UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-2140
JOHN B. KIMBLE,
Plaintiff – Appellant,
v.
RAJESH K. RAJPAL, M.D.; RAJESH RAJPAL, trading as See
Clearly Vision & Washington Laser Eye,
Defendants - Appellees.
No. 14-1024
JOHN B. KIMBLE,
Plaintiff – Appellant,
v.
RAJESH K. RAJPAL, M.D.; RAJESH RAJPAL, trading as See
Clearly Vision & Washington Laser Eye,
Defendants - Appellees.
Appeals from the United States District Court for the Eastern
District of Virginia, at Alexandria. Claude M. Hilton, Senior
District Judge. (1:13-cv-00298-CMH-IDD)
Submitted: March 31, 2014 Decided: April 17, 2014
Before NIEMEYER and THACKER, Circuit Judges, and HAMILTON,
Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
John B. Kimble, Appellant Pro Se. Thomas Clyde Marriner, David
Randolph Thompson, COWDREY THOMPSON PC, Easton, Maryland, for
Appellees.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
In these consolidated appeals, John B. Kimble appeals
the district court’s orders dismissing his civil action for lack
of subject matter jurisdiction and denying his motion for relief
from that judgment pursuant to Rule 59(e) of the Federal Rules
of Civil Procedure. For the reasons that follow, we affirm.
We review questions of subject matter jurisdiction
de novo. Dixon v. Coburg Dairy, Inc., 369 F.3d 811, 815-16 (4th
Cir. 2004) (en banc). The plaintiff bears the burden to
establish subject matter jurisdiction. Piney Run Pres. Ass’n v.
Cnty. Comm’rs of Carroll Cnty., Md., 523 F.3d 453, 459 (4th Cir.
2008). A defendant may challenge subject matter jurisdiction in
two ways. Kerns v. United States, 585 F.3d 187, 192 (4th Cir.
2009). First, he may raise a “facial challenge” by asserting
that the complaint fails to allege facts sufficient to support
subject matter jurisdiction. Id. In that instance, the court
must evaluate the complaint in the same manner utilized in
assessing a motion to dismiss for failure to state a claim —
that is, viewing the well-pleaded facts in the complaint as
true. Id.
Alternatively, the defendant may challenge the factual
basis for subject matter jurisdiction. Id. In considering a
motion raising such a factual challenge, “the district court is
to regard the pleadings’ allegations as mere evidence on the
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issue, and may consider evidence outside the pleadings without
converting the proceeding to one for summary judgment.”
Richmond, Fredericksburg & Potomac R. Co. v. United States, 945
F.2d 765, 768 (4th Cir. 1991). The court should grant the
motion “only if the material jurisdictional facts are not in
dispute and the moving party is entitled to prevail as a matter
of law.” Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir.
1999) (internal quotation marks omitted).
District courts have original jurisdiction over civil
actions in which the amount in controversy exceeds $75,000 and
the dispute is between citizens of different states. 28 U.S.C.
§ 1332(a)(1) (2012). If one defendant is a citizen of the same
state as the plaintiff, complete diversity is nonexistent, and
federal jurisdiction will not lie. Owen Equip. & Erection
Co. v. Kroger, 437 U.S. 365, 373-74 (1978). A corporation is
deemed a citizen of every state by which it is incorporated, as
well as a state in which it has its principal place of business.
28 U.S.C. § 1332(c)(1) (2012).
On appeal, Kimble primarily challenges both the
dismissal order and the order denying Rule 59(e) relief by
asserting that complete diversity exists between the parties.
The district court dismissed Kimble’s action after concluding
that one of the corporate Defendants, Washington Laser Eye
Center, was incorporated in Maryland and therefore a citizen of
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the same state as Kimble. In reaching its conclusion, the
district court appears to have relied upon an opinion issued by
the United States District Court for the District of Maryland,
dismissing without prejudice Kimble’s similar medical
malpractice and related tort claims against Defendants Rajpal
and See Clearly Vision. In that order, the district court
declined to substitute Washington Laser Eye Center as a party
after finding that, as a Maryland corporation, its presence
would defeat diversity jurisdiction. * Although the Maryland
district court’s determination is not dispositive of the issue
under the doctrine of collateral estoppel, see In re Microsoft
Corp. Antitrust Litig., 355 F.3d 322, 326 (4th Cir. 2004)
(stating requirements for collateral estoppel, including that
“the issue or fact was critical and necessary to the judgment in
the prior proceeding”), the court was permitted to consider the
Maryland district court’s finding in reaching its independent
determination of the issue.
*
We have previously affirmed the Maryland district court’s
dismissal order. Kimble v. Rajpal, 512 F. App’x 352, 353 (4th
Cir. 2013) (No. 12-2142). While this court is required to
inquire into its jurisdiction sua sponte, Dickens v. Aetna Life
Ins. Co., 677 F.3d 228, 230 (4th Cir. 2012) (citing Mt. Healthy
City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 278
(1977)), the issue of Washington Laser Eye Center’s citizenship
was not properly before us in that appeal, as it was not
relevant either to this court’s jurisdiction or to the issues
raised by the parties on appeal.
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Ultimately, Kimble bore the burden to establish the
complete diversity required for subject matter jurisdiction.
Considering the parties’ pleadings in the district court, we
conclude that Kimble failed to meet his burden. Additionally,
we are “not limited to evaluation of the grounds offered by the
district court to support its decision, but may affirm on any
grounds apparent from the record.” Suter v. United States, 441
F.3d 306, 310 (4th Cir. 2006) (internal quotation marks
omitted). As an additional basis for affirmance, Kimble’s
complaint failed to allege any facts related to Washington Laser
Eye Center’s citizenship, and the court was entitled to dismiss
the action based on Defendants’ facial jurisdictional challenge.
See Kerns, 585 F.3d at 192.
In addressing the dismissal order, Kimble raises a
number of arguments for the first time on appeal or for the
first time in his appellate reply briefs. These issues are not
properly before us, and we decline to consider them. See
Yousefi v. INS, 260 F.3d 318, 326 (4th Cir. 2001) (per curiam)
(recognizing that issues raised in reply brief generally are not
considered); Muth v. United States, 1 F.3d 246, 250 (4th Cir.
1993) (stating that issues raised for first time on appeal will
not be considered absent exceptional circumstances). Thus, we
find no basis to conclude that the district court erred in
dismissing the action for lack of subject matter jurisdiction.
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Turning to Kimble’s post-judgment motion, we review
for abuse of discretion the district court’s denial of a Rule
59(e) motion. Robinson v. Wix Filtration Corp., 599 F.3d 403,
407 (4th Cir. 2010). Under Rule 59(e), the district court may
alter or amend its judgment if the movant shows an intervening
change in controlling law, new evidence that was not available
at trial, or a clear error of law or manifest injustice.
Mayfield v. Nat’l Ass’n for Stock Car Auto Racing, Inc., 674
F.3d 369, 378 (4th Cir. 2012). Our review of the record reveals
that Kimble failed to make this showing, and the district court
did not abuse its discretion in denying relief from the
dismissal order under Rule 59(e).
We have reviewed the record in light of Kimble’s
remaining arguments and find them to be without merit.
Accordingly, we affirm the district court’s judgment. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
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