On October 5, 1994 oral argument was heard on the motions. On October 11, 1994 the Dieters submitted an additional letter in support of jurisdiction. The motion was considered fully submitted at that Lime.
The facts are gleaned from the complaint, taken as true, and the memoranda submitted on the instant motion. Edward Dieter was hired by MFS, in May 1993 at its Houston Texas location and worked their until December 1993. In December 1993, MFS was in the process of acquiring Fibernet. Pursuant to a contract entered into between MFS and Dieter in December 1993, MFS agreed to employ Edward Dieter as a Consultant, acting in the capacity of Regional Sales Director in the Rochester, New York office.
Edward Dieter began working in this capacity on December 10, 1993. The Dieter family moved from Houston to Rochester during that month.
Fibernet had a box seat at Rich Stadium. On January 23, 1994 the Dieters attended a football game at Rich Stadium in connection with Edward Dieter's work. Fibernet provided transportation to and from that game in a bus, on which alcoholic drinks were made available to the passengers. The Dieters used the bus to get to and from the stadium.
Various Fibernet employees including Geiger were on that bus. On the trip home from the game, the Dieters allege that defendant Geiger assaulted, provoked and attacked them. The Dieters allege that Fibernet knew that its employee, Geiger, had abusive and violent propensities.
The Dieters allege that after the incident on the bus Edward Dieter received assurances from MFS that the incident would not result in any discipline or termination.
On January 27, 1994 Edward Dieter was sent to Baltimore allegedly to do some work for MFS. In Baltimore, he alleges that he was forced to resign from MFS.
The Dieters submit that subject matter in this action is premised on either 28 U.S.C. § 1332(a)(1) ("diversity jurisdiction") or diversity jurisdiction coupled with supplemental jurisdiction, pursuant to 28 U.S.C. § 1367.
There is no Complete Diversity for the Purpose of Conferring Subject Matter Jurisdiction
It is well established that diversity jurisdiction requires complete diversity between the parties opposed in interest. Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267, 2 L. Ed. 435 (1806). Wright and Miller, § 3605.
Plaintiffs concede that, at the very least, there is no diversity between the Dieters and Geiger as they are all New York residents. Thus diversity jurisdiction under 28 U.S.C. § 1332(a)(1) alone does not confer subject matter jurisdiction on this Court.
Supplemental Jurisdiction does not Provide a Jurisdictional Basis
Section 1367 provides, in relevant part:
(a) Except as provided in subsections (b) and (c) ..., in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution....