BAPTISTE v. MOKED

Filing 17

REPORT AND RECOMMENDATIONS re 1 Complaint filed by RUPERT BAPTISTE Objections, if any, to R&R due by 12/27/2017. Signed by Magistrate Judge Steven C. Mannion on 12/13/2017. (JB, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

NOT FOR PUBLICATION
Civil Action No.
RUPERT BAPTISTE.,
2:17-CV-4287-ES-SCM
Plaintiff,
ON ORDER TO SHOW CAUSE FOR
LACK OF SUBJECT MATTER
JURISDICTION

v.
NEELY MOKED,

[D.E. 7]

Defendant.

REPORT AND RECOMMENDATION
STEVEN C. MANNION, United States Magistrate Judge.
This matter comes before the Court upon sua sponte review of the subject matter
jurisdiction in this case and a subsequent Order to Show Cause.1 Plaintiff Rupert Baptiste (“Mr.
Baptiste”) submitted a response to the Order to Show Cause on November 7, 2017. 2 Defendant
Neely Moked, Esq. (“Ms. Moked”) submitted a brief in support of dismissal for lack of subject
matter jurisdiction on November 15, 2017.3 Oral argument was held before this Court on
November 20, 2017. The Honorable Esther Salas, United States District Judge, referred this motion
to the undersigned for report and recommendation.4 Having reviewed and considered the parties’
submissions, it is respectfully recommended that this matter be DISMISSED for lack of subject
matter jurisdiction.

(ECF Docket Entry No. (“D.E.”) 7, Letter Order). The Court will refer to documents by their
docket entry number and the page numbers assigned by the Electronic Case Filing System.
1

2

(D.E. 12, Pl.’s Br. in Opp’n).

3

(D.E. 14, Def.’s Br. in Supp.).

4

L. Civ. R. 72.1(a)(2).

I.

BACKGROUND AND PROCEDURAL HISTORY5
On June 13, 2017, Mr. Baptiste filed the instant Complaint against Ms. Moked, alleging,

among other things, “legal malpractice, tortious concealment of evidence, and recklessness.”6 In
his initial Complaint, Mr. Baptiste appears to assert diversity jurisdiction, though he cites the Rules
for federal question, diversity, and supplemental jurisdiction.7 On October 23, 2017, this Court
issued a sua sponte Order to Show Cause stating, in relevant part that Mr. Baptiste
shall show cause in writing by 11/8/2017, why this action should not be dismissed
for lack of federal subject matter jurisdiction by filing a certification or affidavit
setting forth the citizenship (domicile) of each party at the time the complaint was
filed and a brief explaining the basis for jurisdiction.8
Mr. Baptiste filed a letter in response on November 7, 2017,9 and Ms. Moked filed a letter in
support of dismissal on November 15, 2017.10 In his correspondence with the Court, Mr. Baptiste
lists his own address in Union, New Jersey11 and served summons upon Ms. Moked at her
residence in New Brunswick, New Jersey.12

5

The allegations set forth within the pleadings and motion record are relied upon for purposes of
this motion only. The Court has made no findings as to the veracity of the parties’ allegations.
6

(D.E. 1, Compl., at ¶ 18).

7

28 U.S.C. §§ 1331, 1332, 1367; (D.E 1, Compl., at ¶ 18).

8

(D.E. 7, Order).

9

(D.E. 12, Pl.’s Br. in Opp’n).

10

(See D.E. 1-2, 4, 9, 12).

11

(D.E. 1, Compl., at ¶ 18).

12

(D.E. 5).
2

II.

DISCUSSION & ANALYSIS
A. Legal Standard
Federal courts are courts of limited jurisdiction, and this Court has an independent and

continuing obligation to sua sponte inquire into subject matter jurisdiction.13 As the party invoking
this Court’s jurisdiction, Mr. Baptiste bears the burden of establishing jurisdiction by a
preponderance of the evidence.14
For cases in diversity, district courts “shall have original jurisdiction of all civil actions
where the matter in controversy exceeds the sum or value of $75,000, exclusive of interests and
costs” and where the matter is “between citizens of different States” or “citizens of a State and
citizens or subjects of a foreign state.”15 It is well established that, for the purposes of diversity, a
“natural person is deemed to be a citizen of the state where he is domiciled.”16 In determining a
natural person’s domicile for jurisdictional purposes, courts consider their “true, fixed and
permanent home and place of habitation . . . the place to which, whenever he is absent, he has the
intention of returning.”17

13

Zambelli Fireworks Mfg. Co. v. Wood, 592 F.3d 412 (3d Cir. 2010); Smith v. GTE Corp., 236
F.3d 1292, 1299 (11th Cir. 2001); Univ. of S. Alabama v. Am. Tobacco Co., 168 F.3d 405, 411
(11th Cir. 1999).
14

McCann v. Newman Irrevocable Trust, 458 F.3d 281, 286 (3d Cir. 2006); see also Daimler
Chrysler Corp. v. Cuno, 547 U.S. 332, 342 (2006); Packard v. Provident Nat'l Bank, 994 F.2d
1039, 1045 (3d Cir. 1993).
15

28 U.S.C. § 1332(a).

16

Zambelli, 592 F.3d at 419.

17

McCann, 458 F.3d at 286 (quoting Vlandis v. Kline, 412 U.S. 441, 454 (1973)).
3

B.

Analysis

For this Court to exercise diversity jurisdiction, Mr. Baptiste bears the burden of
establishing each of the following elements: (1) the amount in controversy exceeds $75,000,
exclusive of costs and interests, and (2) the action is between citizens of different states.18 Mr.
Baptiste had an opportunity to address these elements in his initial pleading and in his subsequent
letter brief to the Court. I find that Mr. Baptiste has failed to carry his burden and therefore
dismissal is appropriate.
In his initial pleading, Mr. Baptiste entirely failed to address Ms. Moked’s domicile, and
instead merely alleged that she “has offices in the City of New York, State of New York.”19 He
then asserted that “[t]his Court must have subject matter jurisdiction,” though this claim is
apparently based entirely on the harm Mr. Baptiste allegedly suffered.20
On reply to the Order to Show Cause, Ms. Moked asserts that Mr. Baptiste has been serving
Ms. Moked at her residence in New Jersey.21 Additionally, an identical complaint was voluntarily
dismissed upon “representation of Defendant that she is a resident of New Jersey.”22
Demonstrating further support for the conclusion that this Court lacks diversity jurisdiction.23

18

28 U.S.C. § 1332(a)(1).

19

(D.E. 1, Compl., at ¶ 17; see also D.E. 7, Order).

20

(D.E. 1, Compl., at ¶ 20).

21

(D.E. 14, Def.’s Br. in Supp.).

22

Id.

23

Id.
4

IV.

RECOMMENDATION
For the reasons discussed above, the undersigned respectfully recommends that the matter

be dismissed for lack of subject matter jurisdiction and any pending motions be rendered moot.
The parties have fourteen days to file and serve any objections to this Report and
Recommendation.24 “The District Court need not consider frivolous, conclusive, or general
objections.”25
The Clerk of the Court will mail a copy of this Report and Recommendation to the pro se
plaintiff.

12/13/2017 9:55:23 AM

Original: Clerk of the Court
Hon. Esther Salas, U.S.D.J.
cc: All parties
File
Rupert Baptiste
1063 Brighton Street #1
Union, NJ 07083

24
25

28 U.S.C. § 636; L. Civ. R. 72.1(c)(2).
See Battles v. United States Parole Comm’n, 834 F.2d 419, 421 (5th Cir. 1987).
5