SHAFFER v. GALLUB

Filing 11

MEMORANDUM OPINION AND ORDER: ORDERED that defendant's motion to dismiss plaintiff's complaint for lack of subject matter jurisdiction 5 , and plaintiff's cross-motion for jurisdictional discovery 8 , are both DENIED WITHOUT PREJUDICE; ORDERED that, within 20 days of the date of this Order, defendant shall file a certification, etc.. Signed by Judge Noel L. Hillman on 09/18/2012. (tf, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
SHERI SHAFFER,
Plaintiff,
CIVIL NO. 11-6182(NLH)(AMD)
v.
CHARLES GALLUB,
Defendant.

MEMORANDUM
OPINION & ORDER

APPEARANCES:
MARK S. KANCHER
THE KANCHER LAW FIRM, LLC
GROVE PROFESSIONAL CENTER
100 GROVE STREET
HADDONFIELD, NJ 08033
On behalf of plaintiff
ROBERT N. AGRE
THE LAW OFFICES OF ROBERT N. AGRE
4 KINGS HIGHWAY EAST
HADDONFIELD, NJ 08033
On behalf of defendant
HILLMAN, District Judge
Presently before the Court is the motion of defendant, Charles
Gallub, to dismiss the complaint filed against him by plaintiff,
Sheri Shaffer, for lack of subject matter jurisdiction;1 and
Plaintiff claiming that defendant has failed to pay on an
agreement in which defendant agreed to make child support payments
to plaintiff on behalf of plaintiff’s ex-husband in the event that

1

Also pending is plaintiff’s cross-motion for jurisdictional
discovery. Because the Court will deny without prejudice
defendant’s motion, and order defendant to submit a supplemental
filing, the Court will also deny without prejudice plaintiff’s
motion.

plaintiff’s ex-husband failed to make those payments himself; and
Plaintiff claiming that jurisdiction over her action against
defendant exists pursuant to 28 U.S.C. § 1332 because there is
complete diversity of citizenship between the parties - plaintiff
is a citizen of New Jersey and defendant is a citizen of
Pennsylvania - and the amount in controversy exceeds $75,000; but
Defendant contending that diversity of citizenship does not
exist because he is citizen of New Jersey, not Pennsylvania; and
Defendant having provided the Court with a lease and various
bills with the address of 701 Bayshore Avenue, Brigantine, New
Jersey, which he claims demonstrate that he is a citizen of New
Jersey; but
Plaintiff having provided the Court with numerous other
documents that plaintiff claims demonstrate that defendant is a
citizen of Pennsylvania, including ownership of a home in Lower
Merion Township, Pennsylvania, and the address of 7 Christian
Street, Philadelphia, Pennsylvania on the agreement at issue in the
case; and
Plaintiff also pointing out that defendant did not file a
certification in support of his motion to dismiss for lack of
subject matter jurisdiction to certify his state of citizenship;2

2

In response to plaintiff’s observation that defendant did
not file a certification to attest to his citizenship, defendant
produced a copy of the verified complaint he filed in the
underlying state family court matter wherein he sought
intervention to disclaim his agreement to be responsible for any
child support payments to plaintiff on behalf of her ex-husband.
2

and
The Court noting that prior to addressing any other issues
raised by the parties’ motions,3 this Court has an independent
obligation to address issues of subject matter jurisdiction, see
Zambelli Fireworks Mfg. Co., Inc. v. Wood, 592 F.3d 412, 418 (3d
Cir. 2010) (“Federal courts are courts of limited jurisdiction, and
when there is a question as to our authority to hear a dispute, ‘it
is incumbent upon the courts to resolve such doubts, one way or the
other, before proceeding to a disposition on the merits.’”) (citing
Carlsberg Res. Corp. v. Cambria Sav. & Loan Ass'n., 554 F.2d 1254,
1256 (3d Cir. 1977)); and
The Court further noting that the Third Circuit has set forth
the standard for determining the citizenship of a party:
The party asserting diversity jurisdiction bears the
burden of proof. A party generally meets this burden by
proving diversity of citizenship by a preponderance of
the evidence.
Citizenship is synonymous with domicile, and “the
domicile of an individual is his true, fixed and
Defendant contends that this verified complaint satisfies the
request for a certification as to defendant’s citizenship because
it contains a sworn statement that he “resides” at 701 Bayshore
Avenue, Brigantine, New Jersey. As explained herein, the
averment that a party “resides” at an address is insufficient to
establish that person’s citizenship.
3

Defendant has also moved to dismiss plaintiff’s complaint
on the basis of the “domestic relations exception” to federal
diversity jurisdiction, see Ankenbrant v. Richards, 504 U.S. 689
(1992), and the Younger abstention doctrine, see Younger v.
Harris, 401 U.S. 37 (1971). The Court must first determine
whether subject matter jurisdiction exists prior to addressing
whether any exceptions to this Court’s exercise of that
jurisdiction are applicable.
3

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.
An individual can change domicile instantly. To do
so, two things are required: “[h]e must take up residence
at the new domicile, and he must intend to remain there.”
But “[a] domicile once acquired is presumed to continue
until it is shown to have been changed.” This principle
gives rise to a presumption favoring an established
domicile over a new one.
McCann v. Newman Irrevocable Trust, 458 F.3d 281, 286-87 (3d Cir.
2006) (internal citations omitted); and
The Court finding that plaintiff has submitted substantive
evidence to suggest that she may meet her burden of proving
defendant’s Pennsylvania citizenship by a preponderance of the
evidence; but
The Court also finding that defendant has provided evidence
that could establish that he is actually domiciled in New Jersey;
however,
The Court finding that a certification by defendant attesting
to his claimed state of citizenship would assist the Court’s
determination as to whether diversity jurisdiction exists, see
Tanzymore v. Bethlehem Steel Corp., 457 F.2d 1320, 1323 (3d Cir.
1972) (“Since 1875, . . . when a question of federal jurisdiction
is raised either by a party as here, or by the court on its own

4

motion, the court may inquire, by affidavits or otherwise, into the
facts as they exist.”); see also Guerrino v. Ohio Cas. Ins. Co.,
423 F.2d 419, 421 (3d Cir. 1970) (“The individual plaintiffs are
described as residents, not as ‘citizens.’

Allegations of

citizenship are required to meet the jurisdictional requirement.”)
(citing Wolfe v. Hartford Life & Annuity Ins. Co., 148 U.S. 389,
389 (1893) (explaining that where the complaint avers that the
plaintiff “‘ever since has been, and still is, a resident of the
city, county, and state of New York,’ but his citizenship is
nowhere disclosed by the record,” “[i]t is essential, in cases
where the jurisdiction depends upon the citizenship of the parties,
that such citizenship, or the facts which in legal intendment
constitute it, should be distinctly and positively averred in the
pleadings, or should appear with equal distinctness in other parts
of the record.

It is not sufficient that jurisdiction may be

inferred argumentatively from the averments”));
Therefore,
IT IS HEREBY on this

18th

day of September , 2012

ORDERED that defendant’s motion to dismiss plaintiff’s
complaint for lack of subject matter jurisdiction [5], and
plaintiff’s cross-motion for jurisdictional discovery [8], are both
DENIED WITHOUT PREJUDICE; and it is further
ORDERED that, within 20 days of the date of this Order,
defendant shall file a certification, in compliance with 28 U.S.C.
§ 1746, and addressing the factors described in McCann v. Newman
5

Irrevocable Trust, 458 F.3d 281, 286-87 (3d Cir. 2006), attesting
to his state of citizenship; and it is further
ORDERED that after the Court reviews defendant’s
certification, the Court will issue an Order informing the parties
of its findings and providing further direction, if needed.

s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.

At Camden, New Jersey

6