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)

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'.