United States District Court, D. New Jersey
CHINEMEREM N. NJOKU, Plaintiff,
PERFECT PRIVACY LLC, Defendants.
REPORT AND RECOMMENDATION
LEDA DUNN WETTRE. UNITED STATES MAGISTRATE JUDGE.
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
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 ¶
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.
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.
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.
Subject Matter Jurisdiction
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.
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").
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
As explained below, the Court recommends a finding that the
defendant is not subject ...