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
II. APPLICABLE LEGAL PRINCIPLES.
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.
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).
III. THE PARTIES' CONTENTIONS AND EVIDENCE.
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 ...