United States District Court, D. New Jersey
December 13, 2017, the Hon. Steven C. Mannion, U.S.M.J.,
entered a Report and Recommendation recommending that the
Undersigned dismiss this case for lack of subject-matter
jurisdiction. (D.E. No. 17 (the “R&R”)).
Pro se Plaintiff Rupert Baptiste timely
objected to the R&R (D.E. No. 20), and
Defendant Neely Moked opposed Baptiste's objection (D.E.
No. 22). For the following reasons, the Court will accept
Magistrate Judge Mannion's recommended disposition and
dismiss this case for lack of subject-matter jurisdiction.
13, 2017, Baptiste brought this action against Moked for
“legal malpractice, tortious concealment of evidence,
and recklessness” stemming from Moked's alleged
representation of Baptiste during Baptiste's divorce
proceedings. (See D.E. No. 1 ¶¶ 2-3). In
particular, Baptiste alleges that he entered into an
unconscionable marital settlement in reliance on false
information Moked gave him. (Id. ¶¶ 4,
Complaint states that the Court “has both personal and
subject matter jurisdiction to hear this case pursuant to 28
U.S.C. §§ 1331, 1332, 1367.” (Id.
¶ 18). The Complaint does not assert any claims under
federal law. (See generally id.). And although the
Complaint states that Moked “has offices in the City of
New York, State of New York” (id. ¶ 17),
it does not identify Moked's citizenship.
Judge Mannion conducted a sua sponte screen of
Baptiste's Complaint and issued a Letter Order to Show
Cause why this case should not be dismissed for lack of
subject-matter jurisdiction. (D.E. No. 7). The Letter Order
directed Baptiste to file “a certification or affidavit
setting forth the citizenship (domicile) of each party at the
time the complaint was filed and a brief explaining the basis
for jurisdiction.” (Id. at 2).
response, Baptiste filed a letter directed primarily to
damages. (See D.E. No. 12). He asserts that the
“severe financial harm and the emotional distress
brought on by [Moked's] recklessness has and will
continue to greatly affect [his] financial and emotional
well-being.” (Id. at 1). He states:
“Given the severity of the long-lasting effects, the
award of damages in excess of $75, 000 is highly
likely.” (Id.). And he adds: “[E]ven if
a litigant attempts to avoid federal jurisdiction by trying
to claim it is the state's jurisdiction, the federal
court should trump the state court if there is a question to
the jurisdiction.” (Id. at 2) (citing Avco
Corp. v. Aero Lodge No. 735, 390 U.S. 557 (1968)).
Baptiste neither addresses the parties' citizenship nor
attaches a certification or affidavit.
Standard for R&R.
a litigant files an objection to a Report and Recommendation,
the district court must make a de novo determination
of those portions to which the litigant objects.”
Leonard Parness Trucking Corp. v. Omnipoint Commc'ns,
Inc., No. 13-4148, 2013 WL 6002900, at *2 (D.N.J. Nov.
12, 2013) (citing 28 U.S.C. § 636(b)(1)(A), Fed.R.Civ.P.
72(b), and L. Civ. R. 72.1(c)(2)). The district court may
then “accept, reject or modify the recommended
disposition . . . .” Weber v. Mcgrogan, No.
14-7340, 2016 WL 3381233, at *2 (D.N.J. June 9, 2016)
(quoting Fed.R.Civ.P. 72(b)(3)). The district court may also
“receive further evidence or recommit the matter to the
Magistrate with instructions.” 28 U.S.C. §
636(b)(1)(C); see also L. Civ. R. 72.1(a)(2).
“Unlike an Opinion and Order issued by a Magistrate
Judge on a non-dispositive matter, an R&R does not have
the force of law unless and until the district court enters
an order accepting or rejecting it. Ecurie Reve Avec Moi,
Inc. v. N.J. Racing Comm., No. 11-4639, 2017 WL 6403001,
at *2 (D.N.J. Aug. 11, 2017) (citing United Steelworkers
of Am. v. N.J. Zinc Co., Inc., 828 F.2d 1001, 1005 (3d
Standard for Subject-Matter Jurisdiction.
district courts of the United States . . . are ‘courts
of limited jurisdiction.'” Exxon Mobil Corp. v.
Allapattah Servs., Inc., 545 U.S. 546, 552 (2005)
(quoting Kokkonen v. Guardian Life Ins. Co. of Am.,
511 U.S. 375, 377 (1994)). “They possess only that
power authorized by Constitution and statute, which is not to
be expanded by judicial decree.” United States v.
Merlino, 785 F.3d 79, 82 (3d Cir. 2015) (quoting
Kokkonen, 511 U.S. at 377)). Consequently, when a
federal court finds that it lacks jurisdiction over an
action, “the only function remaining . . . is that of
announcing the fact and dismissing the cause.”
Steel Co. v. Citizens for a Better Env't, 523
U.S. 83, 94 (1998) (citation omitted); see also Elliott
v. Archdiocese of N.Y., 682 F.3d 213, 219 (3d Cir.
2012); Fed.R.Civ.P. 12(h)(3).
are two traditional bases for subject-matter jurisdiction in
federal court: federal question-jurisdiction and diversity
jurisdiction. Bais Yaakov of Spring Valley v.
Peterson's Nelnet, LLC, No. 11-0011, 2011 WL
1458779, at *1 (D.N.J. Apr. 15, 2011) (citation omitted).
Federal-question jurisdiction applies to civil actions
“arising under the Constitution, laws, or treaties of
the United States.” 28 U.S.C. § 1331. Diversity
jurisdiction applies to civil actions “where the matter
in controversy exceeds the sum or value of $75, 000 and is
between ‘citizens of different States.'”
McCann v. Newman Irrevocable Tr., 458 F.3d 281, 286
(3d Cir. 2006) (quoting 28 U.S.C. § 1332(a)(1)).
“The burden of establishing federal jurisdiction rests
with the party asserting its existence.” Lincoln
Benefit Life Co. v. AEI Life, LLC, 800 F.3d 99, 105 (3d
Cir. 2015) (citing DaimlerChrysler Corp. v. Cuno,
547 U.S. 332, 342 n.3 (2006)).
key inquiry in establishing diversity is . . . the
‘citizenship' of each party to the action.”
Zambelli Fireworks Mfg. Co., Inc. v. Wood, 592 F.3d
412, 419 (3d Cir. 2010). “A natural person is deemed to
be a citizen of the state where he is domiciled.”
Id. “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.” Vlandis v. Kline, 412
U.S. 441, 454 (1973). “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.'” McCann, 458 F.3d at 286
(quoting Krasnov v. Dinan, 465 F.2d 1298, 1301 (3d
Cir. 1972)). Courts may also consider such factors as the
“location of brokerage and bank accounts, location of
spouse and family, membership in unions and other
organizations, and driver's ...