                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 13a0125n.06

                                          No. 12-1503                                 FILED
                                                                                   Feb 04, 2013
                              UNITED STATES COURT OF APPEALS                 DEBORAH S. HUNT, Clerk
                                   FOR THE SIXTH CIRCUIT

JOHN D. SPENCER,                                    )
                                                    )
       Plaintiff-Appellant,                         )
                                                    )
v.                                                  )       ON APPEAL FROM THE UNITED
                                                    )       STATES DISTRICT COURT FOR
DAVID J. STORK; SOURCE 1 METAL                      )       THE EASTERN DISTRICT OF
TREATMENT TECHNOLOGIES, L.L.C.;                     )       MICHIGAN
STORK TECHNOLOGIES, L.L.C.,                         )
                                                    )
       Defendants-Appellees.                        )



       Before: MARTIN and SUTTON, Circuit Judges; HOOD, District Judge.*


       PER CURIAM. John D. Spencer, a pro se Ohio prisoner, appeals a district court judgment

dismissing his civil complaint apparently filed pursuant to 28 U.S.C. § 1332.

       In 2002, Spencer began working for David Stork and his companies, Stork Technologies,

L.L.C. and Source 1 Metal Treatment Technologies, L.L.C. (Source 1). Stork owns patents on a

product known as “AMERIFORM,” and Source 1 was created to distribute AMERIFORM. Pursuant

to an oral employment agreement, Spencer agreed to sell AMERIFORM products for Stork. Spencer

and Stork agreed that Spencer would receive twenty percent of the gross proceeds from any future

sale of Source 1 or AMERIFORM patents. After working for Stork for approximately six years,

Spencer was indicted for possession and distribution of child pornography. Although he stayed

employed with Stork during the criminal proceedings, Spencer pleaded guilty to the receipt of child


       *
       The Honorable Joseph M. Hood, United States District Judge for the Eastern District of
Kentucky, sitting by designation.
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pornography in February 2010. Stork wrote a letter of support for Spencer, requesting favorable

treatment at sentencing.     The district court eventually sentenced Spencer to five years of

imprisonment. In August 2010, Stork issued a letter to Spencer terminating his position as a sales

representative.

       In February 2011, Spencer sued Stork and his companies, claiming that Stork’s termination

of his oral employment agreement constituted: (1) a breach of contract; (2) fraud; (3) a breach of

good faith and fair dealing; and (4) a breach of fiduciary duty. In March, the defendants filed a
motion to dismiss or for summary judgment, to which Spencer responded. Thereafter, Spencer filed

a motion to amend his complaint, seeking to withdraw his breaches of good faith, fair dealing, and

fiduciary duty claims. He sought to add claims that Stork engaged in an anticipatory breach of the

parties’ oral agreement and that Stork’s conduct amounted to “conversion.” The district court

subsequently granted summary judgment to the defendants.

       On appeal, Spencer argues that the district court erred when it: (1) construed the defendants’

motion to dismiss as one for summary judgment without providing him with notice of its intent to

consider matters outside of the pleadings and prematurely granted summary judgment for the

defendants prior to any discovery; (2) concluded that Spencer’s claims could not withstand summary

judgment; and (3) concluded that Spencer’s proposed amended claim for anticipatory breach of
contract could not withstand summary judgment.

       A review of the record indicates that the district court may have lacked subject-matter

jurisdiction in this case. Spencer sought to file his complaint pursuant to section 1332. However,

the record does not clearly establish that diversity of citizenship existed between the parties. The

record establishes that Spencer was a citizen of Michigan prior to his incarceration in Ohio. The

defendants appear to be Michigan citizens. Although the defendants did not challenge diversity

jurisdiction in their dispositive motion, district courts are obligated to sua sponte consider whether

they have subject-matter jurisdiction. Apple v. Glenn, 183 F.3d 477, 479 (6th Cir. 1999).
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       We have held that there is a rebuttable presumption that a prisoner retains his former

domicile after incarceration. See Stifel v. Hopkins, 477 F.2d 1116, 1124 (6th Cir. 1973). Because

the district court did not consider this issue, Spencer was not provided an opportunity to rebut the

presumption that he is a Michigan citizen, thus depriving the district court of jurisdiction.

Furthermore, there does not appear to be any other basis for federal jurisdiction in this case.

       We vacate the district court’s judgment and remand the case to the district court to consider

whether the court has diversity jurisdiction in this matter.
