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Njoku v. Perfect Privacy LLC

United States District Court, D. New Jersey

May 14, 2018

CHINEMEREM N. NJOKU, Plaintiff,
v.
PERFECT PRIVACY LLC, Defendants.

          REPORT AND RECOMMENDATION

          HON. LEDA DUNN WETTRE. UNITED STATES MAGISTRATE JUDGE.

         This matter comes before the Court on defendant's motion to dismiss for lack of personal jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(2), or, in the alternative, to dismiss Count II pursuant to Federal Rule of Civil Procedure 12(b)(6). ECF No. 19. Plaintiff opposes the motion, ECF No. 20. The Honorable Susan Davis Wigenton, U.S.DJ., referred this motion to the undersigned for a Report and Recommendation. This motion is decided without oral argument pursuant to Federal Rule of Civil Procedure 78. Having considered the parties' written submissions, and for good cause shown, the Court recommends that defendant's motion to dismiss for lack of personal jurisdiction be GRANTED.

         I. BACKGROUND

         Plaintiff alleges defendant published false and defamatory statements about plaintiff on the website www.chinemeremnjoku.com, thereby injuring this personal and professional reputations. Plaintiff brings this action pursuant to this Court's diversity of citizenship jurisdiction. Second Amended Complaint ("SAC") ECF No. 18 ¶ 10.[1]

         Plaintiff is a licensed attorney with a law firm in Elizabeth, New Jersey. Id. ¶ 7. The Second Amended Complaint ("SAC") alleges defendant "specifically created a website with Plaintiffs full name," and published false information in order to damage his reputation. Id. ¶ 21. Specifically, the website allegedly contained assertions that plaintiff "is known for posting Google paid ads to defame petroleum companies that won't do business with him or his criminal partner," and that plaintiff is a "career criminal, a scammer, a con-man and . . . runs an incompetent law firm." Id. ¶¶ 27, 28. The website also allegedly included plaintiffs photograph and professional online profiles. Id., ¶¶ 29, 30. According to the SAC, due to this website, plaintiff was denied an opportunity to apply for a job as a municipal prosecutor and lost the business of potential and existing clients. Id. ¶¶ 43-45, 48.

         Plaintiff filed the initial Complaint in this Court on November 28, 2017. ECF No. 1. Defendant moved to dismiss that Complaint for lack of subject matter jurisdiction and personal jurisdiction, or in the alternative, pursuant to Federal Rule of Civil Procedure 12(b)(6). ECF No. 3. Plaintiff filed the First Amended Complaint on January 22, 2018, ECF No. 8, which defendant moved to dismiss on the same grounds. ECF Nos. 10, 11. In his opposition to that motion, Plaintiff moved for sanctions against defendant. See ECF No. 13. Plaintiff thereafter filed a Second Amended Complaint without consent or leave of Court, as required by Federal Rule of Civil Procedure 15, ECF No. 14, after which the Court held a telephone conference with the parties on February 22, 2018. During the conference, plaintiff agreed to withdraw his motion for sanctions and defendant consented to the filing of plaintiff s SAC, which was filed again on February 23, 2018. See ECF Nos. 17, 18. Defendant filed the instant motion to dismiss on March 2, 2018. ECF No. 19.

         II. DISCUSSION

         Defendant moves to dismiss on the grounds that this Court lacks personal jurisdiction over it, or in the alternative, to dismiss Count II of the SAC for failure to state a claim. Defendant raises for the first time in its reply brief the issue of subject matter jurisdiction. See ECF No. 21. For the reasons set forth below, the undersigned recommends that the District Court find the SAC has not sufficiently pleaded subject matter jurisdiction and that plaintiff has not met his burden to show personal jurisdiction exists over defendant.

         A. Subject Matter Jurisdiction

         1. Legal Standard

         A federal court is of limited jurisdiction and therefore, prior to adjudicating the merits of a case, it must independently assure itself that it has subject matter jurisdiction over the matter. Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 101 (1998). A motion to dismiss for lack of subject matter jurisdiction may either attack the complaint as deficient on its face or "attack the existence of subject matter jurisdiction in fact." Mortensen v. First Fed. Sav. & Loan Ass 'n, 549 F.2d 884, 891 (3d Cir. 1977). A facial challenge, such as defendant's asserts "that the complaint, on its face, does not allege sufficient grounds to establish subject matter jurisdiction." D.G. v. Somerset Hills School Dist., 559 F.Supp.2d 484, 491 (D.N J. 2008). On a facial attack, the court must accept the allegations of the complaint to be true. Mortensen, 549 F.2d at 891.

         Where, as here, plaintiff asserts federal diversity jurisdiction, 28 U.S.C. § 1332, he bears the burden of establishing diversity of citizenship and the requisite amount in controversy. McCann v. George W. Newman Irrevocable Trust, 458 F.3d 281, 286 (3d Cir. 2006). Specifically, plaintiff must allege each party's citizenship and these allegations must show that all plaintiffs are completely diverse from all defendants. Craven v. Leach, 641 F. App'x 72, 75 (3d Cir. 2016). A natural person's citizenship is determined by that person's domicile. Emerald Investors Trust v. Gaunt Parsippany Ptnrs, 492 F.3d 192, 207 n.24 (3d Cir. 2007). Allegations of a party's "residency" as opposed to "citizenship" or "domicile" are "jurisdictionally inadequate" to allege citizenship for diversity purposes. See id.; McNair v. Synapse Grp. Inc., 672 F.3d 213, 219 n.4 (3d Cir. 2012) (explaining that the averments that appellants were "residents" of their respective states "are jurisdictionally inadequate in this diversity of citizenship case").

         2. Discussion

         Defendant argues the Court lacks subject matter jurisdiction, as plaintiff has not sufficiently pleaded his citizenship in the SAC. The Court agrees. The SAC merely states that plaintiff is "resident" of New Jersey, rather than a "citizen" or "domiciliary" of the state. See SAC ¶¶ 2, 3. As explained by the Third Circuit, those averments, are "jurisdictionally inadequate" to plead diversity of citizenship, and therefore, the Court does not have subject matter jurisdiction over the SAC. McNair, 672 F.3d at 219 n.4.[2] As explained below, the Court recommends a finding that the defendant is not subject ...


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