BAPTISTE v. MOKED

Filing 25

LETTER MEMORANDUM, etc. Signed by Judge Esther Salas on 7/3/2018. (JB, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CHAMBERS OF

MARTIN LUTHER KING
COURTHOUSE
50 WALNUT ST.
ROOM 5076
NEWARK, NJ 07101
973-297-4887

ESTHER SALAS
UNITED STATES DISTRICT JUDGE

July 3, 2018
LETTER MEMORANDUM
Re:

Baptiste v. Moked
Civil Action No. 17-4287 (ES) (SCM)

Dear Parties:
On December 13, 2017, the Hon. Steven C. Mannion, U.S.M.J., entered a Report and
Recommendation recommending that the Undersigned dismiss this case for lack of subject-matter
jurisdiction. (D.E. No. 17 (the “R&R”)). Pro se Plaintiff Rupert Baptiste timely objected1 to the
R&R (D.E. No. 20), and Defendant Neely Moked opposed Baptiste’s objection (D.E. No. 22). For
the following reasons, the Court will accept Magistrate Judge Mannion’s recommended
disposition and dismiss this case for lack of subject-matter jurisdiction.
Procedural History. On June 13, 2017, Baptiste brought this action against Moked for
“legal malpractice, tortious concealment of evidence, and recklessness” stemming from Moked’s
alleged representation of Baptiste during Baptiste’s divorce proceedings. (See D.E. No. 1 ¶¶ 2-3).
In particular, Baptiste alleges that he entered into an unconscionable marital settlement in reliance
on false information Moked gave him. (Id. ¶¶ 4, 28).
Baptiste’s Complaint states that the Court “has both personal and subject matter
jurisdiction to hear this case pursuant to 28 U.S.C. §§ 1331, 1332, 1367.” (Id. ¶ 18). The
Complaint does not assert any claims under federal law. (See generally id.). And although the
Complaint states that Moked “has offices in the City of New York, State of New York” (id. ¶ 17),
it does not identify Moked’s citizenship.
Magistrate Judge Mannion conducted a sua sponte screen of Baptiste’s Complaint and
issued a Letter Order to Show Cause why this case should not be dismissed for lack of subjectmatter jurisdiction. (D.E. No. 7). The Letter Order directed Baptiste to file “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.” (Id. at 2).

Baptiste filed a “Motion for Reconsideration” within the fourteen-day time limit prescribed by Local Civil
Rule 72.1(c)(2). The Court will construe Baptiste’s motion as an objection to the R&R. See Higgs v. Att’y Gen., 655
F.3d 333, 339 (3d Cir. 2011) (“The obligation to liberally construe a pro se litigant’s pleadings is well-established.”).
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In response, Baptiste filed a letter directed primarily to damages. (See D.E. No. 12). He
asserts that the “severe financial harm and the emotional distress brought on by [Moked’s]
recklessness has and will continue to greatly affect [his] financial and emotional well-being.”
(Id. at 1). He states: “Given the severity of the long-lasting effects, the award of damages in excess
of $75,000 is highly likely.” (Id.). And he adds: “[E]ven if a litigant attempts to avoid federal
jurisdiction by trying to claim it is the state’s jurisdiction, the federal court should trump the state
court if there is a question to the jurisdiction.” (Id. at 2) (citing Avco Corp. v. Aero Lodge No. 735,
390 U.S. 557 (1968)). Baptiste neither addresses the parties’ citizenship nor attaches a certification
or affidavit.
Legal Standard for R&R. “When a litigant files an objection to a Report and
Recommendation, the district court must make a de novo determination of those portions to which
the litigant objects.” Leonard Parness Trucking Corp. v. Omnipoint Commc’ns, Inc., No. 13-4148,
2013 WL 6002900, at *2 (D.N.J. Nov. 12, 2013) (citing 28 U.S.C. § 636(b)(1)(A), Fed. R. Civ. P.
72(b), and L. Civ. R. 72.1(c)(2)). The district court may then “accept, reject or modify the
recommended disposition . . . .” Weber v. Mcgrogan, No. 14-7340, 2016 WL 3381233, at *2
(D.N.J. June 9, 2016) (quoting Fed. R. Civ. P. 72(b)(3)). The district court may also “receive
further evidence or recommit the matter to the Magistrate with instructions.” 28
U.S.C. § 636(b)(1)(C); see also L. Civ. R. 72.1(a)(2). “Unlike an Opinion and Order issued by a
Magistrate Judge on a non-dispositive matter, an R&R does not have the force of law unless and
until the district court enters an order accepting or rejecting it. Ecurie Reve Avec Moi, Inc. v. N.J.
Racing Comm., No. 11-4639, 2017 WL 6403001, at *2 (D.N.J. Aug. 11, 2017) (citing United
Steelworkers of Am. v. N.J. Zinc Co., Inc., 828 F.2d 1001, 1005 (3d Cir. 1987)).
Legal Standard for Subject-Matter Jurisdiction. “The district courts of the United States
. . . are ‘courts of limited jurisdiction.’” Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S.
546, 552 (2005) (quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)).
“They possess only that power authorized by Constitution and statute, which is not to be expanded
by judicial decree.” United States v. Merlino, 785 F.3d 79, 82 (3d Cir. 2015) (quoting Kokkonen,
511 U.S. at 377)). Consequently, when a federal court finds that it lacks jurisdiction over an action,
“the only function remaining . . . is that of announcing the fact and dismissing the cause.” Steel
Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94 (1998) (citation omitted); see also Elliott v.
Archdiocese of N.Y., 682 F.3d 213, 219 (3d Cir. 2012); Fed. R. Civ. P. 12(h)(3).
There are two traditional bases for subject-matter jurisdiction in federal court: federal
question-jurisdiction and diversity jurisdiction. Bais Yaakov of Spring Valley v. Peterson’s Nelnet,
LLC, No. 11-0011, 2011 WL 1458779, at *1 (D.N.J. Apr. 15, 2011) (citation omitted). Federalquestion jurisdiction applies to civil actions “arising under the Constitution, laws, or treaties of the
United States.” 28 U.S.C. § 1331. Diversity jurisdiction applies to civil actions “where the matter
in controversy exceeds the sum or value of $75,000 and is between ‘citizens of different States.’”
McCann v. Newman Irrevocable Tr., 458 F.3d 281, 286 (3d Cir. 2006) (quoting 28 U.S.C.
§ 1332(a)(1)). “The burden of establishing federal jurisdiction rests with the party asserting its
existence.” Lincoln Benefit Life Co. v. AEI Life, LLC, 800 F.3d 99, 105 (3d Cir. 2015)
(citing DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342 n.3 (2006)).
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“The key inquiry in establishing diversity is . . . the ‘citizenship’ of each party to the
action.” Zambelli Fireworks Mfg. Co., Inc. v. Wood, 592 F.3d 412, 419 (3d Cir. 2010). “A natural
person is deemed to be a citizen of the state where he is domiciled.” Id. “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.” Vlandis v. Kline, 412 U.S. 441, 454
(1973). “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.’” McCann, 458 F.3d at 286 (quoting Krasnov v. Dinan, 465 F.2d 1298, 1301 (3d Cir.
1972)). Courts may also consider such factors as the “location of brokerage and bank accounts,
location of spouse and family, membership in unions and other organizations, and driver’s license
and vehicle registration.” Id. (citation omitted). Courts determine whether complete diversity
exists by examining the citizenship of all the parties at the time the complaint was filed. Midlantic
Nat’l Bank v. Hansen, 48 F.3d 693, 696 (3d Cir. 1995).
Analysis. Baptiste’s Complaint asserts both federal-question and diversity jurisdiction.
(D.E. No. 1 ¶ 18). For federal-question jurisdiction, Baptiste does not assert any claims under
federal law. Instead, he asserts claims for malpractice (Count One), tortious concealment of
evidence (Count Two), and emotional distress (Count Three), all stemming from his alleged clientattorney relationship with Moked. (See id. ¶¶ 29-41). And Baptiste has not argued in his
submissions that the Court has federal-question jurisdiction over his claims. The Court therefore
concludes that Baptiste has failed to establish federal-question jurisdiction.
As for diversity jurisdiction, Baptiste appears to argue that Moked is domiciled at 360
Lexington Ave, Suite 1700, New York, New York, 10168 (“360 Lexington Ave.”), and that she
resided there until she separated with her husband and moved temporarily into her father’s New
Jersey home. (See D.E. Nos. 18 & 19).
Moked disputes these assertions. In a certification filed with her opposition to Baptiste’s
objection, Moked states that she has “never been married or resided at” 360 Lexington Ave. (D.E.
No. 22-1 (“Moked Cert.”) ¶ 4). She also states that “[a]s of the date the complaint in this action
was filed, [she] was domiciled at 1050 George Street, Apartment 15H, New Brunswick, New
Jersey, 08933” (“1050 George Street”). (Id. ¶ 2). She explains that she maintains a law office at
360 Lexington Ave. (id. ¶ 5), and she attaches “an invoice from Virgo Chanin Business Centers,
LLC, 380 Lexington Avenue – 17th floor, New NY 10168, which includes [her] office’s fixed
charge’s [sic] for January 2018 and the variable charges for December of 2017” (id. ¶ 6).
Moked’s certification also includes the following attachments:
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A verification of her car insurance, dated December 27, 2017, depicting the
“policy state” as New Jersey and her address as 1050 George Street (id. ¶ 7);

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A copy of the first page of her bank statement, as of November 30, 2017,
depicting her address as 1050 George Street (id. ¶ 8);

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IRS account transcripts from 2013 through 2016 depicting her address as 1050
George Street (id. ¶ 9);
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A picture of her New Jersey motor vehicle registration bearing an expiration
date of January 2019 and depicting her address as 1050 George Street (id. ¶ 10);
and

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A copy of a LexisNexis Public Persons search depicting her New Jersey Voter
Registration Information, which shows her address as 1050 George Street and
identifies a “Last Vote Date” of November 3, 2015 (id. ¶ 11).

In light of the foregoing, the Court concludes that Baptiste has failed to meet his burden of
establishing diversity jurisdiction.2 See Lincoln Benefit Life Co., 800 F.3d at 105. Indeed, the
evidence shows that Baptiste and Moked were both domiciled in—and thus citizens of—New
Jersey at the time Baptiste filed his Complaint. See Nero v. St. Joseph’s Reg’l Med. Hosp., No.
15-0120, 2015 WL 5306022, at *2 (D.N.J. Sept. 10, 2015).
Accordingly, because the Court does not have subject-matter jurisdiction over this action,
it will dismiss Baptiste’s Complaint. An appropriate Order follows.

s/Esther Salas
Esther Salas, U.S.D.J.

In light of the Court’s disposition, the Court need not address whether Baptiste’s Complaint meets the
amount-in-controversy requirement of § 1332(a)(1).
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