United States District Court, D. New Jersey
MEMORANDUM AND ORDER
G. SHERIDAN, U.S.D. JUDGE
matter first came before the Court on Defendant Valeant
Pharmaceuticals International Inc.'s Motion to Dismiss
Plaintiffs Amended Complaint pursuant Federal Rule of Civil
Procedure 12(b)(6). (ECF No. 14). Upon reviewing the Amended
Complaint, the Court directed the parties to submit
supplemental briefing on the question of "whether or not
the Court has subject matter jurisdiction." (ECF No.
16). Plaintiff now seeks dismissal of his own Complaint based
on lack of subject matter jurisdiction pursuant Federal Rule
of Civil Procedure 12(b)(1). (ECF No. 14). For the reasons
discussed herein, Plaintiffs motion is granted and
Defendant's motion to dismiss is denied as moot.
Court limits its discussion to the pertinent jurisdictional
facts. This case arises from a contractual dispute between
Plaintiff Nicholas Calandrillo and Defendant Valeant
Pharmaceuticals International Inc. (hereinafter,
"Valeant"). Plaintiff is a New Jersey resident and
the successor in interest to Metaphor Inc., a now-dissolved
New Jersey corporation wholly owned by Plaintiff. (Amended
Complaint at ¶¶ 1-2). Metaphor was a pharmaceutical
advertising, public relations, and marketing firm.
(Id. at ¶ 2). Defendant Valeant is a Canadian
corporation with "its U.S. headquarters" in New
Jersey. (Id. at ¶ 3).
to the Complaint, in 2010 Metaphor performed over $400, 000
in services for Graceway Pharmaceuticals, which subsequently
filed for bankruptcy on September 21, 2011. (Id. at
¶¶ 8-11). Thereafter, Defendant acquired
Graceway's assets at a bankruptcy auction and later
contacted Plaintiff about providing services for its brands
and "becom[ing] [its] agency of record."
(Id. at ¶ 21). According to Plaintiff,
Defendant promised him that he would be "made
whole" for the $400, 000 lost in the Graceway bankruptcy
and would designate Metaphor as its Agency of Record.
(Id. at ¶¶ 24-25). In addition, Defendant
offered Plaintiff a $400, 000 first year self-renewing
retainer. (Id. at ¶ 25). Despite these
purported assurances, Plaintiff claims that Defendant only
paid him approximately $27, 000 for work. (Id. at
¶ 37). As such, Plaintiff brings this three count
complaint for: (1) breach of contract; (2) breach of the
covenant of good faith and fair dealing; and (3) unjust
to Federal Rule of Civil Procedure Rule 12(b)(1), a party may
move to dismiss a claim for lack of jurisdiction over the
subject matter at any time in a case. In re Kaiser Group
Int % Inc., 399 F.3d 558, 565 (3d Cir. 2005) (citing
Fed.R.Civ.P. 12(b)(1)). "When subject matter
jurisdiction is challenged under Rule 12(b)(1), the plaintiff
must bear the burden of persuasion." Hedges v.
United States, 404 F.3d 744, 750 (3d Cir. 2005). If the
party's attack is facial, the court may take all
allegations in the complaint as true and "may dismiss
the complaint only if it appears to a certainty that the
plaintiff will not be able to assert a colorable claim of
subject matter jurisdiction." Liu v. Gonzales,
No. 07-1797, 2007 U.S. Dist. LEXIS 74611, at *7 (D.N.J. Oct.
5, 2007) (citing Cardio-Medic. Assocs., Ltd. v.
Crozer-Chester Med. Ctr., 721 F.2d 68, 75 (3d Cir.
1983)). "One basis of original jurisdiction is diversity
jurisdiction or jurisdiction over civil actions between
'citizens of different States' where 'the matter
in controversy exceeds the sum or value of $75, 000,
exclusive of interest and costs.'" Penn v.
Wal-Mart Stores, Inc., 116 F.Supp.2d 557, 561 (D.N.J.
2000) (quoting 28 U.S.C. § 1332(a)).
the Court is tasked with determining, for diversity purposes,
whether Valeant is considered a New Jersey citizen. Plaintiff
contends that Valeant's principal place of business is in
New Jersey and, as such, the Court lacks subject matter
jurisdiction. Defendant responds, contending that
Valeant's "nerve center" is in Canada, thereby
creating diversity jurisdiction; alternatively, Defendant
argues the Court should retain supplemental jurisdiction. The
28 U.S.C. § 1332(c)(1), a corporation is deemed a
citizen of every state that it is incorporated in
and "where it has its principal place of
business." "Allegations of complete diversity must
be apparent from the pleadings." Royal Ins. Co. of
Am. v. Caleb, 929 F.Supp. 606, 608 (D. Conn. 1996). As
such, pursuant 28 U.S.C. § 1332(c)(1), "a complaint
must allege both the state of incorporation and the principal
place of business of any corporation." Id.
the Complaint fails to adequately plead Valeant's
principal place of business. It alleges,
"[Valeant's] U.S. headquarters" are in New
Jersey. (Amended Complaint at ¶ 3). Defendants respond,
arguing that, under Hertz Corp. v. Friend, 559 U.S.
77, 92-3 (2010), Valeant's principal place of business is
in Canada, since that is the place where its "nerve
center" is located. However, there are no factual
allegations presented to support this assertion either. As
such, since the Court is unable to determine whether complete
diversity does in fact exist, the Court will grant Plaintiffs
Motion to Dismiss without prejudice, providing him an
opportunity to cure these deficiencies. See Royal
Ins., 929 F.Supp. at 608 (dismissing complaint without
prejudice where the court was "unable to divine from the
record whether jurisdiction was merely improperly alleged or
whether complete diversity does not in fact exist");
Leys v. Lowe's Home Ctrs., Inc., 601 F.Supp.2d
908, 911-12 (W.D. Mich. 2009) (ordering the defendant to
provide supplemental evidence supporting removal jurisdiction
where the court was not confident that diversity jurisdiction
alternative argument, seeking for the court to exercise
supplemental jurisdiction, is without merit. "Incomplete
diversity destroys original jurisdiction with respect to all
claims, so there is nothing to which supplemental
jurisdiction can adhere." Exxon Mobil Corp. v.
Allapattah Servs., Inc., 545 U.S. 546, 554 (2005). Here,
the Court lacks original jurisdiction over this matter, since
the Complaint presents no federal question and complete
diversity is lacking; as such, there is no basis for the
Court to exercise supplemental jurisdiction.
carefully reviewed and taken into consideration the
submissions of the parties, as well as the arguments and
exhibits therein presented, and for good cause shown, and for
all of the foregoing reasons, ORDERED that ...