UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

MARY E. MARSHALL,
Plaintiff-Appellant,

v.

TOYOTA MOTOR SALES, U.S.A.,
INCORPORATED, a foreign corporation;
TOYOTA MOTOR CREDIT
CORPORATION, a foreign corporation;
LOUDOUN AUTOMOTIVE IMPORTS,
INCORPORATED, d/b/a Leesburg                                        No. 98-2581
Toyota, a Maryland corporation,
Defendants-Appellees,

and

TOYOTA MOTOR MANUFACTURING,
U.S.A., INCORPORATED; TRW
TECHNAR, INCORPORATED, a foreign
corporation,
Defendants.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Claude M. Hilton, Chief District Judge.
(CA-98-383-A)

Submitted: May 11, 1999

Decided: June 14, 1999

Before MOTZ and KING, Circuit Judges, and
BUTZNER, Senior Circuit Judge.

_________________________________________________________________
Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Conrad J. Marshall, McLean, Virginia, for Appellant. Joel A. Dewey,
H. Bruce Dorsey, PIPER & MARBURY, L.L.P., Baltimore, Mary-
land; Anthony E. Grimaldi, MARTELL, DONNELLY, GRIMALDI
& GALLAGHER, P.A., Fairfax, Virginia, for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Mary E. Marshall appeals the district court's grant of Defendants'
motions to dismiss and denial of her motion for reconsideration. The
district court dismissed Marshall's complaint on the ground that com-
plete diversity did not exist, as both Marshall and Defendant Loudoun
Automotive Imports ("Loudoun") were citizens of Virginia. Marshall
also appeals the denial of her motions to amend and to dismiss Lou-
doun, the denial of oral argument, and the district court's dismissal of
all parties when two parties were allegedly in default. We affirm.

I. FACTUAL BACKGROUND

Mary E. Marshall sued appellees Loudon, Toyota Motor Sales
("TMS"), Toyota Motor Credit Corporation ("TMCC"), Toyota Motor
Manufacturing ("TMM"), and TRW Technar ("TRW") for injuries
suffered in a car accident. In her complaint, Marshall alleged that she
is a resident of Virginia. Marshall further alleged that Loudoun is a
Maryland corporation with its principal place of business in Leesburg,
Virginia. Marshall asserted diversity of citizenship as the only
grounds for jurisdiction in the district court.

                    2
Loudoun filed an answer to Marshall's complaint, admitting that
Loudoun was a Maryland corporation with its principal place of busi-
ness in Virginia. On June 5, TMS and TMCC filed a motion to dis-
miss for lack of subject matter jurisdiction based on the lack of
complete diversity. Under E.D. Va. R. 7(E)(1), Marshall was required
to file a responsive brief to the motion to dismiss within eleven days
after service. Marshall did not file a brief nor did she move for an
extension.

On July 17, Loudoun filed it own motion to dismiss based upon
lack of diversity of citizenship. Loudoun attached Maryland articles
of incorporation to its motion. These articles stated that "[t]he street
address of the place at which the principal office of the Corporation
in this State will be located is 15525 Frederick Road, Rockville,
Maryland 20855."

On July 30, the court informed the parties that it would rule on the
papers submitted and that, therefore, the hearing was cancelled. In
response and also on July 30, Marshall filed a response to defendants'
motions to dismiss along with several motions. This memorandum
contended that Marshall's counsel erred in his allegations regarding
Loudoun's principal place of business. Based on the articles of incor-
poration, Marshall requested discovery regarding Loudoun's principal
place of business and leave to amend her complaint accordingly. In
the alternative, Marshall moved to take a voluntary nonsuit as to Lou-
doun or to dismiss Loudoun in order to preserve diversity. The district
court granted the motions to dismiss without prejudice on the ground
that complete diversity did not exist. The district court did not address
Marshall's motions to amend, for discovery, to take a voluntary non-
suit, or to dismiss Loudoun.

Marshall filed a Fed. R. Civ. P. 59(e) motion to reconsider. Mar-
shall primarily argued that Congress's extension of citizenship to
include the state where a corporation has its principal place of busi-
ness is without constitutional authority. The motion referred to Mar-
shall's prior response to the motion to dismiss but did not elaborate
in any way.

On August 28, TMS and TMCC filed opposition to the motion.
Loudoun served similar opposition on August 31. On September 9,

                     3
the court informed the parties that it would again rule without oral
argument. On September 10, 1998 (well beyond the three-day dead-
line for reply briefs set forth in E.D. Va. R. 7(E)(1)), Marshall filed
a supplemental memorandum, objecting to the denial of oral argument
and contending that Defendants had failed to prove that Loudoun's
principal place of business was in Virginia. Marshall also attached a
proposed amended complaint, stating that Loudoun"is a foreign cor-
poration with a place of business [in Virginia], but with its principal
office at 15525 Frederick Road, Rockville, MD 20855 as shown in its
Articles of Incorporation."

The district court denied Marshall's motion to reconsider, finding
that Congress's extension of citizenship was constitutional. The dis-
trict court did not address Marshall's supplemental filing nor any
other arguments. Marshall timely appealed.

II. INCOMPLETE DIVERSITY

It is undisputed that Marshall's complaint, as pled, did not properly
allege complete diversity between the parties. Marshall stated that she
was a citizen of Virginia and that Loudoun, for diversity purposes,
was also a citizen of Virginia. Loudoun admitted in its answer that its
principal place of business was in Virginia. The presence of a defen-
dant who is a citizen of the same state as the plaintiff destroys com-
plete diversity and, therefore, federal jurisdiction. See Caperton v.
Beatrice Pocahontas Coal Co., 585 F.2d 683, 691 (4th Cir. 1978).

Marshall's contentions regarding Loudoun's articles of incorpora-
tion are meritless. Maryland law provides that each Maryland corpo-
ration must have "a principal office in this State." Md. Code Ann.
Corps. & Ass'ns § 2-108(a) (1993). Loudoun's compliance with the
Maryland statute by listing an office in Maryland does not give rise
to a legitimate inference that its principal place of business was in
Maryland for diversity purposes.

Absent this improper inference and Marshall's counsel's conten-
tions that he "had no knowledge or information" as to Loudoun's
principal place of business when he filed the complaint,* the only evi-
_________________________________________________________________
*Fed. R. Civ. P. 11 requires that an attorney alleging factual conten-
tions must have evidentiary support and that the contentions must be
based on a reasonable inquiry. Marshall's counsel offers no explanation
for the supposed pleading mistake.

                    4
dence remaining regarding Loudoun's principal place of business was
the allegations in the complaint and Loudoun's admissions thereof.
Because Marshall offers no reason to believe that the allegations in
the complaint were a mistake or that Loudoun's answer was fraudu-
lent, we find that the district court properly dismissed the case for
lack of diversity.

III. DENIAL OF MISCELLANEOUS MOTIONS

In her opposition to Appellees' motions to dismiss, Marshall
moved to amend her complaint to delete the reference to Loudoun's
principal place of business as in Virginia. Marshall reiterated this
motion in her untimely supplemental memorandum on reconsidera-
tion and attached a proposed amended complaint. However, as dis-
cussed above, Marshall had no good faith basis for contending that
her original allegations, which were admitted by Loudoun, were
incorrect. Marshall points only to the articles of incorporation, which
are unavailing as they only state where Loudoun's principal Maryland
office would be and not where Loudoun's principal place of business
would be. Therefore, we affirm the district court's implicit denial of
this motion.

Marshall also moved in her opposition to dismiss Loudoun as a
defendant in order to preserve complete diversity. Marshall did not
reiterate this motion on reconsideration. While non-diverse parties
may be dropped to achieve diversity, the right to drop a party is not
automatic and permission is committed to the discretion of the trial
court. See Caperton, 585 F.2d at 692. Based on the untimely nature
of Marshall's first request, her failure to raise the issue on reconsider-
ation, and the fact that she failed to separately and clearly file a
motion to dismiss Loudoun, we find that the district court did not
abuse its discretion in implicitly denying this motion.

IV. ORAL ARGUMENT

A district court retains the discretion to decide motions without oral
argument. See Fed. R. Civ. P. 78. In this case, regarding the motion
to dismiss, the district court had a very simple case before it: the face
of Marshall's complaint showed that there was no federal jurisdiction.
As of the day before the hearing and at the time of the court's deci-

                     5
sion to forego oral argument, the court had not received any opposi-
tion from Marshall, and the time for filing such opposition had
passed. While Marshall belatedly filed opposition and additional
motions, we hold that the district court did not err in electing to
decide the motion to dismiss on the filings.

Concerning the motion for reconsideration, again the issue before
the district court was straightforward: Marshall contended that Con-
gress's definition of corporate citizenship was unconstitutional. This
position was not legally supportable, was quickly rejected by the dis-
trict court, and has not been raised again on appeal. While Marshall
incorporated by reference all motions and alternate actions raised in
her prior response, these issues were not discussed and no reason was
provided for the court to alter or amend its judgment. Again, Marshall
belatedly filed a supplemental memorandum with additional argu-
ments after the court had already determined that oral argument was
unnecessary. However, we find that the district court's decision to
decide the motion without oral argument was a proper exercise of dis-
cretion.

V. DISMISSAL OF ALL PARTIES

On appeal, Marshall argues for the first time that dismissal of all
parties was improper, because TMM and TRW had defaulted. How-
ever, Marshall never moved for default in the district court, as
required. See Fed. R. Civ. P. 55(b). Further, Marshall has offered no
proof that TMM and TRW were properly served. Accordingly, we
find that dismissal of all defendants was proper.

Thus, we affirm the orders of the district court. We dispense with
oral argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would not
aid the decisional process.

AFFIRMED

                    6
