MEMORANDUM OPINION

NITZA I. QUIÑONES ALEJANDRO, District Judge.

INTRODUCTION

Before this Court is a motion to dismiss filed pursuant to Federal Rule of Civil Procedure ("Rule") 12(b)(1), (2), (6), and (7) by Defendants GlaxoSmithKline plc ("GSK PLC") and GlaxoSmithKline LLC ("GSK LLC") (collectively "Defendants"), which seeks the dismissal of federal claims for racketeering and conspiracy related racketeering under 18 U.S.C. § 1962(c) and § 1962(d), respectively, and state law claims for fraud, intentional infliction of emotional distress, negligent infliction of emotional distress, and civil conspiracy, asserted against them by Plaintiffs Peter Humphrey ("Humphrey"), Yu Yingzeng ("Yingzeng"),1 and ChinaWhys Company Ltd. ("ChinaWhys") (collectively "Plaintiffs") in the complaint. [ECF 19]. Plaintiffs oppose the motion. [ECF 23]. The issues raised in the motion to dismiss have been fully briefed by the parties,2 and are now ripe for disposition. For the reasons stated herein, Defendants' motion to dismiss is granted.

BACKGROUND

Plaintiffs initiated this action on November 15, 2016. [ECF 1]. In their motion, Defendants argue that the complaint should be dismissed because: (1) pursuant to the consulting agreement that forms the basis of all of Plaintiffs' claims, all claims against Defendants are subject to arbitration; (2) this Court lacks personal jurisdiction over GSK PLC; (3) the complaint fails to state claims upon which relief may be granted; (4) Plaintiffs have failed to join an indispensable party; (5) Plaintiffs lack standing to assert claims brought pursuant to the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1961, et seq.; and (6) this Court lacks diversity jurisdiction over Plaintiffs' state law claims. Plaintiffs challenge these contentions.

When ruling on Defendants' motion to dismiss, this Court must accept, as true, all relevant and pertinent factual allegations in the complaint and construe these facts in the light most favorable to Plaintiffs. See Fowler v. UMPC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009) (citing Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009)); Constitution Party of Pa. v. Aichele, 757 F.3d 347, 357 (3d Cir. 2014) (standard applies to Rule 12(b)(1) motions). Here, the factual allegations in the complaint are summarized as follows:

LEGAL STANDARD

As noted, Defendants move to dismiss Plaintiffs' complaint pursuant to: (1) Rule 12(b)(1) on the basis that Plaintiffs have failed to allege facts sufficient to establish Article III standing for Plaintiffs' federal RICO claims and that diversity jurisdiction does not exist over Plaintiffs' state law claims; (2) Rule 12(b)(2) for lack of jurisdiction over GSK PLC; (3) Rule 12(b)(6) for failure to state a claim; and (4) Rules 12(b)(7) and 19 for failure to join an indispensable party. Because this Court concludes that it lacks Article III and diversity jurisdiction over Plaintiffs' claims, only the legal standard for a Rule 12(b)(1) motion will be discussed.

"A motion to dismiss for want of standing is . . . properly brought pursuant to Rule 12(b)(1), because standing is a jurisdictional matter." Constitution Party, 757 F.3d at 357. Rule 12(b)(1) challenges may be either facial or factual. Id. A facial challenge asserts that the complaint does not allege sufficient grounds to establish subject matter jurisdiction.8 Id. Where a Rule 12(b)(1) motion is filed prior to an answer, as is the case here, it will be considered a facial challenge to jurisdiction. Id. at 358. When considering such a facial challenge, a court must apply the same standard of review that would apply on a motion to dismiss under Rule 12(b)(6). Id. As such, well-pleaded factual allegations are taken as true, and reasonable inferences are drawn in the plaintiff's favor. Id. The complaint will be dismissed for lack of standing only if it appears that the plaintiff will not be able to assert a plausible claim of subject matter jurisdiction. Cardio-Med. Assocs., Ltd. v. Crozer-Chester Med. Ctr., 721 F.2d 68, 75 (3d Cir. 1983). The burden to establish standing rests with the plaintiff. Finkelman v. Nat'l Football League, 810 F.3d 187, 194 (3d Cir. 2016).

DISCUSSION

Initially, Defendants argue that Plaintiffs lack standing to assert RICO claims and, further, that this Court lacks diversity jurisdiction over Plaintiffs' state law claims. These are threshold issues which must be decided before this Court considers Defendants' other arguments.

Standing To Assert Civil RICO Claims

Plaintiffs bring their RICO claims under 18 U.S.C. § 1962(c) and (d).9 Before a district court can consider the sufficiency of a plaintiff's civil RICO claims, however, it must first address whether the plaintiff has adequately pleaded sufficient facts to establish standing under 18 U.S.C. § 1964.10 Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496, (1985) (holding that a "plaintiff only has standing [under 18 U.S.C. § 1964] if, and can only recover to the extent that, he has been injured in his business or property by the conduct constituting the violation"); Maio v. Aetna, Inc., 221 F.3d 472, 482 (3d Cir. 2000) (holding that "plaintiffs seeking recovery under RICO must satisfy additional standing criterion set forth in section 1964(c) of the statute"); Sarpolis v. Tereshko, 26 F.Supp.3d 407, 424 (E.D. Pa. 2014) (same). Section 1964 provides that any "person injured in his business or property by reason of a violation of section 1962 of this chapter may sue therefor in any appropriate United States district court. . . ." 18 U.S.C. § 1964(c). Thus, "[t]o bring a civil RICO claim, a plaintiff must satisfy two statutory elements to confer standing: (1) that she suffered an injury to her `business or property'; and (2) that her injury was proximately caused by the defendants' violation of § 1962." Sarpolis, 26 F. Supp. 3d at 424 (citing Maio, 221 F.3d at 482-83).

While Section 1964 does not distinguish between foreign or domestic injuries, the Supreme Court recently explained that because RICO's private right of action does not have extraterritorial application, it "requires a civil RICO plaintiff to allege and prove a domestic injury to business or property and does not allow recovery for foreign injuries." RJR Nabisco, Inc. v. European Cmty., 136 S.Ct. 2090, 2111 (2016). In other words, claims that "rest entirely on injury suffered abroad [] must be dismissed." Id.

Instantly, Defendants assert that Plaintiffs lack standing to assert RICO claims because any alleged injury to Plaintiffs' business or property11 was a "foreign" injury, as opposed to a "domestic" injury. [ECF 19-1 at 43-46]. It is not always "self-evident . . . whether a particular alleged injury is `foreign' or `domestic.'" RJR Nabisco, 136 S. Ct. at 2111. Plaintiffs' complaint vaguely contends that as a result of Defendants' alleged RICO violations, "Plaintiffs have been injured in their property [and] Plaintiffs' business was destroyed and their prospective business ventures eviscerated by Defendants' pattern of racketeering activity." (Compl. ¶ 132). Plaintiffs further allege that the injuries suffered "were directly and proximately caused by Defendants' racketeering activity." (Id. ¶ 133). In the motion to dismiss, Defendants contend that while Plaintiffs may have had numerous U.S. clients, the alleged injuries suffered were clearly foreign because Plaintiffs' business was based solely in China, they had offices only in China, no work was done outside of China, Plaintiffs resided in China and, finally, their business was allegedly destroyed when Plaintiffs were imprisoned in China by Chinese authorities. [ECF 19-1 at 43-46]. To show that their alleged injury was domestic, Plaintiffs argue that the majority of ChinaWhys' contracts were with companies based in the United States and, as a result of Defendants' conduct, ChinaWhys lost significant revenue from the United States. (Id. ¶ 9). Further, Plaintiffs argue that their allegations of working with largely U.S. corporations and U.S. revenue streams is sufficient to allege a domestic injury. [ECF 23 at 34-38].

Neither the Third Circuit Court of Appeals, other Appellate Circuits, nor the District Court for the Eastern District of Pennsylvania have addressed what constitutes a domestic or foreign injury for civil RICO purposes subsequent to the RJR Nabisco decision, which made it clear that it was proper to dismiss claims that rested "entirely on injury suffered abroad." RJR Nabisco, 136 S. Ct. at 2111. Those district courts that have considered the issue after the RJR Nabisco decision have applied varying standards. As such, there is no consensus on what specific factors must be considered when deciding whether an injury is domestic or foreign. The parties here cite to numerous cases purportedly favorable to their respective positions.12

In considering these and other cases that have addressed the issue, there appears to be two emerging schools of thought. The first considers where the plaintiff lived at the time of the alleged injury and where their property or business was located, among other related factors. See Bascunan v. Daniel Yarur Elsaca, 2016 WL 5475998, at *4-6 (S.D.N.Y. Sept. 28, 2016) (applying a "(1) who became poorer, and (2) where did they become poorer," test when finding that Chilean resident and citizen suffered a foreign injury when the plaintiff had millions of dollars stolen by Chilean defendants who fraudulently caused New York banks to wire the plaintiff's funds to the defendants' accounts in New York); Union Commercial Servs. Ltd. v. FCA Int'l Operations LLC, 2016 WL 6650399, at *4 (E.D. Mich. Nov. 10, 2016) (applying a "substantial effects" test, which requires the court to consider whether the effect of a defendant's conduct, i.e., the injury, is foreign or domestic when finding injury was foreign where the plaintiff was owned by an Angolan citizen and sold motor vehicles in Angola and was harmed when U.S.-based supplier of vehicles ended distributor agreement after bribing Angolan officials and supplying an unauthorized distributor with the vehicles for sale in Angola); Exeed Indus., LLC v. Younis, 2016 WL 6599949 (N.D. Ill. Nov. 8, 2016) (relying on Bascunan when deciding injuries were foreign even though a large number of the plaintiffs' suppliers were in the United States where the plaintiffs were based in the United Arab Emirates); see also City of Almaty, Kazakhstan v. Ablyazov, 226 F.Supp.3d 272 (S.D.N.Y. 2016); Tatung Co., Ltd. v. Shu Tze Hsu, 217 F.Supp.3d 1138 (C.D. Cal. 2016); and Elsevier, Inc. v. Grossman, 199 F.Supp.3d 768 (S.D.N.Y. 2016).

The second school of thought considers the location of the RICO conduct to be relevant to the inquiry. See Akishev v. Kapustin, 2016 WL 7165714, at *1-2, 7-8 (D.N.J. Dec. 8, 2016) (noting that when RICO conduct crosses borders, "the extraterritoriality analysis should be a two-way street," where the plaintiffs could have come from anywhere in the world but the defendants choose to operate their fraudulent scheme from the United States).

The RJR Nabisco decision strongly suggests that it is the location of the injury, and not the location of the injurious conduct, that is relevant to determine whether a particular plaintiff has standing to bring a civil RICO claim. However, under the facts and allegations of this case, this Court need not decide whether the focus is entirely on where the injury occurred or if the location of the conduct is relevant, because under any of the injury-focused tests employed by other district courts, and under a conduct-focused test, it is clear to this Court that the alleged injuries suffered by Plaintiffs are foreign, and not domestic.

Specifically, Plaintiffs' allegations establish that, while much of Plaintiffs' business comes from U.S. corporations, Humphrey and Yingzeng, at the time of the alleged conduct, lived in China, and Plaintiffs' business was based in China and assisted companies, both U.S. and non-U.S. entities, which sought to conduct business in China. (Compl. ¶¶ 6-9, 91).13 Plaintiffs do not allege that they had offices in the United States or any assets or property in the United States. It is also clear that any business Plaintiffs lost was lost in China because that is where Plaintiffs provided their services to U.S. and non-U.S. multinational companies seeking to operate in China, in compliance with Chinese and non-Chinese laws.14 In other words, companies came to Plaintiffs when they sought to do business in China, and it is in China that the effects of Defendants' alleged conduct were felt. When applying any of the methodologies employed by the various district courts that have addressed this issue that have focused on the location of the injury, it is clear that Plaintiffs' injuries occurred in China, and not the United States.

Further, were this Court to consider where the alleged conduct occurred, the outcome would be the same. Even a cursory examination of Plaintiffs' allegations supports a finding that GSK China's conduct in China caused Plaintiffs' injuries15 Specifically, all of Plaintiffs' contacts were with employees of either GSK China or GSK Pte Ltd., a Singaporean entity, and none were with Defendants. From the complaint, it is apparent that it was GSK China employees and GSK China's CEO who requested that Plaintiffs investigate Shi, an employee of GSK China living in China, for her alleged emails to Chinese authorities, and it was Shi who, through her contacts with the Chinese government, allegedly caused Humphrey and Yingzeng to be arrested by Chinese authorities and held in a Chinese prison. (Compl. ¶ 25-53, 79-107). Aside from a conclusory allegation that GSK PLC exercised control over GSK China, (id. ¶ 10), and certain allegations that, after the bribery conducted by GSK China was discovered, GSK PLC continued to mislead the public about what had occurred, (id. ¶ 108-15), Plaintiffs do not allege any facts that would implicate either of the named Defendants, as opposed to GSK China, let alone GSK LLC, a U.S. subsidiary of GSK PLC. In short, Plaintiffs have not alleged any facts to support that the claimed wrongful conduct occurred in the United States. Thus, even if this Court were to consider the location of the alleged conduct, it would still conclude that Plaintiffs' injuries are foreign, and not domestic.

Consequently, under either test, Plaintiffs have failed to adequately plead sufficient facts to establish that they suffered a domestic injury resulting from Defendants' alleged RICO violations. For this reason, Plaintiffs lack standing to assert civil RICO claims, and these claims are dismissed. See, e.g., Sedima, 473 U.S. at 496 (holding that a "plaintiff only has standing [under 18 U.S.C. § 1964] if, and can only recover to the extent that, he has been injured in his business or property by the conduct constituting the violation."); RJR Nabisco, 136 S. Ct. at 2111.

Diversity Jurisdiction Over State Law Claims

Plaintiffs' remaining claims for fraud, intentional infliction of emotional distress, negligent infliction of emotional distress, and civil conspiracy are all premised on Pennsylvania law. Plaintiffs assert that this Court has diversity jurisdiction over these state law claims pursuant to 28 U.S.C. § 1332. Defendants disagree.

Section 1332 provides that:

28 U.S.C. § 1332(a).

Complete diversity is required, meaning that "no plaintiff can be a citizen of the same state as any of the defendants." Rose v. Husenaj, 2017 WL 3776226, at *1 (3d Cir. Aug. 31, 2017). "When pleading diversity jurisdiction for natural persons, a plaintiff must allege that each person is a citizen of a different state from him." Id. "Citizenship is synonymous with domicile, and the domicile of an individual is his true, fixed and permanent home and place of habitation." Id. A "corporation shall be deemed to be a citizen of every State and foreign state by which it has been incorporated and of the State or foreign state where it has its principal place of business," 28 U.S.C. § 1332(c)(1), whereas the "citizenship of an LLC is determined by the citizenship of its members." Zambelli Fireworks Mfg. Co. v. Wood, 592 F.3d 412, 420 (3d Cir. 2010). "The burden is on the plaintiff to affirmatively allege the essential elements of diversity jurisdiction." McCracken v. Ford Motor Co., 2009 WL 1185686, at *1 (E.D. Pa. May 1, 2009); see also Freidrich v. Davis, 989 F.Supp.2d 440, 442 (E.D. Pa. 2013) ("The party invoking diversity jurisdiction bears the burden of proof.").

Nowhere in Plaintiffs' complaint do Plaintiffs identify the citizenships of Humphrey, Yingzeng,16 or ChinaWhys. (Compl. ¶ 6-8). Plaintiffs have also failed to allege either the place of incorporation of GSK PLC, noting only that its headquarters is in England, Pennsylvania, and North Carolina, (id. ¶ 10), or the citizenship of any of the members of GSK LLC, instead providing only that GSK LLC's principal place of business is in Pennsylvania. (Id. ¶ 11). By so pleading, Plaintiffs have failed to satisfy affirmatively the requirements of diversity jurisdiction.17 As such, this Court lacks diversity jurisdiction.

In addition, although Yingzeng claims to be an American citizen, she appears to be domiciled outside of the United States.18 Thus, she is neither a "citizen[] of a State" of the United States nor a "citizen[] or subject[] of a foreign state," and, therefore, cannot sue or be sued in federal court based on diversity jurisdiction. See Swiger v. Allegheny Energy, Inc., 540 F.3d 179, 184 (3d Cir. 2008) ("An American citizen domiciled abroad, while being a citizen of the United States is, of course, not domiciled in a particular state, and therefore such a person is `stateless' for purposes of diversity jurisdiction."); see also Freidrich v. Davis, 767 F.3d 374, 378 (3d Cir. 2014) (noting that an American citizen domiciled in Germany is "stateless" for diversity purposes and cannot sue or be sued in diversity).19 For this additional reason, Plaintiffs cannot rely upon diversity jurisdiction to have their state law claims adjudicated in federal court and, therefore, Plaintiffs' state law claims are dismissed.20

CONCLUSION

For the reasons stated herein, Defendants' motion to dismiss is granted, and Plaintiffs' complaint is dismissed. An Order consistent with this Memorandum Opinion follows.