United States District Court, N.D. Mississippi, Oxford Division
MEMORANDUM OPINION AND ORDER
MICHAEL P. MILLS UNITED STATES DISTRICT JUDGE.
cause comes before the Court on Defendants’ motion to
dismiss for lack of subject matter jurisdiction. The Court,
having reviewed the motion, the parties' submissions, the
complaint, and applicable authority, is now prepared to rule.
and Procedural Background
Tamara Brown received dental care and treatment at The Smile
Center of Southaven in Southaven, Mississippi between
February 13, 2019 and April 18, 2019. On July 1, 2019,
Plaintiff initiated an action in the Northern District of
Mississippi against Defendants Mina A. Zaki, DDS (Zaki) and
Joseph K. Shleweet, DDS, PLLC (Shleweet PLLC). Plaintiff
alleges that Zaki’s use of dental crown cement caused
her to be sick and suffer great pain in the body and anguish
of mind. Plaintiff alleges that her pain and medical expenses
were directly and proximately caused by Defendants.
12(b)(1) motion “allow[s] a party to challenge the
subject matter jurisdiction of the district court to hear a
case.” Ramming v. U.S., 281 F.3d 158, 161 (5th
Cir. 2001). If the court determines that it “lacks the
statutory or constitutional power to adjudicate the case,
” then the court may properly dismiss the claim.
Home Builders Assn'n v. City of Madison, Miss.,
143 F.3d 1006, 1010 (5th Cir. 1998). The court may base its
consideration on (1) the complaint alone; (2) the complaint
supplemented by undisputed facts; or (3) the complaint
supplemented by undisputed facts plus the court's
resolution of disputed facts. Montez v. Dep’t of
Navy, 392 F.3d 147, 149 (5th Cir. 2004).
deciding a Rule 12(b)(1) motion, the first determination the
court must make is whether the motion is a facial or a
factual attack. A facial attack is one premised solely on the
complaint and requires the court “merely to look to the
sufficiency of the allegations in the complaint because they
are presumed to be true.” Paterson v.
Weinberger, 644 F.2d 521, 523 (5th Cir. 1981). A factual
attack, on the other hand, challenges the existence of
subject matter jurisdiction in fact, irrespective of the
pleadings, and matters outside the pleadings, such as
testimony and affidavits, are considered. Menchaca v.
Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir.
1980). No. presumptive truthfulness attaches to the
plaintiff's allegations, and the court can decide
disputed issues of material fact in order to determine
whether it has jurisdiction to hear the case.
Montez, 392 F.3d at 149.
argue that this Court should grant their motion to dismiss
for lack of subject matter jurisdiction.
Subject Matter Jurisdiction
complaint alleges subject matter jurisdiction based on
diversity of citizenship. Defendants argue there is no
diversity. Defendants support their argument by citing six
documents that challenge diversity. First, Defendants
indicate that the Plaintiff identified her home address as
Desoto County, Mississippi on her civil cover sheet. (Doc.
1-5, 07/01/2019, Ex. A.) Second, in her complaint, Plaintiff
states she lives in Desoto County, Tennessee, a nonexistent
county in Tennessee. (Complaint, Doc. 1, 07/01/2019, Ex. B.)
Third, Plaintiff possesses a Mississippi driver’s
license. (Ex. C.) Fourth, in Defendant Zaki’s
affidavit, he states he is a resident of Tennessee. (Ex. D.)
Fifth, Defendant Shleweet PLLC is a limited liability company
organized under the laws of the State of Mississippi. (Ex.
E.) Sixth, Joseph Shleweet’s affidavit indicates that
Joseph Shleweet is a resident of DeSoto County, Mississippi.
district courts have original subject matter jurisdiction
over all civil cases where the amount in controversy exceeds
$75, 000, exclusive of interest and costs, and is between
citizens of different states. 28 U.S.C. § 1332(a).
Federal common law determines whether a party is a citizen of
a state for purposes of diversity jurisdiction. 28 U.S.C.A.
§ 1332. The citizenship of a limited liability company
“is determined by the citizenship of all of its
members.” Harvey v. Grey Wolf Drilling Co.,
542 F.3d 1077, 1080 (5th Cir. 2008).
district court has “wide, but not unfettered,
discretion to determine what evidence to use in making its
determination of jurisdiction.” Preston v. Tenet
Healthsystem Mem. Med. Ctr., Inc., 485 F.3d 804, 817
(5th Cir. 2007) (citing Coury v. Prot, 85 F.3d 244,
249 (5th Cir. 1996). In making such an assessment, the court
may look at any record evidence, receive affidavits and
deposition testimony, and hear live testimony concerning the
citizenship of parties. Coury, 85 F.3d at 249.
Factors to consider include in what state the party exercises
political rights, pays taxes, owns real and personal
property, has licenses, maintains bank accounts,
belongs to churches and organizations, has employment, and
maintains a home. Id. at 251 (emphasis added). A
party's statement of intent is relevant in determining
domicile, but is given little weight if it conflicts with the
objective facts. Id.
jurisdiction depends on citizenship, citizenship should be
distinctly and affirmatively alleged.” Stafford v.
Mobil Oil Corp., 945 F.2d 803, 804 (5th Cir. 1991). This
Court observes, however, that “failure to allege facts
establishing jurisdiction need not prove fatal to a
complaint.” Whitmire v. Victus Ltd., 212 F.3d
885, 887 (5th Cir. 2000). Pursuant to 28 U.S.C. § 1653,
“[d]efective allegations of jurisdiction may be
amended, upon terms, in trial or appellate courts.” 28
U.S.C. § 1653. This statute “is to be broadly
construed to avoid dismissals of actions on purely
‘technical’ or ‘formal’
grounds.” Whitmire, 212 F.3d at 887.