R. Weisskopf v. Philip Marcus, et al

Filing

Filed Nonprecedential Disposition PER CURIAM. The judgment of the district court is MODIFIED to show that the suit is dismissed without prejudice for lack of personal jurisdiction. As so modified it is AFFIRMED. Frank H. Easterbrook, Circuit Judge; Ilana Diamond Rovner, Circuit Judge and Diane S. Sykes, Circuit Judge. [6863012-1] [6863012] [17-1682]

Case: 17-1682

Document: 28

Filed: 08/21/2017

NONPRECEDENTIAL DISPOSITION

Pages: 3

To be cited only in accordance with Fed. R. App. P. 32.1

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted August 18, 2017*
Decided August 21, 2017

Before
FRANK H. EASTERBROOK, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
DIANE S. SYKES, Circuit Judge

No. 17-1682

Appeal from the United
States District Court for the
Northern District of Illinois,
Eastern Division.

R. DAVID WEISSKOPF,
Plaintiff-Appellant,
v.

No. 16 C 6381
Jorge L. Alonso, Judge.

PHILIP MARCUS, et al.,
Defendants-Appellees.

Order
David Weisskopf sued several Israeli citizens in an Illinois court; they removed the
action, asserting that diversity of citizenship exists. See 28 U.S.C. §1332(a)(2). Weisskopf
moved to remand, describing himself as an expatriate citizen of the United States (and
dual citizen of Israel) domiciled in Israel. If that is so, then the diversity jurisdiction
does not apply. See Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 829 (1989). The

*

We decide this appeal without oral argument because the briefs and record adequately present the
facts and arguments, and oral argument would not aid the court. See Fed. R. App. P. 34(a)(2)(C).

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district court denied the motion to remand, stating that Weisskopf’s frequent presence
(and litigation) in the United States implies that he must be domiciled in a state of this
nation. The judge then disregarded defendants’ arguments (including a contention that
no court in the United States has personal jurisdiction over them) and, on his own motion, ruled that the suit is untimely, leading to a judgment against Weisskopf with prejudice. 2017 U.S. Dist. LEXIS 48791 (N.D. Ill. Mar. 31, 2017).
The district court’s conclusion that Weisskopf is domiciled in a state—the judge did
not say which one—and not an expatriate rests on a conclusion that he is lying about his
living arrangements and his plans for future residence. Yet the court did not hold a
hearing under Fed. R. Civ. P. 12(b)(1) or make findings of fact. It may be that the judge
conflated domicile with residence, but the terms are not synonyms. If Weisskopf ever
established a domicile in Israel (where he lived full time for at least six years, from 2006
through 2012), then Israel remains his domicile unless he affirmatively establishes a
domicile somewhere else through presence coupled with intent to remain. The record
does not demonstrate beyond doubt that Weisskopf has switched domiciles from Israel
to a particular state. (Domicile in the United States as a whole differs from domicile in a
particular state, which Newman-Green observes is required for the diversity jurisdiction.)
So the judge erred by denying the motion to remand without holding a hearing and
making findings on the issues essential to Weisskopf’s domicile.
We need not remand for such a hearing, however, because the record conclusively
shows the absence of personal jurisdiction over any of the defendants. Ruhrgas AG v.
Marathon Oil Co., 526 U.S. 574 (1999), holds that a district judge may dismiss a removed
suit for lack of personal jurisdiction without first deciding whether the court has subject-matter jurisdiction. Like subject-matter jurisdiction, personal jurisdiction must be
addressed and resolved ahead of substantive issues such as the statute of limitations.
See Sinochem International Co. v. Malaysia International Shipping Corp., 549 U.S. 422, 430–
31 (2007).
This suit arises from divorce and child-custody litigation that occurred in Israel,
where a court awarded Weisskopf’s ex-wife full custody of their children. Weisskopf
contends that the judicial findings were fraudulent and cost Weisskopf not only his
family but also his employment in Illinois. He does not contend, however, that any of
the defendants performed any of the contested acts in Illinois or had any contacts with
the state—whether systematic and continuous to support general jurisdiction or purposeful on a particular subject to support specific jurisdiction. He maintains, rather, that
some effects of defendants’ acts in Israel were felt in Illinois. Yet Walden v. Fiore, 134 S.
Ct. 1115 (2014), holds that it does not matter where effects are felt. Nor does it matter
that, when making decisions in Israel, the defendants obtained and considered records

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that had been created in Illinois, or that they agreed (“conspired”) among themselves. It
is the location of the defendants’ persons and conduct, and not the genesis of information they consider, that determines jurisdiction. Defendants rely on Walden, but
Weisskopf’s briefs in this court do not mention it. Indeed, his briefs do not discuss personal jurisdiction at all.
The judgment of the district court is modified to show that the suit is dismissed
without prejudice for lack of personal jurisdiction. As so modified it is affirmed.