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SAVAGE v. SCANLON

May 19, 1998

JAMES E. SAVAGE and TERESA SAVAGE, Plaintiffs, against BERNADETTE L. SCANLON, Defendant. BERNADETTE L. SCANLON, Third-Party Plaintiff, --against-- ROY LUDWIG and EDNA LUDWIG, Third-Party Defendants.


The opinion of the court was delivered by: MCAVOY

MEMORANDUM-DECISION & ORDER

 McAvoy, Chief District Judge:

 Presently before the Court is the third-party defendants' motion for summary judgment pursuant to FED. R. CIV. P. 56. For the reasons that follow, the third-party defendants' motion is granted dismissing the action against them in its entirety.

 I. BACKGROUND

 In the main action, plaintiffs James E. Savage and Teresa Savage ("plaintiffs") seek to recover damages from defendant/third-party plaintiff Bernadette L. Scanlon ("Scanlon") for injuries and suffering allegedly arising out of an automobile accident on April 3, 1996. Specifically, the Complaint alleges that Scanlon negligently backed her van out of a driveway onto Farm-to-Market Road in the Town of Union, New York, causing a collision with plaintiffs' vehicle.

 By Stipulation and Order, Scanlon thereafter filed a Third-Party Complaint against Roy Ludwig and Edna Ludwig ("third-party defendants"), owners of the property adjacent to the driveway out of which Scanlon backed her van. The Third-Party Complaint alleges that the car accident between plaintiffs and Scanlon was caused by evergreen trees on the third-party defendants' property, which blocked Scanlon's view of vehicles on Farm-to-Market Road, and particularly plaintiffs' car. The Third-Party Complaint specifically avers that the third-party defendants negligently failed to trim and maintain these trees and that they had actual or constructive notice that these trees presented a danger to anyone using the driveway adjoining their property.

 The trunks of the trees in question are located on the third-party defendants' property some eight feet from the east curb of Farm-to-Market Road. According to Scanlon, several branches of the trees extended approximately 3 to 5 feet onto the public right-of-way on Farm-to-Market Road. The third-party defendants planted the trees some 38 years ago.

 II. DISCUSSION

 A. Subject Matter Jurisdiction

 As a preliminary matter, a question of subject matter jurisdiction is presented.

 Rule 8 of the Federal Rules of Civil Procedure requires that plaintiffs include in their pleadings "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)(1). This rule serves to guarantee that federal courts, which are courts of limited jurisdiction, have notice of the jurisdictional basis upon which plaintiffs rest their case.

 In the case at bar, the Complaint rests jurisdiction upon diversity of citizenship. Plaintiffs are citizens of the State of Pennsylvania, and Scanlon is a citizen of the State of New York. The amount in controversy, moreover, exceeds $ 75,000. See 28 U.S.C.A. § 1332(a)(1). Thus, subject matter jurisdiction is present over the main action under 28 U.S.C. § 1332.

 The Third-Party Complaint, by contrast, contains no statement of subject matter jurisdiction. In the third-party defendants' Answer to the Third-Party Complaint, they assert that this Court lacks subject matter jurisdiction over the impleader action. As always, this Court must ensure that subject matter jurisdiction is present over all claims. See Ametex Fabrics, Inc. V Just In Materials, Inc., 135 F.3d 225, 1998 WL 133751, at *3 (2d Cir. 1998); Ash v. Artpack Int'l, Inc., 1998 U.S. Dist. LEXIS 3520, 1998 WL 132932, at *3 (S.D.N.Y. March 23, 1998).

 To begin, subject matter jurisdiction is not present over the Third-Party Complaint by virtue of 28 U.S.C. § 1332. Scanlon and the third-party defendants are both citizens of the State of New York, and accordingly, the requirement of complete diversity is not met. See 28 U.S.C.A. § 1332. Furthermore, the Third-Party Complaint does not implicate ...


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