WEEMS v. CURRY
MEMORANDUM OPINION and ORDER IFP is GRANTED and Clerk shall file the Complaint. ORDERED Clerk shall serve a copy of this Order on the U.S. Attorney and the Warden of FCI Fort Dix. ORDERED Complaint is DISMISSED and Clerk shall administratively terminate this matter. ORDERED Plaintiff has 30 days from the entry of this Order to reopen this matter. ORDERED Clerk shall serve this Memorandum Opinion and Order upon Plaintiff. Signed by Judge Renee Marie Bumb on 12/11/2014. (nz, )n.m.
NOT FOR PUBLICATION
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
: Civ. Action No. 14-7575 (RMB)
: MEMORANDUM OPINION AND ORDER
BUMB, District Judge:
This matter comes before the Court upon the Clerk’s receipt
of a civil complaint executed by Phillip Weems (“Plaintiff”) that
arrived accompanied by Plaintiff’s application to proceed in this
matter in forma pauperis.
See Docket Entries Nos. 1 and 1-1.
Plaintiff, a federal inmate currently confined at F.C.I.
Fort Dix, Fort Dix, New Jersey, alleges that he and certain
Cheryl Curry (“Defendant”) are tenants in common in a real estate
property (“Property”) located at “2700 Lardner Street.”
Entry No. 1, at 1-2.1
Although Plaintiff did not specify the city and state of
the Property’s locale, this Court takes judicial notice of the
fact that 2700 Lardner Street is in the City of Philadelphia,
Commonwealth of Pennsylvania. See Fed. R. Evid. 201(b)(2);
phia+pa; see also Citizens for Peace in Space v. City of Colo.
Springs, 477 F.3d 1212, 1218 n.2 (10th Cir. 2007) (taking
judicial notice of an online locale relyying on Google Maps
data); United States v. Piggie, 622 F.2d 486, 488 (10th Cir.
1980) (“Geography has long been peculiarly susceptible to
Plaintiff also asserts that Defendant: (a) has refused to
pay her share of the applicable tax ensuing from her Property
ownership; and (b) when Plaintiff decided to sell his share of
the Property and granted limited power of attorney to certain
individuals for the purposes of such sale, Defendant declined to
cooperate with those individuals and, thus, obstructed
facilitation of the sale Plaintiff desired.
See, generally, id.
Plaintiff, therefore, seeks: (a) a partition sale of the
Property; (b) eviction of the tenants currently residing at the
Property; and (c) reimbursement of the filing fee that might be
collected from Plaintiff in connection with this matter.
Invoking this Court’s jurisdiction over said claims,
Plaintiff relied on 28 U.S.C. § 1332(a), i.e., the diversity
See id. at 2.
Here, the diversity requirements are not met.
Section 1332 of the United States Code confers on the district
courts jurisdiction over all civil actions between “citizens of
different states” if “the matter in controversy exceeds the sum
or value of $75,000.”
28 U.S.C. § 1332(a).
The amount in controversy in a particular action “is determined
from the good faith allegations appearing on the face of the
Spectacor Mgmt. Grp. v. Brown, 131 F.3d 120, 122 (3d
judicial notice for the obvious reason that geographic locations
are facts which are not generally controversial”).
Cir. 1997) (citing St. Paul Indem. Co. v. Red Cab Co., 303 U. S.
283, 288-89 (1938), (internal citations omitted)).2
Plaintiff’s complaint is entirely silent as to the Property’s
Correspondingly, for that reason alone, Plaintiff’s
pleading is deficient.
Moreover, even if this Court were to hypothesize that the
value of the Property exceeds $75,000, the requirements of
Section 1332(a) still do not appear to be met because Plaintiff
and Defendant are not citizens of different states: they are both
With regard to that issue, the history of Plaintiff’s
criminal proceeding is highly instructive.3
On October 18, 2011,
a bench warrant was issued against Plaintiff by the United States
District Court for the Eastern District of Pennsylvania (“EDPA”).
See United States v. Weems, Crim. Action No. 11-0633 (JS)
(E.D.P.A.), Docket Entry No. 2.
The warrant was issued upon
When the legal matter is a dispute over real property,
courts look to the value of the property at issue to determine
the amount in controversy. See Land Holdings Ltd. v. Mega
Holdings, Inc., 283 F.3d 616, 620 (3d Cir. 2002); Waller v.
Professional Ins. Corp., 296 F.2d 545, 547 (5th Cir. 1961)
(“[C]ourts look to the value of the property involved rather than
the damages that might be suffered, to determine the
jurisdictional amount in suits for injunctions, in suits for
specific performance of a contract to convey realty”).
Under Fed. R. Evid. 201(b)(2), this Court may take
judicial notice of Plaintiff’s prior proceedings, including his
criminal prosecution. See Jackson v. Broad. Music, Inc., 2006
U.S. Dist. LEXIS 3960, at *18 (S.D.N.Y. Jan. 31, 2006)
filing of numerous charges against Plaintiff.
See id., Docket
Entry No. 1.
Upon his arrest, Plaintiff moved for bail, asserting that he
“lived within the [C]ity of Philadelphia most of his life and
also co-own[ed the Property].”
Id., Docket Entry No. 23, at 2.
Plaintiff entered a guilty plea. see id., Docket Entry No. 34,
and – on February 26, 2014 – was sentenced to 121 months.
Docket Entry No. 65, at 2.
The Bureau of Prisons (“BOP”)
assigned him to serve his sentence at F.C.I. Fort Dix.
at 2; see also http://www.bop.gov/inmateloc/.
nine months in Fort Dix confinement, Plaintiff commenced the
matter at bar arguing that his confinement at Fort Dix should
have transformed him into a citizen of New Jersey for the
purposes of his claims against Defendant.
See Instant Matter,
Docket Entry No. 1, at 1.
The fact that Plaintiff is – and has been
for the last nine months – an inmate housed at Fort Dix does not
and cannot supply him with New Jersey domicile.
citizenship for diversity purposes is the state in which the
inmate was domiciled prior to incarceration, unless the inmate
[establishes domicile by showing contacts and the intent to
remain] elsewhere when he is released[,] in which event
citizenship would be that state.”
McCracken v. Murphy, 328 F.
Supp. 2d 530, 532 (E.D. Pa. 2004) (emphasis supplied, citing
Flanagan v. Shively, 783 F. Supp. 922, 935 (E.D. Pa.), aff’d, 980
F.2d 722 (3d Cir. 1992)).4
with New Jersey.
Here, Plaintiff has shown no ties
To the contrary, during his criminal
proceedings, he has continuously maintained and averred to his
ties with Pennsylvania.
In his bail application, he expressly
stated that he lived in Philadelphia and had a household there.
In addition, in the instant matter, he asserted payments of taxes
No statement in his complaint, short of his
reference to his current place of incarceration, suggests that he
has any connection to New Jersey or that he established a New
Jersey domicile prior to incarceration.
Therefore, he is not
diverse from Defendant, who – according to Plaintiff’s pleading –
is also a citizen of Pennsylvania.
Entry No. 1, at 1.
See Instant Matter, Docket
Because Plaintiff has not met his burden of
For purposes of determining diversity, state citizenship
is equated with domicile. See Krasnov v. Dinan, 465 F.2d 1298,
1300 (3d Cir. 1972); Parr v. Grenko, 1993 U.S. Dist. LEXIS 9122,
at *3 (E.D. Pa. Jul. 9, 1993). Domicile is not synonymous with
residence: indeed, one can reside in one place and be domiciled
in another. See id. Residence and an intent to make the place
of residence one’s home are required for citizenship and to
establish a new domicile. See id. Although the analysis is
necessarily case specific, courts have looked to certain factors,
including state of employment, voting, taxes, driver’s license,
bank accounts and assets, and civic and religious associations in
determining the citizenship of an individual. See Federal
Practice & Procedure § 3612, at 530-31; see also Juvelis v.
Snider, 68 F.3d 648, 654 (3d Cir. 1995); Krasnov, 465 F.2d at
1301; Connors v. UUU Prods., 2004 U.S. Dist. LEXIS 6417, at *8
(E.D. Pa. Mar. 15, 2004).
establishing diversity jurisdiction, his complaint is also
subject to dismissal on that ground.
Furthermore, even if this Court were to presume that
Plaintiff may, somehow, establish his pre-incarceration domicile
in New Jersey, his action for partition sale is improperly venued
in this Court.5
Here, Defendant is in Philadelphia, Defendant’s
alleged refusal to cooperate with Plaintiff’s attempt to sell the
Property took place in Philadelphia and – to the extent his
action for partition sale could be construed as an action in rem,
rather than an in personam proceeding against Defendant, the
Property at issue is situated in Philadelphia, thus making venue
in Pennsylvania more appropriate.
See R & R Capital, LLC v.
Merritt, 2007 U.S. Dist. LEXIS 78754 (E.D. Pa. Oct. 23, 2007).
Correspondingly, even if Plaintiff could establish New Jersey
Venue is governed by 28 U.S.C. § 1391(b) which provides
that a civil action may be brought in:
a judicial district in which any defendant
resides, if all defendants are residents of the
State in which the district is located;
a judicial district in which a substantial part of
the events or omissions giving rise to the claim
occurred, or a substantial part of property that
is the subject of the action is situated; or
if there is no district in which an action may
otherwise be brought as provided in this section,
any judicial district in which any defendant is
subject to the court’s personal jurisdiction with
respect to such action.
domicile (or domicile in any other State, short of Pennsylvania)
and the amount in controversy exceeding $75,000, his diversity
jurisdiction action would be, at best, subject to transfer to the
Moreover, Plaintiff’s application for eviction of the
current tenants residing at the Property cannot be entertained
for failure to add these indispensable parties to this suit.7
Under Section 1406, “[t]he district court of a district
in which is filed a case laying venue in the wrong division or
district shall dismiss, or if it be in the interest of justice,
transfer such case to any district or division in which it could
have been brought.” 28 U.S.C. § 1406(a). Here, such transfer
does not appear in the interest of justice because the EDPA, same
as this Court, is likely to lack subject matter diversity-based
jurisdiction over Plaintiff’s challenges. Therefore, vo such
transfer will be directed.
Federal Rule of Civil Procedure 12 permits the dismissal
of a complaint for “failure to join a party under Rule 19.” Fed.
R. Civ. P. 12(b)(7). Federal Rule of Civil Procedure 19, in
turn, requires the joinder of certain parties under certain
enumerated circumstances. See Gen. Refractories Co. v. First
State Ins. Co., 500 F.3d 306, 312 (3d Cir. 2007). In relevant
part, Rule 19 provides:
A person who is subject to service of process and whose
joinder will not deprive the court of subject-matter
jurisdiction must be joined as a party if:
in that person’s absence, the court cannot accord
complete relief among existing parties; or
that person claims an interest relating to the subject
of the action and is so situated that disposing of the
action in the person’s absence may:
as a practical matter impair or impede the
person’s ability to protect the interest; or
Here, the current tenants of the Property cannot be evicted
unless they are made parties to Plaintiff’s suit and duly served,
and unless their tenancy claims are satisfied.
neither Plaintiff nor Defendant can have their interests related
to the Property adjudicated – and cannot be accorded complete
relief – until and unless the tenants of the Property are
afforded their day in court.
Consequently, Plaintiff’s complaint
is also subject to dismissal on that ground.
Finally, Plaintiff’s application for reimbursement of the
filing fee he is yet to pay is facially speculative.
disposition portion of this Memorandum Opinion and Order details,
the filing fee will be collected from Plaintiff only in the event
there are certain sufficient deposits to his prison account.
Thus, until and unless Plaintiff pays the filing fee, his alleged
“loss” is and will remain speculative.
To add, no statement in
Plaintiff’s complaint indicates that Defendant is or could be
liable for Plaintiff’s election to commence this deficient matter
in the federal forum instead of Pennsylvania state court.8
(ii) leave an existing party subject to a substantial
risk of incurring double, multiple, or otherwise
inconsistent obligations because of the interest.
Fed. R. Civ. P. 19(a)(1).
Indeed, it appears that Defendant is not even aware of
Plaintiff’s commencement of this matter.
Plaintiff’s application for reimbursement of his yet-to-be-paid
filing fee will be denied as frivolous.
IT IS, therefore, on this 11th day of December 2014,
ORDERED that Plaintiff’s application to proceed in this
matter in forma pauperis, Docket Entry No. 1-1, is granted, and
the Clerk shall file the complaint, Docket Entry No. 1, without
prepayment of the filing fee; and it is further
ORDERED that, pursuant to 28 U.S.C. § 1915(b), the Clerk
shall serve this Order upon the United States Attorney for the
District of New Jersey and, in addition, upon the Warden of
Plaintiff’s current place of confinement.
Such service shall be
executed by regular U.S. mail or, in alternative, by means of
electronic delivery; and it is further
ORDERED that Plaintiff is assessed a filing fee of $350.00
which shall be deducted from his prison account pursuant to 28
U.S.C. § 1915(b)(2) in the manner set forth below, regardless of
the outcome of this litigation; and it is further
ORDERED that, pursuant to 28 U.S.C. § 1915(b)(1)(A),
Plaintiff is assessed an initial partial filing fee equal to 20%
of the average monthly deposits to the Plaintiff’s prison account
for the six month period immediately preceding the filing of the
Complaint; when funds exist, the Bureau of Prisons shall deduct
said initial fee from Plaintiff’s prison account and forward it
to the Clerk; and it is further
ORDERED that, pursuant to 28 U.S.C. § 1915(b)(2), until the
$350.00 filing fee is paid, each subsequent month that the amount
in Plaintiff’s prison account exceeds $10.00, the Bureau of
Prisons shall assess and deduct from the Plaintiff’s account, and
forward to the Clerk payments equal to 20% of the preceding
month’s income credited to Plaintiff’s prison account, with each
payment referencing the docket number of this action; and it is
ORDERED that Plaintiff’s complaint, Docket Entry No. 1, is
dismissed and the Clerk shall administratively terminate this
matter by making a new and separate entry on the docket reading,
“CIVIL CASE TERMINATED”; and it is further
ORDERED that this Court retains its jurisdiction over the
instant matter for the period of ninety days, subject to
extension, if warranted; and it is further
ORDERED that Plaintiff may have this matter reopened in the
event he submits, within thirty days from the date of entry of
this Memorandum Opinion and Order, his written statement: (a)
detailing the factual bases for his position that he has
established a pre-incarceration domicile in New Jersey; (b)
asserting, under penalty of perjury, that the value of the
Property exceeds $75,000; (c) showing cause as to why this matter
shall not be transferred to the EDPA in the event diversity
jurisdiction is established; and (d) joining the indispensable
parties to this suit; and it is further
ORDERED that Plaintiff’s application for reimbursement of
the filing fee he is yet to pay in connection with this matter is
denied with prejudice; and it is finally
ORDERED that the Clerk shall serve this Memorandum Opinion
and Order upon Plaintiff by regular U.S. mail.
s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge
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