Opinion
03 Civ. 597 (RWS)
March 17, 2003
Martin Greenblatt, Plaintiff Pro Se, New York, NY.
Robert W. Gluck, Esq., Mandelbaum, Salsburg, Gold, Lazris, Discenza Steinberg, West Orange, N.J., for Defendant.
OPINION
Defendant Robert W. Gluck ("Gluck") has moved to dismiss the complaint of pro se plaintiff Martin Greenblatt ("Greenblatt") under Rule 12(b)(1) and (3) of the Federal Rules of Civil Procedure due to lack of federal subject matter jurisdiction and improper venue.
For the following reasons, that motion is granted and the complaint is dismissed. Prior Proceedings Greenblatt commenced this action on February 11, 2003, alleging diversity jurisdiction pursuant to 28 U.S.C. § 1332 as the basis of this Court's subject matter jurisdiction. In support of that allegation, Greenblatt alleges in his complaint that his office is located at 580 Fifth Avenue, New York, New York, and that Gluck has his office at 303 George Street, New Brunswick, New Jersey. Compl. ¶¶ 1, 2.
A little more than a month prior to filing this suit, on January 6, 2003, a similar suit was dismissed sua sponte from the District of New Jersey for lack of subject matter jurisdiction (the "New Jersey action"). Greenblatt commenced the New Jersey action on December 18, 2002, alleging federal question jurisdiction. In his complaint, Greenblatt stated that he "resid[es] at 471 Lincoln Avenue, Highland Park, New Jersey" and that Gluck had the same New Jersey office as noted above. New Jersey Complaint, ¶¶ 1, 2. In dismissing the complaint sua sponte, the district court determined that there was no federal question jurisdiction on the face of the complaint and that there was no diversity jurisdiction. Greenblatt v. Gluck, Civ. No. 02-5749, slip op. at 1 (Jan. 6, 2003). The Court further noted that Greenblatt was "free to file [his] Complaint in the appropriate state court." Id. Gluck filed the instant motion by letter dated February 11, 2003. Greenblatt responded by letter dated February 13, 2003.
Although these facts are not alleged in the complaint, the Court will take judicial notice of the public filings in that case for the purposes of this Rule 12(b)(1) motion. On motions to dismiss, courts may consider "matters of which judicial notice may be taken." Hertz Corp. v. City of New York, 1 F.3d 121, 125 (2d Cir. 1992); see also Travelers Indem. Co. of Illinois v. Hunter Fan Co., No. 99 Civ. 4863, 2000 WL 1041670, at *3 (S.D.N.Y. Jul 27, 2000). "A judicially noticed fact must be one not subject to reasonable dispute in that it is . . . capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Fed.R.Evid. 201(b). Because Gluck has cited to publicly filed documents in another lawsuit, and because the facts for which he cites them are "not subject to reasonable dispute," they may be considered on this motion.
Discussion
In addressing the present motion, the Court is mindful that the plaintiff is proceeding pro se and that his submissions should be held "`to less stringent standards than formal pleadings drafted by lawyers. . . .'" Hughes v. Rowe, 449 U.S. 5, 9, 101 S.Ct. 173, 176 (1980) (per curiam) (quoting Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 595 (1972)); see also Ferran v. Town of Nassau, 11 F.3d 21, 22 (2d Cir. 1993). Nevertheless, pro se status "`does not exempt a party from compliance with relevant rules of procedural and substantive law." Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983) (quotations omitted).
For purposes of diversity jurisdiction, a person's citizenship is determined by domicile. It is a long-settled principle of law that while a person may have more than one residence, he may only have one domicile at any one time. Williamson v. Osenton, 232 U.S. 619, 625, 34 S.Ct. 442, 443, 58 L.Ed 758 (1914); National Artists Management Co. v. Weaving, 769 F. Supp. 1224, 1227 (S.D.N.Y. 1991); Restatement (First) of Conflict of Laws § 11 (1934 Supp. 1948); Restatement (Second) of Conflict of Laws § 11 (1971 Supp. 1988); 13B Charles Alan Wright, Arthur R. Miller Edward H. Cooper, Federal Practice and Procedure § 3612 (1984 Supp. 1993).
Domicile requires both (1) the party's physical presence in the state; and (2) the intent to remain in that state indefinitely. Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 48, 109 S.Ct. 1597, 1608, 104 L.Ed.2d 29 (1989); National Artists, 769 F. Supp. at 1227. The second element does not require that the persons have an affirmative intent to remain permanently in the state, but merely that he has no present intent to move to another state. National Artists, 769 F. Supp. at 1227. Where there is evidence that the parties have more than one residence, or the residence is unclear, the court should focus on the intent of the parties. Id. (citing Brignoli v. Balch, Hardy Scheinman, Inc., 696 F. Supp. 37, 41 (S.D.N.Y. 1988)).
In divining a party's intent, the court uses a "totality of the evidence" approach, and no single factor is conclusive. Id. at 1228. Pertinent factors include the place where civil and political rights are exercised, taxes paid, real and personal property (such as furniture and automobiles) located, driver's and other licenses obtained, bank accounts maintained, and places of business or employment. Id. Other factors are relevant, such as whether the person owns or rents his place of residence, how permanent the residence appears, and the location of the person's physician, lawyer, accountant, dentist, stockbroker, etc. National Artists, 769 F. Supp. at 1228.
Whether diversity exists is determined at the time the action commences. Freeport-McMoRan v. K.N. Energy, Inc., 498 U.S. 426, 426-29, 111 S.Ct. 858, 859-60, 112 L.Ed.2d 951 (1991). Once a plaintiff's allegations of diversity are challenged by a defendant, a plaintiff must prove by a preponderance of the evidence that diversity does in fact exist. McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 785, 80 L.Ed 1135 (1936); Arnold v. Troccoli, 344 F.2d 842, 845 (2d Cir. 1965).
Greenblatt has failed to establish by a preponderance of the evidence that his domicile is in New York. In his letter, Greenblatt does not affirmatively state that he has moved his place of residence from New Jersey to New York. Instead, he coyly states that Gluck's assertion that Greenblatt continues to reside in New Jersey is improper "as [Gluck] does not know if I moved since I filed the New Jersey action."
In order to establish federal subject matter jurisdiction, Greenblatt must at the very least affirmatively state that he resides in New York, particularly given his sworn statement merely two months prior that he resided in New Jersey at the time. The fact that he has a place of business in New York, as discussed above, is just one factor among many in determining his domicile, and certainly would be insufficient if Greenblatt continues to maintain his home in New Jersey, pay taxes in New Jersey, hold licenses in New Jersey, etc.
Gluck appears to dispute that Greenblatt has a place of business in New York, but such assertion must be assumed to be true for the purposes of this motion in the absence of some judicially noticeable fact contradicting it or in the absence of jurisdictional discovery.
As a result, Greenblatt has failed to establish that he is domiciled in New York, and thus this Court lacks subject matter jurisdiction. In light of Greenblatt's pro se status, however, he will be permitted one opportunity to amend his pleading to establish New York residence. In determining whether to make such amendment, Greenblatt should bear in mind that his pro se status does not insulate him from the ambit of Fed.R.Civ.P. 11(b). E.g. Malley v. New York City Bd. of Educ., 207 F. Supp.2d 256, 259 (S.D.N.Y. 2002). That rule provides that sanctions may be imposed where a pleading is based on "claims, defenses, and other legal contentions therein" that are not warranted "by existing law or by a non-frivolous argument for the extension, modification, or reversal of existing law or the establishment of new law." Fed.R.Civ.P. 11(b)(2).
Because of the above conclusion, the Court may not determine the issue of improper venue.
Conclusion
For the foregoing reasons, the complaint is dismissed. Greenblatt shall have ten (10) days to submit an amended complaint evidencing a domicile other than New Jersey.
It is so ordered.