                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-14-2005

Malarik v. Dinunno Entr Inc
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-2535




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"Malarik v. Dinunno Entr Inc" (2005). 2005 Decisions. Paper 113.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/113


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                                                    NOT PRECEDENTIAL
                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                       No. 05-2535


                                 JAMES M. MALARIK,
                                              Appellant

                                            v.

                    DINUNNO ENTERPRISES, INC., Pennsylvania
                        License R-110, owned and operated by
                    Antonio and Susan Dinunno, husband and wife,
                                a/k/a Toninos Lounge


                    On Appeal From the United States District Court
                      For the Western District of Pennsylvania
                               (D.C. Civ. No. 05-cv-00036)
                    District Judge: Honorable Thomas M. Hardiman


                    Submitted Under Third Circuit LAR 34.1(a)
                               December 13, 2005
          Before: BARRY, STAPLETON and GREENBERG, Circuit Judges

                               (Filed December 14, 2005)


                                        OPINION


PER CURIAM

       Appellant James M. Malarik, a resident of Pennsylvania, filed a civil complaint in

United States District Court for the Western District of Pennsylvania against a

Pennsylvania business and its owner-operators, alleging personal injuries. The District
Court dismissed the case without prejudice for lack of federal subject matter jurisdiction

in an order entered on April 14, 2005. Malarik appeals.

       We will affirm. Our review of the District Court's dismissal of a complaint for

lack of subject matter jurisdiction is plenary. Gould Electronics, Inc. v. United States,

220 F.3d 169, 176 (3d Cir. 2000). Federal subject matter jurisdiction is lacking for the

reasons given by the District Court. Federal courts are courts of limited jurisdiction.

Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994). Subject

matter jurisdiction is conferred where the parties are from different states, that is, diverse,

and the amount in controversy exceeds $75,000, 28 U.S.C. § 1332, and also when a

federal question is presented, 28 U.S.C. § 1331.

       Malarik’s complaint, if it can be maintained at all, can only be maintained in state

court, because jurisdiction based on diversity of citizenship is not available when the

parties are all Pennsylvania citizens or businesses, as they are here. Moreover, no federal

question is presented by a personal injury lawsuit that alleges only common law torts

against a private party, and does not allege a deprivation of federal constitutional rights or

the elements of a cause of action under a federal statute. We agree with the District Court

that Malarik’s suit, involving injuries suffered as a result of an altercation at a bar, does

not, and could not, satisfy the jurisdictional prerequisites for suit in federal court.

       We will affirm the order of the District Court dismissing the action without

prejudice for lack of subject matter jurisdiction.



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