Opinion
CIVIL ACTION NO. 3:20-cv-01724
05-26-2021
MOUAID HOMSI, Plaintiff, v. HOME DEPOT USA, INC., Defendant.
(MANNION, J.)
() REPORT AND RECOMMENDATION
This civil action commenced with the lodging of a pro se complaint by the plaintiff, Mouaid Homsi, on September 23, 2020. (Doc. 1.) Together with his complaint, the plaintiff submitted an application for leave to proceed in forma pauperis, which was granted on October 5, 2020. (Doc. 2; Doc. 4.) The defendant, Home Depot USA, Inc. ("Home Depot") has entered its appearance and moved to dismiss the complaint for lack of jurisdiction and for failure to state a claim upon which relief can be granted. (Doc. 8.) That motion is fully briefed and ripe for decision. (Doc. 9; Doc. 13.)
Based on the pro se complaint and attached exhibits, Homsi was a part-time employee at a Home Depot store in Honesdale, Pennsylvania, where he had started work on April 5, 2018. While restacking shelves with a co-worker on May 30, 2018, a piece of wood fell and hit his right ankle, causing an ankle contusion and posterior tibial tendonitis. Homsi continued to work his normal shifts and did not report the injury to his employer until June 2, 2018. He first sought medical treatment for the injury on June 4, 2018. He continued to work until June 12, 2018, when he was terminated.
The circumstances and timing of his termination were in dispute in the state workers compensation administrative proceedings. For the purpose of this report and recommendation on the defendant's motion to dismiss, we have taken the facts alleged in complaint as true and viewed them in the light most favorable to the non-moving plaintiff.
On November 7, 2018, Homsi filed a claim petition for workers compensation benefits. On February 27, 2019, Home Depot filed a petition to terminate workers compensation benefits on the ground that, as of February 7, 2019, Homsi had fully recovered from his right ankle contusion. On October 28, 2019, following an administrative hearing, a workers compensation judge found that Homsi had failed to establish any disability related to his work injury, and that his employer had established his full recovery from the work injury as of February 7, 2019. Homsi appealed, and on August 25, 2020, the Workers Compensation Appeal Board affirmed the decision of the workers' compensation judge. Homsi was represented by counsel in his workers' compensation proceedings.
Home Depot apparently disputed the diagnosis of posterior tibial tendonitis. Ultimately, the workers' compensation judge adopted the diagnosis of Home Depot's medical expert, who found no posterior tibial tendonitis.
Homsi commenced the instant civil action by filing his pro se complaint on September 23, 2020. (Doc. 1.) In addition to facts concerning the state workers' compensation proceedings, he alleges that Home Depot and its agents "harassed" and "spied" on him in connection with the workers compensation proceedings. He alleges that these representatives of the defendant visited his residence, spoke with someone in his homeowners' association, and followed him around the store when he visited it as a customer. He also alleges that he returned some products to the Home Depot store, but his purchase money was not refunded.
"The party asserting jurisdiction bears the burden of showing that at all stages of the litigation the case is properly before the federal court." Samuel-Bassett v. KIA Motors Am., Inc., 357 F.3d 392, 396 (3d Cir. 2004). No federal cause of action whatsoever is apparent from the face of the complaint. See generally 28 U.S.C. § 1331 et seq. For federal diversity jurisdiction to exist, the parties must be citizens of different states and the amount in controversy must exceed $75,000. See 28 U.S.C. § 1332(a)(1). Although not expressly pleaded by the pro se plaintiff, the parties do appear to be citizens of different states. But the complaint has failed to allege any amount in controversy at all. See Adams v. Reliance Standard Life Ins. Co., 225 F.3d 1179, 1182 (10th Cir. 2000) ("An open-ended prayer for recovery . . . is not an allegation that diversity jurisdiction exists or that the amount in controversy exceeds [$75,000]."); ILC Corp. v. Latino Newspaper, Inc., 747 F. Supp. 85, 86-87 (D.D.C. 1990) (dismissing amended complaint that failed to plead any amount in controversy at all for nonfederal claims). Moreover, based on the allegations of the complaint and the attached exhibits, it is clear that the amount in controversy at issue here does not exceed $75,000. See generally Nelson v. Keefer, 451 F.2d 289, 294 (3d Cir. 1971) (holding that a federal trial judge exercises permissible discretion in adjudicating challenges to diversity jurisdiction with respect to the amount in controversy). Thus, this court lacks either federal question or diversity jurisdiction over this matter.
The plaintiff alleges that he resides within Pennsylvania. See Butler v. Farnsworth, 4 F. Cas. 902, 903-04 (Washington, Circuit Justice, C.C.E.D. Pa. 1821) (No. 2,240) (residence in a particular state is prima facie evidence of an individual's domicile and citizenship); Broderick v. Dellasandro, 859 F. Supp. 176, 177 n.1 (E.D. Pa. 1994) ("[R]esidence is prima facie evidence of citizenship."). We take judicial notice that Home Depot USA, Inc., is a Delaware corporation with its principal offices in Atlanta, Georgia. See Pa. Dep't of State, Search Business Entities, at https://www.corporations.pa.gov/search/corpsearch (last visited May 25, 2021). See generally Lim v. Rajan, Civil Action No. 13-1385, 2013 WL 5272845, at *1 n.1 (E.D. Pa. Sept. 18, 2013) (taking judicial notice of Pennsylvania and Delaware online corporation search tools). --------
Accordingly, it is recommended that:
1. The defendants' motion to dismiss (Doc. 9) be GRANTED;
2. The plaintiff's pro se complaint (Doc. 1) be DISMISSED without prejudice for lack of subject matter jurisdiction; and
3. The Clerk be directed to mark this case as CLOSED. Dated: May 26, 2021
/s/_________
JOSEPH F. SAPORITO, JR.
United States Magistrate Judge NOTICE
NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation dated May 26, 2021. Any party may obtain a review of the Report and Recommendation pursuant to Local Rule 72.3, which provides:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636(b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which
objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.
Failure to file timely objections to the foregoing Report and Recommendation may constitute a waiver of any appellate rights. Dated: May 26, 2021
/s/_________
JOSEPH F. SAPORITO, JR.
United States Magistrate Judge