Shovah v. Mercure et al
Filing
153
OPINION AND ORDER: this case is dismissed without prejudice for lack of subject matter jurisdiction over the remaining state law claims. Signed by Judge William K. Sessions III on 3/18/2015. (law)
UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
MICHAEL SHOVAH,
:
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:
:
:
:
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Plaintiff,
v.
FR. GARY MERCURE,
Defendant.
Case No. 2:11-cv-201
OPINION AND ORDER
Plaintiff Michael Shovah brings this action alleging that
Gary Mercure, a former priest from the Roman Catholic Diocese of
Albany, New York, Inc. (the “Diocese”), sexually abused him as a
child.
Shovah initially sued both Mercure and the Diocese, but
the Diocese has been dismissed for lack of personal jurisdiction.
See In re Roman Catholic Diocese of Albany, New York, Inc., 745
F.3d 30, 41 (2d Cir. 2014).
In an Opinion and Order dated August
27, 2014, this Court dismissed Shovah’s federal law claims as
untimely.
ECF No. 151.
Shovah’s state law claims against
Mercure remain.
Now before the Court is the question of diversity of
citizenship for the purpose of subject matter jurisdiction under
28 U.S.C. § 1332.
In its August 27, 2014 Opinion and Order, the
Court questioned Shovah’s claim to diversity jurisdiction and
ordered supplemental briefing on that issue within thirty days.
ECF No. 151 at 21.
Mercure timely submitted a supplemental
memorandum opposing diversity jurisdiction.
Shovah has not filed
any form of response to the Court’s request.
For the reasons set
forth below, the Court finds that diversity jurisdiction is
lacking, and that this case must be dismissed without prejudice
for lack of subject matter jurisdiction.
I.
Subject Matter Jurisdiction
It is Shovah’s burden to show subject matter jurisdiction by
a preponderance of the evidence.
See Phifer v. City of N.Y., 289
F.3d 49, 55 (2d Cir. 2002) (citing Makarova v. United States, 201
F.3d 110, 113 (2d Cir. 2000)).
The federal diversity statute
provides that “[t]he district courts shall have original
jurisdiction of all civil actions where the matter in controversy
exceeds the sum or value of $75,000 . . . and is between . . .
citizens of different states.”
28 U.S.C. § 1332(a)(1).
There is
no dispute that the amount in controversy exceeds the
jurisdictional threshold.
With regard to citizenship, Plaintiff
Shovah is a New York resident.
Shovah’s pleadings allege that
Mercure is a citizen of Massachusetts.
In fact, Mercure is incarcerated in a Massachusetts prison.
Prior to his incarceration he was a resident of New York.
In
response to the Court’s request for supplemental briefing on the
question of diversity jurisdiction, Mercure’s counsel submits
that his client intends to return to New York post-incarceration,
and has no other connection to Massachusetts other than as a
place of confinement.
ECF No. 152 at 2.
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Shovah has not
countered these assertions.
“An individual’s citizenship . . . is determined by his
domicile,” which is “the place where a person has his true fixed
home and principal establishment, and to which, whenever he is
absent, he has the intention of returning.”
Palazzo ex rel.
Delmage v. Corio, 232 F.3d 38, 42 (2d Cir. 2000) (internal
quotation marks and citations omitted).
“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.”
Poucher v. Intercounty Appliance Corp., 336 F. Supp. 2d 251, 253
(E.D.N.Y. 2004); see 15 James Wm. Moore et al., Moore’s Federal
Practice ¶ 102.37[8][a] (3d ed. 2012) (explaining that “[t]his
rule is based on the common sense notion . . . that a change of
domicile requires a voluntary act”).
In the Second Circuit, the presumption of retained domicile
is rebuttable.
See Housand v. Heiman, 594 F.2d 923, 925 n.5 (2d
Cir. 1979) (embracing the “more recent trend . . . in the
direction of allowing a prisoner to try to show that he has
satisfied the prerequisites for establishing domicile in his
place of incarceration”); Scott v. Sonnet, Sale & Kuehne, P.A.,
989 F. Supp. 542, 543 n.1 (S.D.N.Y. 1998) (“[p]risoners are
presumed to retain the domicile they had at the time of
incarceration for diversity purposes, although they can attempt
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to show that they have established domicile in the state of
incarceration”).1
A party alleging a change of domicile has the
burden of proving the “‘require[d] . . . intent to give up the
old and take up the new [domicile], coupled with an actual
acquisition of a residence in the new locality,’” and must prove
those facts “‘by clear and convincing evidence.’”
Palazzo ex
rel. Delmage v. Corio, 232 F.3d 38, 42 (2d Cir. 2000) (quoting
Katz v. Goodyear Tire & Rubber Co., 737 F.2d 238, 244 (2d Cir.
1984)); see also Braten v. Kaplan, No. 07 Civ. 8498(HB), 2009 WL
614657, at *4 (S.D.N.Y. Mar. 10, 2009) (presumption is rebutted
only by “‘truly exceptional circumstances which would justify a
finding that [inmate] has acquired a new domicile at the place of
his incarceration.’” (quoting Jones v. Hadican, 552 F.2d 249, 251
(8th Cir. 1977)).
Here, Shovah alleges without support that Mercure is a
citizen of Massachusetts.
As set forth above, citizenship is
determined by domicile, and a prisoner is presumed to be
domiciled in his state of origin, not his state of incarceration.
Shovah has made no effort to rebut the presumption that Mercure
is domiciled in New York, or to respond to Mercure’s assertion
1
As the cited cases suggest, rebuttals usually come from
prisoner plaintiffs seeking to establish diversity jurisdiction in
federal court. Here, the prisoner is a defendant seeking to defeat
diversity jurisdiction. It is unclear from the case law whether
someone other than the prisoner himself may rebut the presumption of
retained domicile.
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that he fully intends to return there at the conclusion of his
prison term.
The Court therefore finds that Shovah has not
carried his burden of demonstrating diversity of citizenship by
either a preponderance or by clear and convincing evidence, and
that federal subject matter jurisdiction is lacking.
II.
Supplemental Jurisdiction
Despite the absence of either a federal question or
diversity of citizenship, the Court has discretion to retain
supplemental jurisdiction over Shovah’s state law claims.
See 28
U.S.C. § 1367(c)(3)(district courts may decline to exercise
supplemental jurisdiction where it “has dismissed all claims over
which it has original jurisdiction”).
The Court previously
concluded, however, that supplemental jurisdiction is not
appropriate here as “[d]iscovery has not yet occurred and,
moreover, the state law claims were only just added precisely
because Plaintiff feared dismissal of his federal claims.”
ECF
No. 151 at 18.
Furthermore, “traditional values of judicial economy,
convenience, fairness, and comity” generally weigh in favor of
declining to exercise supplemental jurisdiction when all federal
law claims are eliminated before trial.
Kolari v.
N.Y.-Presbyterian Hosp., 455 F.3d 118, 122 (2d Cir. 2006) (citing
Carnegie–Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988)).
Indeed, “in the usual case in which all federal-law claims are
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eliminated before trial, the balance of factors . . . will point
toward declining to exercise jurisdiction over the remaining
state-law claims.”
Cohill, 484 U.S. at 350 n.7; see also United
Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966) (“Needless
decisions of state law should be avoided both as a matter of
comity and to promote justice between the parties, by procuring
for them a surer-footed reading of applicable law. . . .
[I]f
the federal law claims are dismissed before trial . . . the state
claims should be dismissed as well.”).
In this case, judicial economy does not weigh heavily in
favor of retaining jurisdiction, as there has been little
progress beyond Rule 12 practice.
Comity certainly weighs
against retaining federal jurisdiction, while convenience for two
out-of-state parties carries little weight.
Finally, fairness
does not weigh against dismissal, as Shovah may be able to seek
relief in state court.
See 12 V.S.A. § 558 (allowing a plaintiff
to commence a new action within one year after the same cause of
action was dismissed for lack of subject matter jurisdiction).
The Court therefore declines to take supplemental jurisdiction
over Shovah’s state law claims.
III. Conclusion
For the reasons set forth above, this case is dismissed
without prejudice for lack of subject matter jurisdiction.
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Dated at Burlington, in the District of Vermont, this 18th
day of March, 2015.
/s/ William K. Sessions III
William K. Sessions III
District Court Judge
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