United States District Court, D. New Jersey
the Court is the motion of defendant National Retail Systems
("NRS") to dismiss the complaint of pro se
plaintiff Franklin Hernandez De La Rosa. (DE 1). For the
reasons stated herein, the motion is granted, without
prejudice to amendment.
a New Jersey corporation. Mr. De La Rosa resides in West New
York, New Jersey. He was previously employed by NRS.
La Rosa asserts that on May 22, 2017, while working at NRS in
their location at 2820 16th Street in North
Bergen, New Jersey, he fell ill and got "sick in the
bathroom" with a stomachache. (DE 1 at 3). Mr. De La
Rosa asserts that his supervisors subsequently verbally
abused and bullied him, ultimately firing him.
January 25, 2019, Mr. De La Rosa filed his Complaint. (DE 1).
NRS now moves to dismiss under Federal Rule of Civil
Procedure 12(b)(1) for lack of subject matter jurisdiction.
Plaintiff did not file any opposition to the motion to
Motion to Dismiss
must be established as a threshold matter. Steel Co. v.
Citizens for a Better Env't 523 U.S. 83, 94, 118 S.Ct.
1003, 140 L.Ed. 2D 210 (1998). A motion to dismiss pursuant
to Rule 12(b)(1) may be brought as a facial or factual
challenge. See Church of the Universal Bhd. v. Farmington
Twp. Supervisors, 296 Fed.Appx. 285, 288 (3d Cir. 2008).
NRS facially challenges jurisdiction based on the pleadings
alone. (DE 12 at 8). Where the motion challenges jurisdiction
on the face of the complaint, the court only considers the
allegations of the complaint and documents referred to
therein in the light most favorable to the plaintiff.
Gould Elecs., Inc. v. United States, 220 F.3d 169,
176 (3d Cir. 2000) (citing Mortensen v. First Fed. Sav.
& Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977)).
I have construed the allegations of the Complaint liberally
in light of the plaintiffs pro se status. See Haines v.
Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 30 L.Ed.2d
courts have subject matter jurisdiction over a case if it
satisfies federal question jurisdiction under 28 U.S.C.
§ 1331, or diversity jurisdiction under 28 U.S.C. §
1332." Mines v. Irvington Counseling Ctr., 933 F.Supp.
382, 387 (D.N.J. 1996) (Hunter v. Greenwood Trust
Co., 856 F.Supp. 207, 211 (D.N.J. 1992)). "Federal
question jurisdiction exists if the action 'arises
under' the 'Constitution, laws, or treaties of the
United States.™ United Jersey Banks v. Parell, 783 F.2d
360, 365 (3d Cir. 1986) (citing see 28 U.S.C. § 1331).
Diversity jurisdiction exists where the parties are citizens
of different states and the amount in controversy exceeds
$75, 000. See 28 U.S.C. § 1332.
existence of a federal question under 28 U.S.C. § 1331
is not pled in the Complaint. The body of the complaint does
not refer to any federal-law claim.
underlying conduct appears to implicate, at best, some state
statutory or tort-law theory of liability. The only potential
basis for federal jurisdiction over such state law claims
would be diversity jurisdiction. See 28 U.S.C.
§ 1332(a). However, neither diversity of citizenship nor
an amount in controversy exceeding $75, 000 is pled in the
complaint. The plaintiff and defendant are not citizens of
different states; Mr. De La Rosa asserts that he is a citizen
of New Jersey, and NRS is also a citizen of New Jersey. (DE 1
at 1). The amount in controversy also does not appear to
exceed $75, 000. Mr. De La Rosa states that he seeks to get
his job back and to be paid for lost time. He asserts that he
made $1, 350 a month in 2017. (DE 1 at 7). Even if Mr. De La
Rosa were to succeed and recover his lost wages from May 2017
to the present, damages would still not exceed $75, 000. The
Complaint therefore fails to plead facts establishing
because there is no federal question jurisdiction and no
diversity jurisdiction, this court lacks subject matter
jurisdiction over this matter and the Complaint must be