Crisafulli v. Ameritas Life Ins. Co.
| Decision Date | 11 June 2014 |
| Docket Number | Civil Action No.: 13-cv-05937 (CCC) |
| Parties | GREGORY CRISAFULLI, Plaintiff, v. AMERITAS LIFE INSURANCE COMPANY, CLEO PENNINGTON, MATTHEW DWORETSKY, Defendants. |
| Court | U.S. District Court — District of New Jersey |
NOT FOR PUBLICATION
I. INTRODUCTION
This matter comes before the Court by way of Defendants Ameritas Life Insurance Company ("Ameritas") and Cleo Pennington's ("Pennington") motion to dismiss Plaintiff Gregory Crisafulli's ("Plaintiff") complaint under Federal Rule of Civil Procedure 12(b)(1) and (6) [ECF No. 8-1] and Defendant Matthew Dworetsky's ("Dworetsky") separate motion to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(1), (2), (5), and (6) [ECF No. 17-1.] No oral argument was heard pursuant to Federal Rule of Civil Procedure 78. Based on the reasons set forth below, Defendants' motions to dismiss are granted without prejudice.
II. BACKGROUND
Plaintiff, appearing pro se in this matter, instituted this action on October 4. 2013. Plaintiff alleges that Ameritas, Pennington, and Dworetsky (together, "Defendants") have violated 15 U.S.C. § 6801 entitled "Protection of nonpublic personal information," 18 U.S.C. §1341 entitled "Frauds and swindles," 18 U.S.C. § 2 entitled "Principals," and N.J.S.A. § 56:8-164 entitled "Prohibited and allowed uses of Social Security numbers." The complaint shows that Plaintiff had a life insurance policy through Primeriea Life Insurance Company. (Compl. p. 1-2.) Plaintiff alleges that he then made an application for a life insurance policy from Ameritas. Id. Plaintiff used the services of Dworetsky1 to facilitate the application, but Plaintiff alleges he was misrepresented. Id. Plaintiff claims that he signed the application in advance and received a medical report to determine if he could get life insurance from Ameritas. Id. However, Plaintiff states the application was filled in after his signing without his presence and sent to Ameritas by Dworetsky before his medical results came back. Id. Plaintiff alleges that on October 13, 2011, Pennington, who is employed by Ameritas, signed and addressed a letter to Primeriea Life Insurance Company. Id. Plaintiff claims that this letter included Plaintiff's social security number and changed his identity by improperly citing his real name, facilitating identity theft. Id. Plaintiff claims that "the unsealed letter and bold lettering describing the contents furthers my complaints." Id.
Ameritas and Pennington filed a motion to dismiss on November 26, 2013. In their motion, Ameritas and Pennington have alleged that (1) the qualifications for diversity subject matter jurisdiction are not met as Plaintiff states he is from Avenel, New Jersey, but does not state the incorporation or principal place of business address for Ameritas nor any address for Pennington or Dworetsky and he also does not list any actual damages; (2) the qualifications for original subject matter jurisdiction are not met as none of the federal statutes that Plaintiff lists allow for private action; and (3) Plaintiff fails to allege an adequate claim under any of the statutes, [ECF No. 8-1 p. 8-13.] Plaintiff filed a notice to oppose Ameritas and Pennington'smotion to dismiss on December 23, 2013. Plaintiff claimed that the damages should be sufficient enough to meet the amount needed for diversity jurisdiction and that Dworetsky has more than one place of residence, with a registered address in Connecticut. [ECF No. 9 p. 4, 7-8.] Ameritas and Pennington then tiled a reply brief in further support of the motion to dismiss on December 30, 2013. They continued to assert that Plaintiff has failed to state a claim for relief and that diversity subject matter jurisdiction is not met as no actual damages were stated nor was Dworetsky's state of citizenship given. [ECF No. 10 p. 5.]
Dworetsky filed a separate motion to dismiss on February 20, 2014. Dworetsky alleges that (1) the qualifications for diversity subject matter jurisdiction are not met; (2) the qualifications for original subject matter jurisdiction are not met as none of the federal statutes that Plaintiff lists allow for private action; (3) there was an insufficient service of process on Dworetsky; and (4) Plaintiff fails to allege an adequate claim under any of the statutes. [ECF No. 17-1 p. 8-13.] Plaintiff filed a notice to oppose Dworetsky's motion to dismiss on March 7, 2014 claiming that under California Civil codes 1798.92-1798.97, the civil penalty can be as much as $30,000. [ECF No. 19 p. 5.] Dworetsky then filed a reply brief in further support of the motion to dismiss on March 13, 2014 claiming that Plaintiff's opposition papers do not address the arguments raised by Dworetsky. [ECF No. 22 p. 2.]
III. DISCUSSION
A. Subject Matter Jurisdiction
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) challenges the existence of a federal court's subject matter jurisdiction. "When subject matter jurisdiction is challenged under Rule 12(b)(1), the plaintiff must bear the burden of persuasion." KehrPackages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991). The court must resolve motions over subject matter jurisdiction before proceeding to a disposition of the merits. Carlsberg Resources Corp. v. Cambria Sav. and Loan Ass'n, 554 F.2d 1254, 1256 (3d Cir. 1977). Determining subject matter jurisdiction, "cannot be overlooked by the court, even if the parties fail to call attention to the defect, or consent that it may be waived." Id. (citing Thomas v. Bd. of Trs. of Ohio State Univ., 195 U.S. 207 (1904)). When challenging a plaintiff's claims using subject matter jurisdiction, the defendant may either (1) attack the complaint on its face or (2) attack the existence of subject matter jurisdiction in fact. Mortensen v. First Fed. Sav. and Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977). With a facial challenge, the court must take the allegations of the complaint as true and only consider those allegations in the complaint, as well as the documents referenced therein, in the light most favorable to the plaintiff. See id.; Gould Electronics. Inc. v. U.S., 220 F.3d 169, 176 (3d Cir. 2000) (citing PBGC v. White, 998 F.2d 1192, 1196 (3d Cir. 1993)). With a factual challenge, the court may consider evidence outside of the pleadings and need not presume the truth of the allegations, but is free to weigh the evidence to determine if the requirements for jurisdiction are met. See Mortensen, 549 F.2d at 891; Gotha v. U.S., 115 F.3d 176, 178-79 (3d Cir. 1997).
To properly invoke subject matter jurisdiction under 28 U.S.C. § 1331, a plaintiff must demonstrate that his claim "aris[es] under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. Once a plaintiff alleges that the actions of a defendant have violated federal law, the question of whether any facts as pled are true, or whether they are legally sufficient to warrant relief, is one of merit and not of jurisdiction. See Kuhck v. Pocono Downs Racing Ass'n, 816 F.2d 895, 897-98 (3d Cir. 1987) (). Dismissal for lack of jurisdiction will be proper only when the right claimed is "so insubstantial, implausible, foreclosed by prior decisions . . . or otherwise completely devoid of merit as not to involve a federal controversy." Id. at 899.
"To establish diversity jurisdiction under 28 U.S.C. § 1332(a), the party asserting jurisdiction must show that there is complete diversity of citizenship among the parties and an amount in controversy exceeding $75,000." Schneller ex rel. Schneller v. Crozer Chester Med. Ctr., 387 F. App'x 289, 292 (3d Cir. 2010). For complete diversity of citizenship, each plaintiff must be a citizen of a different state from each defendant. Gay v. Unipack, Inc., No. 10-6221, 2011 WL 5025116 at *4 (D.N.J. Oct. 20, 2011). Plaintiffs, even when proceeding pro se, must affirmatively plead the citizenship of the individual defendants in order for the court to determine whether complete diversity of the parties in fact exists and thus whether the court has jurisdiction to adjudicate the matter. See Poling v. K. Hovnanian Enters., 99 F. Supp. 2d 502, 515 (D.N.J. 2000); Phillip v. Atlantic City Med. Ctr., 861 F. Supp. 2d 459, 467 (D.N.J. 2012).
Furthermore, the plaintiff must affirmatively plead the amount in controversy on the face of the complaint. Gray v. Occidental Life Ins. Co. of Cal., 387 F.2d 935, 937 (3d Cir. 1968). Determination of the amount in controversy is a federal question to be determined by federal standards, but the state law is relevant as it defines the right the plaintiff seeks to invoke. See Morton v. Liberty Mut. Ins. Co., 367 U.S. 348, 352-53 (1961). The court must decide the amount in controversy from the complaint itself, unless it appears or is shown that the amount stated in the complaint is not claimed in good faith. See id. at 453. In determining that the amount was not claimed in good faith, "it must appear to a legal certainty that the claim is really for less than the jurisdictional amount to justify dismissal." Id. However, the court should not consider in itsjurisdictional inquiry the legal sufficiency of the claims alleged, but can dismiss the case only if there is a legal certainty that the plaintiff cannot recover more than the required amount in controversy. See Suber v. Chrysler Corp., 104 F.3d 578, 583 (3d Cir. 1997).
Defendants have facially challenged the Court's jurisdiction, arguing first that it is apparent from the face of Plaintiff's complaint that the Court lacks original subject matter jurisdiction. [ECF No. 8-1 p. 11-12; ECF No. 17-1 p. 9.] Defendants all argued...
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