Opinion
No. 3:04-CV-0108-P.
June 15, 2004
MEMORANDUM OPINION AND ORDER
Now before the Court is Defendant Sonic-Frank Parra Autoplex, L.P.'s Motion to Dismiss, filed February 10, 2004. Plaintiff has failed to file a timely response to Defendant's Motion. After considering the pleadings, the briefing, and the applicable law, the Court GRANTS Defendant's Motion to Dismiss.
I. Factual Background
Plaintiff, Daryl W. Hanson, was employed as a sales representative for Defendant, Sonic-Frank Parra Autoplex, L.P. ("Sonic"), which is engaged in the sale of automobiles. See Plaintiff's Original Complaint, ¶ 4. On May 16, 2003, Plaintiff was assisting a customer in a trade-in of her vehicle for a new automobile. Id. Plaintiff was instructed by his supervisor, David Greenleaf, to provide a third party leasing company with the customer's personal credit information. Id. Plaintiff refused to comply with Greenleaf's instruction, and entered a complaint with management personnel. Id.
On May 19, 2003, Plaintiff was discharged from his employment at Sonic under what he was told was a "90-day review." Id. Plaintiff alleges that his termination was improper "under Texas law, which makes unlawful an employer's discharge of an employee in retaliation for refusal to perform an illegal act." Id. ¶ 5. Plaintiff contends that had he "complied with his manager David Greenleaf's directive to give potential customer Suzanne Rice's personal credit information to a third party unknown to her . . . [he] would have violated and been subject to prosecution under sections 32.51(b) and 7.02 of the Texas Penal Code . . . as well as 18 U.S.C. § 1028." Id. Defendant now moves to dismiss Plaintiff's complaint pursuant to Rule 12(b)(1) for lack of subject matter jurisdiction.
II. Legal Standard
A district court may decide a Rule 12(b)(1) motion to dismiss "on any one of three separate bases: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts." Barrera-Montenegro v. United States, 74 F.3d 657, 659 (5th Cir. 1996) ( quoting Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981)). The Fifth Circuit distinguishes between a "facial" attack and a "factual" attack upon a complaint under Rule 12(b)(1). See Patterson v. Weinberger, 644 F.2d 521, 523 (5th Cir. 1981).
If a defendant files a Rule 12(b)(1) motion, the attack is presumptively facial and the Court need look only to the sufficiency of the allegations in the complaint, which are presumed to be true. See id. If, however, the defendant supports the motion with affidavits, testimony, or other evidentiary materials, then the attack is factual and the burden shifts to the plaintiff to prove subject-matter jurisdiction by a preponderance of the evidence by also submitting facts through some evidentiary method. See id. Regardless, a motion to dismiss for lack of subject-matter jurisdiction should be granted only if it appears certain that the plaintiff cannot prove any set of facts in support of his or her claim that would entitle him or her to relief. Home Builders Ass'n of Miss., Inc. v. City of Madison, Miss., 143 F.3d 1006, 1010 (5th Cir. 1998).
III. Defendant's Motion to Dismiss
In this case, Plaintiff has not asserted any claim arising under federal law, and his sole cause of action rests on common law principles promulgated by the Texas Supreme Court in Sabine Pilot Service, Inc. v. Hauck, 687 S.W.2d 733 (Tex. 1985). Compl. ¶ 5. Accordingly, Plaintiff seeks to invoke the jurisdiction of this Court on the basis of diversity of citizenship. See 28 U.S.C. § 1332. Defendant maintains that the Court does not have diversity jurisdiction over this case because complete diversity is lacking. When challenging diversity jurisdiction, "the Fifth Circuit has consistently held that it is the party who urges jurisdiction upon the Court who must always bear the burden of demonstrating that the case is one which is properly before the federal tribunal." Riebe v. National Loan Investors, L.P., 828 F. Supp. 453, 455 (N.D. Tex. 1993) (quoting B. v. Miller Brewing Co., 663 F.2d 545, 549 (5th Cir. 1981)). Plaintiff therefore bears the ultimate burden of overcoming Defendant's diversity jurisdiction challenge.
a. Determining Diversity of Citizenship
Pursuant to the general diversity statute, "the district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, and is between citizens of different states." 28 U.S.C. § 1332(1). This diversity of citizenship must be complete — that is, no defendant may be a citizen of the same state as any plaintiff.
In determining the citizenship of a natural person, courts look to the state in which the individual is domiciled. See Newman-Green, Inc. v. Alfonzo-Lorrain, 490 U.S. 826, 828 (1989). A person is domiciled where he or she has established a fixed habitation or abode, intending to remain there permanently or indefinitely. Coury v. Prot, 85 F.3d 244, 250 (5th Cir. 1996). By statute, a corporation is deemed to be a citizen of both (1) any state in which it has been incorporated, and (2) the state where it has its principal place of business. 28 U.S.C. § 1332(c)(1).
b. The Named Parties Are Not Diverse
To satisfy diversity of citizenship pursuant to 28 U.S.C. § 1332(a)(1), the named parties must be citizens of different states. 28 U.S.C. § 1332(a)(1). While Plaintiff's Texas citizenship is undisputed, the parties disagree as to the citizenship of Defendant. In such situations, the Fifth Circuit has held that district courts are "given the authority to resolve factual disputes, along with the discretion to devise a method for making a determination with regard to the jurisdictional issue." Moran v. Kingdom of Saudi Arabia, 27 F.3d 169, 172 (5th Cir. 1994). In exercising this authority, courts may "devise a procedure [for considering evidence beyond the pleadings] which may include considering affidavits, allowing further discovery, hearing oral testimony, [or] conducting an evidentiary hearing." Id.
Plaintiff alleges in vague and unsupported language that Defendant "is a foreign entity which does business in Dallas County, Texas." Pl.'s Compl. at ¶ 1. However, the Complaint contains not a single allegation concerning the citizenship of either Sonic or its members in support of this allegation. Defendant's Motion to Dismiss refutes Plaintiff's claim of diversity, and includes (1) a copy of certification by the Texas Secretary of State indicating that Sonic is incorporated in the State of Texas, and (2) a Declaration attesting to the same. As this attached evidence goes beyond the pleadings in this case, Defendant's Motion is a factual attack on Plaintiff's Complaint, and Plaintiff bears the burden of proving diversity jurisdiction by a preponderance of the evidence. Plaintiff has not filed a response to Defendant's Motion, nor has he presented any evidence to prove that diversity jurisdiction exists in this case. On the contrary, the evidence before the Court conclusively establishes that Defendant was incorporated in Texas, and is therefore, like Plaintiff, a Texas citizen.
As both parties are citizens of the same state, complete diversity of citizenship is lacking, and the Court does not have diversity jurisdiction over this case. Accordingly, Defendants' Motion to Dismiss under Rule 12(b)(1) is hereby GRANTED.