Younger v. Fleming
MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that plaintiff's motion for relief from judgment pursuant to Rule 60(b)(1) of the Federal Rules of Civil Procedure [ECF No. 10 ] is DENIED. Signed by District Judge John A. Ross on 4/4/2017. (CLO)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
LAWRENCE J. FLEMING,
No. 4:16-CV-1559 JAR
MEMORANDUM AND ORDER
This matter is before the Court on plaintiff’s motion for relief from judgment pursuant to
Rule 60(b)(1) of the Federal Rules of Civil Procedure. The motion is denied.
Plaintiff is incarcerated at FCI Terre Haute, in Terre Haute, Indiana. On September 12,
1996, plaintiff was convicted in this Court of distribution of methamphetamine. United States v.
Younger, No. 4:96-CR-98 CEJ. The Court sentenced him to life imprisonment. Defendant
represented plaintiff in the criminal case and on appeal, United States v. Younger, No. 97-1024
(8th Cir.). Plaintiff sues defendant for breach of contract, invoking diversity jurisdiction. He
alleges defendant took money from him to “perfect an appeal” in this Court but did not provide
any services in exchange for the money. 1 He says he resides in Indiana and defendant resides in
The Court takes judicial notice of state courts’ public records. See Levy v. Ohl, 477 F.3d
988, 991 (8th Cir. 2007). On December 30, 2015, plaintiff sued defendant for breach of contract
in St. Louis County. Younger v. Fleming, No. 15SL-CC04464 (21st Cir.). In his verified
The Court notes that defendant was disbarred with regard to these and other unethical activities
on October 28, 2014. In re Fleming, No. SC94203 (Mo. banc).
complaint, plaintiff stated he “was and is a citizen of the State of Missouri, and the United States.
Plaintiff is presently incarcerated in the Federal Bureau of Prisons (BOP), at Terre Haute,
Indiana.” On June 17, 2016, the court dismissed the action, without prejudice, for failure to
prosecute. On July 15, 2016, plaintiff moved to set aside the judgment. He attached a second
verified complaint along with the motion. In the second verified complaint, he reasserts that he
“was and is a citizen of the State of Missouri . . .” Id. Plaintiff’s motion to set aside was pending
when this case was filed and remains pending as of this date. Plaintiff’s state complaint concerns
the same transactions and occurrences that are the basis of this case.
The Court determined that diversity jurisdiction does not exist because plaintiff remains
domiciled in Missouri. The Court based its decision on the fact that prisoners do not change
domiciles when they are transferred to a prison in a different state, see Jones v. Hadican, 552
F.2d 249, 250 (8th Cir. 1977), and that self-serving statements regarding diversity jurisdiction do
not suffice to establish that jurisdiction exists, see 13E Charles A. Wright, et al., Fed. Prac. &
Proc. Juris. § 3612 (3d ed.) (2016) (“A party’s own declarations concerning the identity of his
domicile, particularly with regard to an intent to retain or establish one, as is true of any selfserving statement, are subject to judicial skepticism. As many federal courts have made clear,
they are accorded little weight by the district judge when they are in conflict with the facts or a
party’s actual conduct. A related principle estops a party from pleading domicile differently in
subsequent actions on unchanged facts.”) (footnotes omitted).
Plaintiff now moves to reopen this case based on a letter he purportedly sent to the state
court notifying it that he changed his domicile to Indiana and asking for dismissal of the action.
He has also submitted a purported quit claim deed with regard to his real property in Missouri.
Both the notice and the quit claim deed contain a notary stamp, but neither are signed or sealed
by the notary.
There are two problems with plaintiff’s state court notice. First, it has not been properly
notarized because it was not signed or sealed by the notary. See Mo. Rev. Stat. § 486.275,
§ 486.285. Second, it has not been docketed in the state case. Moreover, plaintiff’s purported
quit claim deed was not properly notarized either.
It is apparent to the Court that plaintiff is attempting to establish jurisdiction by filing
falsified documents, which he created for the sole purpose of establishing that jurisdiction exists.
At the very least, the documents do not establish plaintiff’s claim that he changed his domicile to
Indiana before filing this case. His claim regarding his domicile is directly contradicted by his
verified statements to the state court. And his other assertions regarding his domicile are
unsupported and self-serving. For these reasons, the Court finds that plaintiff has failed to
establish that diversity jurisdiction exists.
IT IS HEREBY ORDERED that plaintiff’s motion for relief from judgment pursuant to
Rule 60(b)(1) of the Federal Rules of Civil Procedure [ECF No. 10] is DENIED.
Dated this 4th day of April, 2017.
JOHN A. ROSS
UNITED STATES DISTRICT JUDGE
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