R.R. Constr. Co. of South Jersey, Inc. v. A.P. Constr. Inc.

• Court: U.S. District Court — District of New Jersey
• Writing for the Court: Joseph H. Rodriguez
• Decision Date: 21 July 2011
• Docket Number: Civil Action No. 10-6190
• Citation: R.R. Constr. Co. of South Jersey, Inc. v. A.P. Constr. Inc., Civil Action No. 10-6190 (D. N.J. Jul 21, 2011)
• Parties: RAILROAD CONSTRUCTION COMPANY OF SOUTH JERSEY, INC., Plaintiff, v. A.P. CONSTRUCTION, INC., Defendant.

RAILROAD CONSTRUCTION COMPANY OF SOUTH JERSEY, INC., Plaintiff, v. A.P. CONSTRUCTION, INC., Defendant.

Civil Action No. 10-6190

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

Dated: July 21, 2011

Hon. Joseph H. Rodriguez:

OPINION

APPEARANCES

Rudi R. Grueneberg, Esq.

Grueneberg Law Group, LLC

Attorney for Plaintiff

Steven A. Venzie, Esq.

Venzie, Phillips & Warshawer

Attorney for Defendant

RODRIGUEZ, J.

This matter is before the Court on Defendant's Motion to Dismiss Plaintiff's Amended Complaint for lack of subject matter jurisdiction, pursuant to Fed. R. Civ. P. 12(b)(1). [Dkt. No. 9.] For the reasons stated below, Defendant's motion will be granted.

I. BACKGROUND

Railroad Construction of South Jersey, Inc. ("Plaintiff") brings numerous contract and tort claims against A.P. Construction, Inc. ("Defendant") arising out of a subcontract existing between the parties and the conduct of the parties relating to that subcontract. (Am. Compl. ¶¶ 5-78.)

On or about January 17, 2008, Defendant was awarded a contract with the Delaware River Port Authority to serve as general contractor for the rehabilitation of the track structure of the Collingswood Viaduct located in Collingswood, New Jersey ("DRPA Project"). (Am. Compl. ¶ 5.) Plaintiff submitted a bid proposal to Defendant to perform various services of the DRPA Project as a subcontractor on January 16, 2008. (Am. Compl. ¶ 6.) The parties entered into a contract under which Plaintiff was to provide track rehabilitation and related construction services on the DRPA Project with Defendant. (Am. Compl. ¶ 38.) Defendant allegedly breached its contract with Plaintiff by failing to perform obligations thereunder. (Am. Compl. ¶ 43.)

On November 29, 2010, Plaintiff filed this action. [Dkt. No. 1.] The Amended Complaint, filed on December 2, 2010, asserts the following causes of actions: Breach of Contract (Count I); Promissory Estoppel (Count II); Negligent Misrepresentation (Count III); Breach of Implied Contract (Count IV); Breach of Implied Covenant of Good Faith and Fair Dealing (Court V); Fraudulent Inducement (Court VI); Unjust Enrichment (Count VII); Quantum Merit (Court VIII); and Consequential Damages (Count IX). [Dkt. No. 5.] On January 13, 2011, Defendant filed the instant motion to dismiss all of Plaintiff s claims in Amended Complaint for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1). [Dkt. No. 9.]

II. STANDARD FOR RULE 12(b)(1) MOTION

Under Fed. R. Civ. P. 12(b)(1), a defendant may challenge a plaintiff's right to be heard in federal court by asserting the court lacks subject matter jurisdiction over the controversy. See Robinson v. Daulton, 107 F.3d 1018, 1021 (3d Cir. 1999). Unless it is affirmatively demonstrated, a federal court is presumed to lack subject matterjurisdiction. Cohen v. Kurtzman, 45 F. Supp. 2d 423, 429 (D.N.J. 1999) (citations omitted). Dismissal is proper under Rule 12(b)(1) when the claim "clearly appears to be immaterial and made solely for the purpose of obtaining jurisdiction or . . . is wholly insubstantial or frivolous." Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 140809 (3d Cir. 1991) (citing Bell v. Hood, 327 U.S. 678, 682 (1946)). A claim is insubstantial if "'its unsoundness so clearly results from the previous decisions of this court as to foreclose the subject and leave no room for interference that the questions sought to be raised can be the subject of controversy.'" Hagans v. Lavine, 415 U.S. 528, 538 (1973) (quoting Ex parte Poresky, 290 U.S. 30, 32 (1933)).

Under a Rule 12(b)(1) motion, the party asserting jurisdiction, the plaintiff, bears the burden of demonstrating in the record that jurisdiction is proper. Packard v. Providential Nat'l Bank, 994 F.2d 1039, 1045 (3d Cir. 1993); Development Finance Corp. v. Alpha Housing & Health Care, Inc., 54 F.3d 156, 158 (3d Cir. 1995). However, "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 a jurisdictional claim." Mortensen v. First Fed'l Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977). The trial court is free to weigh the evidence to determine whether it has subject matter jurisdiction. Id.

A motion to dismiss under Rule 12(b)(1) may be treated as either a facial or factual challenge to the court's subject matter jurisdiction. Taliaferro v. Darby Twp. Zoning Bd., 458 F.3d 181, 188 (3d Cir. 2006) (citations omitted); Gould Electronics Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000) (citing Mortensen, 549 F.2d at 891). Rule 12(b)(1) facial attacks contest the sufficiency of the pleadings, and the trial courtmust take all allegations in the complaint as true and in the light most favorable to the plaintiff. Gould, 2201 F.3d at 176 (citing PBGC v. White, 998 F.2d 1192, 1196 (3d Cir. 1993); see also In re Kaiser Group Int'l Inc., 399 F.3d 558, 561 (3d Cir 2005) (In evaluating "facial" subject matter jurisdiction attacks, the court ordinarily accepts all well-pleaded factual allegations as true, and views all reasonable inferences in the plaintiff s favor.). Essentially, a "facial" challenge by the defendant contests the adequacy of the language used in the pleading. Turicentro, S.A. v. American Airlines, Inc., 303 F.3d 293, 300 n.4 (3d Cir. 2002).

Rule 12(b)(1) factual attacks, however, contest the factual basis for subject matter jurisdiction; that is, in a factual challenge to jurisdiction, the defendant argues that the allegations on which jurisdiction depends are not true as a matter of fact. Id. at 300. As such, no presumptive truthfulness attaches to plaintiff's allegations and "the court must weigh the evidence relating to jurisdiction, with discretion to allow affidavits, documents, and even limited evidentiary hearings." Id. at 300 n.4. If the defendant contests the jurisdictional allegations, then "it is incumbent upon the plaintiff to respond to the defendant's sworn factual assertions" with something more than conclusory responses. International Ass'n of Machinists & Aerospace Workers v. Northwest Airlines, Inc., 673 F.2d 700, 711 (3d Cir. 1981). If the plaintiff fails to "meet and controvert the defendant's factual proofs, then the district court must determine whether it has subject matter jurisdiction based upon the factual context presented by the defendant." Id. at 711-12. However, if the opposing affidavits present a disputed issue of material fact, the court must permit the case to proceed to a plenary trial to resolve the contested jurisdictional issues. Id.

III. DISCUSSION

Plaintiff is incorporated in New Jersey with its principal place of business located at 705 Mantua Avenue, Paulsboro, New Jersey 08066, and asserts that "[j]urisdiction is proper pursuant to 28 U.S.C. § 1332(a), as the parties are citizens of different states and the amount in controversy exceeds Seventy-Five Thousand Dollars ($75,000.00)." (Am. Compl. ¶¶ 1, 3.) Alternatively, Plaintiff asserts that jurisdiction is proper "pursuant to 28 U.S.C. § 1337 as this action directly implicates an Act of Congress concerning interstate commerce, the ICC Termination Act of 1955, 490. S.C. [sic] § 10101, et seq." (Am. Compl. at ¶ 3.)

A. Diversity Jurisdiction Under 28 U.S.C. § 1332

District Courts have original jurisdiction over civil actions where the matter in controversy exceeds $75,000, exclusive of interest and costs, and is between citizens of different states. 28 U.S.C. § 1332(a). With respect to diversity jurisdiction, "a corporation shall be deemed to be a citizen of any State by which it has been incorporated and of the State where it has its principal place of business." 28 U.S.C. § 1332(c)(1). The Supreme Court has stated that the appropriate test for determining a corporation's "principal place of business" is the "nerve center test." Hertz Corp. v. Friend, 130 S. Ct. 1181, 1192 (2010). "Principal place of business" refers to "the place where a corporation's officer's direct, control, and coordinate the corporation's activities . . . [a]nd in practice it should normally be the place where the corporation maintains its headquarters-provided that the headquarters is the actual center of direction, control, and coordination." Id. Again, the party asserting diversity jurisdiction bears the burden of proof, and when diversity is challenged the parties must support their allegations with competent proof. Id. at 1194-95.

In this case, Plaintiff has alleged that Defendant is incorporated in Pennsylvania with its principal place of business located at 1080 North Delaware Avenue, Suite 1500, Philadelphia, Pennsylvania 19125. (Am. Compl. ¶2.) Through this motion, however, Defendant contends that its principal place of business is located at 915 South Black Horse Pike, Blackwood, New Jersey, and therefore Defendant argues that Plaintiff cannot establish diversity jurisdiction pursuant to 28 U.S.C. § 1332, as Plaintiff is also a New Jersey citizen. (Motion to Dismiss at ¶¶ 1, 12-13.) In support of its motion, Defendant offers an affidavit by Defendant's president and chief operating officer, Amedeo Petrongolo, stating that Defendant's principal place of business is located in Blackwood, New Jersey. (Def.'s Ex. A, Amedeo Petrongolo's Aff.) Plaintiff responds that Defendant previously represented in federal court that its principal place of business is located in Philadelphia, Pennsylvania. Specifically, in Kinkade v. A.P. Construction, Inc., Docket #: 2:07-cv-05285-JS, Defendant filed a Notice of Removal to remove a matter pending in the Philadelphia Court of Common Pleas to the District Court for the Eastern District of Pennsylvania by claiming that "Defendant, A.P. Construction, Inc., is not a New Jersey corporation, but a registered corporation of the Commonwealth of Pennsylvania." In Creelman v. A.P. Construction, Inc., Docket #: 1:10-cv-01657-NLH-KMW, Defendant admitted in paragraph 2 of its Answer that it "was a...