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Doe v. Schwerzler

June 28, 2007


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


This matter has come before the Court on Defendant Robert Taffet's motion to dismiss Plaintiff's Complaint, as well as Gloucester County Institute of Technology's motion to dismiss Plaintiff's Complaint. Defendants Trish Green and Daniel Green have joined in on GCIT's motion. For the reasons expressed below, Defendants' motions to dismiss Plaintiff's Complaint for lack of subject matter jurisdiction will be denied without prejudice.


Plaintiff, proceeding as Jane Doe, filed a Complaint against the Defendants for claims arising out of a sexual relationship Plaintiff had with her swim coach, Defendant John Schwerzler. According to Plaintiff's Complaint, Schwerzler initiated a sexual relationship with Plaintiff in 1998, when she was thirteen years old, and it lasted until 2004, when she was nineteen.

Plaintiff claims that Defendants violated the New Jersey Law Against Discrimination, N.J. Stat. Ann. 10:5-1 et seq., because of their various roles in the inappropriate sexual relationship. GCIT and Taffet have moved to dismiss Plaintiff's NJLAD claim against them pursuant to Federal Civil Procedure Rule 12(b)(6). GCIT has also moved to dismiss Plaintiff's Complaint pursuant to Rule 12(b)(1) for lack of subject matter jurisdiction, which motion Trish Green and Daniel Green have joined. Because subject matter jurisdiction is a dispositive threshold issue, Defendants' motion on that issue will be addressed first.


Plaintiff brought her action in this Court pursuant to 28 U.S.C. § 1332(a). In order for the Court to have jurisdiction over Plaintiff's action under § 1332(a), there must be complete diversity of the parties--that is, the citizenship of Plaintiff must be diverse from the citizenship of each Defendant. See Caterpillar, Inc. v. Lewis, 519 U.S. 61, 68 (1996). Defendants claim that Plaintiff, now a student at a university in Kentucky but who grew up in New Jersey and whose parents live in New Jersey, is a citizen of New Jersey. Defendants argue that because they are also citizens of New Jersey, complete diversity is lacking, and the case must be dismissed. Plaintiff counters that she is a citizen of Kentucky, and, therefore, complete diversity exists, and her case is properly before this Court. Because it is the citizenship of the parties at the time the action is commenced which is controlling, Krasnov v. Dinan, 465 F.2d 1298, 1300 (3d Cir. 1972), it must be determined what state Plaintiff was a citizen of when she filed her Complaint on August 1, 2006.

The Third Circuit has recently set forth the standard for determining the citizenship of a party.

The party asserting diversity jurisdiction bears the burden of proof. A party generally meets this burden by proving diversity of citizenship by a preponderance of the evidence.

Citizenship is synonymous with domicile, and "the domicile of an individual is his true, fixed and permanent home and place of habitation. It is the place to which, whenever he is absent, he has the intention of returning." In determining an individual's domicile, a court considers several factors, including "declarations, exercise of political rights, payment of personal taxes, house of residence, and place of business." Other factors to be considered may include location of brokerage and bank accounts, location of spouse and family, membership in unions and other organizations, and driver's license and vehicle registration.

An individual can change domicile instantly. To do so, two things are required: "[h]e must take up residence at the new domicile, and he must intend to remain there." But "[a] domicile once acquired is presumed to continue until it is shown to have been changed." This principle gives rise to a presumption favoring an established domicile over a new one.

McCann v. Newman Irrevocable Trust, 458 F.3d 281, 286-87 (3d Cir. 2006) (internal citations omitted).

In a case where a party with a claimed new domicile is the proponent of federal jurisdiction, the burden of production regarding domicile and the burden of persuasion regarding federal jurisdiction both fall on that party. Id. at 288. First, the party must rebut the presumption in favor of an established domicile. Id. If the party does so, the presumption falls out of the case and the party is then required to carry the burden of persuasion by proving that a change of domicile occurred, creating diversity of citizenship. Id. For both assertions, the appropriate standard of proof is preponderance of the evidence. Id.

Federal Civil Procedure Rule 301 informs the analysis. Id. Under Rule 301, the presumption favoring an established domicile places the burden of production on the party alleging a change in domicile, but does not affect the burden of persuasion, which remains throughout with the proponent of federal jurisdiction. Id. The presumption's only effect is to require the party asserting a change in domicile to produce enough evidence ...

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