Brimm v. Genao-Gomez et al
Filing
7
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 4 in full. The Complaint 2 is DISMISSED. This dismissal counts as a strike pursuant to 28 U.S.C. Section 1915(g). Any appeal of this decision would not be taken in good faith. Signed by Judge Dana L. Christensen on 10/28/2014. Mailed to Brimm. (TAG, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
CV 14-197-M-DLC
TROY DOUGLAS BRIMM,
Plaintiff,
ORDER
vs.
DIOMEDES GENAO-GOMEZ,
MARIA CORNELIA MARTlNEZ
TOMAS, BERNARDO SILVERIO,
ROMITA RODRIGUEZ, D.S.G.M.,
and J.A.R.P.,
FILED
OCT 2 8 2014
Clerk, U,S, District Court
District Of Montana
Missoula
Defendants.
United States Magistrate Judge Jeremiah C. Lynch entered his Findings and
Recommendations on July 10,2014, recommending that Troy D. Brimm's
("Brimm") Complaint be dismissed for lack of subject matter jurisdiction. Judge
Lynch further found Brimm's Complaint frivolous and malicious and
recommended that the dismissal count as a strike pursuant to 28 U.S.C. § 1915(g).
Judge Lynch recommended that a certificate of appealability be denied. Brimm
timely objected to the Findings and Recommendations and is therefore entitled to
de novo review of the specified findings or recommendations to which he objects.
28 U.S.C. § 636(b)(I). For the reasons stated below, the Court adopts Judge
-1
S:C AN1\TED
k•.
Lynch's Findings and Recommendations in full.
Brimm is a federal prisoner proceeding pro se. Because Brimm moved to
proceed in forma pauperis, Judge Lynch conducted a preliminary screening of the
Complaint under Title 28 U.S.C. § 1915(e)(2). Judge Lynch then examined
whether the Court has jurisdiction over this action. Insurance Corp. ofIre/and,
Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702 (1982).
I. Subject Matter Jurisdiction
Based on the examination ofjurisdiction, Judge Lynch found that Brimm is
domiciled in the Dominican Republic and is therefore "stateless." A United States
citizen who is domiciled abroad is "stateless" for purposes of subject matter
jurisdiction and cannot sue or be sued in federal court based on diversity
jurisdiction. Newman-Green, Inc. v. AlJonzo-Larrain, 490 U.S. 826, 828 (1989).
Judge Lynch's finding was based on information from the underlying
criminal case in which Brimm was convicted. In that case, Brimm stipulated that
"[f]rom October 20,2009 through May 8,2012, the defendant did not travel
outside of the Dominican Republic." United States v. Troy Doug/as Brimm, 1: 12
cr-20482-KMM (S.D. Florida, Doc. 48 filed Aug. 28, 2012). During his time in
the Dominican Republic, Brimm lived in at least three different apartments.
United States v. Troy Doug/as Brimm, 1:12-cr-20482-KMM (S.D. Florida, Doc.
-2
66: Trial Transcript at 10-11,62,65, 73). Brimm also failed to self-surrender
after the Ninth Circuit Court of Appeals affirmed the revocation of his supervised
release from a different prior criminal conviction. Appellee's Br. at 49-50, United
States v. Troy Brimm, (11th Cir. June 25,2014) (No. 13-10392, available on
PACER). Brimm remained in the Dominican Republic for 18 months following
the revocation of his supervised release and only returned to the United States
when he was arrested and extradited. Id.
Brimm objects to Judge Lynch's finding that he is "stateless" and claims
that he is domiciled in Montana. As the party asserting diversity jurisdiction,
Brimm bears the burden of proving he is domiciled in Montana. Lew v. Moss, 797
F.2d 747, 749 (9th Cir. 1986). To support his claim, Brimm states that he "fully
'intends to remain [in Montana] permanently or indefinitely.'" (Doc. 6 at 8.) He
provides a general affidavit which simply declares he is domiciled in Montana and
that he intends "to remain there indefinitely." (Doc. 6-1 at 8.) He alleges that
Montana is where his personal and real property is located, where he last paid
taxes, where his mother lives, and where he maintains a business address. The
nominal exhibits Brimm provides to support these claims consist of a single page
from a 2009 1099 form, California bank account statements, and a health
insurance statement that all list a Libby Montana address.
-3
To be a citizen of a state within the meaning of Title 28 U.S.C. § 1332, a
person must be domiciled within the state. Lew, 797 F.2d at 749. An individual's
domicile is the "location where he or she has established a 'fixed habitation or
abode in a particular place, and [intends] to remain there permanently or
indefinitely.' " Id. at 749-750 (quoting Owens v. Hunting, 115 F.2d 160, 162 (9th
Cir. 1940)). Courts evaluate domicile "in terms of 'objective facts,' and [ ]
'statements of intent are entitled to little weight when in conflict with facts. '" Id. at
750. (quoting Freeman v. Northwest Acceptance Corp., 754 F.2d 553, 556 (5th
Cir. 1985)).
The Court is unconvinced by Brimm's claim that he is domiciled in
Montana. Brimm's statements of intent in his objections and affidavit are entitled
to little weight. Id. Brimm only lived in Montana for a period of four months,
from April to October of 2009, before departing to the Dominican Republic. He
did not return to the United States until he was extradited in May 2012. These
objective facts lead the Court to conclude that Brimm intended to stay in the
Dominican Republic indefinitely. Brimm's exhibits do not establish a Montana
domicile. At most, these exhibits prove that he listed his mother's address in
Montana for his California bank accounts and health insurance. Furthermore, the
1099 he provides does not indicate that it was filed in Montana. The Court agrees
-4
with Judge Lynch's determination that Brimm was domiciled in the Dominican
Republic and is consequently "stateless." The Court therefore lacks subject matter
jurisdiction. Moreover, Brimm's complaint must be dismissed because of other
obvious and independent deficiencies.
II. Personal Jurisdiction
An in forma pauperis complaint which can allege no set of facts that would
support personal jurisdiction may be deemed frivolous and dismissed sua sponte.
Sanders v. U.S., 760 F.2d 869, 871 (lIth Cir. 1985); Martin-Trigona v. Smith, 712
F.2d 1421, 1424 (D.C. Cir. 1983). The Court thus undertakes a sua sponte review
of personal jurisdiction here.
There is no applicable statute governing personal jurisdiction in this case;
thus, the Court must apply the law ofMontana. King v. American Family Mut.
Ins. Co., 632 F.3d 570, 578 (9th Cir. 2011). The Ninth Circuit recognizes that
Montana's long arm-statute "permit[s] the exercise of personal jurisdiction over
nonresident defendants to the maximum extent permitted by federal due process."
Davis v. Am. Family Mut. Ins. Co., 861 F.2d 1159, 1161 (9th Cir. 1988). The
jurisdictional analysis, therefore, is the same under Montana law and federal due
process. King, 632 F.3d at 579. In order to establish personal jurisdiction under
the federal due process analysis, "the defendant must have certain minimal
-5
contacts with the forum such that the maintenance of the suit does not offend
traditional notions of fair play and substantial justice." Data Disc, Inc. v. Sys.
Tech. Associates, Inc., 557 F.2d 1280, 1287 (9th Cir. 1977) (citing Inti. Shoe Co.
v. Wash., 326 U.S. 310,316 (1945».
Brimm has the burden of establishing that the Court has jurisdiction over
the Defendants. Davis, 861 F .2d at 1161. Brimm alleges no facts to support the
Court's exercise of personal jurisdiction over the Defendants. Brimm claims that
all the Defendants are citizens and residents of the Dominican Republic. (Doc. 2
at 1-2.) Moreover, all events forming the alleged basis ofthe action occurred in
the Dominican Republic. (Doc. 2 at 2.) The Defendants have no alleged contacts
with Montana. At least one Defendant had never been out of the Dominican
Republic before testifying against Brimm in the underlying criminal case. United
States v. Troy Douglas Brimm, 1: 12-cr-20482-KMM (S.D. Florida, Doc. 66: Trial
Transcript at 42).
The Court concludes that the Defendants lack the necessary minimal
contacts to support this Court's exercise ofjurisdiction over them. The
Defendants are all citizens and residents ofthe Dominican Republic who have
never been to Montana. There is, thus, no constitutional basis upon which the
Court could exercise personal jurisdiction over the Defendants. Therefore, the
-6
Court lacks both subject matter and personal jurisdiction over this action.
Under Title 28 U.S.C. § 1631, if a court finds it lacks jurisdiction, "the court
shall transfer the action to any other such court in which the action could have
been brought 'ifit is in the interest ofjustice.'" Miller v. Hambrick, 905 F.2d 259,
262 (9th Cir. 1990) (quoting 28 U.S.C. § 1631). Again, Brimm claims that all the
Defendants are citizens and residents of the Dominican Republic with no alleged
contacts in the United States, and all events giving rise to the alleged cause of
action occurred in the Dominican Republic. There is, therefore, no other district in
which the action could be brought and the interests ofjustice do not require the
transfer of the case.
III. Collateral Estoppel
Brimm was found guilty in the United States District Court for the Southern
District of Florida of two counts of engaging in illicit sexual conduct in foreign
places with a minor in violation of Title 18 U.S.C. § 2423(c) and one count of
being a registered sex offender who committed a felony sex offense involving a
minor in violation of Title 18 U.S.C. § 2260A. In his complaint, Brimm alleges
that the Defendants conspired to extort money from him by making false
allegations against him of the sexual conduct he was convicted of in the
underlying criminal case. The Court thus concludes Brimm's claims could also be
-7
dismissed through application of the collateral estoppel doctrine. Allen v.
McCurry, 449 U.S. 90, 94 (1980) (holding that "once a court has decided an issue
of fact or law necessary to its judgment, that decision may preclude relitigation of
the issue in a suit on a different cause of action involving a party to the first
case.").
IV. Frivolous and Malicious
Judge Lynch found Brimm's Complaint both frivolous and malicious for
purposes of Title 28 U.S.C. § 1915(g). The in forma pauperis statute, however,
grants courts the power to "dismiss [a] case at any time if the court determines
that" the action is "frivolous or malicious." 28 U.S.C. § 1915(e)(2)(B)(i). The
Court has conducted a preliminary screening of the Complaint under Title 28
U.S.C. § 1915(e)(2) as part of the Court's de novo review of the record.
Frivolous in forma pauperis complaints may be dismissed sua sponte.
Neitzke v. Williams, 490 U.S. 319,324 (1989). A complaint is frivolous "where it
lacks an arguable basis either in law or in fact." Id at 325. Because Brimm's in
forma pauperis Complaint lacks an arguable basis in either law or fact pertaining
to personal jurisdiction, it must be dismissed sua sponte as frivolous. Sanders,
760 F.2d at 871; Martin-Trigona, 712 F.2d at1424 (D.C. Cir. 1983).
Judge Lynch found Brimm's Complaint "malicious at best" because Brimm
-8
has filed a lawsuit against the victims of crimes for which Brimm has been
convicted in the United States District Court for the Southern District of Florida.
(Doc. 4 at 11.) Brimm "strenuously objects" to this finding and provides the
sworn statements oftwo citizens of the Dominican Republic to support his claim
that the Complaint is not malicious. (Doc. 6 at 8; Doc. 6-1 at 4-7.)
The Ninth Circuit defines a case as malicious "if it was filed with the
'intention or desire to harm another.'" Andrews v. King, 398 F.3d 1113, 1121 (9th
Cir. 2005) (quoting Webster's Third New International Dictionary 1367 (1993)).
For the reasons given by Judge Lynch, the Court agrees that Brimm's Complaint is
malicious and it must be dismissed.
Pro se litigants are typically given an opportunity to amend a complaint,
"unless it clearly appears from the complaint that the deficiency cannot be
overcome by amendment." Potter v. McCall, 433 F.2d 1087, 1088 (9th Cir. 1970).
The Court concludes the deficiencies in the Complaint pertaining to personal
jurisdiction cannot be cured by amendment. Moreover, when a district court
concludes an in forma pauperis action is frivolous, the court may dismiss the
litigant's complaint without an opportunity to amend. Franklin v. Murphy, 745
F .2d 1221, 1226-1227 (9th Cir. 1984). The Court also concludes that the
deficiencies in the Complaint pertaining to maliciousness cannot be cured by
-9
amendment. The Court, therefore, dismisses the Complaint as frivolous and
malicious under Title 28 U.S.C. § 1915(e)(2)(B)(i) without leave to amend.
V. Certificate Regarding Appeal
Judge Lynch recommended that the Court certify that any appeal of this
matter would not be taken in good faith. Brimm objects.
An in forma pauperis litigant may not be granted leave to appeal "if the trial
court certifies in writing that it is not taken in good faith." 28 U.S.C. § 1913(a)(3).
Because Brimm's complaint lacks an arguable basis in law or fact, it is frivolous,
Neitzke v. Willaims, 490 U.S. 319,325,327 (1989), and an appeal could not
objectively be taken in good faith. Coppedge v. Us., 369 U.S. 438, 445 (1962).
The Court therefore certifies pursuant to Rule 24(a)(3)(A) of the Federal Rules of
Appellate Procedure that any appeal of this decision would not be taken in good
faith.
VI. "Strike" under 28 U.S.C. § 1915(g)
Judge Lynch recommended that the Court certify that the dismissal count as
a strike pursuant to Title 28 U.S.C. § 1915(g). Brimm objects.
Under the Prison Litigation Reform Act, a prisoner is prohibited from
bringing "a civil action ... under this section if the prisoner has, on 3 or more
occasions ... brought an action or appeal in a court of the United States that was
-10
dismissed on the grounds that it is frivolous, malicious, or fails to state a claim."
28 U.S.C. § 1915(g). Based on the above analysis of the frivolousness and
maliciousness of the Complaint, the Court holds the filing of this action
constitutes a strike pursuant to Title 28 U.S.C. § 1915(g).
IT IS ORDERED that Judge Lynch's Findings and Recommendations (Doc.
4) are ADOPTED IN FULL. The Complaint (Doc. 2) is DISMISSED.
IT IS FURTHER ORDERED that the Clerk of Court shall have the docket
reflect that the Court certifies pursuant to Rule 24(a)(3)(A) that any appeal of this
decision would not be taken in good faith and that this dismissal counts as a strike
pursuant to Title 28 U.S.C. § 1915(g).
The Clerk of Court shall enter judgment in favor of Defendants and against
Plaintiff. This case is CLOSED.
DATED this
2~~ay of October
Dana L. Christensen, Chief Ju ge
United States District Court
-11
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?