Moslem v. Michael Macklowitz, Esq. et al
| Mehdi Moslem |
| Michael Macklowitz, Esq., Seth Ginsberg, Esq., Dante DeMartino and Drew Smith |
| 1:2023cv02439 |
| March 28, 2023 |
| US District Court for the Eastern District of New York |
| Marcia M Henry |
| Rachel P Kovner |
| Mandamus & Other |
| 28 U.S.C. § 1332 |
| Plaintiff |
Docket Report
RSS Track this Docket
This docket was last retrieved on May 19, 2023. A more recent docket listing may be available from PACER.
| Document Text |
|---|
ORDER DISMISSING CASE: The Court has received plaintiffs #10 Response to the Courts Order to Show Cause. Because the response does not show that jurisdiction exists, this action is dismissed. Plaintiff filed this action for fraud, asserting only diversity jurisdiction. See Compl. 1, 4 (Dkt. #1). For diversity jurisdiction to exist, the controversy must be completely diverse, meaning that plaintiff must be a citizen of a different state from all defendants. 28 U.S.C. 1332(a)(1); Lincoln Prop. Co. v. Roche, 546 U.S. 81, 89 (2005). Plaintiff, who was incarcerated in Pennsylvania when he filed this action, asserts that he is a citizen of Pennsylvania. Compl. 1, 3. But [a] prisoner is presumed to be a citizen of the state where he was domiciled before he was incarcerated. Bamonte v. Charatan, No. 22-CV-795 (KMK), 2023 WL 2751894, at *4 (citation omitted) (collecting cases). Because plaintiff appears to have been domiciled in New York when he filed this action, and defendants are all citizens of New York, the Court ordered plaintiff to show cause why this case should not be dismissed for lack of jurisdiction. See 5/09/2023 Order to Show Cause. Plaintiffs response does not show that plaintiff was domiciled in a state other than New York when he filed this action. Domicile has been described as the place where a person has his true fixed home and principal establishment, and to which, whenever he is absent, he has the intention of returning. Linardos v. Fortuna, 157 F.3d 945, 948 (2d Cir. 1998) (citation omitted). Domicile requires both (1) the partys physical presence in the state; and (2) the intent to remain in that state indefinitely. Hicks v. Brophy, 839 F. Supp. 948, 950 (D. Conn. 1993) (citing Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30 (1989)). An old domicile continues, despite a change of residence, until there is an intent to create a new home. Hakkila v. Consolid. Edison Co. of New York, Inc., 745 F. Supp. 988, 990 (S.D.N.Y. 1990). Here, plaintiff appears to have been domiciled in New York when he filed this action, because plaintiff resided in New York before being incarcerated, and he returned to New York immediately after being released. See Compl. 7; Not. of Change of Address 1 (Dkt. #6). And although plaintiffs residence had been leased to others unrelated to Plaintiff during the period of his incarceration, Response 1, there is no indication that plaintiff inten[ded] to create a new home in Pennsylvania, Hakkila, 745 F. Supp. at 990. Accordingly, the Court cannot conclude that plaintiff was domiciled in Pennsylvania, despite his temporary residence there. This action is therefore dismissed for lack of jurisdiction. Plaintiff may file an amended complaint within 30 days. The new complaint must be captioned Amended Complaint and shall bear the same docket number as this order. If plaintiff does not file an amended complaint within 30 days, judgment shall be entered dismissing this case. Ordered by Judge Rachel P. Kovner on 5/19/2023. (Miyamoto, Matthew)
|
| Filing 10 UNSIGNED RESPONSE TO ORDER TO SHOW CAUSE by Mehdi Moslem (IH) |
| Filing 9 SUMMONS Returned Executed by Mehdi Moslem. Dante DeMartino served on 5/5/2023, answer due 5/26/2023; Michael Macklowitz, Esq. served on 5/9/2023, answer due 5/30/2023; Seth Ginsberg, Esq. served on 5/9/2023, answer due 5/30/2023; Drew Smith served on 5/9/2023, answer due 5/30/2023. (IH) |
|
ORDER TO SHOW CAUSE: Plaintiff filed this action for fraud, asserting that diversity jurisdiction exists. See Compl. 1, 4 (Dkt. #1). For subject-matter jurisdiction based on diversity to exist, the controversy must be completely diverse, meaning that plaintiff must be a citizen of a different state from all defendants. 28 U.S.C. 1332(a)(1); Lincoln Prop. Co. v. Roche, 546 U.S. 81, 89 (2005). Citizenship must be distinctly and positively averred in the pleadings, or it should appear with equal distinctness in other parts of the record. Leveraged Leasing Admin. Corp. v. PacifiCorp Cap., Inc., 87 F.3d 44, 47 (2d Cir. 1996). Plaintiff, who was incarcerated in Pennsylvania when he filed this action, asserts that he is a citizen of Pennsylvania. Compl. 1, 3. However, [a] prisoner is presumed to be a citizen of the state where he was domiciled before he was incarcerated. Bamonte v. Charatan, No. 22-CV-795 (KMK), 2023 WL 2751894, at *4 (citation omitted) (collecting cases). Domicile has been described as the place where a person has his true fixed home and principal establishment, and to which, whenever he is absent, he has the intention of returning. Linardos v. Fortuna, 157 F.3d 945, 948 (2d Cir. 1998) (citation omitted). Here, the complaint indicates that plaintiff resided at an address in Central Valley, New York, before being incarcerated in Pennsylvania. See Compl. 7. And on 4/28/2023, plaintiff notified the Court that he was released from incarceration and that his home address is again the same residence in Central Valley, New York. See Not. of Change of Address 1 (Dkt. #6). Accordingly, it appears that plaintiff remained domiciled in New York throughout the period of his incarceration in Pennsylvania. Because plaintiff asserts that defendants are all citizens of New York, see Compl. 2, it appears that the parties are not completely diverse and so the Court may lack subject-matter jurisdiction to hear this dispute. By 5/30/2023, plaintiff shall file a letter with the Court explaining (1) why he was a citizen of Pennsylvania, and not New York, at the time when he filed this action, and (2) if plaintiff was a citizen of New York, why this action should not be dismissed for lack of jurisdiction. Plaintiff is advised that he may contact the Eastern District of New Yorks Pro Se Office at (718) 613-2665. Ordered by Judge Rachel P. Kovner on 5/9/2023. (Miyamoto, Matthew)
|
| Filing 8 FILING FEE: $ 402.00, receipt number 100006518 (IH) |
| Filing 7 Summons Issued as to Dante DeMartino, Michael Macklowitz, Esq., Seth Ginsberg, Esq., Drew Smith. (IH) |
| Filing 6 NOTICE of Change of Address filed by Mehdi Moslem. (Address updated on docket) (IH) |
|
ORDER: Plaintiff Mehdi Moslem filed this pro se action in the United States District Court for the Southern District of New York, which transferred the action to this Court. The Court received the action on March 30, 2023. Plaintiff did not submit the filing fee or an application to proceed in forma pauperis (IFP) and the Authorization required by the Prison Litigation Reform Act (PLRA). By letter dated April 4, 2023, the Court notified Plaintiff that his filing was deficient and provided him with the IFP and PLRA forms. The letter instructed that, in order to proceed, Plaintiff must either pay the filing fee or return the completed forms within 14 days from the date of the letter. More than 14 days have elapsed, and Plaintiff has not submitted the fee or an IFP application and PLRA Authorization. In light of Plaintiffs pro se status, the Court grants an extension of time to 5/25/2023 comply. However, if Plaintiff fails to submit the filing fee or the completed IFP and PLRA forms within 30 days from the date of this order, the complaint will likely be dismissed without prejudice. Ordered by Judge Rachel P. Kovner on 4/28/2023. (Miyamoto, Matthew)
|
| Filing 5 NOTICE OF DEFICIENT FILING, litigant notified of deficiency(s) that must be corrected within fourteen (14) days. (IH) |
| Filing 4 In accordance with Rule 73 of the Federal Rules of Civil Procedure and Local Rule 73.1, the parties are notified that if all parties consent a United States magistrate judge of this court is available to conduct all proceedings in this civil action including a (jury or nonjury) trial and to order the entry of a final judgment. Attached to the Notice is a blank copy of the consent form that should be filled out, signed and filed electronically only if all parties wish to consent. The form may also be accessed at the following link: #http://www.uscourts.gov/uscourts/FormsAndFees/Forms/AO085.pdf. You may withhold your consent without adverse substantive consequences. Do NOT return or file the consent unless all parties have signed the consent. (KD) |
| Filing 3 Case transferred in from District of New York Southern; Case Number 1:23-cv-01561. Original file certified copy of transfer order and docket sheet received. |
| MAILING RECEIPT: Document No: 2. Mailed to: Mehdi Moslem Reg:87069-054 201 Varick Street Room 849 NY, NY 10014. (kh) [Transferred from New York Southern on 3/30/2023.] |
| CASE TRANSFERRED OUT ELECTRONICALLY from the U.S.D.C. Southern District of New York to the United States District Court - District of Eastern District of New York.(rdz) [Transferred from New York Southern on 3/30/2023.] |
|
Filing 2
TRANSFER ORDER: The Court directs the Clerk of Court to transfer this action to the United States District Court for the Eastern District of New York. Whether Plaintiff should be permitted to proceed further without prepayment of fees is a determination to be made by the transferee court. Summonses shall not issue from this court. This order closes this action in this court. The Court certifies, pursuant to 28 U.S.C 1915(a)(3), that any appeal from this order would not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). SO ORDERED. (Signed by Judge Laura Taylor Swain on 3/2/2023) (sac) Transmission to Office of the Clerk of Court for processing. [Transferred from New York Southern on 3/30/2023.]
|
| NOTICE OF CASE REASSIGNMENT - SUA SPONTE to Judge Laura Taylor Swain. Judge Unassigned is no longer assigned to the case. (sac) [Transferred from New York Southern on 3/30/2023.] |
| Filing 1 COMPLAINT against Dante DeMartino, Michael Macklowitz, Esq., Seth Ginsberg, Esq., Drew Smith. Document filed by Mehdi Moslem. (Attachments: #1 Exhibit 1, #2 Exhibit 2, #3 Exhibit 3) (sac) [Transferred from New York Southern on 3/30/2023.] |
| Case Designated ECF. (sac) [Transferred from New York Southern on 3/30/2023.] |
Access additional case information on PACER
Use the links below to access additional information about this case on the US Court's PACER system. A subscription to PACER is required.
Access this case on the New York Eastern District Court's Electronic Court Filings (ECF) System
- Search for Party Aliases
- Associated Cases
- Attorneys
- Case File Location
- Case Summary
- Docket Report
- History/Documents
- Parties
- Related Transactions
- Check Status
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
