United States District Court, E.D. Kentucky, Northern Division, Ashland
MEMORANDUM OPINION AND ORDER
R. WILHOIT. JR. UNITED STATES DISTRICT JUDGE
matter is before the Court upon Defendant First Financial
Credit, Inc.'s Motion to Dismiss [Docket No. 10]. The
matter has been fully briefed by the parties [Docket Nos.
10-1, 16 and 17]. For the reasons set forth herein, the Court
finds that it does not have subject matter jurisdiction over
this lawsuit and, as such, the Complaint will be dismissed
case arises from Defendant Richard Whelan's employment by
Plaintiff Pioneer Credit Company ("Pioneer'), his
subsequent resignation and, then, his employment by Defendant
First Financial Credit, Inc. ("First Financial").
specializes in providing consumer loans. [Affidavit of Craig
Bell, District Manager for Pioneer, Docket No. 1-1, ¶
3]. In October 2013, Pioneer hired Whelan as Branch Manager
of its Morehead, Kentucky location. Id. at ¶ 5.
When he was hired, Whelan and Pioneer entered into an
Employment Agreement, which included a non-compete provision.
[Employment Agreement, Docket No. 1-1].
18, 2018, Whelan tendered his resigned to Pioneer. His last
day of work at Pioneer was May 30, 2Ol8.[Docket No. 1-1,
2, 2018, First Financial, a consumer loan company, opened its
doors across the parking lot from Pioneer, with Whelan as its
manager. Id. at ¶¶ 8-11.
filed this civil action against Whelan and First Financial
alleging that Whelan breached the non-compete provision of
his Employment contract and misappropriated Pioneer's
confidential and proprietary information. [Docket No. 1]. In
addition to seeking compensatory and punitive damages,
Pioneer seeks to enjoin Whelan from working for First
Financial and utilizing the propriety information he
allegedly misappropriated from Pioneer. Id.
lawsuit was filed in this Court, on the basis of diversity
jurisdiction, pursuant to 28 U.S.C. § 1332, which
confers federal jurisdiction over cases involving citizens
from different states where the amount in controversy exceeds
$75, 000.00, exclusive of interests and costs Id.
First Financial seeks to dismiss the Complaint, pursuant to
Fed.R.Civ.Proc. 12(b)(1), arguing that Pioneer's
Complaint fails to allege sufficient facts to establish that
the amount in controversy in this matter exceeds $75, 000.00,
as required by 28 U.S.C. § 1332.
to subject matter jurisdiction fall into two categories:
facial attacks and factual attacks. Fed.R.Civ.P. 12(b)(1);
United States v. Ritchie, 15 F.3d 592, 598 (6th
Cir.1994), cert. denied, 513 U.S. 868, 115 S.Ct.
188, 130 L.Ed.2d 121 (1994). A facial attack challenges the
sufficiency of the pleading itself. On such a motion, the
Court must take all of the material allegations in the
complaint as true and construe them in the light most
favorable to the nonmoving party. Id. (citing Scheuer v.
Rhodes, 416 U.S. 232, 235-37, 94 S.Ct. 1683, 40
contrast, a factual attack, as is made here, challenges the
factual existence of subject matter jurisdiction-i.e.,
whether the breach of contract, tortious interference, and
injunctive relief claims exceed $75, 000. On this form of
motion, the Court's inquiry is limited to determining
whether the challenged pleadings set forth allegations
sufficient to show the Court that it has jurisdiction over
the subject matter; "no presumptive truthfulness applies
to the factual allegations, and the court is free to weigh
the evidence and satisfy itself as to the existence of its
power to hear the case." Id. (internal
citations omitted); RMI Titanium Co. v. Westinghouse
Elec. Corp., 78 F.3d 1125, 1135 (6th Cir.1996).
reviewing such a motion, a district court is to probe the
facts and assess the validity of its own jurisdiction. In
doing so, the Court has wide discretion to consider
affidavits and other documents outside the pleadings.