WILMINGTON SAVINGS FUND SOCIETY, FSB v. BARR et al

Filing 20

ORDERED that Pltf SHOW CAUSE by written submission on or before 5/18/2012. ORDERED that Pltf's 19 Motion for Default Judgment is DISMISSED AS MOOT. Pltfs 18 motion to dismiss Defts Mrs. Evan Barr, Mr. or Mrs. Shea Barr, and Mr. or Mrs. Cameron Barr is GRANTED. Signed by Judge Robert B. Kugler on 5/3/2012. (drw)

NOT FOR PUBLICATION

(Doc. No. 18, 19)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
___________________________________
:
WILMINGTON SAVINGS FUND
:
SOCIETY, FSB,
:
:
Plaintiff,
:
Civil No. 11-3145 (RBK/JS)
:
v.
:
ORDER
:
BRIAN T. BARR, LYNNE BARR,
:
KAELYN BARR, et. al.,
:
:
Defendants.
:
___________________________________ :
THIS MATTER having come before the Court on the motion of Wilmington Savings
Fund Society, FSB (“Plaintiff”) for judgment of default on its mortgage foreclosure claim against
Defendants, Doc. No. 19, and Plaintiff’s motion to dismiss certain Defendants; and
IT APPEARING TO THE COURT that the Clerk entered default in this case on
August 15, 2012; and
IT FURTHER APPEARING TO THE COURT that Plaintiff alleges that Kaelyn Barr,
Mr. Kaelyn Barr, Evan Barr, Shea Barr, and Cameron Barr “reside[] at either the Mortgaged
Premises of 172 Cohawkin Road, Clarksboro, New Jersey, Township of East Greenwich,
Gloucester County or 731 Providence Road, Malvern, Pennsylvania 19355,” Am. Compl. ¶¶ 4,
5, 6, 8, 10, and that Kaelyn, Evan, Shea, and Cameron Barr are all “citizen[s] of either
Pennsylvania or New Jersey,” Id. at ¶¶ 15-19, and that the Amended Complaint does not allege
the citizenship of Mr. Kaelyn Barr; and

IT FURTHER APPEARING TO THE COURT that Plaintiff later avers that “none of
the Defendants occupy the Mortgaged Premises,” Doc. No. 18;
IT FURTHER APPEARING TO THE COURT that, for Kaelyn Barr, Mr. Kaelyn
Barr, Evan Barr, Shea Barr, and Cameron, the process server’s affidavits indicate that Brian T.
Barr was served on their behalf, and also explain that “I also attempted to serve the defendant
listed above at the property address but [s]he does not live there,” Doc. No. 15; and
IT FURTHER APPEARING TO THE COURT that Plaintiff moves to dismiss
Defendants Mrs. Evan Barr, Mr. or Mrs. Shea Barr, and Mr. or Mrs. Cameron Barr, “because
such Defendants do not exist,” Doc. No. 18; and
THE COURT NOTING that “[b]efore entering a default judgment against a party that
has not filed responsive pleadings, ‘the district court has an affirmative duty to look into its
jurisdiction both over the subject matter and the parties,’” Bank of Am., N.A. v. Hewitt, No. 074536, 2008 U.S. Dist. LEXIS 90719, at *5 (D.N.J. Nov. 7, 2008) (quoting Williams v. Life Sav.
& Loan, 802 F.2d 1200, 1203 (10th Cir. 1986)); and
THE COURT NOTING FURTHER that “mere residency in a state is insufficient for
purposes of diversity,” see Krasnov v. Dinan, 465 F.2d 1298, 1300 (3d Cir. 1972) (citing Sun
Printing & Publ’g Ass’n v. Edwards, 194 U.S. 377 (1904))1; and

1

The Third Circuit has established the following standard to determine a party’s citizenship:
Citizenship is synonymous with domicile, and the domicile of an individual is his true, fixed and permanent
home and place of habitation. It is the place to which, whenever he is absent, he has the intention of
returning. In determining an individual’s domicile, a court considers several factors, including
declarations, exercise of political rights, payment of personal taxes, house of residence, and place of
business. Other factors to be considered may include location of brokerage and bank accounts, location of
spouse and family, membership in unions and other organizations, and driver’s license and vehicle
registration.
McCann v. Newman Irrevocable Trust, 458 F.3d 281, 286 (3d Cir. 2006) (internal citations and quotations omitted). 

THE COURT FINDING that Plaintiff has not adequately pleaded the citizenship of all
Defendants, and therefore has not properly alleged the Court’s diversity jurisdiction over this
matter; and
IT IS HEREBY ORDERED that Plaintiff must show cause, upon pain of dismissal, by
written submission on or before May 18, 2012, why this matter should not be dismissed for lack
of subject matter jurisdiction; and
IT IS HEREBY FURTHER ORDERED that Plaintiff’s motion for default judgment
(Doc. No. 19) is DISMISSED AS MOOT; and
IT IS HEREBY FURTHER ORDERED that Plaintiffs motion to dismiss Defendants
Mrs. Evan Barr, Mr. or Mrs. Shea Barr, and Mr. or Mrs. Cameron Barr (Doc. No. 18) is
GRANTED.

Date: 5/3/2012

/s/ Robert B. Kugler
ROBERT B. KUGLER
United States District Judge