Devone v. Finley
ORDER (see attached) - In order to determine whether diversity of citizenship exists in the case at bar, the Court hereby ORDERS Plaintiff to supplement the record on or before Wednesday, July 10, 2013 by providing an affidavit regarding his domicile at the time his Complaint in this action 1 was filed -- i.e., March 19, 2013 -- as well as stating whether he maintained any other residence in any other state at the time at which the Complaint was filed, along with (1) the location of all such r esidences kept; and (2) the approximate length of time spent at each such residence. The Court further ORDERS Plaintiff to state in detail the source and grounds for his information and belief that at the time at which his Complaint was filed, Defen dant was domiciled in Georgia. All case deadlines shall be stayed pending the Court's review of Plaintiff's affidavit. If, upon review, the Court determines that diversity of citizenship exists, the action may proceed and, at that time, t he Court will address the issues concerning this case's discovery and other deadlines as addressed in the Parties' Report of Rule 26(f) Planning Meeting 14 , filed June 25, 2013. Otherwise, in the absence of such jurisdiction, the Court s hall dismiss the action without prejudice. Alternatively, at any time prior to Wednesday, July 10, 2013, Plaintiff may file a notice of voluntary dismissal under Fed. R. Civ. P. 41(a)(1). Such dismissal would also be without prejudice. Signed by Judge Charles S. Haight, Jr. on 6/26/13.(Hornstein, A)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF CONNECTICUT
Plaintiff Johnny Devone (hereafter "Plaintiff") has brought this lawsuit against Defendant
Brittany Finley (hereafter "Defendant") claiming defamation, false representation, and intentional
infliction of emotional distress. Plaintiff seeks compensatory and punitive damages, as well as other
damages and relief as this Court might deem equitable.
Plaintiff states in his Complaint that "[j]uristiction of this Court is invoked pursuant to the
[C]ourt's diversity jurisdiction" under 28 U.S.C. § 1332, "inasmuch as the Plaintiff and Defendant
are citizens of different states and the matter in controversy exceeds the sum or value of $75,000,
exclusive of interests and costs." [Doc. 1] at 1.
SUBJECT MATTER JURISDICTION
A federal court has limited jurisdiction pursuant to Article III of the Constitution. In order
for this Court to exercise subject matter jurisdiction, either (1) a plaintiff must set forth a colorable
claim arising under the Constitution or federal statute, creating “federal question” jurisdiction, 28
U.S.C. § 1331;1 or (2) there must be complete diversity of citizenship between a plaintiff and all
defendants and the amount in controversy must exceed $75,000. 28 U.S.C. § 1332 (a) and (a)(1);
see also, e.g., Dymon v. Laffaye, No. 3:12-CV-00320, 2012 WL 774996 at *1 (D. Conn. March 7,
If subject matter jurisdiction is lacking, dismissal of an action from federal court is
mandatory. Fed. R. Civ. P. 12(h)(3) (“If the court determines at any time that it lacks subject-matter
jurisdiction, the court must dismiss the action.”); Manway Constr. Co. v. Housing Authority of
Hartford, 711 F.2d 501, 503 (2d Cir. 1983). Accordingly, a federal court has the duty of reviewing
a plaintiff’s complaint at the earliest opportunity to determine whether there is in fact subject matter
jurisdiction. See Transatlantic Marine Claims Agency, Inc. v. Ace Shipping Corp., 109 F.3d 105,
107-08 (2d Cir. 1997); Univ. of South Alabama v. American Tobacco Co., 168 F.3d 405, 410 (11th
As discussed supra, Plaintiff alleges in his Complaint that this Court has subject matter
jurisdiction based on diversity of citizenship pursuant to 28 U.S.C. § 1332, see [Doc. 1] at 1, under
which, as previously noted, district courts shall have original jurisdiction of all civil actions where
the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and
is between citizens of different States. 28 U.S.C. § 1332(a) and (a)(1). Specifically, Plaintiff avers
that "Plaintiff in this matter is ... a resident of the City of Bridgeport, and citizen of the State of
Connecticut," [Doc. 1] at 1, and that Defendant is "a citizen of the State of Georgia." Id. These
As Plaintiff's Complaint sets forth no facts or circumstances that potentially give rise to
a federal claim under the Constitution or federal statute, there is no basis for “federal question”
jurisdiction pursuant to 28 U.S.C. § 1331.
statements, however, do not by themselves establish diversity between the parties. Accordingly, the
citizenship of both parties to this action must be confirmed in order for the Court to make an initial
determination of its subject matter jurisdiction.
An individual’s citizenship for diversity purposes is determined by his or her domicile, which
is defined as “the place where a person has his true fixed home and principal establishment, and to
which, whenever he is absent, he has the intention of returning.” Palazzo v. Corio, 232 F.3d 38, 42
(2d Cir. 2000) (quoting Linardos v. Fortuna, 157 F.3d 945, 948 (2d Cir. 1998)); 13B C. Wright,
A. Miller & E. Cooper, Federal Practice and Procedure § 3612, at 526 (2d ed. 1984). In assessing
diversity, a court must thus be apprised of the locations where the plaintiff and defendant were
domiciled at the time an action was filed, and not merely of the locations where each party was a
resident.2 Similarly, conclusory statements with respect to any party's citizenship will not suffice.
The Court notes that Plaintiff has provided a place of residence, though not a domicile, for
himself at the time at which his Complaint was filed. Plaintiff has not provided even that for
Defendant, however, and has merely made a conclusory statement regarding her State of citizenship.
[Doc. 1] at 1. Accordingly, Plaintiff has not sufficiently demonstrated either party's domicle and,
therefore, Plaintiff has not adequately demonstrated either party's citizenship.
See, e.g., Durant, Nichols, Houston, Hodgson & Cortese-Costa P.C. v. Dupont, 565
F.3d 56, 63 (2d Cir. 2009) (to determine diversity jurisdiction “it must be determined whether at
the time the present action was commenced there was diversity jurisdiction”) (emphasis added).
For diversity purposes, an individual’s citizenship is determined by his or her domicile. Id.
(“Accordingly, it must be determined whether at the time the present action was commenced
there was diversity jurisdiction, that is, whether [defendant] was a citizen of— i.e., domiciled in,
see, e.g., Gilbert v. David, 235 U.S. 561, 569, 35 S.Ct. 164, 59 L.Ed. 360 (1915); Linardos v.
Fortuna, 157 F.3d 945, 948 (2d Cir.1998)—a state other than the state in which [plaintiff
corporation] was incorporated and the state in which it had its principal place of business, see 28
U.S.C. § 1332(c)(1), and whether the amount in controversy “exceeds ... $75,000, exclusive of
interest and costs,” id. § 1332(a).).
Plaintiff has attempted to demonstrate his own citizenship by stating that he is "a resident of
the City of Bridgeport." Id. However, it is unclear whether the City of Bridgeport, or the State of
Connecticut, is his domicile.
The distinction between a party's residence and domicile is
straightforward. "In general, the domicile of an individual is his true, fixed and permanent home and
place of habitation," which is to say, "the place to which, whenever he is absent, he has the intention
of returning." Martinez v. Bynum, 461 U.S. 321, 331 (1983); see also, e.g., Palazzo v. Corio, 232
F.3d at 42. In contrast, "residency" occurs "when a person takes up his abode in a given place,
without any present intention to remove therefrom."
Martinez v. Bynum, 461 U.S. at 331. A
"residency," therefore, may be taken up for personal or business reasons and may be either permanent
or solely for a period of time. Id. The test for an individual's residency is thus significantly less
stringent than the "more rigorous domicile test." Id.3 Thus "a statement of residence, unlike
domicile, tells the court only where the parties are living and not of which state they are citizens."
John Birch Soc. v. Nat'l Broadcasting Co., 377 F.2d 194, 199 (2d Cir. 1967) (emphasis added). In
short, it is "well-established that allegations of residency alone cannot establish citizenship." Canedy
v. Liberty Mut. Ins. Co., 126 F.3d 100, 102-03 (2d Cir. 1997) (citing Leveraged Leasing Admin.
Corp. v. PacifiCorp Capital, Inc., 87 F.3d 44, 47 (2d Cir. 1996)).
The Amount of the Matter in Controversy
As stated supra, under 28 U.S.C. § 1332 (a) in order for a federal court to have subject matter
Given that "one can reside in one place but be domiciled in another," for jurisdictional
purposes, the term "'[d]omicile' is not necessarily synonymous with [the term] 'residence.'"
Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 48 (1989) (citations omitted).
For the reasons explicated supra, a court may not and cannot simply infer a party's citizenship, or
domicile, from assertions concerning a party's residence. See, e.g., Realty Holding Co. v.
Donaldson, 268 U.S. 398, 399 (1925).
jurisdiction, the sum or value of the matter in controversy must exceed $75,000 exclusive of interests
and costs. Plaintiff asserts that this is the case in his Complaint – see [Doc. 1] at 1, 5, and 6 – in
what Defendant terms a "conclusory and implausible" fashion. [Doc. 13-1] at 9.
As Defendant addresses in her Motion to Dismiss and her accompanying Memorandum of
Law, see [Doc. 13-1] at 11, "[a] party invoking the jurisdiction of [a] federal court has the burden
of proving that it appears to a 'reasonable probability' that the claim is in excess of the statotory
jurisdictional amount." Gibson v. Scrap, _ F.Supp.2d _, No. 3:12-CV-00583, 2013 WL 1092905
at *4 (D. Conn. March 14, 2013) (quoting Tongkook America, Inc. v. Shipton Sportswear Co., 14
F.3d 781, 784 (2d Cir. 1994)). "This is so because when a party chooses to proceed in federal court,"
that party either "knows or should know whether [the] controversy is determined at the time the
action is commenced." Tongkook America, Inc. v. Shipton Sportswear Co., 14 F.3d at 784 (internal
quotation marks and citations omitted). The Second Circuit has repeatedly noted that such a "burden
is hardly onerous ... for we recognize a 'rebuttable presumption that the face of the complaint is a
good faith representation of the actual amount in controversy.'" Scherer v. Equitable Life Assur.
Soc., 347 F.3d 394, 397 (2d Cir. 2003) (quoting Wolde-Meskel v. Vocational Instruction Project
Cmty. Servs., Inc., 166 F.3d 59, 63 (2d Cir. 1999) (emphasis added)).
It is the burden of the party opposing a court's jurisdiction – here, Defendant – to demonstrate
that the "legal impossibility of recovery ... [is] so certain as virtually to negat[e] the plaintiff's good
faith in asserting the claim." Gibson v. Scrap, 2013 WL 1092905 at *4 (citations omitted). Thus,
in order to "overcome the face-of-the-complaint presumption, the party opposing jurisdiction must
show 'to a legal certainty' that the amount recoverable does not meet the jurisdictional amount." Id.
(citation omitted). Defendant has begun to attempt to do exactly that in her Motion to Dismiss,
which was filed on June 17, 2013, and which addresses this issue, among others. Plaintiff has not
yet responded to Defendant's Motion to Dismiss and the deadline by which he must do so has not
In consequence, given that the burden of proof is Defendant's, this particular aspect of the
Court's determination of its subject matter jurisdiction under 28 U.S.C. § 1332(a) is not yet ripe for
adjudication, and will not be addressed in this Order but rather if and when the Court rules upon
Defendant's Motion to Dismiss – a prerequisite to which is Plaintiff's making a sufficient showing
that there is indeed diversity of citizenship between the parties to this action.
In order to determine whether diversity of citizenship exists in the case at bar, the Court
hereby ORDERS Plaintiff to supplement the record on or before Wednesday, July 10, 2013 by
providing an affidavit regarding his domicile at the time his Complaint in this action [Doc. 1] was
filed – i.e., March 19, 2013 – as well as stating whether he maintained any other residence in any
other state at the time at which the Complaint was filed, along with (1) the location of all such
residences kept; and (2) the approximate length of time spent at each such residence. The Court
further ORDERS Plaintiff to state in detail the source and grounds for his information and belief that
at the time at which his Complaint was filed, Defendant was domiciled in Georgia.
All case deadlines shall be stayed pending the Court's review of Plaintiff's affidavit. If, upon
review, the Court determines that diversity of citizenship exists, the action may proceed and, at that
time, the Court will address the issues concerning this case's discovery and other deadlines as
addressed in the Parties' Report of Rule 26(f) Planning Meeting [Doc. 14], filed June 25, 2013.
Otherwise, in the absence of such jurisdiction, the Court shall dismiss the action without prejudice.
Alternatively, at any time prior to Wednesday, July 10, 2013, Plaintiff may file a notice of voluntary
dismissal under Fed. R. Civ. P. 41(a)(1). Such dismissal would also be without prejudice.
The foregoing is SO ORDERED.
Dated: New Haven, Connecticut
June 26, 2013
/s/Charles S. Haight, Jr.
Charles S. Haight, Jr.
Senior United States District Judge
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