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July 23, 2004.

TED A. McCRACKEN, Plaintiff,

The opinion of the court was delivered by: EDUARDO ROBRENO, District Judge



Pro se plaintiff, Ted. A. McCracken, was injured in an automobile collision, which occurred on September 1, 1999, when a tractor trailer moved into plaintiff's lane of travel. Defendants Frank Murphy and the law firm of Murphy, Oliver, Cailoa & Gowen, LLP represented plaintiff in a personal injury action brought in federal court in the Eastern District of Pennsylvania. The case (the "underlying personal injury lawsuit") did not go to trial and was settled, pursuant to an agreement whereby plaintiff received approximately $90,000 in exchange for a general release.

  The complaint in the instant action, filed while plaintiff was incarcerated in a state correctional facility, brings state law claims of professional negligence, breach of contract and "collusion" against the defendants based on defendants' handling of plaintiff's underlying personal injury lawsuit. Presently before the Court is defendants' motion to dismiss and/or motion for summary judgment. In the two motions, defendants argue that the case should be dismissed for lack of federal subject matter jurisdiction. As asserted by defendants, all of the parties in this action were citizens of Pennsylvania at the time the suit was commenced; thus, in defendants' view, the case should be dismissed for failing to meet the diversity requirements of 28 U.S.C. § 1332(a)(1). Because the Court finds that plaintiff has failed to meet his burden of showing that subject matter jurisdiction is proper, the Court will grant defendants' motions.


  For diversity of citizenship jurisdiction to exist, 28 U.S.C. § 1332(a)(1) requires that the controversy be between "citizens of different States." 28 U.S.C. § 1332(a)(1). As a matter of judicial gloss, this formulation means that plaintiff (as the party asserting federal jurisdiction) "must specifically allege each party's citizenship, and these allegations must show that the plaintiff and defendant are citizens of different states." American Motorists Ins. Co. v. American Employers' Ins. Co., 600 F.2d 15, 16 (5th Cir. 1979); see also Universal Reinsurance Co., Ltd. v. St. Paul Fire & Marine Ins. Co., 224 F.3d 139, 141 (2d Cir. 2000) ("The failure to allege [the party's] citizenship in a particular state is fatal to diversity jurisdiction"). "[A] negative statement that a party is not a citizen of a particular state" will not suffice. Charles A. Wright, et al. 13B Federal Practice & Procedure § 3611, at 517-18 (1984) (relying on Cameron v. Hodges, 127 U.S. 322, 8 So. Ct. 1154, 32 L.Ed. 132 (1888); Blair Holdings Corp. v. Rubenstein, 122 F. Supp. 602 (S.D.N.Y. 1954)).

  Generally, there is a presumption against the existence of federal jurisdiction, and the party invoking the federal court's jurisdiction bears the burden of proof. 13A Federal Practice and Procedure § 3522, at 62; Basso v. Utah Power and Light Co., 495 F.2d 906, 909 (10th Cir. 1974). A plaintiff bears the burden of proving that diversity of citizenship exists and ordinarily must prove diversity of citizenship by a preponderance of the evidence. See Krasnov v. Dinan, 465 F.2d 1298, 1301 (3d Cir. 1972).

  For purposes of determining diversity, state citizenship is equated with domicile. Krasnov; 465 F.2d at 1300; Parr v. Grenko, 1993 U.S. Dist. LEXIS 9122, at *3 (E.D. Pa. Jul. 9, 1993). Domicile, however, is not necessarily synonymous with residence; one can reside in one place and be domiciled in another. Id. Residence and an intent to make the place of residence one's home are required for citizenship and to establish a new domicile Id. Although the analysis is necessarily case specific, courts have looked to certain factors, including state of employment, voting, taxes, driver's license, bank accounts and assets, and civic and religious associations in determining the citizenship of an individual. See Federal Practice & Procedure § 3612, at 530-31; see also Juvelis v. Snider, 68 F.3d 648, 654 (3d Cir. 1995); Krasnov, 465 F.2d at 1301; Connnors v. UUU Products, No. 03-6420, 2004 U.S. Dist. LEXIS 6417, at *8 (E.D. Pa. Mar. 15, 2004).

  As noted, plaintiff was an inmate at a state correctional institution when the action was commenced. For inmates, citizenship for diversity purposes is the state in which the inmate was domiciled prior to incarceration, unless the inmate plans to live elsewhere when he is released in which event citizenship would be that state. See Flanagan v. Shively, 783 F. Supp. 922, 935 (E.D. Pa. 1992), aff'd without opinion, 980 F.2d 722 (3d Cir. 1992); see also Mitchell v. Brown & Williamson Tobacco Corp., 294 F.3d 1309, 1314 (11th Cir. 2002).


  A. Defendants' Citizenship.

  As noted, the defendants in this action are Frank P. Murphy and his former law firm, Murphy, Oliver, Caiola and Gowen LLC. According to an affidavit signed by Mr. Murphy, he was a citizen of Pennsylvania in September of 2003, the month in which this action was commenced. Mr. Murphy also avers that, although the law firm no longer functions as a law firm (and has not been formally dissolved), it was organized and existed under the laws of Pennsylvania and its principal place of business was in Norristown, Montgomery County, Pennsylvania at the time the instant action was commenced. In addition, the affidavit states that the law firm was a citizen of Pennsylvania at the time the action was commenced.*fn1

  B. Plaintiff's Citizenship.

  It is not disputed by the parties that plaintiff was incarcerated during the period between March of 2002 and October of 2003 serving two consecutive prison sentences, the first in Maryland and the second in Pennsylvania. Because this case was filed in September of 2003 while Mr. McCracken was incarcerated, his citizenship lies in the state in which he was domiciled prior to his incarceration or the state in which Mr. McCracken planned to have his domicile after release from incarceration. See Flanagan, 783 F. Supp. at 935. The complaint avers that plaintiff "was" a resident ...

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