United States District Court, E.D. Pennsylvania
July 23, 2004.
TED A. McCRACKEN, Plaintiff,
FRANK P. MURPHY and MURPHY, OLIVER, CAIOLA & GOWEN, LLC, Defendants.
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 of New York. Defendants assert that during the periods before and following Mr. McCracken's
incarceration, in fact, he was domiciled in Pennsylvania.
1. Evidence in Support of Pennsylvania as Plaintiff's State of
In support of the argument that plaintiff was domiciled in
Pennsylvania prior to his incarceration, defendants point to the
following documentary and/or testimonial evidence:
a) Prior to plaintiff's incarceration, in September of 1999,
plaintiff provided Delaware police in a police report relating to
the automobile accident which gave rise to the underlying
personal injury action the following address: 15 Derry Road,
North Whales, Pennsylvania 19454 (the "North Whales
b) In correspondences between plaintiff and defendants relating
to the underlying personal injury lawsuit, dated April 10, 2001,
May 14, 2001 and August 16, 2001, plaintiff used the North Whales
Address under his name in the letterhead of the correspondences;
c) Just prior to his incarceration, plaintiff was issued a
Pennsylvania driver's license on January 12, 2002 that shows the
North Whales Address; in addition, plaintiff's Department of
Transportation motor vehicle registration application, dated
January 22, 2002, indicates that plaintiff's address is the North Whales Address;
d) Plaintiff signed a settlement agreement on January 31, 2002
indicating that his address for the past "three months" was in
e) Plaintiff has testified, at his deposition in this case,
that prior to his period of incarceration between 2002 and 2003,
he "might have stayed there [at his mother's address in North
Whales, PA] at some point. I don't know.";
f) During his period of incarceration in Pennsylvania,
plaintiff filed a separate pro se lawsuit in federal court in
the Eastern District of Pennsylvania; the complaint is signed by
the plaintiff and under the signature line, plaintiff's North
Whales address is provided.
As evidence of plaintiff's domicile in Pennsylvania following
his incarceration (this is apparently offered to show plaintiff's
intent to reside in Pennsylvania following his release from
incarceration), defendants point to, among other things,
plaintiff's admission that his current vehicle is registered in
Pennsylvania. Moreover, defendants point to plaintiff's testimony
that since his release, he has resided at 15 Derry Road, North
Whales, PA. Plaintiff also testified that he presently does
banking at the Commerce Bank in North Whales, Pennsylvania. When
shown a voided check from Commerce Bank with his name on it,
plaintiff acknowledged during his deposition that the check indicates that his address is now North Whales,
2. Evidence in Support of a State Other Than Pennsylvania as
Plaintiff's State of Citizenship.
On the other hand, at an evidentiary hearing on the issue of
plaintiff's citizenship, plaintiff provided the Court with a
veritable hodgepodge of documents, in support of plaintiff's
position that he was not a citizen of Pennsylvania prior to his
term of incarceration. Rather than providing evidence in support
of domicile in one particular state, plaintiff offered evidence
of domicile in one of two potential states, either Maryland or
For example, plaintiff testified that he lived in Monroe, New
York (at the "James Motel") from about August or September of
2001 to about March of 2002, a half-year period immediately prior
to his incarceration. To document this residency, plaintiff
produced a used, mailing envelope, datestamped December 21, 2001
by the U.S. Postal Service, from "Public Storage-24115, 201
Bellevue Road, Newark, DE" and addressed to "Ted McCracken, 370
Route 17M, Monroe, N.Y. 10950." As further evidence of residence in
New York, plaintiff produced a New York State driver's license,
issued on September 5, 2001. The address shown on this license,
however, is P.O. Box 146, Malone, New York 12953.
Although somewhat inconsistent with his assertion of residence in the State of New York between September of 2001 and
March of 2002, plaintiff also stated at the hearing that he
resided in the State of Maryland from 1998 until 2002. As
evidence of residence in Maryland, plaintiff provided the Court
with a Maryland driver's license correction attachment, dated
February 17, 1999 and showing an address at 202 Aster Lane,
Forest Hills, Maryland; an incident report from "Upper Gwynedd"
showing the same Forest Hills address; and a Maryland state
record showing a "compuslory ins violation" on September 7, 1999
showing the same Forest Hills address. Plaintiff also introduced
photographs of a damaged vehicle, bearing Maryland license
plates, alleged by plaintiff to be the vehicle involved in the
underlying personal injury lawsuit.
Plaintiff also provided the Court with an incident report from
the Elkton County Police Department, dated May 10, 2000, showing
plaintiff's address to be 157 W. High Street Elkton, Maryland A
printout from the Cecil County Maryland Circuit Court, dated
January 24, 2001, regarding a criminal complaint filed against
plaintiff was also made of record showing plaintiff's address to
be 157 W. High Street, Elkton, Maryland In further support of
his residence in Elkton, Maryland plaintiff offered a Metrocall
invoice, dated May 1, 1999, showing a mailing address of 157 W.
Hight Street, Elkton, Maryland
In a supplemental brief submitted after the hearing, plaintiff provided additional evidence of non-citizenship in
Pennsylvania including the following: (1) a bill from Sprint PCS,
dated December 13, 2001, showing plaintiff's address to be
located in Monroe, NY; (2) plaintiff's bank statements, dated
October 15, 2001 and February 11, 2002, from Commerce Bank
showing the North Whales Address, but itemizing ATM transactions
from locations in New York, Delaware, and New Jersey, which
plaintiff claims establishes his "substantial New York contacts";
a business card from the James Motel in Monroe, New York; and a
toll receipt from the New Jersey Turnpike, dated January 3, 2002.
Plaintiff also proffers that he is a longtime resident of New
York and New Jersey, and that in the months prior to his
incarceration, plaintiff resided with his fiancee in Elizabeth,
New Jersey for "extended intermittent periods" between December
of 2001 and March of 2002. Plaintiff claims that he and his
fiancee stayed at her residence in Elizabeth, New Jersey, "but
more often in motels from New York/New Jersey/Connecticut [sic]
tri-state area." In February 2002, one month prior to his
incarceration, plaintiff further claims that he applied for a
position as a oil heat service technician at company located in
Bloomfield, New Jersey.
The evidence before the Court shows that, at least for the past five years, plaintiff has lived what appears to be a
transient, nomadic life and has at various times, used mailing
addresses from Forest Hills, Maryland, Elkton, Maryland, Monroe,
New York, Malone, New York, and North Whales, Pennsylvania. Based
on plaintiff's own admissions, plaintiff has also maintained
multiple so-called "residences" in Elizabeth, New Jersey and
Connecticut. Plaintiff also appears to have held driver's
licenses from at least three states Maryland, Pennsylvania and
New York at the time the instant action was commenced.
Plaintiff's brief claims that he "traveled throughout the New
York/New Jersey/Delaware and Maryland areas throughout that
period prior to his incarceration" and that his "extensive
contacts in New York/New Jersey, including residences in Monroe,
New York, N.Y.S. Driver's License, registrations, insurance policies
held, and extensive contacts logged on bank statements and the
cohabitation with plaintiff's fiancee' [in Connecticut]" warrant
Rather than providing evidence of domicile or citizenship in a
particular state, plaintiff has attempted to establish that he is
not a citizen of Pennsylvania. To that end, plaintiff has pointed
to evidence of residences in two different states (New York and
Maryland) while at the same time claiming residency in at least
two others (New Jersey and Connecticut). This attempt to
establish the negative, i.e., that plaintiff is not domiciled in Pennsylvania but rather in one or more other
states, will not suffice for the purposes of showing the
existence of diversity jurisdiction.
Evidence supporting a "negative statement that a party is not a
citizen of a particular state . . . does not eliminate the
possibility that the person might be a citizen of no state." 13B
Federal Practice & Procedure § 3611, at 517-18. As such,
plaintiff must plead (and when challenged establish) his state of
citizenship, defendants' state of citizenship, and demonstrate
that his state of citizenship is different than the defendants'
state of citizenship. See Thurston v. Page, 920 F. Supp. 152,
154 (D. Ka. 1996) (finding plaintiffs' allegation that defendants
were citizens of a state "other than" the state of plaintiff's
citizenship insufficient for pleading diversity jurisdiction).
Because plaintiff has not established his state of citizenship by
a preponderance of the evidence, an essential element for
diversity jurisdiction, he has failed to establish that this
Court has jurisdiction over this case.*fn3
For these reasons, the case will be dismissed without
AND NOW, this day of July 2004, for the reasons provided
in the accompanying memorandum, it is hereby ORDERED that
defendants' motion to dismiss/motion for summary judgment (doc.
no. 15) is GRANTED.
It is FURTHER ORDERED that the case shall be DISMISSED
AND IT IS SO ORDERED.