                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-21-2007

Davis v. Union Pac RR Co
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-4853




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Recommended Citation
"Davis v. Union Pac RR Co" (2007). 2007 Decisions. Paper 1079.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1079


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ALD-215                                                         NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                      NO. 06-4853
                                   ________________

                                   JEROME DAVIS,

                                            Appellant

                                             v.

          UNION PACIFIC RAILROAD COMPANY, a Delaware Corporation
                  ____________________________________

                    On Appeal From the United States District Court
                              For the District of Delaware
                              (D.C. Civ. No. 06-cv-00128)
                       District Judge: Honorable Kent A. Jordan
                    _______________________________________

           Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B)
                                     May 3, 2007

      Before: SLOVITER, CHAGARES AND GREENBERG, CIRCUIT JUDGES

                                  (Filed: May 21, 2007)

                              _______________________

                                     OPINION
                              _______________________

PER CURIAM

      Jerome Davis, a prisoner, appeals from the district court’s order dismissing his

complaint for want of subject-matter jurisdiction. For the following reasons, we will

dismiss Davis’ appeal. See 28 U.S.C. § 1915(e)(2)(B)(i).
       On February 27, 2006, Davis filed a purported class action complaint against

Union Pacific Railroad Company (“Union Pacific”) in the United States District Court for

Delaware. In his complaint, Davis alleged a myriad of injuries sustained from exposure

to lead contamination on a Superfund site in Omaha, Nebraska. On October 3, 2006,

Union Pacific filed a motion to dismiss Davis’ complaint for lack of subject-matter

jurisdiction. In an order entered on November 7, 2006, the district court granted Union

Pacific’s motion. The district court explained that Davis’ arguments “ignore[d] the plain

language of [28 U.S.C.] section 1332, which requires th[e] court to view [Union Pacific]

as being a citizen of both Delaware and New Jersey.” Davis filed a timely notice of

appeal.1

       The district court correctly determined that it lacked subject matter jurisdiction

over Davis’ claim. A federal court has jurisdiction, under 28 U.S.C. § 1332(a)(1), over a

case in which there is complete diversity of citizenship; “that is, no plaintiff can be a

citizen of the same state as any of the defendants.” Grand Union Supermarkets of the

V.I., Inc. v. H.E. Lockhart Mgmt., Inc., 316 F.3d 408, 410 (3d Cir. 2003); see also Owen

Equip. & Erection Co. v. Kroger, 437 U.S. 365, 373 (1978). A corporation may well be a

citizen of two states. “A corporation is deemed a citizen ‘of any State by which it has



       1
        Davis has been granted leave to appeal in forma pauperis. When an appellant
proceeds in forma pauperis, this court must dismiss the appeal if it is “frivolous.” 28
U.S.C. § 1915(e)(2)(B)(i). A frivolous appeal has no arguable basis in law or fact. See
Neitzke v. Williams, 490 U.S. 319, 325 (1989).


                                              -2-
been incorporated and of the State where it has its principal place of business.’” Grand

Union Supermarkets, 316 F.3d at 410 (quoting 28 U.S.C. § 1332(c)).

       The party invoking diversity jurisdiction bears the burden of proving facts by

which it may be sustained. See McCann v. Newman Irrevocable Trust, 458 F.3d 281,

286 (3d Cir. 2006) (citing McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189

(1936)). Here, Davis failed to establish diversity jurisdiction.2 It appears from the face of

Davis’ complaint that Davis is a citizen of Nebraska and that Union Pacific is

incorporated in Delaware. The complaint, however, lacks any allegation as to where

Union Pacific maintains its principal place of business. Cf. Moore v. Sylvania Elec.

Prods., Inc., 454 F.2d 81, 84 n.1 (3d Cir. 1972) (“The court has not read [§ 1332's]

jurisdictional prerequisite in the disjunctive, but rather, has required complaints to include

allegations of both the place of incorporation and the principal place of business of the


       2
        In reviewing a motion to dismiss, under Federal Rule of Civil Procedure 12(b)(1),
attacking subject matter jurisdiction as a matter of fact,

       there is substantial authority that the trial court is free to weigh the evidence
       and satisfy itself as to the existence of its power to hear the case. In short,
       no presumptive truthfulness attaches to plaintiff's allegations, and the
       existence of disputed material facts will not preclude the trial court from
       evaluating for itself the merits of jurisdictional claims. Moreover, the
       plaintiff will have the burden of proof that jurisdiction does in fact exist.

Petruska v. Gannon Univ., 462 F.3d 294, 302 n.3 (3d Cir. 2006) (quoting Mortensen v.
First Fed. Sav. & Loan, 549 F.2d 884, 891 (3d Cir. 1977)). Further, “a facially sufficient
complaint may be dismissed before an answer is served if it can be shown by affidavits
that subject matter jurisdiction is lacking.” Berardi v. Swanson Mem’l Lodge No. 48 of
the Fraternal Order of Police, 920 F.2d 198, 200 (3d Cir. 1990) (citing KVOS, Inc. v.
Associated Press, 299 U.S. 269 (1936)).

                                              -3-
corporate parties, . . . The complaint here lacks any allegation as to where appellee

maintains its principal place of business.” (internal citations omitted)). Meanwhile,

Union Pacific attached an affidavit to its brief, in support of its motion to dismiss, stating

that Union Pacific’s principal place of business is in Nebraska. Moreover, in addition to

the affidavit, Union Pacific cited to cases from other circuits holding the same. See e.g,

Alumbaugh v. Union Pacific, 322 F.3d 520, 523 (8th Cir. 2003) (“Union Pacific is a

Delaware corporation with its principal place of business in Omaha, Nebraska.”) Further,

Davis had an opportunity to be heard in a reply to Union Pacific’s motion. As noted by

the district court, however, Davis created no dispute on the issue of the location of Union

Pacific’s principal place of business.3 Cf. McCann, 458 F.3d at 290.

       In sum, because Davis’ complaint was properly dismissed for lack of subject
matter jurisdiction and this appeal lacks arguable legal merit, we will dismiss pursuant to
28 U.S.C. § 1915(e)(2)(B)(i).




       3
          There was no need to provide Davis an opportunity to further amend his
complaint because any amendment would have proven futile. See Grayson v. Mayview
State Hosp., 293 F.3d 103, 108 (3d Cir. 2002) (noting that amendment “must be permitted
. . . unless it would be inequitable or futile”).


                                              -4-
