United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
A. ROSS, UNITED STATES JUDGE
question before the Court is whether diversity jurisdiction
exists. The Court finds that it does not and that this action
must be dismissed.
is incarcerated at FCI Terre Haute, in Terre Haute, Indiana.
On September 12, 1996, plaintiff was convicted in this Court
of distribution ci metnamphetamine. United
States v. Younger, No. 4:96-CR-98 CEJ. The Coun
sentenced him to life imprisonment. Defendant represented
plaintiff in the criminal case and on appeal, United
States v. Younger, No. 97-1024 (8th Cir.). Plaintiff
sues defendant for breach of contract, Invoking diversity
jurisdiction. He alleges defendant took money from him to
"perfect an appeal" in this Court but did not
provide any services in exchange for the money. He says he
resides in Indiana and defendant resides in Missouri.
Court takes judicial notice of state courts' public
records. See Levy v. Ohl, 477 F.3d 988, 991 (8th
Cir. 2007), On December 30, 2015, plaintiff sued defendant
for breach of contract in St. Louis County. Younger v.
Fleming, No. 15SL-CC04464 (21st Cir.). In his verified
complaint, plaintiff stated he "was and is a citizen of
the State of Missouri, and the United States. Plaintiff is
presently incarcerated in the Federal Bureau of Prisons
(BOP), at Terre Haute, Indiana." On June 17, 2016, the
court dismissed the action, without prejudice, for failure to
prosecute. On July 15, 2016, plaintiff moved to set aside the
judgment. He attached a second verified complaint along with
the motion. In the second verified complaint, he reasserts
that he "was and is a citizen of the Stare of Missouri.
. ." Id. Plaintiffs motion to set aside was
pending when this case was filed and remains pending as of
this date. Plaintiff's state complaint concerns the same
transactions and occurrences that are the basis of this case.
Rule 12(h)(3) of the Federal Rules of Civil Procedure, the
Court is required to review new cases and dismiss them if
jurisdiction is lacking. "Federal courts are courts of
limited jurisdiction. The requirement than: jurisdiction be
established as a threshold matter springs from the nature and
limits of the judicial power of the United States and is
inflexible and without exception." Kessler v.
Nat'l Enterprises, Inc., 347 F.3d 1076, 1081 (8th
Cir. 2003) (quotation marks omitted).
has long been held that, for purposes of determining
diversity of citizenship, the controlling consideration is
the domicile of the individual. With respect to die domicile
of prisoners, the traditional rule is that a prisoner does
not acquire a new domicile when he is incarcerated in a
different state; instead, he retains the domicile he had
prior to his incarceration." Jones v. Hadican,
552 F.2d 249, 250 (8th Cir. 1977) (citations omitted). As a
result, the presumption is that plaintiff remains domiciled
November 30, 2016, the Court ordered plaintiff to show cause
why this action should not be dismissed for lack of
jurisdiction. In his response, plaintiff argues that when he
filed the state action he owned a home in Novinger, Missouri,
and so he w*s domiciled here. He says he lost the home on
August 8. 2016, "and  took up domicile in New Castle,
Indiana." He has not submitted anything other than this
unsworn, unsupported declaration with regard to his alleged
change of domicile.
A party's own declarations concerning the identity of his
domicile, particularly with regard to an intent to retain or
establish one. as is true of any self-serving statement, are
subject to judicial skepticism. As many iuierai courts have
made clear, they are accorded little weight by the district
judge when they are in conflict with the facts or a
party's actual conduce A reiared principle estops a party
from pleading domicile differently in subsequent actions on
13E Charles A. Wright, et al., Fed Prac. & Proc.
Juris. § 3612 (3d ed.) (2016) (footnotes omitted).
case, plaintiff's self-serving deviation is contradicted
by his state court pleading, in which he swears his domicile
is Missouri. Plaintiff has not moved to correct the slate
court record since filing this action. Plaintiff's
receive assertion that he has a new domicile in Indiana,
therefore, has no weight in light of his sworn pleadings m
the state court. As a result, the Court finds that it lacks
jurisdiction over the complaint Accordingly, IT IS
HEREBY ORDERED that this action Dismiss without
Order of Dismissal will ...