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Yahya Abdulmalik v. Johnny N. Pittman et al

November 28, 2012

YAHYA ABDULMALIK, PLAINTIFF,
v.
JOHNNY N. PITTMAN ET AL., DEFENDANTS.



The opinion of the court was delivered by: Robert B. Kugler United States District Judge

MEMORANDUM OPINION AND ORDER

This matter comes before the Court upon: (a) Plaintiff's application for extension of time to file his appeal, see Docket Entry No. 5;*fn1 and (b) Plaintiff's application to proceed in forma pauperis on appeal from this Court's prior decision, see Docket Entry No. 6, and it appearing that:

1. On June 1, 2012, the Clerk received Plaintiff's submission styled as a notice of removal. See Docket Entry No. 1. The submission:

a. informed this Court that Plaintiff was asserting jurisdiction under his "Ministersconsils Diplomats" perceptions, which he seemingly derived, by means of logic not entirely clear to this Court, from the First and Fourteenth Amendments, see id. at 1;

b. was reduced to the terminology and unique argot commonly used by the participants in the "redemptionist/sovereign citizenship" movement who correlate their socio-political position to the Barbary Treaties in general and to the United States' Treaty with Morocco of 1786 in particular, see, generally, Docket Entry No. 1; but

c. in the parts amenable to this Court's understanding, indicated Plaintiff's interest in removing a state court civil suit for damages commenced against Plaintiff on the grounds of Plaintiff's alleged negligence that resulted in a car accident and physical injuries suffered by a certain individual. See Docket Entry No. 3, at 6-7 (explaining the same in detail).

2. The submission arrived accompanied by Plaintiff's application to proceed in the anticipated removed action in forma pauperis. See Docket Entry No. 1-3 (indicating that Plaintiff receives monthly food stamps assistance and monthly welfare cash support in the amount of $168, but maintaining that Plaintiff had no possessions and was, in addition, homeless).

3. This Court, therefore, issued a memorandum opinion and order explaining to Plaintiff: (a) invalidity of his reliance on the Treaty with Morocco and analogous inapposite provisions; (b) inappropriateness of Plaintiff's resort to the argot he selected; and (c) insufficiency of his challenges in light of Rule 8 requirement for short and plain statement. See Docket Entry No. 3, at 1-6. Then, turning to what appeared to be Plaintiff's interest in having the state court negligence action (where he was named as defendant) removed to this District, the Court explained to Plaintiff that he established no jurisdictional basis for removal, since the underlying state negligence action did not entail a federal question and did not provide the Court with diversity jurisdiction. See id. at 9-11. Therefore, the Court directed the Clerk to remand the state negligence action to state forum. See id. at 11. However, being mindful of Plaintiff's initial references to certain clauses of the First and Fourteenth Amendments, the Court invited Plaintiff to state his constitutional claims, if any, in accordance with the requirements of Rule 8 and without resort to incomprehensible argot or reliance on legal provisions having no relevance to Petitioner's challenges, such as the Treaty with Morocco. See id. at 11-12 (allowing Plaintiff sixty days to submit his amended pleading and directing the Clerk to serve Plaintiff with a blank civil complaint form in order to facilitate Plaintiff's endeavors to that effect).

4. Since Plaintiff's original submission presented the Court solely with an application indicating his interest in removal of state negligence action, and since such removal was denied, the Court: (a) did not reach the issue of whether Plaintiff's monthly income of food stamps and $168 in cash rendered him eligible for proceeding in forma pauperis in this matter; and (b) reserved such determination in the event Plaintiff elected to submit his amended pleading articulating federal question claims amenable to the Court's understanding. See, generally, Docket Entry No. 3. Pursuant to this Court's order, the Clerk administratively terminated this matter.

5. Plaintiff did not submit his amended pleading. Rather, four days later, Plaintiff submitted his motions at bar.

a. Plaintiff's first motion, Docket Entries Nos. 5 and 5-1, referred to the nowremanded-to-state-forum negligence action, asserted that Plaintiff lost all his possessions and became homeless as a result of Hurricane Sandy and requested additional ninety days to file his appeal as to the Court's remand decision.*fn2 See id. In addition, Petitioner asserted that he must necessarily be in complete diversity with his New-Jersey-domiciled adversaries who instituted state-court negligence action against him because Plaintiff was neither owning nor renting real estate in the State of New Jersey. See id. at 3-4 (stressing Plaintiff's alleged homeless status). However, the diversity inquiry does not turn on such technical niceties as a real estate deed or lease. See Washington v. Hovensa LLC, 652 F.3d 340, 344 (2011) ("A party's citizenship is determined by her domicile, and the domicile of an individual is his true, fixed and permanent . . . place of habitation . . . to which . . . he has [a current] intention of returning") (citations and internal quotation marks omitted). Therefore, Plaintiff's current domicile in New Jersey, regardless of his alleged homeless status, necessarily defeats complete diversity. See Cassell v. City of Philadelphia, 350 F. App'x 611, 613-14 (3d Cir. 2009) (a plaintiff who "resided" only in hospitals and homeless shelters was not in diversity with local police officers); Cox-Cordova v. Cox, 2012 U.S. Dist. LEXIS 94856 (D. Utah June 13, 2012) (a homeless litigant cannot create a basis for diversity jurisdiction by simply asserting that he is a "floater" and plans to keep drifting to different locales in the future since "a 'floating intention" to [change] domicile does not prevent the acquisition of [the current] domicile") (quoting Crowley v. Glaze, 710 F.2d 676, 678 (10th Cir. 1983)); Cloyce v. Macy's Dep't Store, 2005 U.S. Dist. LEXIS 41676, at *7-8 (S.D.N.Y. Aug. 29, 2005) ("every person, even the homeless or transient, must have a domicile somewhere, [e.g. his current] acquired state of citizenship") (citing see Willis v. Westin Hotel Co., 651 F. Supp. 598, 603 (S.D.N.Y. 1986), which relied on Desmare v. U.S., 93 U.S. 605, 610 (1877)).*fn3

b. Plaintiff filed a Notice of Appeal, in accordance with Federal Rule of Appellate Procedure 3, on November 16, 2012.*fn4 See Docket Entry No. 5. A district court is permitted to grant an extension of time to file a notice of appeal if the moving "party shows excusable neglect or good cause." Fed. R. App. P. (4)(a)(5)(A)(ii).

In order to determine whether neglect is "excusable," the court might weigh several factors. These factors include "the danger of prejudice to the [non-moving party], the length of the delay and its potential impact on judicial proceedings, the reason for the delay, including whether it was within the reasonable control of the movant, and whether the movant acted in good faith." Kanoff v. Better Life Renting Corp., 350 F. App'x 655, 657 (3d Cir. 2009) (quoting Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 388 (1993)).*fn5 These factors "do not establish a mathematical formula," because our determination must ultimately be "an equitable one." Id. at 657.

c. Here, there is no reason to anticipate that Defendants would be prejudiced by an extension, since the remand of state-court negligence action was already executed, and Plaintiff expressed no interest in asserting any constitutional or other federal claims. However, Plaintiff offers the Court no facts establishing "excusable neglect." Moreover, the issue of whether Plaintiff is acting in good faith or has a "good cause" appears even more problematic. The only assertion Plaintiff makes is that he was affected by Hurricane Sandy, but his post-Sandy circumstances are identical to those existing many months prior to the hurricane. The Court, therefore, is left to question the sincerity of Plaintiff's argument and finds Plaintiff's request for ninety-day extension wholly unwarranted. However, presuming that Plaintiff's statement as to his homeless status is true and being mindful of the hardships ...


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