Hawkinson v. Obrien

          ORDER

          PHILIP A. BRIMMER CHIEF UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on the Recommendation of United States Magistrate Judge filed on March 27, 2019 [Docket No. 29], wherein Magistrate Judge Kathleen M. Tafoya recommends this action be dismissed for lack of federal jurisdiction. Docket No. 29 at 4. Plaintiff Patrick Hawkinson filed an objection [Docket No. 30]. Plaintiff stated that he had not yet received a copy of the magistrate judge's recommendation and that, in order to ensure his objection was filed on time, he based his objection on the issues raised in the magistrate judge's earlier order to show cause [Docket No. 16]. Docket No. 30. Upon receiving a copy of the magistrate judge's recommendation, plaintiff filed a Motion to Supplement Plaintiff's Objection to Magistrates [sic] Recommendation [Docket No. 32] and Plaintiff's Supplemented Verified Objection to District Court on Magistrate's Recommendation to Dismiss [Docket No. 31]. Plaintiff objects to the magistrate judge's determination that plaintiff had not established his domicile for purposes of diversity jurisdiction. Docket No. 31 at 7.

         I. BACKGROUND

         Plaintiff brought this lawsuit against defendants Glenn Obrien and Joseph Lynn Obrien to quiet title on seven Colorado properties, seeking declaratory relief and money damages. Docket No. 1 at 12, ¶¶ 26-33; id. at 13. He asserts that he is domiciled in Texas and that defendants are domiciled in Colorado. Id. at 2-3. He contends the Court has jurisdiction over his claims under 28 U.S.C. § 1332(a). Id. at 3.

         When defendants failed to plead or otherwise defend against the lawsuit, plaintiff filed an Amended Request for Clerk's Entry of Default [Docket No. 11].^[1] The clerk entered default as to both defendants [Docket No. 12], and plaintiff filed two motions for default judgment. Docket No. 13; Docket No. 14.

         The magistrate judge then entered an Order to Show Cause [Docket No. 16], finding that plaintiff's allegations of his own citizenship were insufficient to determine if complete diversity exists between the parties and ordering plaintiff to show cause why she should not recommend dismissal for lack of federal jurisdiction. Docket No. 16 at 2-3.

         Plaintiff filed his response to the show cause order on March 1, 2019. Docket No. 22. He stated that, while he has a temporary mailing address in Colorado, his permanent domicile is in Texas.^[2] Id. at 1-2. To support his contention, he attached a declaration attesting to his Texas citizenship, portions of a lease agreement for a Texas residence that bears plaintiff's name and has a lease term of November 1, 2017 to May 30, 2019, and a copy of a letter dated August 16, 2018 sent to plaintiff at that Texas address. Docket No. 22 at 6-9.

         The magistrate judge found that, while the lease and letter “demonstrate that Plaintiff resided in Texas at some point in the past, ” they do not establish that “his current domicile is in Texas, nor do the documents show proof of an intent for Plaintiff to remain indefinitely in Texas.” Docket No. 29 at 4. Specifically, the magistrate judge relied on the fact that plaintiff's complaint lists a Colorado address and that plaintiff filed a notice changing his mailing address to a Colorado address. Id. at 2. Further, the magistrate judge noted that mail sent by the Court to plaintiff's claimed Texas address had been returned as undeliverable and that the only mail that was not subsequently returned as undeliverable was sent to a Colorado address. Id. at 2, n. 1; id. at 4. Finding that plaintiff had failed to provide evidence that his current domicile is outside Colorado, the magistrate judge recommended that the case be dismissed for lack of federal jurisdiction. Id. at 4. Plaintiff filed his supplemental objection to the recommendation on April 18, 2019. Docket No. 31.

         II. STANDARD OF REVIEW

         “The Court will ‘determine de novo any part of the magistrate judge's disposition that has been properly objected to' by plaintiff.” Turner v. Falk, No. 13-cv-02957-PAB-MJW, 2014 WL 7451698, at *1 (D. Colo. Dec. 31, 2014) (citing Fed.R.Civ.P. 72(b)(3)). “[A] party's objections . . . must be both timely and specific to preserve an issue for de novo review by the district court.” United States v. One Parcel of Real Property Known as 2121 East 30th St., 73 F.3d 1057, 1060 (10th Cir. 1996). Because plaintiff is proceeding pro se, his pleadings are liberally construed. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972). However, the Court should not be an advocate for a pro se litigant. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).

         III. ANALYSIS

         “The party invoking federal jurisdiction bears the burden of establishing such jurisdiction as a threshold matter.” Radil v. Sanborn W. Camps, Inc., 384 F.3d 1220, 1224 (10th Cir. 2004). “For purposes of federal diversity jurisdiction, an individual's state citizenship is equivalent to domicile.” Smith v. Cummings, 445 F.3d 1254, 1259 (10th Cir. 2006). “To establish domicile in a particular state, a person must be physically present in the state and intend to remain there.” Id. at 1260. “Because domicile is a voluntary status, a prisoner is presumed to be a citizen of the state of which he was a citizen before his incarceration, even if he is subsequently incarcerated in another state.” Id.

         Plaintiff objects to the recommendation's conclusion that this Court lacks federal jurisdiction over this lawsuit because he has failed to prove that he is a citizen of Texas. Plaintiff argues that, although he is temporarily in Colorado, his permanent domicile is in Texas. Docket No. 31 at 5. Plaintiff claims the following evidence establishes his physical presence in Texas and that he intends to remain there: his declaration asserting that his home address is in Texas and that he intends to remain in Texas; a lease agreement, bearing plaintiff's name, for a Texas residence; and a letter that was sent to plaintiff at that Texas residence. Id. at 4-5, ¶ d.1. Plaintiff also references portions of his various filings in which he states that Texas is his state of domicile and that he intends to return to Texas. Id.

         Conclusory allegations of citizenship are generally insufficient to establish a court's federal jurisdiction; “[t]he party seeking the exercise of jurisdiction in his favor ‘must allege in his pleading the facts essential to show jurisdiction.'” Penteco Corp. Ltd. Partnership-1985A v. Union Gas System, Inc., 929 F.2d 1519, 1521 (10th Cir. 1991) (quoting McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189 (1936)). A number of circuit courts have determined that a party's statements of intent regarding domicile, when contradicted, are afforded little weight. See Korn v. Korn, 398 F.2d 689, 691 (3d Cir. 1968) (“One's testimony as to his intention to establish a domicile, while entitled to a full and fair consideration, is subject to the infirmity of any self-serving declaration, and it cannot prevail to establish domicile when it is contradicted or negatived by an inconsistent course of conduct.”); see also Hendry v. Masonite Corp., 455 F.2d 955, 956 (5th Cir. 1972) (“In determining one's ‘citizenship' or ‘domicile' statements of intent are entitled to little weight when in conflict with facts.”). However, such scrutiny is not applied to a party's assertions of domicile when the assertions are not contradicted by the record. See Preston v. Tenet Healthsystem Memorial Med. Center, Inc., 485 F.3d 804, 816 (5th ...