                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-29-2005

McCracken v. Murphy
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-3454




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Recommended Citation
"McCracken v. Murphy" (2005). 2005 Decisions. Paper 1291.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/1291


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                                                                   NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                ________________

                                       No. 04-3454
                                    ________________

                                  TED A. MCCRACKEN,

                                                   Appellant

                                              v.

        FRANK P. MURPHY; MURPHY, OLIVER, CAIOLA & GOWEN, LLC

                                    ________________

                     On Appeal From the United States District Court
                         For the Eastern District of Pennsylvania
                                (D.C. Civ. No. 03-cv-05041)
                      District Judge: Honorable Eduardo C. Robreno
                                    ________________

                        Submitted Under Third Circuit LAR 34.1(a)
                                    March 28, 2005

              Before: RENDELL, AMBRO and FUENTES, Circuit Judges

                                   (Filed April 29, 2005 )

                                    ________________

                                        OPINION
                                    ________________

PER CURIAM

       Pro se appellant Ted A. McCracken appeals the District Court’s order dismissing

his civil action for lack of subject matter jurisdiction. For the reasons that follow, we will
affirm.

          In his complaint, McCracken alleges jurisdiction under 28 U.S.C. § 1332 based on

diversity of citizenship. The defendants filed a motion to dismiss the complaint, or in the

alternative, for summary judgment, on the basis that the requirements of section 1332

were not met because McCracken and both defendants were citizens of Pennsylvania at

the time the lawsuit was filed. The District Court denied the motion without prejudice

and directed that discovery be taken on the issue of subject matter jurisdiction. Following

discovery, the defendants again filed a motion to dismiss or for summary judgment.

Following an evidentiary hearing and further briefing by the parties, the District Court

dismissed the complaint, finding that McCracken had not met his burden of showing that

the District Court had diversity jurisdiction. McCracken appeals.

          We have jurisdiction under 28 U.S.C. § 1291. Although a District Court’s

determination regarding a plaintiff’s domicile or citizenship is primarily a finding of fact

that we will not disturb unless clearly erroneous, Krasnov v. Dinan, 465 F.2d 1298, 1299-

1300 (3d Cir. 1972), we exercise plenary review over the District Court’s dismissal for

lack of subject matter jurisdiction. FOCUS v. Allegheny County Court of Common

Pleas, 75 F.3d 834, 839-40 (3d Cir. 1996).

          Although McCracken argues that the District Court misplaced the burden of proof,

where jurisdictional allegations are challenged, it is the plaintiff who bears the burden of

proving that the federal court has jurisdiction. McNutt v. General Motors Acceptance

Corp., 298 U.S. 178, 188-89 (1936); Krasnov, 465 F.2d at 1301. Mere residency in a

                                              2
state is insufficient for purposes of diversity; it must be coupled with an intent to remain

indefinitely. Krasnov, 465 F.2d at 1300. In determining such intent, courts consider

various circumstances such as voter registration, location of personal and real property,

location of bank accounts, payment of utilities, membership in unions and other

associations, place of employment or business, driver’s license, and payment of taxes.

See 13B Federal Practice and Procedure § 3612. A party’s domicile is determined as of

the moment the complaint is filed. Freeport-McMoRan, Inc. v. K N Energy, Inc., 498

U.S. 426, 428 (1991) (per curiam). In this case, because McCracken was incarcerated

when he filed his complaint, his citizenship is determined by his state of domicile

immediately before being incarcerated. Mitchell v. Brown & Williamson Tobacco Corp.,

294 F.3d 1309, 1314 (11th Cir. 2002); Singletary v. Cont’l Illinois Nat’l Bank & Trust

Co., 9 F.3d 1236, 1238 (7th Cir. 1993) (inmate’s citizenship is the state of which he was a

citizen before his incarceration, unless he plans to relocate upon release).

       It is undisputed that the defendants are citizens of Pennsylvania. In support of

their motion in District Court, the defendants offered evidence to show that McCracken

was also a Pennsylvania citizen. The evidence included McCracken’s acquisition of a

Pennsylvania driver’s license and his application to register his motor vehicle in

Pennsylvania, both in January 2002, just before he was incarcerated in March 2002, and

both reflecting a North Wales, Pennsylvania address.1 The defendants presented




       1
           McCracken states that this is his mother’s address.

                                               3
documentation that McCracken also used the North Wales address in various legal

correspondence, including several lawsuits he filed in Pennsylvania state and federal

courts. The defendants also produced other evidence of McCracken’s ties with the North

Wales address in relation to his motor vehicle accident in 1999, resulting in his retaining

the defendants to represent him in his personal injury lawsuit and involving

correspondence between the parties in the ensuing years. 2 For example, the defendants

noted his signature on a settlement agreement in January 2002 indicating that the North

Wales location had been his address for several months.

       In opposition, McCracken submitted evidence including a New York driver’s

license issued in September 2001, and his testimony that he lived in a weekly rental at the

James Motel in Monroe, New York, between September 2001 and March 2002. He also

presented evidence of having had a Maryland address, including a Maryland driver’s

license issued February 1999, a May 1999 invoice from Metrocall, and a May 2000 police

incident report. McCracken also submitted bank statements from Commerce Bank dated

from October 2001 to February 2002, reflecting the North Wales, Pennsylvania address

but itemizing ATM transactions in New York, New Jersey, and other locations. In his

post-hearing submission to the District Court, McCracken states that, in the months prior

to his March 2002 incarceration, he lived with his fiancee “for extended intermittent




       2
        McCracken’s complaint under review brings state law claims of professional
negligence and other related claims against the defendants, based on their representation
during the personal injury suit.

                                             4
periods” in New Jersey, that they “more often” stayed at motels in the New York, New

Jersey, and Connecticut area, and that he traveled throughout the New York, New Jersey,

Delaware, and Maryland areas during that period. (Affidavit in Support of Opposition to

Defendants’ Motion at 8.)

       Upon consideration of the parties’ briefs and the record, we discern no clear error

in the District Court’s finding that McCracken has not shown that he was domiciled in

New York or any other particular state other than Pennsylvania. For substantially the

same reasoning found in the District Court’s decision, we conclude that McCracken did

not meet his burden to establish diversity of citizenship. See Bettis v. Montgomery, 701

F. Supp. 256, 258 (D. D.C. 1989) (plaintiff cannot establish diversity merely by alleging

that he does not share the same state of domicile as the defendant; domiciles of each of

the parties must be specifically alleged).

       We have considered all of the arguments raised in McCracken’s brief and find

them to be without merit. We note that, to the extent that McCracken believes that the

District Court did not act impartially and exhibited bias and prejudice against him, we see

no evidence of this in the record. McCracken also complains that he was harmed by the

rescheduling of the evidentiary hearing and by the District Court’s refusal to accept any

additional documentary evidence or witness testimony. However, the record indicates

that the parties were advised weeks in advance of the rescheduled hearing date and that

McCracken did not object to the date. There is no indication in the hearing transcript that

McCracken sought to admit any witness testimony or that he had secured any witnesses to

                                             5
testify at the hearing. Furthermore, the hearing transcript reflects that, upon McCracken’s

request at the conclusion of the hearing, the District Court allowed McCracken an

additional seven days to submit additional written argument and documentary evidence.

McCracken did, in fact, submit additional argument and evidence, and the District Court

considered the supplemental submission in rendering its decision.

       We will affirm the District Court’s judgment.




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