Opinion
Case No. 00 C 4890
February 13, 2002
ORDER
Plaintiff James Dakuras, Sr. pursues this diversity action against a plethora of defendants, including Robert and Mary Edwards. Pending are Dakuras's motion to amend his complaint and the Edwards' motion to dismiss the amended complaint. For the reasons set forth below, the court grants both of these motions. After the motion to dismiss was fully briefed, Dakuras filed yet another motion to amend the complaint to include an additional defendant. That motion, which would not affect the analysis even if granted, is denied as moot.
Dakuras, a pro se plaintiff and citizen of Illinois, filed his original complaint in this action on August 10, 2000. A month later, the court dismissed it for lack of subject-matter jurisdiction. Dakuras's second attempt to amend his complaint was rejected in December 2000 because two of the defendants, Robert F. DiSilvestro and Ella Margaret Calder, also appeared to be citizens of Illinois. The court explained that the complaint alleged that "Calder's residence is in Illinois, but that she was essentially abducted to Ohio early this year; this allegation strongly suggests that Calder is a citizen of Illinois as well and is residing in Ohio only temporarily." (Minute Order of 12/8/00.) Dakuras alleged the following chain of events. Shortly after Calder, alleged to be Dakuras's common law wife, suffered a stroke in January 2000, her sister Mary Edwards and niece Karen (last name unknown) changed the locks on the marital residence, a condominium held solely in Calder's name, and tricked Calder into going back to Ohio with them. Dakuras seeks the return of personal property that was in the condominium, access to Calder, and a one-half interest in substantial amounts of her assets, including the condominium.
Illinois, however, does not recognize common law marriage.
Dakuras responded to the dismissal on February 1, 2001 with a motion to amend his complaint by dropping DiSilvestro and Calder as defendants. The amended complaint eliminates these two names from the caption, but in the body continues to refer to Calder as a defendant. This court granted Dakuras's motion and the case moved forward. On June 6, 2001, Dakuras filed a motion to further amend his complaint by adding "count 3," which is itself divided into four separate counts. Calder is back as a defendant both in the caption and in each count. Dakuras's motion explains that Calder had now lived in Ohio for one-and-a-half years and did not live with her sister Mary Edwards.
Notably, Dakuras failed to provide a notice of presentment for the June 6 motion to amend. See N.D. Ill. Local R. 5.3(b). In light of Dakuras's pro se status and the failure of any adverse party to object to this error, the court will forgive it. See N.D. Ill. Local R. 78. (the court "may" deny a motion for a violation of Rule 5.3(b)); cf. Goss Graphics Sys. Inc. v. DEV Indus. Inc., 267 F.3d 624, 647 (7th Cir. 2001) (stating that even if this rule had been violated the trial court on the facts presented would have abused its discretion in dismissing a complaint on that basis). Because Dakuras had already amended his complaint once, he could do so again only by leave of the court or by written consent of the adverse parties. See Fed.R.Civ.P. 15(a). He obtained neither, but the defendants do not raise the issue. In any event, "leave shall be freely given when justice so requires," id., and the four new counts appear to be at the core of this action. The defendants do object to the June 6 amendment on the ground that it was unsigned. See Fed.R.Civ.P. 11(a). But Dakuras signed the motion attached at the back of the pleading. Any error in the placement of the signature is too trivial to justify denial of the motion, let alone dismissal of the action as urged by defendants. Therefore, the court hereby grants the motion for leave to amend.
That Karen has apparently never been served does not eliminate her as a defendant. See Howell by Goerdt v. Tribune Entm't Co., 106 F.3d 215, 217-18 (7th Cir. 1997).
Defendants Mary Edwards and her husband Robert Edwards moved to dismiss Dakuras's amended complaint on August 13, 2001. They argue that complete diversity of citizenship is lacking. Calder is a citizen of Illinois, the Edwards maintain, because she had no intention of moving to Ohio prior to being declared incompetent and an incompetent adult cannot manifest an intent to change domicile. Strangely, the Edwards cite two Illinois cases to support the second proposition. Federal law, of course, controls on the question of federal jurisdiction, and the circuits apply varied methodologies in determining an incompetent's domicile. Compare Long v. Sasser, 91 F.3d 645, 647 (4th Cir. 1996) ("One who has been adjudged incompetent may change his domicile if, but only if, he has, since the adjudication of incompetency, acquired sufficient understanding and mental capacity to make an intelligent choice of domicile.") (quoting Foster v. Carlin, 200 F.2d 943, 946 (4th Cir. 1952)), with Juvelis ex rel. Juvelis v. Snider, 68 F.3d 648, 655 (3d Cir. 1995) ("Because only a minimal degree of mental capacity is required to establish a change of domicile, a number of courts have dispensed with reliance on an incompetent individual's articulation of intent in favor of an analysis that relies on `a mosaic of circumstances.'"), with Rishell v. Phillips Episcopal Mem'l Med. Ctr., 12 F.3d 171, 174 (10th Cir. 1993) ("If the best evidence available shows the incompetent likely will never be restored to reason, the law must allow another, vested with legal authority, to determine domicile for the best interests of that person."). The Seventh Circuit has not weighed in. Bethesda Lutheran Homes Servs. v. Leean, 122 F.3d 443, 448-49 (7th Cir. 1997).
But all of this is beside the point. Throughout these proceedings, Dakuras has consistently alleged that Calder is not incompetent and resided in Illinois before she was taken to Ohio against her will. The place where a person resides is presumed to be his domicile. Anderson v. Watt, 138 U.S. 694, 706 (1891). No one disputes that Calder was an Illinois citizen before moving to Ohio. And "[s]ince domicile is a voluntary status, a forcible change in a person's state of residence does not alter his domicile." Sullivan v. Freeman, 944 F.2d 334, 337 (7th Cir. 1991). On Dakuras's pleadings, Calder therefore remains a citizen of Illinois. That Calder had lived in Ohio for a year and a half when Dakuras moved to amend does not change this result. Domicile requires both "physical presence in a place" and an "intent to remain there." Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 48 (1989). It is on the intent prong that Dakuras founders. Dakuras would need to show more than duration of residency in Ohio to rebut the presumption that Calder remains an Illinois citizen. See Anderson, 138 U.S. at 706 ("[A] domicil when acquired is presumed to continue until it is shown to have been changed.").
The Edwards go further, arguing that they are also citizens of Illinois because they are acting as Calder's legal representatives. See 28 U.S.C. § 1332(c)(2) ("[T]he legal representative of an . . . incompetent shall be deemed to be a citizen only of the same State as the . . . incompetent."). The problem for Robert Edwards is that under no conceivable theory was he the legal representative of an incompetent when this action was filed. Mary's status is less clear. Dakuras alleges, and the Edwards confirm, that Mary obtained powers of attorney over Calder's health care and property on January 21, 2000. Mary resigned the power of attorney over property (but not health care) in February. The Edwards' daughter Karen (who is also a named defendant in this lawsuit)2 simultaneously assumed power over Calder's property. In March, an Ohio court declared Calder incompetent and appointed Karen to be legal guardian with unlimited power over her person and estate. If Mary's power of attorney over Calder's health care survived Karen's appointment as guardian, see 775 ILCS 45/2-5 ("Unless the agency states an earlier termination date, the agency continues until the death of the principal, notwithstanding any lapse of time, the principal's disability or incapacity or appointment of a guardian for the principal after the agency is signed."), then Mary may have been the legal representative of an incompetent at the time of filing. What is certain is that Karen had legal control over Calder's financial affairs, and that either Karen or Mary had legal control over Calder's health care. To the extent Dakuras is suing Karen and Mary as representatives, he is suing Illinois citizens. See N. Trust Co. v. Bunge Corp., 899 F.2d 591, 595 (7th Cir. 1990) ("In the eyes of the law a person who sues or is sued in a representative capacity is distinct from that person in his individual capacity.").
There is another reason, not mentioned by the Edwards, why Karen's inclusion might destroy diversity jurisdiction. Dakuras apparently does not know Karen's last name because he variously refers to her as Karen Smith, Karen-Jane Doe, and Karen (aka Jane Doe). "Because the existence of diversity jurisdiction cannot be determined without knowledge of every defendant's place of citizenship, `John Doe' defendants are not permitted in diversity suits." Howell ex rel. Goerdt v. Tribune Entm't Co., 106 F.3d 215, 218 (7th Cir. 1997). But Karen is Karen, not Jane or John. Uncertainty over a party's state of citizenship, not over a party's last name, is what motivated the court in Howell. Dakuras alleges that Karen is the Edwards' daughter, is an attorney, and traveled with Mary Edwards on January 20, 2000 from Akron, Ohio to Illinois. These allegations are specific and plausible, not "unfounded guesswork." Molnar v. Nat'l Broad. Co., 231 F.2d 684, 687 (9th Cir. 1956). Far from disputing Karen's Ohio domicile, the Edwards substantiate it by explaining that Calder is currently in Ohio "to ensure that her family can properly care for her" (Memo. at 6), and by submitting Ohio court documents appointing Karen as Calder's legal guardian. On this record, it is sufficiently established that Karen the individual is domiciled in Ohio.
The bottom line is that Calder, Karen in her capacity as Calder's guardian, and Mary in her capacity (such as it may be) as Calder's health care agent are all citizens of Illinois. The question becomes whether to dismiss the entire complaint or just these non-diverse parties. See Fed.R.Civ.P. 21 ("Parties may be dropped or added by order of the court on motion of any party or of its own initiative at any stage of the action and on such terms as are just."). Indispensability is the touchstone:
If a person . . . cannot be made a party, the court shall determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed, the absent person being thus regarded as indispensable. The factors to be considered by the court include: first, to what extent a judgment rendered in the person's absence might be prejudicial to the person or those already parties; second, the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided; third, whether a judgment rendered in the person's absence will be adequate; fourth, whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder.
Fed.R.Civ.P. 19(b); see also 7 Charles Alan Wright et al., Federal Practice Procedure § 1685, at 491 (3d ed. 2001) ("Courts frequently employ Rule 21 to preserve diversity jurisdiction over a case by dropping a nondiverse party if the party's presence in the action is not required under Rule 19.").
Calder and her legal representatives are indispensable to this action. There is no question that Calder is essential at least to Dakuras's claim to quiet title because she was the owner of the condominium and is the only defendant named in that count. With the possible exception of Dakuras's replevin/conversion and intentional infliction of emotional distress claims, the allegedly wrongful disposition of Calder's property is at the core of every other count. Dakuras would be able to recover only a small fraction of the requested relief without Calder and her legal representatives in the case. For example, Dakuras seeks a one-half interest in millions of dollars of property held solely in Calder's name, but such an award would obviously be unavailable in her absence. The agent who controls Calder's finances is indispensable for the same reason. And Dakuras's plea for access to Calder would seem to demand the inclusion of Calder's health care representative.
Because complete diversity is lacking and the non-diverse parties are indispensable to this action, the Edwards' motion to dismiss the amended complaint is granted. Dismissal is without prejudice for two reasons. First, although this court expresses no opinion on the matter, Dakuras may be able to frame a narrower complaint directed solely against the non-Illinois residents. Second, Dakuras is free, if he can, to allege facts showing that Calder (and thus her representatives) has changed her domicile to Ohio. If he cannot but still wants to pursue Calder's assets, then he must do so in state court.
ENTER: