Younger v. Fleming

Filing 8

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that this action is DISMISSED without prejudice. An Order of Dismissal will be filed forthwith. Signed by District Judge John A. Ross on 1/25/2017. (CLO)

Download PDF
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION LOUIS YOUNGER, ) ) ) ) ) ) ) Plaintiff, v. LA WRENCE J. FLEMING, No. 4:16-CV-1559 JAR ) Defendant, ) MEMORANDUM AND ORDER The question before the Court is whether diversity jurisdiction exists. The Court finds that it does not and that this action must be dismissed. Plaintiff is incarcerated at FCI Terre Haute, in Terre Haute, Indiana. On September 12, 1996, plaintiff was convicted in this Ccurt 0f aisirib~tie;n cf ~n:::tnamphetamine. United States v. Younger, No. 4:96-CR-98 CEJ. The Coun sentenced nim 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 ul~ contract, invoking diversity jurisdiction. He alleges defendant took money from him to "perfect an appeai'' iu this Court but did not provide any services in exchange for the money. 1 He says he resides in .indiana and defendant resides in Missouri. The Court takes judicia1 notice of stale courts' public records. See Levy v. Ohl, 477 F.3d 988, 991 (8th Cir. 2007). On Decem6er 30, 10LJ, plaintiff sued deicndant for breach of contract in St. Louis County. Younger v. Fleming, No. 1.SSL-CC04464 (21st Cir.). In his 'v'erified The Court notes that defencant was d1sbarred with as 2. resul.t cf these ·::md other activities on October 28, 2014. In re Fleming, No. SC94203 (Mo. bane). 1 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 ... " ld. Plaintiffs motion to set aside was pending when this case was filed and remains pending as oitnis dace. ?laintn£' s s·mte complaint concerns the same transactions and occurrences that are the basis of this case. Discussion Under Rule 12(h)(3) of the 1"eciera1 Ruies of Civil irocedure, che Coun is required to review new cases anci dismiss them if jurisdiction is iacking. limited jurisdiction. ''federal couns are courts of The reqmrernent mat J urisdkcion be established as a threshold matter springs from the nature and iimits of the Judicial power of the United States and is inflexible and without exception." Kessler v. Nat'l Enterpnses, inc., 347 F.3d 1076,, 1081 (8th Cir. 2003) (quotation marks omitted). "It has iong been hela that, for purposes of de1ermiuing ciiversity of citizenship, the controlling consideration is the domicile of tht individual. WHri respect to the domicile of prisoners, the traditiona! rme is that a prisoner does not acquire a new domicile when he is incarcerated in a different state; instead, he retams toe domicile he had prior to his incarceration." Jones v. Hadican, 552 F.2d 249, 250 (8th Cir. 1977) (citations omitted). As a result, the presumption is -chat plaintiff remaill3 domiciled in 1'vlissoari. On November 30, 2016, the Coun orde1ed pia1miff w show cause wny this action should not be dismissed for lack of jurisdiciion. In his response, piamnif argues that when he filed the state action he owned a home in Novinger, Mis:mvri, and sc he w1s domiciled here. He says he lost the home on August 8, 2016, "and[] took up domicile in New Castle, Indiana." He has not submitted anything other thar: this unswom, un:mpported declaration with regard to his alleged change of domicile. A party's own declarzhons concerni:ig '~he identity of his domicile, particularly with regard to an intent to retain or establish one, as is true of any self-serving statement, are subject tiJ judicia: skertkism. /\S m<::1J') ±uierai courts have made clear, they are accorded little weight hy the district judge when they are in conflict with the facts or a part}' s actual cunduc;. A re1aced prin1.:1ple estops a party from pleading domicile differently in subsequent actions on unchanged facts. 13E Charles A. Wright, et al., Fed. Prac. & Proc. Juris. § 3612 (3d ed.) (2016) (footnotes omitted). In this case, plaintiff's .;el:i'.-strving d~:;i;J<·aticin is in which he swears his du1n::.:1c:i.l.;:, 1.s 1.;on~:·adic~ed Mis::o;. .ri. ,_';aintiJI ha3 by his state court pleading, 1·,01: rnc.v~<i rn coirt:ct the state court record ~ince filing this- actiorL Plaintiff's reci.'.m a.3s~rtion theit ht; has ~new domicile in Indiana, therefore, has no weight in light of his swum pl~adings m 1he state:.: coun. As a result, the Court finds that it lacks jurisdiction O"er the complaint Accordingly, An Order of Dismissal \vill lx~ filed fortl:i .,vith. Dated this 25th day of Junuary, 201 i'.

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?