Shovah v. Mercure et al
Filing
151
OPINION AND ORDER granting 142 Motion for Summary Judgment and the federal claims brought under 18 U.S.C. § 2255 are dismissed as untimely; granting 146 Motion to Amend 1 Complaint. The Court orders supplemental briefing as to whether the Court has subject matter jurisdiction under 28 U.S.C. § 1332 over the remaining state law claims, to be filed within thirty days of this opinion and order. Signed by Judge William K. Sessions III on 8/27/2014. (law)
UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
MICHAEL SHOVAH,
Plaintiff,
v.
FR. GARY MERCURE,
Defendant.
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Case No. 2:11-cv-201
OPINION AND ORDER
Plaintiff Michael Shovah brings this civil action under 18
U.S.C. § 2255, alleging that Gary Mercure, a former priest from
the Roman Catholic Diocese of Albany New York, Inc. (the
“Diocese”), engaged in sexual exploitation and abuse of children
in violation of 18 U.S.C. §§ 2422 and 2423.
Mercure has now
moved for summary judgment dismissing the claim as untimely
under 18 U.S.C. § 2255(b)’s six-year statute of limitations.
Shovah has moved to amend the complaint to add parallel claims
under Vermont law.
For the reasons stated below, the Court
grants Plaintiff’s motion to amend, ECF No. 146.
The Court
grants Defendant’s motion for summary judgment, ECF No. 142,
thereby dismissing Plaintiff’s federal claims.
The Court
questions sua sponte its subject matter jurisdiction over the
remaining claims and orders further briefing from the parties
regarding this issue.
BACKGROUND
Defendant Gary Mercure served as a priest for the Diocese
during the time relevant to this action.
As a child, Shovah was
a parishioner at the Diocese and received religious training
from Mercure.
Shovah alleges that Mercure transported him from
New York to Vermont with the intent to engage in criminal sexual
activity and did engage in such activity while Shovah was a
minor.
Because Shovah was born on May 11, 1976, any unlawful
conduct had to have occurred before Shovah’s eighteenth birthday
on May 11, 1994.
While the alleged abuse took place at least
twenty years ago, Plaintiff asserts in his pleadings that he
“discovered” that the sexual activity caused his injuries and
conditions within six years of filing this action in 2011.
Compl. ¶ 2. 1
Shovah alleges that he did not make the connection
between Mercure’s conduct and his own psychological harm until
much later; however, he does not allege that he was unaware of
the conduct when it occurred or that he suppressed the memory of
the sexual abuse itself.
Shovah filed this suit on August 10, 2011, under 18 U.S.C.
§ 2255, which creates a civil remedy for personal injuries
1
The original complaint provides no explanation for this delay. The
proposed First Amended Complaint states that Plaintiff was “unable to
discover with due diligence the injuries that he alleges in this
Complaint because of the psychological difficulties caused him by
Defendant Mercure by the sexual activity and childhood sexual abuse.”
1st Am. Compl. ¶ 3.
2
caused by violations of federal child abuse laws.
Specifically,
Shovah alleges that he was a victim under 18 U.S.C. §§ 2422, 2
which criminalizes the use of interstate commerce to induce an
individual under 18 to engage in sexual activity, and 2423, 3
which criminalizes interstate transport of an individual under
the age of 18 with the intent to engage in criminal sexual
2
(a) Whoever knowingly persuades, induces, entices, or coerces any
individual to travel in interstate or foreign commerce, or in any
Territory or Possession of the United States, to engage in
prostitution, or in any sexual activity for which any person can be
charged with a criminal offense, or attempts to do so, shall be fined
under this title or imprisoned not more than 20 years, or both.
(b) Whoever, using the mail or any facility or means of interstate or
foreign commerce, or within the special maritime and territorial
jurisdiction of the United States knowingly persuades, induces,
entices, or coerces any individual who has not attained the age of 18
years, to engage in prostitution or any sexual activity for which any
person can be charged with a criminal offense, or attempts to do so,
shall be fined under this title and imprisoned not less than 10 years
or for life.
18 U.S.C. § 2422.
3
(a) Transportation with intent to engage in criminal sexual
activity.--A person who knowingly transports an individual who has not
attained the age of 18 years in interstate or foreign commerce, or in
any commonwealth, territory or possession of the United States, with
intent that the individual engage in prostitution, or in any sexual
activity for which any person can be charged with a criminal offense,
shall be fined under this title and imprisoned not less than 10 years
or for life.
(b) Travel with intent to engage in illicit sexual conduct.--A person
who travels in interstate commerce or travels into the United States,
or a United States citizen or an alien admitted for permanent
residence in the United States who travels in foreign commerce, for
the purpose of engaging in any illicit sexual conduct with another
person shall be fined under this title or imprisoned not more than 30
years, or both.
18 U.S.C.A. § 2423.
3
activity.
Shovah also alleges that Mercure could be charged
with sexual assault (Vt. Stat. Ann. tit. 13, § 3252) and lewd
and lascivious conduct with a child (Vt. Stat. Ann. tit. 13, §
2602) under Vermont state law. 4
Mercure is currently
incarcerated in the State of Massachusetts.
Defendant now moves to dismiss the § 2255 claim at summary
judgment on the grounds that it was filed outside the six-year
statute of limitations provided by 18 U.S.C. § 2255(b).
Plaintiff has moved to amend the complaint to bring a cause of
action specifically arising under Vermont law.
DISCUSSION
I. Motion to Amend
Shovah has moved to file a First Amended Complaint.
Federal Rule of Civil Procedure 15 provides that “the court
should freely give leave [to amend] when justice so requires.”
Fed. R. Civ. P. 15(a)(2).
Amendment should be permitted unless
the defendant shows “[u]ndue delay, bad faith or dilatory motive
on the part of the movant, repeated failure to cure deficiencies
by amendments previously allowed, undue prejudice to the
opposing party . . . [or] futility of amendment.”
Foman v.
Davis, 371 U.S. 178, 182 (1962).
4
Plaintiff originally brought claims against both Mercure and the
Diocese, but the claims against the Diocese were dismissed for lack of
personal jurisdiction pursuant to a mandamus order by the Second
Circuit. See In re Roman Catholic Diocese of Albany, New York, Inc.,
745 F.3d 30, 41 (2d Cir. 2014).
4
Shovah contends that justice requires leave to amend due to
the mandamus order by the Second Circuit dismissing the Diocese
from the case, In re Roman Catholic Diocese of Albany, 745 F.3d
at 41, and the recent summary order issued by the Second Circuit
suggesting that Plaintiff’s federal claims may be precluded by §
2255’s statute of limitations, S.M. v. Clash, 558 F. App'x 44,
45 (2d Cir. 2014).
Shovah’s First Amended Complaint seeks to
add a cause of action under Vermont law regarding the same
conduct already alleged in the original complaint—specifically,
Vt. Stat. Ann. tit. 12, § 522.
Plaintiff’s motion to amend is
therefore a conceded attempt to maintain his action in this
Court even if the federal claims are dismissed.
Prejudice and delay concerns do not counsel against
granting the motion to amend in this instance.
Where the
additional facts alleged in an amended complaint “arise out of
the same core of operative facts,” as here, prejudice is
mitigated because the original complaint provided the defendant
with adequate notice of the allegations.
Upper Valley Ass'n for
Handicapped Citizens v. Mills, 928 F. Supp. 429, 434 (D. Vt.
1996).
Furthermore, any delay in amendment has not been
prejudicial to Mercure because the parties have not commenced
discovery on this matter.
See id.
Defendant opposes the motion to amend on the grounds of
futility, stating that the Court does not have subject matter
5
jurisdiction over the new state law claims.
Amendment should
not be permitted where the amended complaint would not survive a
motion to dismiss.
See id.
However, Shovah also pleads
diversity jurisdiction under § 1332.
While the jurisdictional
issue raises questions requiring supplementary briefing from the
parties (as discussed further below), the Court nonetheless
grants Shovah’s motion to amend and will consider Defendant’s
motion for summary judgment in light of the First Amended
Complaint.
II.
Motion for Summary Judgment
Mercure moves for summary judgment on the grounds that
Shovah’s federal claim is untimely under the statute of
limitations laid out in 18 U.S.C. § 2255(b).
Shovah brings his
claim under § 2255, which provides:
In general.--Any person who, while a minor, was a
victim of a violation of section 1589, 1590, 1591,
2241(c), 2242, 2243, 2251, 2251A, 2252, 2252A, 2260,
2421, 2422, or 2423 of this title and who suffers
personal injury as a result of such violation,
regardless of whether the injury occurred while such
person was a minor, may sue in any appropriate United
States District Court and shall recover the actual
damages such person sustains and the cost of the suit,
including a reasonable attorney’s fee. Any person as
described in the preceding sentence shall be deemed to
have sustained damages of no less than $150,000 in
value.
18 U.S.C.A. § 2255(a).
Shovah specifically claims that he was a
victim under sections 2242 and 2243, which create liability for
using interstate commerce to induce an individual under 18 to
6
engage in sexual activity and for interstate transport of an
individual under the age of 18 with the intent to engage in
criminal sexual activity.
The applicable statute of limitations
at the time Shovah filed the Complaint 5 read:
Any action commenced under [18 U.S.C. § 2255] shall be
barred unless the complaint is filed within six years
after the right of action first accrues or in the case
of a person under a legal disability, not later than
three years after the disability.
18 U.S.C. § 2255(b) (2006).
Although Shovah does not specify
the exact date of the alleged conduct, there is no dispute (as a
result of Shovah’s date of birth) that the unlawful conduct
occurred before May 11, 1994.
SUF ¶ 6.
Under the statute,
Shovah had either six years after the right of action accrued or
three years after his eighteenth birthday to bring his § 2255
action.
Assuming that the cause of action “accrued” at the time
the unlawful conduct occurred, Shovah’s action was filed at
least 11 years after the statute of limitations expired.
Mercure thus argues that the case should be dismissed as
untimely.
Shovah concedes that the alleged conduct underlying his
injuries occurred well over six years before he filed suit.
However, he opposes Defendant’s motion for summary judgment by
5
The statute of limitations under 18 U.S.C. § 2255 was extended to ten
years in March 2013. The extension was not retroactive, but even if
it applied here, it would have no impact on the Court’s analysis, as
the conduct in question occurred over ten years before the Complaint
was filed in 2011.
7
disputing the date his claim “accrued” for purposes of computing
the statute of limitations.
Rather than accruing at the time
the unlawful conduct occurred, he argues that it accrued upon
his discovery of his injuries.
“In common parlance a right accrues when it comes into
existence.”
Gabelli v. Securities and Exchange Comm’n, 133 S.
Ct. 1216, 1222 (2013).
“The ‘standard rule’ is that a claim
accrues when the plaintiff has a complete and present cause of
action.”
Id. (quoting Wallace v. Kato, 549 U.S. 384, 388
(2007).
However, in certain cases, courts have applied a
“discovery rule” to statutes of limitations.
The discovery rule
typically applies when a “plaintiff would have reasonably . . .
had difficulty discerning the fact or cause of injury at the
time it was inflicted.”
112, 121 (2d Cir. 1998).
Kronisch v. United States, 150 F.3d
The discovery rule postpones the
accrual of a cause of action when the potential plaintiff is
unaware that he has been injured at the time the wrongful
conduct occurred.
Shovah argues that, applying the discovery
rule, the statute of limitations under § 2255(b) did not begin
to run until he made a causal connection between his emotional
harm and the alleged childhood sexual abuse.
According to the
First Amended Complaint, Shovah made this connection within six
years of the filing of this action.
8
While the text of § 2255(b) itself is silent as to whether
the discovery rule applies, the Supreme Court has sometimes
applied the discovery rule to statutes without express
direction.
See Urie v. Thompson, 337 U.S. 163 (1949) (applying
the discovery rule to the Federal Employers’ Liability Act);
United States v. Kubrick, 444 U.S. 111 (1979) (discussing the
discovery rule with regard to the Federal Tort Claims Act).
This Court has found no circuit court decisions addressing
whether or not the discovery rule applies to claims brought
under § 2255.
Two federal district courts, including one in
this circuit, have considered whether the discovery rule applies
to claims brought under § 2255, and both have declined to apply
it.
See Singleton v. Clash, 951 F. Supp. 2d 578, 585 (S.D.N.Y.
2013), aff'd sub nom. S.M. v. Clash, 558 F. App'x 44 (2d Cir.
2014); Kolbek v. Twenty First Century Holiness Tabernacle
Church, Inc., 10-CV-4124, 2013 WL 6816174 (W.D. Ark. Dec. 24,
2013).
The Second Circuit affirmed Singleton on narrow grounds
without deciding whether the discovery rule applies to claims
under § 2255. 6
6
The Second Circuit affirmed the District Court’s opinion in an
unpublished opinion, and made no finding as to whether the discovery
rule applied, instead finding that even if it did apply to Section
2255, this would still not reach plaintiffs’ claims (as discussed
further below). S.M. v. Clash, 558 Fed. Appx. 44, 45 (2d Cir. 2014)
(“Assuming without deciding that a discovery accrual rule applies to §
2255(b), we hold that the district court properly dismissed the
actions as time-barred given that the plaintiffs’ complaints failed to
9
It is therefore unclear whether the discovery rule even
applies to claims brought under § 2255.
However, the Court need
not definitively decide this issue, because even assuming
arguendo that the discovery rule applies, Plaintiff’s claims
remain untimely.
Under the discovery rule, the “plaintiff’s cause of action
accrues when he discovers, or with due diligence should have
discovered, the injury that is the basis of the litigation.”
Guilbert v. Gardner, 480 F.3d 140, 149 (2d Cir. 2007)
(quotations omitted).
Section 2255 creates a cause of action
for victims of violations of several federal criminal statutes.
See 18 U.S.C.A. § 2255.
By the express language of § 2255,
damages for these victims are presumed to be “no less than
$150,000 in value.”
Id. § 2255(a).
Because there is no need to
show specific injuries to calculate damages under the statute,
it is the victimhood alone—and not any resulting effects—that
forms the basis of a § 2255 action.
Thus, a plaintiff need only
show that he or she “was the victim of a sex crime” under the
enumerated statutes.
2012).
Doe v. Boland, 698 F.3d 877, 882 (6th Cir.
It therefore follows that, applying the discovery rule,
a § 2255 plaintiff’s cause of action accrues upon discovery of
the unlawful conduct.
provide any reason why the plaintiffs were unable to discover their
injuries prior to 2012.”).
10
In this case, Shovah’s claims are based on the alleged
occurrences of sexual conduct in violation of two specific
federal criminal statutes: 18 U.S.C. §§ 2422 and 2423 (along
with additional violations of Vermont law).
Shovah’s complaint
makes clear that the alleged violations of §§ 2422 and 2423
occurred well over six years before he filed suit.
While he
claims that he did not make the connection between the conduct
and his psychological harm until much later, the First Amended
Complaint does not allege that he was unaware of the conduct
when it occurred or that he suppressed the memory of the sexual
abuse itself.
Thus, even if the discovery rule applies, his
claims accrued at the time he discovered that he was a victim of
sexual abuse—in other words, when the abuse itself occurred.
This means that, at the very latest, Shovah’s claims expired
eleven years before the filing of this action.
Shovah argues that his claim did not begin to accrue when
he discovered the alleged abuse (that is, his victimization
under the criminal statutes), but instead when he discovered the
psychological injuries caused by his victimization.
The First
Amended Complaint states that Shovah was “unable to discover
with due diligence the injuries that he alleges in this
Complaint because of the psychological difficulties caused him
by Defendant Mercure by the sexual activity and childhood sexual
abuse.”
First Amended Compl. ¶ 3.
11
In support of his position,
he cites several studies demonstrating that childhood sexual
abuse can have lifelong repercussions, and that its diverse
symptoms “make it very difficult for victims of childhood sexual
abuse to discover that the sexual acts were abuse and caused
them harm.”
Opp’n Mot. Summ. J. 17.
He thus maintains that his
claim is timely because he was not aware of his psychological
injuries until within the six-year limitations period.
This argument is unsupported by the statutory text and has
been rejected by every court to consider it.
The plain language
of the statute indicates that the § 2255 claim accrues at the
time of victimization, not after subsequent latent injuries
present themselves.
While the statute makes reference to both
victimization and personal injury as a result of such
victimization, the text makes clear that the victims necessarily
suffer injuries as a result of their victimhood (in fact, the
statute assumes damages of $150,000).
Thus, § 2255 does not
make a distinction between victimization under the statute and
personal injury.
See Boland, 698 F.3d at 881 (“[T]he statute
does not create one category of victims and another category of
people who suffer personal injuries.”). 7
Because a victim
necessarily suffers actionable injuries under § 2255 at the time
7
In fact, it is generally conceded that this language about a separate
personal injury was added specifically to address child pornography
cases, when plaintiffs may be revictimized by sales or distribution
that occur long after the initial violation. See Boland, 698 F.3d at
881.
12
the criminal conduct occurs, the discovery of this criminal
conduct is when the claim “first accrues” for purposes of the
statute of limitations.
This becomes particularly clear when the text of § 2255 is
compared with similar statutes that do extend the accrual date
to discovery of the psychological injury.
For example, the
Vermont statute creating a cause of action based on childhood
sexual abuse provides:
A civil action brought by any person for recovery of
damages for injury suffered as a result of childhood
sexual abuse shall be commenced within six years of
the act alleged to have caused the injury or
condition, or six years of the time the victim
discovered that the injury or condition was caused by
that act, whichever period expires later. The victim
need not establish which act in a series of continuing
sexual abuse or exploitation incidents caused the
injury.
Vt. Stat. Ann. tit. 12, § 522(a) (emphasis added).
In contrast
to the federal statute, the Vermont statute expressly provides
that the statute of limitations begins to run upon the discovery
of the link between the sexual abuse and latent injuries.
The
federal statute provides only that the statute of limitations
begins to run at the time the right of action first accrues.
Furthermore, two federal courts have addressed Shovah’s
accrual theory and both have rejected it.
In Singleton, the
plaintiffs brought § 2255 claims nearly identical to those at
issue here.
The plaintiffs alleged that the defendant had
13
sexually abused them as minors in violation of several federal
criminal statutes, including, like here, interstate transport in
violation of 18 U.S.C. § 2423.
While more than six years had
passed since the sexual abuse occurred, each plaintiff alleged
that he was not able to make a causal connection between his
emotional and psychological harms and the sex acts until well
after he turned 18 (and within the statute of limitations).
The
court declined to adopt the plaintiffs’ statute of limitations
theory, instead finding that because the plaintiffs knew they
were victims of the enumerated criminal statutes at the time the
conduct occurred, that is when they became aware of their
injuries for purposes of the discovery accrual rule.
Supp. at 590.
951 F.
As the court explained,
The plaintiffs knew of their injuries, namely their
victimization under the statute, and its cause, namely
the defendant. Therefore, the claims accrued at that
time. Had the plaintiffs approached an attorney at
that time, they could have brought claims.
Id.
In a similar case in the Middle District of Pennsylvania,
the district court applied the discovery rule arguendo and found
that claims accrued under § 2255 not at the discovery of the
emotional harm, but upon discovery of victimization pursuant to
the underlying criminal statutes.
14
Stephens v. Clash, 1:13-CV-
712, 2013 WL 6065323, *6 (M.D. Pa. Nov. 18, 2013). 8
The court
concurred with the Singleton court and found that a § 2255
plaintiff “was aware of sufficient facts related to his injury
and its cause to make inquiries and bring claims under Section
2255 at the time of the statutory violations” and therefore his
claims accrued for purposes of the statute of limitations at
that time.
Id.
Applying the reasoning in Stephens and Singleton, even if
the discovery rule applies here, the statute of limitations
began to run on Shovah’s claims as soon as Shovah discovered or
should have discovered the conduct that made him a victim of the
federal criminal statutes (thereby creating his § 2255 cause of
action).
The Complaint indicates that this conduct occurred
around twenty years ago.
While the Complaint alleges that
Shovah did not learn of the psychological harm linked to his
victimization until within six years of filing this action,
Shovah does not allege that he was unaware of the initial
conduct nor does he provide a reason for why he would not have
been aware of the conduct when it occurred.
Finally, even if the Court adopted Shovah’s argument—that
the statute of limitations only began to accrue when he
8
In Stephens, the district court made no finding as to whether or not
the discovery rule should apply to § 2255 claims, instead basing its
disposition on the fact that even assuming arguendo that the discovery
rule was applicable, the plaintiff’s claims were still barred by §
2255’s statute of limitations.
15
discovered the injury—this still would not save his claims
because the discovery rule specifically directs that a
“plaintiff’s cause of action accrues when he discovers, or with
due diligence should have discovered, the injury that is the
basis of the litigation.”
Guilbert, 480 F.3d at 149 (emphasis
added) (quotations omitted).
Again, Shovah has not pled that he
repressed or forgot about this incident, but merely that he was
unable to discover the full extent of his psychological
injuries.
This means that Shovah was aware of the “critical
facts of his case including both the defendant’s alleged acts
and his injury” at the time Mercure abused him, which should
have put him on notice to perform due diligence.
See Kubrick,
444 U.S. at 123 (finding that claim accrued for purposes of the
discovery rule when the plaintiff, “armed with the facts about
the harm done to him,” could have discovered his claim by
“seeking advice in the medical and legal community”).
Shovah does not provide a sufficient reason in the First
Amended Complaint for why he did not with due diligence discover
his injuries earlier.
The Second Circuit affirmed the district
court’s decision in Singleton earlier this year for this precise
deficiency.
See S.M. v. Clash, 558 Fed. Appx. at 45
(“Because
the plaintiffs failed to provide any basis for finding that they
exercised ‘due diligence’ in uncovering their injuries, assuming
arguendo that the psychological harm constituted the plaintiffs'
16
legal injury for purposes of § 2255(a), the discovery rule
cannot apply.”).
In the First Amended Complaint, Shovah alleges
that he was unable to discover with due diligence his
psychological injuries because of the psychological injuries
caused by the abuse.
Shovah’s explanation for the delay in
discovery has a circularity that could extend the accrual date
indefinitely.
This contradicts the express language of the
statute, as it essentially nullifies the statute of limitations
itself.
Thus, the First Amended Complaint fails to provide an
adequate reason for Shovah’s failure to with due diligence
discover his injury.
The Court therefore holds that, assuming without deciding
that the discovery rule applies to § 2255, the statute of
limitations began to run at the time Shovah discovered or should
have discovered the underlying statutory violations, not when he
linked his later psychological harm to those violations.
As a
result, the statute of limitations expired well before 2011, and
Shovah’s claims under § 2255 are dismissed as untimely.
III.
Subject Matter Jurisdiction
As the § 2255 claims provided the basis for federal
jurisdiction over Shovah’s complaint, the dismissal of these
claims raises questions as to the Court’s subject matter
jurisdiction over the remaining state law claims.
Without the
federal claims, supplemental jurisdiction under § 1367 may no
17
longer apply.
28 U.S.C. § 1367(c)(3) (the district court may
decline to exercise supplemental jurisdiction under § 1367(a) if
“the district court has dismissed all claims over which it has
original jurisdiction”).
While the Court has the discretion to
maintain jurisdiction over a state law claim under § 1367 after
all federal claims have been dismissed, this is not a proper
instance to exercise such discretion.
Discovery has not yet
occurred and, moreover, the state law claims were only just
added precisely because Plaintiff feared dismissal of his
federal claims.
The Court therefore finds that it would be an
abuse of its discretion to retain supplemental jurisdiction over
the new state law claims.
As a result, there is no § 1367
jurisdiction over the state law claims in the First Amended
Complaint.
Without federal question or supplemental jurisdiction, this
Court can only have subject matter jurisdiction on diversity
grounds.
See 28 U.S.C. § 1332 (federal jurisdiction is
established where the parties are completely diverse and the
amount in controversy exceeds $75,000).
Shovah’s First Amended
Complaint pleads complete diversity of parties, alleging that
Shovah is a citizen of New York and Mercure a citizen of
Massachusetts.
In his opposition to the motion to amend, Mercure submits
that there is no diversity of citizenship between the parties.
18
While Mercure is currently incarcerated in the State of
Massachusetts, he asserts that this is not his domicile for
diversity of citizenship purposes.
See Poucher v. Intercounty
Appliance Corp., 336 F. Supp. 2d 251, 253 (E.D.N.Y. 2004) (“It
is well-established that a prisoner does not acquire a new
domicile when he is incarcerated in a state different from his
previous domicile.
Instead, the prisoner retains his
preincarceration domicile.”).
This means that Mercure is most
likely also a citizen of New York and there is no diversity
between the parties.
The presumption that a prisoner retains his
preincarceration domicile is rebuttable.
Housand v. Heiman, 594
F.2d 923, 925 (2d Cir. 1979) (allowing a prisoner to try to show
that he has satisfied the prerequisites for establishing
domicile in his place of incarceration); Poucher, 336 F. Supp.
2d at 253 (“[A]lthough a prisoner is presumed to retain his
former domicile, he can attempt to demonstrate that he has
established a new domicile in his state of incarceration.”).
This presumption is rebutted only when a prisoner can show
“‘truly exceptional circumstances which would justify a finding
that he has acquired a new domicile at the place of his
incarceration.’”
Braten v. Kaplan, No. 07 Civ. 8498(HB), 2009
WL 614657, *4 (S.D.N.Y. Mar. 10, 2009) (quoting Jones v.
Hadican, 552 F.2d 249, 251 (8th Cir. 1977)).
19
It is unclear at this juncture whether the presumption may
be rebutted in this case for two reasons.
First, the Court is
unaware of precedent indicating that plaintiff may rebut this
presumption as to the defendant’s domicile.
Second, even if the
Court were to allow it, Shovah has not pled facts sufficient to
rebut the presumption.
“In order for a prisoner to establish
diversity jurisdiction based on the theory that his place of
incarceration is his domicile, ‘the complaint must allege facts
sufficient to raise a substantial question about the prisoner’s
intention to acquire a new domicile.’”
at 254 (quoting Jones, 552 F.2d at 251).
Poucher, 336 F. Supp. 2d
In the First Amended
Complaint, Shovah states without support that Mercure’s domicile
is in Massachusetts, based solely on his place of incarceration.
He makes no indication that Mercure intends to change his
domicile to Massachusetts; indeed, Mercure states specifically
in his opposition to the motion to amend that he intends to
return to New York after his term of incarceration has ended.
The Court thus has significant concerns as to whether
diversity jurisdiction exists over the remaining claims.
However, the Court does not wish to decide this issue without
giving the parties an opportunity to fully address the matter.
The Court thus orders supplemental briefing on the discrete
issue of diversity jurisdiction.
If the Court lacks diversity
jurisdiction, the First Amended Complaint must be dismissed and
20
Plaintiff may seek relief in state court, where the initial
filing date of this action would relate back for purposes of the
state statute of limitations.
See Vt. Stat. Ann. tit. 12, § 558
(“[A] plaintiff may commence a new action for the same cause
within one year after the determination of the original action,
when the original action has been commenced within the time
limited by any statute of this state, . . . [w]here the action
is dismissed for lack of jurisdiction of the subject matter. .
.”).
CONCLUSION
For the reasons stated above, Plaintiff’s motion to amend
is granted.
Defendant’s motion for summary judgment is also
granted and the federal claims brought under 18 U.S.C. § 2255
are dismissed as untimely.
The Court orders supplemental
briefing as to whether the Court has subject matter jurisdiction
under 28 U.S.C. § 1332 over the remaining state law claims, to
be filed within thirty days of this opinion and order.
DATED at Burlington, Vermont, this 27th day of August, 2014.
/s/ William K. Sessions
William K. Sessions III
District Court Judge
21
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