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Curley v. Mosier

June 15, 2010


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



This matter is before the Court on Defendant Mosier's motion to dismiss the Complaint for lack of subject matter jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure. Jurisdiction in this case depends on whether Plaintiff and Defendant were domiciled in different states on April 29, 2009, the filing date of the Complaint. See 28 U.S.C. § 1332(a)(1) (2009); Krasnov v. Dinan, 465 F.2d 1298, 1300 (3d Cir. 1972) (explaining that citizenship is determined by a person's domicile). Defendant was domiciled in New Jersey. For the reasons discussed below, this Court finds that contrary to Plaintiff's contention, he was also domiciled in New Jersey on April 29, 2009, and therefore this Court lacks diversity jurisdiction over the case.


This negligence suit arises out of an incident that occurred in May 2007 on Defendant's premises in Mount Laurel, New Jersey. (Compl. ¶ 7.) Plaintiff claims that while performing his duties as a pool serviceman at Defendant's home, Defendant's dogs attacked him "causing . . . severe and serious injuries." (Id.) Plaintiff does not stipulate exact or estimated damages sought but simply states in the Complaint that the amount in controversy exceeds the sum of $75,000. (Compl. ¶ 5.)

Prior to 2007, Plaintiff had anchored his personal and professional life in New Jersey. Plaintiff was born in Cherry Hill, New Jersey, (Pl.'s Dep. 16:12-4, Jan. 12, 2010) and was raised in Pennsauken, New Jersey (Pl.'s Aff. ¶ 1). Plaintiff worked for Audubon Cesco Pool Service, a company based in Audubon, New Jersey, from April 2002 until the incident in question in May 2007. (Id. ¶¶ 2, 4.) Plaintiff has not been employed since. (Id. ¶ 6.) In May 2007, Plaintiff lived with his father and brother in a rental house at 505 Chambers Street, Gloucester City, New Jersey. (Id.) Plaintiff had his own bedroom and helped pay for the rent, utilities, and food. (Id.)

After the May 2007 incident, Plaintiff began to form ties with Pennsylvania. Following wrist surgery in October 2007, Plaintiff moved in with his girlfriend at 125 South Limekiln Pike, Chalfont, Pennsylvania. (Id. ¶ 7.) Between October 2007 and April 2009, Plaintiff regularly spent five to six nights a week there. (Id.) Plaintiff estimates that he gave his girlfriend between $300-$500 monthly to help cover house-related expenses, like the mortgage. (Id. ¶ 9.) Plaintiff used his girlfriend's address to receive written correspondences from his attorney (Pl.'s Dep. 19:10-3, Jan. 12, 2010), a subscription to "ESPN The Magazine," and workers' compensation checks (Pl.'s Aff. ¶ 17). These checks were received weekly from fall 2007 until winter 2008 and then again from fall 2008 until spring 2009. (Pl.'s Dep. 42-4, Jan. 21, 2010.) As of April 2009, Plaintiff was on his girlfriend's cell phone plan which used a Pennsylvania area code. (Pl.'s Aff. ¶ 9.)

Although living primarily in Pennsylvania, Plaintiff frequently visited his family in New Jersey and would stay once or twice a week at 740 Market Street, Gloucester City, New Jersey, the home his father had rented since summer 2008. (Pl.'s Aff. ¶¶ 7-8; Pl.'s Dep. 40:5-14, Jan. 21, 2010.) Plaintiff, however, did not help pay for rent, utilities, or other expenses at this rental house. (Pl.'s Aff. ¶ 8.) Nor did Plaintiff have his own bedroom there or leave his clothes there. (Id.) When visiting, Plaintiff only slept on the couch. (Id.)

Besides visiting his family, Plaintiff maintained many other significant connections to New Jersey. Plaintiff held a New Jersey driver's license (Pl.'s Dep. 10:25-11:1, Jan. 21, 2010) and owned two vehicles both of which were registered in New Jersey (Id. 37:18-38:19). Plaintiff received unemployment compensation checks from the State of New Jersey (Pl.'s Aff. ¶ 17) and cashed nearly all of them at banks in New Jersey (Pl.'s Dep. 17:2-22, Jan. 21, 2010). Plaintiff served as a juror in New Jersey over ten years ago (Pl.'s Aff. ¶ 15) and believes that he was still registered to vote in New Jersey on April 29, 2009, though he had not exercised that right in over fifteen years. (Pl.'s Aff. ¶ 18.) Plaintiff last filed taxes in 2006 in New Jersey (Id. ¶ 11) and when prompted said that he would provide his New Jersey address on his 2009 federal tax return (Pl.'s Dep. 11:16-12:10, Jan. 21, 2010). Plaintiff planned to file state taxes in New Jersey for 2009. (Id.)

In his Affidavit dated March 18, 2010, Plaintiff testifies that he intends to live exclusively in Pennsylvania after settling his workers' compensation claims and has been looking for work only in Pennsylvania. (Pl.'s Aff. ¶ 19.) In an earlier deposition, Plaintiff claimed to be looking for work "mainly in Pennsylvania." (Pl.'s Dep. 39:4-6, Jan. 21, 2010.)

Contending that Plaintiff is a domiciliary of New Jersey, Defendant has moved for this Court to dismiss the case for lack of subject matter jurisdiction.


A. Legal Concept of Domicile

Diversity jurisdiction requires an amount in controversy of $75,000 or greater, 28 U.S.C. § 1332(a)(1), and complete diversity of citizenship between plaintiffs and defendants. Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267 (1806). Citizenship of the parties is determined at the time the complaint was filed. Grupo Dataflux v. Atlas Global Group, L.P., 541 U.S. 567, 571 (2004). Citizenship is synonymous with an individual's domicile. Krasnov, 465 F.2d at 1300. A person is domiciled in the place where she last lived (residency-in-fact) and intended to remain indefinitely. Id.; see Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 48 (1989) ("[D]omicile is established by physical presence in a place in connection with a certain state of mind ...

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