The opinion of the court was delivered by: Hon. Harold Baer, Jr., District Judge*fn1
Plaintiff Milton Braten ("Plaintiff"), proceeding pro se,brings this suit against his former attorney, Eliot Kaplan ("Defendant") for legal malpractice. Plaintiff's complaint asserts that this Court has subject matter jurisdiction over this action under 28 U.S.C. § 1332(a). Presently before the court is Defendant's motion to dismiss the complaint on the grounds that the parties lack diversity of citizenship. For the reasons that follow, the Plaintiff has failed sufficiently to allege that parties are of diverse citizenship and therefore this action is dismissed.
Plaintiff commenced this proceeding on May 10, 2007 by filing his initial pro se complaint with the court. The complaint was reviewed and the Court issued an order on October 2, 2007 directing Plaintiff to submit an amended complaint within sixty days providing further facts in relation to the citizenship of the parties and the amount in controversy (the "60-Day Order"). Plaintiff then filed an amended complaint on November 30, 2007 asserting a legal malpractice claim against Defendant arising out of Defendant's representation of Plaintiff in his divorce proceeding in 2003. Plaintiff's malpractice claim is premised on numerous theories, including attorney misconduct in violation of legal and ethical obligations, fraudulent representation, breach of contract, unjust enrichment and conversion of funds. (Am. Compl. ¶¶ 35-37, 38-40, 41-43, 44-46, 70.) The crux of Plaintiff's allegations in the Amended Complaint is that he was deprived of maintenance and support from his now ex-wife, to which he claims to have been entitled, as a result of Defendant's failure to work zealously on his behalf and Defendant's alleged rejection of a settlement offer without Plaintiff's consent. (Am. Compl. ¶¶ 32, 37(b).)
As each of Plaintiff's claims arises under substantive state law, he contends that this Court has jurisdiction over this suit on the grounds of diversity of citizenship. There is no dispute that Defendant is a citizen of New York. (Am. Compl. ¶ 6.) Prior to incarceration, Plaintiff was a resident and domiciliary of New York. (Am. Compl. ¶ 5(a).) Plaintiff was then incarcerated at the Federal Medical Center in Devens, Massachusetts, where he continued to be housed at the time the Amended Complaint was filed. (Am. Compl. ¶ 5(b).) Plaintiff admits that prior to his incarceration he was a New York domiciliary, but argues that since his incarceration, he has changed his domicile to Massachusetts and that Massachusetts was his domicile at the time the Amended Complaint was filed. (Am. Compl. ¶ 5.) Plaintiff contends that he intended to change his domicile to Massachusetts because at the time he was incarcerated there, he was under the care of medical professionals affiliated with the University of Massachusetts Worcester Hospital in Massachusetts, and upon his release, he intends to return to Massachusetts to continue his care at that facility. (Am. Compl. ¶ 5(b)-(c).) Plaintiff also highlights the fact that his divorce proceeding left him with no assets, residence or business in New York and thus he has no incentive to return to New York after his incarceration. (Am. Compl. ¶ 5(a).) Since the commencement of this action, Plaintiff has been transferred to the Columbia Care Center in Columbia, South Carolina.
Although Defendant brings this motion under Fed. R. Civ. P. 12(c) for a judgment on the pleadings,*fn2 the heart of his argument is that the court lacks subject matter jurisdiction over this action. Indeed, the vast majority of the authorities cited in support of Defendant's motion arose in the context of motions to dismiss for lack of federal subject matter jurisdiction pursuant to Federal Rule 12(b)(1). Therefore, the Court will decide the motion based on the applicable Rule 12(b)(1) law. It should be kept in mind that"federal courts are courts of limited jurisdiction and may not decide cases over which they lack subject matter jurisdiction. . . [F]ailure of subject matter jurisdiction is not waivable and may be raised at any time by a party or by the court sua sponte." Lyndonville Savings Bank & Trust Co. v. Lussier & Applied Research and Dev., Inc., 211 F.3d 697, 700-01 (2d Cir. 2000).
In considering this question, the Court is mindful that Plaintiff has at all times appeared in this action pro se, and therefore the Court is "required . . . to give [Plaintiff] substantial leeway." See Gomes v. Avco Corp., 964 F.2d 1330, 1335 (2d Cir. 1992); see also Enron Oil Corp. v. Diakuhara, 10 F.3d 90, 96 (2d Cir. 1993) ("A party appearing without counsel is afforded leeway in meeting the procedural rules governing litigation, and trial judges must make some effort to protect a party so appearing from waiving a right to be heard because of his or her lack of legal knowledge."); LaBounty v. Adler, 933 F.2d 121, 122 (2d Cir. 1991) ("We are obliged to construe [pro se] pleadings and papers liberally."); Bethelmie v. New York City Health & Hosps. Corp., 00 Civ. 3707 (FM), 2001 U.S. Dist. LEXIS 10807, at *4 (S.D.N.Y. July 31, 2001); Dove v. Fordham Univ., 56 F. Supp. 2d 330, 335 (S.D.N.Y. 1999). As the Second Circuit recently has instructed, "a party appearing without counsel is afforded extra leeway in meeting the procedural rules of litigation," and "courts should not allow a pro se litigant's rights to be impaired by harsh application of technical rules." Sims v. Blot, 534 F.3d 117, 133 (2d Cir. 2008) (internal quotations and citations omitted). Thus, the Court construes Plaintiff's opposition to Defendant's motion "to raise the strongest arguments they suggest." Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994). The Court therefore declines Defendant's invitation to treat Plaintiff's affidavit in opposition to the motion as defective under Local Rule 7.1 and to grant Defendant's motion on default, or as time-barred for having been filed one day after the deadline set forth in the 60-Day Order.*fn3 However, the Court is nonetheless bound to construe the Amended Complaint reasonably, and Plaintiff is still bound by substantive law. See Faretta v. California, 422 U.S. 806, 834 n.46 (1975) (the right to proceed pro se is not "a license not to comply with relevant rules of procedural and substantive law"); LoCurto v. LoCurto, No. 07 Civ. 8238, 2008 WL 4410091, at *5 n.5 (S.D.N.Y. Sept. 25, 2008).
Under Rule 12(b)(1), the Court must accept all factual allegations in the complaint as true and draw inferences from those allegations in the light most favorable to the plaintiff.*fn4
Jaghory v. New York State Dep't of Ed., 131 F.3d 326, (2d Cir. 1997). Federal courts are courts of limited jurisdiction and may not entertain matters over which they do not have subject matter jurisdiction. Wynn v. AC Rochester, 273 F.3d 153, 157 (2d Cir. 2001). "If the court determines at any time that it lacks subject matter jurisdiction, the court must dismiss the action." Fed. R. Civ. P. 12(h)(3) (emphasis added).
Under 28 U.S.C. § 1332, a district court will have subject matter jurisdiction over a civil action "when the matter in controversy exceeds $75,000 and is between citizens of different states." 28 U.S.C. § 1332(a)(1). The party seeking to invoke jurisdiction under § 1332 bears the burden of demonstrating that the grounds for diversity exist. Advani Enters., Inc. v. Underwriters at Lloyds, 140 F.3d 157, 160 (2d Cir. 1997). The policy behind § 1332 requires that it be strictly construed against finding jurisdiction. See Farrell v. Ashton, No. 89 Civ. 6706, 1991 WL 29261, at *4 (S.D.N.Y. Feb. 28, 1991) (citing Healy v. Ratta, 292 U.S. 263, 270 (1934)).
An individual's citizenship is determined by his domicile, which is established by where he is bornand is presumed to continue absent sufficient evidence that the individual's domicile has changed. Palazzo ex rel. Delmage v. Corio, 232 F.3d 38, 42 (2d Cir. 2000); Blumatte v. Quinn, 521 F. Supp. 2d 308, 310 (S.D.N.Y. 2007). Domicile refers to "the place where a party has his true fixed home and principal establishment, and to which, whenever he is absent, he has the intention of returning." Palazzo, 232 F.3d at 42; see also Sash v. Schwartz, No. 04 Civ 9634, 2007 WL 30042, at *5 (S.D.N.Y. Jan. 4, 2007). For the purposes of determining whether diversity of citizenship exists, an individual's domicile is established at the time the suit is filed. See Grupo Dataflux v. Atlas Global Group, L.P., 541 U.S. 567, 574 (2004); Housand v. Heiman, 594 F.2d 923, 926 n.6 (2d Cir. 1979); Sash, 2007 WL 30042, at *4; Fermin v. Moriarty, No. 96 Civ. 3022, 2003 WL 21787351, at *2 (S.D.N.Y. Aug. 4, 2003) (citing Freeport-McMoRan v. KN Energy, Inc., 498 U.S. 426, 428-29 (1991)).
To effect a change of domicile, two elements are required: first, residence or physical presence in the new domicile; and second, the intent to remain there indefinitely. Palazzo, 232 F.3d at 42; Gutierrez v. Fox, 141 F.3d 425, 428 (2d Cir. 1998); Sash, 2007 WL 30042, at *5 (citing Gilbert v. David, 235 U.S. 561, 569 (1915)). A party attempting to prove a change in domicile so that a federal court has diversity jurisdiction bears the burden of proving such change by clear and convincing evidence. Palazzo, 232 F.3d at 42; Blumatte, 521 F. Supp. 2d at 310-11; Farrell, 1991 WL 29261, at *5 (finding when a party is asserting a change in domicile, the burden of proof is clear and convincing evidence in accord with the general presumption against the existence of federal subject matter jurisdiction). To determine whether the party seeking to establish a change in domicile has satisfied this burden, courts may look to a number of factors, including the person's state of residence; the state where his family resides; whether he owns or rents property; or where he keeps his personal belongings, exercises his political rights, maintains religious or social ...