KAPLAN v. KAPLAN (PITALI) et al

Filing 13

OPINION. Signed by Judge Kevin McNulty on 2/9/2015. (anr)

UNITEI) STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

RICHARD P. KAPI.AN,

v.

:

Civ. No. 13-1882 (KM) (MAH)

:

Plaintiff,

OPINION

MARGHERITA A. KAPLAN (PITALI), et al.,
Defendants.

KEViN MCNULTY, U.S.D.J.

The plaintiff, Richard P. Kaplan, appearing pro Se, is a federal prisoner currently
incarcerated at F.C.I. Otisville in the State of New York. In 2013, Mr. Kaplan’s amended civil
rights complaint, filed in 2013, asserted claims arising from Mr. Kaplan’s divorce from
defendant Margherita Kaplan. In September, 2013, however, Mr. Kaplan filed a notice of
voluntary dismissal pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i). After he filed this
notice of voluntary dismissal, Mr. Kaplan filed an application to proceed in formapauperis. On
October 28, 2013, this Court dismissed the amended complaint without prejudice in light of Mr.
Kaplan’s notice of voluntary dismissal, and denied his application to proceed inJbrmapauperis
without prejudice in light of his dismissal of’ the amended complaint.
On December 24, 2014, over one year after the case was dismissed, Mr. Kaplan filed an
application to reopen this case. In that motion to reopen, Mr. Kaplan asserted that defendant
Margherita Kaplan and political figures were conspiring to keep him confined and that they had
“set Mr. Kaplan up.” (Dkt No. 9 at p. 1). On January 20, 2015, I denied Mr. Kaplan’s motion to
reopen the case. The Court first noted that at the time Mr. Kaplan voluntarily dismissed the
amended complaint, he had neither paid the filing fee nor been granted inforrnapauperis status.

(See Dkt. No. 10 at p. 1.) Furthermore, because Mr. Kaplan’s motion to reopen did not include

the filing fee or a new application to proceed informa pauperis, “reopening” would have been a
futile gesture. (See Ed. at p. 1-2.) Additionally, the Court noted that the allegations Mr. Kaplan
raised in his motion to reopen were distinct from those asserted in his amended complaint. It
followed that the proper procedure was for him to file a new civil action. (See id. at p. 2.)
On February 3, 2015, the Court received another motion to reopen from Mr. Kaplan. (See
Dkt. No. 12.) Mr. Kaplan again seeks to reopen this case, stating that he wishes to State Tort
Claims Act claims. He objects to being charged an additional filing fee to open a new case. I will
order the Clerk to reopen this action temporarily, for the limited purpose of permitting
consideration of the current motion to reopen, but I will deny the motion itself
First and foremost, the Court previously advised Mr. Kaplan that the proper procedure
was to file a new civil action, not to seek to reopen this dismissed action. (See Dkt. No. 10 at p. 2
(citing GreatAm. Ins. Co. ofNY. v. Day, No. 12-2295, 2013 WL 2543563, at *1 (D. Md. Jan.
22, 2013) (denying plaintiffs motion to reopen and requiring that a new action be filed where
plaintiff previously filed a notice of dismissal without prejudice pursuant to Federal Rule of Civil
Procedure 41(a)(1)(A)(i) (citing Adams v. Lever Bros. Co., 874 F.2d 393, 395 (7th Cir. 1989)).)
That procedure should be followed.
Second, Mr. Kaplan errs in contending that he should not be charged an additional filing
fee for reopening a case. Mr. Kaplan has never tendered a filing fee in this case, either at the
original stage or the reopening stage. Nor has he ever been granted informapauperis status in
this case. If he pays or is excused from paying the filing fee, it will be for the first time.
Third, although Mr. Kaplan’s current motion to reopen includes an application to proceed
in/brmapauperis, but that application is incomplete. Mr. Kaplan’s prisoner account statement

has not been certified by the appropriate prison official as required. See L.Civ.R. 81.2(b)
(Whenever a Federal, State or local prisoner submits a civil rights complaint

.

.

.

and seeks in

forma pauperis status, the prisoner shall also submit an affidavit setting forth information
which

establishes that the prisoner is unable to pay the fees and costs of the proceedings and shall
further submit a certification signed by the authorized oCficer of the institution certifying (1) the
amount presently on deposit in the prisoner’s account and, (2) the greatest amount on deposit in
the prisoner’s prison account during the six-month period prior to the date of the certification.”).
I mention a final point for the guidance of this pro se litigant. It may be that Mr. Kaplan
will seek to file a new action under the State Tort Claims Act, not a federal-law action under
42
U.S.C.

§

1983. (See Dkt. No. 12-3 at p. 1.) In general, state law claims are brought in state court.

The only likely basis for a federal court’s jurisdiction over a state law claim is diversity of
citizenship. This court has jurisdiction over cases between citizens of different states where the
amount in controversy exceeds $75,000. See 28 U.S.C.

§

1332(a). “Jurisdiction under

§

1332(a)

requires ‘complete diversity,’ meaning that ‘no plaintiff can be a citizen of the same state as any
of the defendants.” Johnson v. SmithKline Beechain Corp., 724 F.3d 337, 346 (3d Cir. 2013)
(quoting Grand Union Supermarkets ofthe Vi, Inc., v. HE. Lockhart Mgmt., inc., 316 F.3d
408, 410 (3d Cir. 2008)). For purposes ot diversity jurisdiction, “the domicile of a prisoner
before his imprisonment remains his domicile during his imprisonment. That presumption,
however, may be rebutted by showing a bona/Ide intent to remain in the state of incarceration on
release.” Pierro v. Kugel, 386 F. App’x 308, 309-10 (3d Cir. 2010) (citing StUèl v. Hopkins, 477
F.2d 1116, 1126 (6th Cir. 1973); Smith v. Cummings, 445 F.3d 1254, 1260 (10th Cir. 2006);
Singletary v. Cont ‘1 Iii. Nat ‘1 Bank & Trust Co. of Chi., 9 F.3d 1236, 1238 (7th Cir. 1993);

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Housand v. Heiman, 594 F.2d 923, 925 n.5 (2d Cir. 1979) (per curiam); Jones v.
Hadican, 552
F.2d 249, 251(8th Cir. 1977)).
CONCLUSION

For the foregoing reasons, Mr. Kaplan’s motion to reopen will be denied. If he wishes
to
pursue these claims, Mr. Kaplan must file a new action. That new action must be accom
panied
by the filing fee or a properly completed application to proceed införmapauperis. An
appropriate order will be entered.
I)ated: February 9, 2015

KEVIN MCNULTY
United States District Judge

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