. v. United States, 220 F.3d 169, 176 (3d Cir.
2000).] By contrast, in reviewing a factual attack, "the
court must permit the plaintiff to respond with rebuttal
evidence in support of jurisdiction, and the court then
decides the jurisdictional issue by weighing the evidence. If
there is a dispute of a material fact, the court must conduct
a plenary hearing on the contested issues prior to
determining jurisdiction." [citing McCann v. Newman
Irrevocable Trust, 458 F.3d 281, 290 (3d Cir. 2006)
Lincoln Ben. Life Co. v. AEILife, LLC, 800 F.3d 99,
105 (3d Cir. 2015) (footnotes omitted; case citations in
footnotes inserted in text)
both sides have attempted to submit extrinsic factual
materials, these do not relate to the question of subject
matter jurisdiction. The Rule 12(b)(1) ...