NOEL L. HILLMAN, District Judge.
Presently before the Court are several motions by Defendants seeking summary judgment and dismissal of Plaintiff's complaint. Defendants North American Roofing and David Donaldson have filed a motion [Doc. No. 37] for summary judgment, in which Defendant KaiserKane, Inc. joins. Defendants American Safety Indemnity Company and Companion Property and Casualty Insurance have filed respective motions [Doc. Nos. 38, 39] to dismiss Plaintiff's complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). Defendants Briggs Contracting Services, Inc. and Ron Richardson have filed a cross-motion [Doc. No. 67] for summary judgment. Also before the Court are Plaintiff's motion [Doc. No. 50] for entry of default and two motions [Doc. Nos. 54, 57] for extensions of time to file a sur-reply in opposition to the summary judgment motion filed by North American Roofing. The Court has considered the parties' submissions and decides this matter pursuant to Federal Rule of Civil Procedure 78.
For the reasons expressed below, the pending motions [Doc. Nos. 37, 38, 39, 50, 54, 57, 67] are denied without prejudice.
Plaintiff alleges that the Court has subject matter jurisdiction over this action based on federal question jurisdiction pursuant to 28 U.S.C. § 1331 because he asserts a claim arising from violations of the Clean Air Act, 42 U.S.C. § 7401
A. Plaintiff's Complaint
Plaintiff, currently an inmate at the Federal Correctional Camp at Schuylkill ("FCC-Schuylkill"), generally alleges that during his previous confinement at the Federal Correctional Institution in Fort Dix, New Jersey ("FCI-Fort Dix") he was exposed to asbestos because Defendants violated various state and federal laws in conducting a re-roofing and asbestos abatement project on several buildings at FCI-Fort Dix. (Pl.'s Compl. ¶¶ 1-39.) Plaintiff brings his claims against the following Defendants: (1) KaiserKane, Inc. and KaiserKane ("KaiserKane"), the general contractor for the re-roofing project; (2) Briggs Contracting Services, Inc. ("Briggs"), the subcontractor on the project which conducted the asbestos abatement at FCI-Fort Dix; (3) Rod Richardson ("Richardson"), the project manager for Briggs; (4) North American Roofing ("NAR"), the subcontractor on the project which performed the re-roofing work; (5) David Donaldson ("Donaldson"), an officer of NAR; (6) American Safety Indemnity Company
Plaintiff originally filed his complaint in the United States District Court for the Middle District of Pennsylvania ("the Middle District") on November 3, 2010. By Order dated December 20, 2010, the Honorable A. Richard Caputo, United States District Judge for the Middle District of Pennsylvania, adopted the November 29, 2010 Report and Recommendation of the Honorable Thomas M. Blewitt, United States Magistrate Judge for the Middle District of Pennsylvania, recommending that Plaintiff's case be transferred to the District of New Jersey pursuant to 28 U.S.C. § 1404. (Order [Doc. No. 15] 1, Dec. 20, 2010.) The November 29, 2010 Report and Recommendation adopted by the Middle District found that Plaintiff failed to meet "his burden of proving [that] diversity of citizenship exists in this case" because Plaintiff failed to allege his own citizenship, or that of Defendants. (Report and Recommendation [Doc. No. 9] 6, 10-11, Nov. 29, 2010.) The Middle District recognized that it did not appear from the complaint that the "citizenship of all Defendants [was] diverse from that of Plaintiff[.]"
B. Pending Motions
(1) Motions to Dismiss Pursuant to Rule 12(b)(6)
Both Defendants American Safety and Companion ("the Insurance Company Defendants") move to dismiss Plaintiff's complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. The Insurance Company Defendants essentially argue that Plaintiff's complaint fails to make any specific factual allegations against either of these Defendants regarding the asbestos abatement project and Plaintiff's alleged exposure to asbestos. (Mem. of Law of Def. American Safety Indemnity Co. in Supp. of Dismissal of the Compl. Under Rule 12(b)(6) [Doc. No. 38-2] (hereinafter, "American Safety's Mot. to Dismiss"), 1-2; Br. of Def. Companion Property & Casualty Insurance Co. in Supp. of Its 12(b)(6) Mot. to Dismiss the Compl. with Prejudice [Doc. No. 39-1] (hereinafter, "Companion's Mot. to Dismiss"), 3-4.) The Insurance Company Defendants also argue that Plaintiff's claims against them fail under New Jersey law because a personal injury plaintiff lacks standing to bring a direct action against his tortfeasor's liability insurer until the plaintiff has obtained a judgment against the insured. (American Safety's Mot. to Dismiss 2-3; Companion's Mot. to Dismiss 6-8.)
(2) Motions for Summary Judgment
Defendants NAR and Donaldson filed a motion for summary judgment on May 2, 2011. (Mot. for Summ. J. by David Donaldson and North American Roofing [Doc. No. 37].) By letter dated May 20, 2011, KaiserKane advised the Court that KaiserKane joined the summary judgment motion filed by NAR and "adopt[ed] all of its arguments."
Defendants NAR, Donaldson, KaiserKane, Briggs, and Richardson ("the Contractor Defendants") seek summary judgment in their favor and the dismissal of Plaintiff's complaint with prejudice. (NAR's Proposed Order [Doc. No. 37-3] 1; Briggs' Proposed Order [Doc. No. 67-5] 1.) In moving for summary judgment, the Contractor Defendants essentially argue that Plaintiff cannot maintain causes of action for gross negligence, common law fraud, violations of the Clean Air Act, and negligence. (Br. in Supp. of the NAR's Summ. J. Mot. [Doc. No. 37-1] (hereinafter, "NAR's Summ. J. Mot.") 3-8; Br. in Supp. of Defs.' Briggs Contracting Services and Rod Richardson's Cross Mot. for Summ. J. [Doc. No. 67-1] (hereinafter, "Briggs' Summ. J. Mot."), 3-8.) Specifically, the Contractor Defendants contend that they are entitled to summary judgment on: (1) the cause of action for gross negligence because their conduct was not flagrant and did not grossly deviate from the ordinary standard of care, (NAR's Summ. J. Mot. 3-4; Briggs' Summ. J. Mot. 3-5); (2) the cause of action for common law fraud because the Contractor Defendants did not make any misrepresentations of fact to Plaintiff regarding asbestos removal and Plaintiff cannot demonstrate the required elements of this claim, (NAR's Summ. J. Mot. 4-5; Briggs' Summ. J. Mot. 5-6); (3) the cause of action for damages under the Clear Air Act because Plaintiff failed to provide notice of any alleged violations to the Contractor Defendants, (NAR's Summ. J. Mot. 5-8; Briggs' Summ. J. Mot. 6-8); and (4) the cause of action for negligence because the Contractor Defendants did not owe a duty to Plaintiff, and even if they did, that duty was not breached. (NAR's Summ. J. Mot. 8; Briggs' Summ. J. Mot. 3-5.)
Despite the multiple arguments presented in the pending motions to dismiss and for summary judgment, neither the Insurance Company Defendants nor the Contractor Defendants challenge the exercise of jurisdiction over Plaintiff's claims by this Court, an issue which was initially raised by the Middle District.
As the Third Circuit has held, "[f]ederal courts are courts of limited jurisdiction, and when there is a question as to our authority to hear a dispute, `it is incumbent upon the courts to resolve such doubts, one way or the other, before proceeding to a disposition on the merits.'"
To determine whether federal question jurisdiction exists in this case, the Court must review Count Three of Plaintiff's complaint which purportedly raises a claim under the Clean Air Act, 42 U.S.C. § 7401
As explained by the Third Circuit, "Section 7604 [of the Clean Air Act] permits citizens to commence civil suits in the district court against persons who violate either emission standards or limitations promulgated under various sections of the Act or orders issued by the EPA or a state concerning those standards or limitations."
In Count Three, Plaintiff specifically asserts that the "acts and omission of the defendants in violating the . . . Clean Air Act . . . constitute a crime and a breach of fiduciary duty to maintain [a] clean environment and [to] be free from toxic exposure by asbestos." (Pl.'s Compl. ¶ 45.) Plaintiff further contends that "[a]s a result of these violations, [he] suffered and will continue to suffer respiratory problems and lung disease from being exposed to asbestos abatement" by Defendants. (
Based on the specific allegations of Count Three, it is clear that Plaintiff brings this claim as a private action seeking compensatory and punitive damages for injuries allegedly caused by Defendants' asbestos abatement procedures which purportedly violated the Clean Air Act. Plaintiff is not bringing this claim as a citizen suit to seek enforcement of emission standards or limitations under the Clean Air Act. Accordingly, the Court finds that Count Three of Plaintiff's complaint impermissibly seeks compensatory and punitive damages under the Clean Air Act and thus fails to state a claim for which federal question jurisdiction exists.
Although there is no federal question jurisdiction in this case, Plaintiff also asserts that the Court can exercise jurisdiction over Plaintiff's remaining state law claims for negligence, gross negligence, and common law fraud under diversity of citizenship jurisdiction pursuant to 28 U.S.C. § 1332. Because Plaintiff is proceeding
As the Middle District previously recognized, the Court finds that Plaintiff has failed to meet his burden to demonstrate that diversity of citizenship exists here. It is clear from the face of the complaint that Plaintiff does not sufficiently allege either his own citizenship, or that of Defendants. As to his own citizenship, Plaintiff merely alleges that he is currently a federal prisoner at FCC-Schuylkill in Minersville, Pennsylvania and that he was previously a federal prisoner at FCI-Fort Dix in Fort Dix, New Jersey. (Pl.'s Compl. ¶ 1.) However, such allegations of are insufficient to allege Plaintiff's citizenship. For purposes of diversity jurisdiction, a prisoner's citizenship is not based on his state of incarceration, but rather is based on the prisoner's "domicile. . . before his imprisonment [which] presumptively remains his domicile during his imprisonment."
With respect to the citizenship of Defendants, Plaintiff's complaint is similarly defective. As to Defendants Donaldson and Richardson, Plaintiff fails to set forth the citizenship of these individual Defendants. (
As a result of these failures, Plaintiff's complaint is essentially silent as to the citizenship of the parties, and at this time, the complaint is subject to dismissal for lack of jurisdiction.
In light of the Court's findings
For the foregoing reasons, Count Three of Plaintiff's complaint alleging a claim under the Clean Air Act is dismissed with prejudice, and the pending motions [Doc. Nos. 37, 38, 39, 50, 54, 57, 67] are denied without prejudice for lack of subject matter jurisdiction. An Order and an Order to Show Cause consistent with this Opinion will be entered.