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RICHMOND v. IBM

March 7, 1996

CLARISSA RICHMOND, RITA B. PRITCHARD, JUNE REWIS and F. KEVIN REWIS, CONNIE L. DAVIS, ELEANOR M. FLEURY and LOUIS M. DUDEK, Plaintiffs, against INTERNATIONAL BUSINESS MACHINES CORPORATION, HEWLETT-PACKARD COMPANY, MEMOREX CORPORATION, MEMOREX TELEX CORPORATION, AMPEX CORPORATION, a subsidiary of Ampex Group, Inc., CONTEL CORPORATION, a subsidiary of GTE Corporation, and GTE CORPORATION, Defendants.


The opinion of the court was delivered by: HURLEY

 APPEARANCES: *fn1"

 HURLEY, District Judge

 Currently pending before the Court in the above-captioned case are two motions to dismiss based upon the applicable statutes of limitations. Specifically, Ampex Corporation ("Ampex") has moved to dismiss the claims against it by Plaintiff Connie L. Davis, and Hewlett-Packard Company ("Hewlett-Packard") has moved to dismiss the claims against it by Plaintiff Rita B. Pritchard.

 As explained below, the Court finds that it is not in a position to consider these motions, as it is not apparent from the pleadings that there exists complete diversity of citizenship. Therefore, the Court instead grants the plaintiffs leave to amend their Complaint to allege facts sufficient to establish such diversity.

 DISCUSSION

 I. Subject Matter Jurisdiction

 The Court acknowledges that none of the defendants has moved to dismiss the instant action for lack of subject matter jurisdiction, see Fed. R. Civ. P. 12(b)(1), but "we must consider it, as subject matter jurisdiction is an unwaivable sine qua non for the exercise of federal judicial power." *fn2" See Turtur v. Rothschild Registry Int'l, Inc., 26 F.3d 304, 307 (2d Cir. 1994) (citation and internal quotations omitted); see also John Birch Soc'y v. National Broadcasting Co., 377 F.2d 194, 199 (2d Cir. 1967) ("Because of the limited jurisdiction of the federal courts, . . . , it is incumbent upon this court to raise the question of subject matter jurisdiction sua sponte whenever it appears from the pleadings or otherwise that jurisdiction is lacking.") (citations omitted).

 The Second Circuit has indicated that in an action, such as the instant one, "based only upon 28 U.S.C. § 1332, diversity of citizenship must be apparent from the pleadings." John Birch Soc'y, 377 F.2d at 197. A conclusory allegation in the Complaint regarding diversity of citizenship does not extinguish the Court's responsibility to determine, on its own review of the pleadings, whether subject matter jurisdiction exists. See Ganoe v. Lummis, 662 F. Supp. 718, 723 (S.D.N.Y. 1987) ("Naked allegations that the parties are citizens of different states, absent an averment of the particular states of which the parties are citizens, are insufficient to meet the pleading requirement."), aff'd, 841 F.2d 1116 (2d Cir.), cert. denied, 487 U.S. 1250, 101 L. Ed. 2d 964, 109 S. Ct. 13 (1988).

 II. Jurisdictional Basis for Instant Action

 By way of background, the Court notes that the instant action is but one of a multitude of cases presently pending before the undersigned by which plaintiffs seek recovery for alleged "repetitive stress injuries." Plaintiffs in the case at bar are represented by the firm of Levy Phillips & Konigsberg, R.L.L.P. ("Levy Phillips"), as are many of the plaintiffs in the other actions before this Court that seek recovery for similar alleged injuries. Many of the Complaints filed by Levy Phillips, including the Complaint in the instant action, do not specifically allege the states of citizenship of the plaintiffs.

 Against that backdrop, the Court turns its attention to the pleadings in the case at bar. Federal Rule of Civil Procedure 8(a) provides that a pleading "shall contain . . . a short and plain statement of the grounds upon which the court's jurisdiction depends, unless the court already has jurisdiction and the claim needs no new grounds of jurisdiction to support it . . . ." Fed. R. Civ. P. 8(a). Plaintiffs in the above-captioned case have premised subject matter jurisdiction on diversity of citizenship between themselves and the defendants. Specifically, the plaintiffs allege that

 
jurisdiction exists pursuant to 28 U.S.C. § 1332 as set forth below in that the defendants are corporations incorporated pursuant to the laws of states and have their principal places of business within states other than the state [sic] of which the plaintiffs herein are citizens, and the amount in ...

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