                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-3-2009

Philip Johnson v. State of New York
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-3419




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Recommended Citation
"Philip Johnson v. State of New York" (2009). 2009 Decisions. Paper 1784.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1784


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                                                         NOT PRECEDENTIAL

                UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT
                          ___________

                              No. 08-3419
                              ___________

                           PHILIP JOHNSON,
                                   Appellant

                                    v.

 STATE OF NEW YORK; CITY OF NEW YORK; N.Y. ADMINISTRATION FOR
  CHILDREN'S SERVICES; N.Y. DEPARTMENT OF SOCIAL SERVICES; N.Y.
QUEENS COUNTY FAMILY COURT; POLICE DEPARTMENT OF THE CITY OF
   N.Y.; BAYSIDE HIGH SCHOOL COUNSELOR, a/k/a JANE DOE; POLICE
   OFFICER, a/k/a JANE DOE; POLICE OFFICER, a/k/a JOHN DOE; QUEENS
ADMINISTRATION FOR CHILDREN'S SERVICES, “case workers” a/k/a KAGAN,
  POLLACK, PIERRE-LOUIS, SALINAS; POLICE OFFICER, a/k/a JOHN DOE;
     NOTARY PUBLIC AND DEPUTY CLERK OF THE COURT, a/k/a ERIC
   PERLMUTTER; COMMISSIONER ADMINISTRATION FOR CHILDREN'S
   SERVICES, a/ka JOHN B. MATTINGLY; COMMISSIONER/CHANCELOR
   OF THE BOARD OF EDUCATION, a/k/a JOHN DOE; COMMISSIONER OF
DEPARTMENT OF SOCIAL SERVICES, a/k/a Verna Eggleston; FAMILY COURT
    JUDGES, a/k/a MARYBETH S. RICHROATH, a/k/a WANDA WARDLAW
 MATTHEWS; LEGAL AID SOCIETY OF N.Y., “CHILDREN'S LAWYER” a/k/a
    NADIA SEERATAN; “ATTORNEYS”, a/k/a MARISA PRESTIANNI, a/k/a
                   MARGARET HUNT, a/k/a HEIDI LUNA
                  ____________________________________

               Appeal from the United States District Court
                        for the District of New Jersey
                        (D.C. Civil No. 08-cv-00231)
              District Judge: Honorable Dennis M. Cavanaugh
               ____________________________________

              Submitted Pursuant to Third Circuit LAR 34.1(a)
                            February 10, 2009

        Before: RENDELL, FUENTES and NYGAARD, Circuit Judges
                                   Filed: March 3, 2009
                                        _________

                                OPINION OF THE COURT
                                      _________

PER CURIAM

       Appellant Philip Johnson appeals from an order of the District Court entered

July 8, 2008, dismissing his complaint sua sponte for lack of subject matter jurisdiction.

For the reasons that follow, we will vacate the order and remand the matter for further

proceedings.

                                       I. Background

       In January 2008, Johnson submitted a pro se complaint purporting to bring a civil

action against the State of New York, the City of New York, and various New York city

and state agencies and employees. Johnson attempted to invoke the court’s diversity

jurisdiction pursuant to 28 U.S.C. § 1332. Johnson included as his address only a post

office box. Concluding that a post office box does not establish domicile or residence for

diversity jurisdiction purposes, the District Court entered a sua sponte order dismissing

the complaint for lack of subject matter jurisdiction. Johnson now pursues a timely

appeal to this Court.

                                        II. Analysis

       According to 28 U.S.C. § 1332(a)(1), “The district courts shall have original

jurisdiction of all civil actions where the matter in controversy exceeds the sum or value

of $75,000, exclusive of interest and costs, and is between citizens of different States.”

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We exercise plenary review over the District Court’s sua sponte dismissal of the

complaint for lack of subject matter jurisdiction. See SEC v. Infinity Group Co., 212

F.3d 180, 186 (3d Cir. 2000).

       To invoke diversity jurisdiction, Johnson was required to plead that he is a citizen

of a particular state and that the defendants are citizens of a different state or states. See 5

Wright & Miller, Fed. Prac. & Proc. Civ. 3d § 1208; see also, e.g., Schultz v. Cally, 528

F.2d 470, 472-73 (3d Cir. 1975). Here, the District Court concluded that Johnson’s

complaint was insufficient because he cited a Post Office Box “as the sole basis of

Petitioner’s domicile or residence in this matter.” However, requiring Johnson to provide

the “basis” of his domicile or residence holds Johnson to an unnecessarily high pleading

standard. Johnson indicated on both the civil cover sheet and in the first paragraph of his

complaint that he is a citizen of the State of New Jersey. The liberal notice pleading

standard of Federal Rule of Civil Procedure 8(a)(1) requires only “a short and plain

statement of the grounds for the court’s jurisdiction,” and as a pro se plaintiff, Johnson

was entitled to liberal construction of his pleading. See Alston v. Parker, 363 F.3d 229,

234 (3d Cir. 2004). His allegation of New Jersey citizenship appears sufficient to survive

sua sponte dismissal prior to service.

       Moreover, a District Court generally should permit amendment of a complaint that

is vulnerable to dismissal where a responsive pleading has not yet been filed. See Alston,

363 F.3d at 235-36; 28 U.S.C. § 1653 (“Defective allegations of jurisdiction may be

amended, upon terms, in the trial or appellate courts.”); Moore v. Coats Co., 270 F.2d

                                               3
410, 412 (3d Cir. 1959) (“There is ample authority to support the proposition that a

complaint may be amended pursuant to Section 1653 in order to supply allegations

necessary to sustain jurisdiction.”). Indeed, we have indicated that federal courts have a

duty to consider whether a defective jurisdictional allegation may be remedied through

amendment. See Chem. Leaman Tank Lines, Inc. v. Aetna Cas. & Surety Co., 177 F.3d

210, 222 n. 13 (3d Cir. 1999); Kiser v. Gen. Elec. Corp., 831 F.2d 423, 427 (3d Cir.

1987). Thus, to the extent the District Court believed that Johnson should have provided

additional factual support for his claim of New Jersey citizenship, at a minimum, it should

have permitted him leave to amend the complaint.

                                       III. Conclusion

       We will vacate the District Court’s order and remand the matter for further

proceedings consistent with this opinion. We express no opinion as to whether subject

matter jurisdiction exists in this case, based on diversity of citizenship or otherwise.




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