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Weisskopf v. Marcus

United States District Court, N.D. Illinois, Eastern Division

March 31, 2017

RICHARD DAVID WEISSKOPF, Plaintiff,
v.
PHILIP MARCUS, ORLY OSTERMAN, EDNA BROWNSHTEIN, RUTH EISENMAN, and SILVIO GUTKOWSKY, Defendants.

          MEMORANDUM OPINION AND ORDER

          JORGE L. ALONSO United States District Judge

         Before the Court is defendants' motion to dismiss [6] and plaintiff's motions to remand [14] and to amend [16]. For the reasons set forth below, defendants' motion is granted and plaintiff's motions are denied.

         BACKGROUND

         In April 2016, pro se plaintiff, Richard David Weisskopf, brought a two-count fraud and civil conspiracy claim in the Circuit Court of Cook County against several Israeli citizens-a judge, a psychiatrist, and social workers. (Compl. ¶¶ 1-6.) Plaintiff was married in DuPage County in October 2003 and filed for divorce in Israel in November 2008. (Id. ¶¶ 9-10.) At some unspecified time, plaintiff consulted with the Illinois Department of Child and Family Services (“DCFS”) and was a licensed Illinois foster parent. (Id. ¶ 12.) Plaintiff alleges that from 2009 to 2012 defendants conspired to “ruin plaintiff's life, ” discriminated against him because of his gender and religious beliefs, and used stolen documents from his DCFS file[1] to create a fraudulent diagnosis. (Id. ¶¶ 11, 13, 15.) As a result of defendants' actions, plaintiff contends that his ability to work in child welfare was ruined. (Id. ¶ 19.) Defendants removed the case to this Court in June 2016, invoking diversity jurisdiction, and filed a motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Therein, defendants explain that plaintiff has filed at least three other federal lawsuits against these same defendants for the same underlying conduct that is alleged here. (Defs.' Mem. at 1.)[2]

         STANDARDS

         “A case filed in state court may be removed to federal court if it is one over which the federal district courts have original jurisdiction.” Fournier v. Lufthansa German Airlines, 191 F.Supp.2d 996, 1000 (N.D. Ill. 2002) (citing 28 U.S.C. § 1441(a)). “Federal district courts have original subject matter jurisdiction [when] . . . complete diversity of citizenship exists between the parties . . . [or when] . . . the case arises under the Constitution, laws, or treaties of the United States.” Chirico v. Ceramic Tile Layers Union, Local 67, 13 F.Supp.2d 798, 799 (N.D. Ill. 1998) (citing 28 U.S.C. §§ 1331 and 1332). “The party seeking removal has the burden of establishing federal jurisdiction.” Bac Home Loans Serv., LP v. Tratar, 16-cv-3493, 2016 WL 7324588, at *1 (N.D. Ill.Dec. 16, 2016) (citing Schur v. L.A. Weight Loss Ctrs., Inc., 577 F.3d 752, 758 (7th Cir. 2009)).

         “A motion under Rule 12(b)(6) tests whether the complaint states a claim on which relief may be granted.” Richards v. Mitcheff, 696 F.3d 635, 637 (7th Cir. 2012). Under Rule 8(a)(2), a complaint must include “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). The short and plain statement under Rule 8(a)(2) must “give the defendant fair notice of what the claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (ellipsis omitted). Under federal notice pleading standards, a plaintiff's “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Id. Stated differently, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). “In reviewing the sufficiency of a complaint under the plausibility standard, [courts must] accept the well-pleaded facts in the complaint as true, but [they] ‘need[ ] not accept as true legal conclusions, or threadbare recitals of the elements of a cause of action, supported by mere conclusory statements.'” Alam v. Miller Brewing Co., 709 F.3d 662, 665-66 (7th Cir. 2013) (quoting Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009)).

         DISCUSSION

         Motion to Remand

         Defendants contend that this Court has diversity jurisdiction pursuant to 28 U.S.C. § 1332(a)(2) because defendants are Israeli citizens and plaintiff is an American citizen and because plaintiff seeks over $75, 000 in damages. (Notice of Removal ¶¶ 10, 17-18.) Plaintiff asserts that he is not a citizen of any state. (Pl.'s Mot. at 5-6.) He contends that he has not filed any state or local tax returns since 2012 and that his citizenship cannot be established. (Id. at 6.) Plaintiff also argues that this case does not meet the $75, 000 amount-in-controversy requirement. (Id. at 4-5.) He states that he is seeking a sum in excess of $60, 000 ($30, 000 for each claim) to be determined by a jury. (Id. at 4.) Plaintiff dismisses as baseless defendants' assertion that he is seeking an amount in excess of $20, 000, 000. (Id.) Defendants respond by arguing that their “good-faith estimate” that plaintiff seeks at least $75, 000 is supported by plaintiff's prior lawsuits “involving many of the same defendants and the same alleged injuries.” (Defs.' Resp. at 3.) Defendants further contend that plaintiff has conceded he is an American citizen last domiciled in Illinois. (Id. at 4.) In his reply, plaintiff asserts that because defendants have filed a motion to dismiss they agree that federal court is not the appropriate venue for this action. (Pl.'s Reply at 1.)

         At the outset, the Court notes that defendants' removal was timely. According to plaintiff, summonses were served on defendants on May 19 and 21, 2016. (Notice of Removal Ex. 2.)[3] Because an earlier-served defendant can consent to removal initiated by a later-served defendant, the thirty-day removal clock started on May 21, 2016, making the June 20, 2016 removal timely. See Act II Jewelery, LLC v. Wooten, No. 15 C 6950, 2015 WL 7889039, at *3 (N.D. Ill.Dec. 4, 2015); see also Dultra v. U.S. Med. Home, Inc., No. 13 C 07598, 2014 WL 1347107, at *3 (N.D. Ill. Apr. 4, 2014) (“Formal service is required to trigger the thirty-day clock.”).

         Next, the Court finds the parties are diverse. It is undisputed that all defendants are Israeli citizens living in Israel. Plaintiff admits he is an American citizen. (Pl.'s Resp. at 6.) He adamantly maintains that he is not a citizen of any state, but also does not explicitly argue that he is an alien. While he alleges he was illegally detained in Israel from 2009 to 2012, more recent public records seem to indicate that plaintiff is domiciled in either Illinois or Washington, D.C. (Notice of Removal Exs. 1, 7-11.)[4] In a 2012 lawsuit, plaintiff alleged, and the Court accepted, that he was a Wisconsin resident and not an alien. Weisskopf v. United Jewish Appeal-Fed'n of Jewish Philanthropies of N.Y., Inc., 889 F.Supp. 2d. 912, 916 (S.D. Tex. 2012). Plaintiff is a savvy litigant who appears to pick and choose when he wants to be domiciled in America and when he wants to litigate in federal court, and he crafts his complaint and motions according to those whims. It is impossible for the Court to determine exactly where plaintiff is domiciled (the traditional factors courts consider are not available here), but concludes it is somewhere in the United States. See Newell v. O & K Steel Corp., 42 F. App'x 830, 833 (7th Cir. 2002) (no single factor determines domicile, and courts consider factors such as “current residence, place of employment, location of property, voter registration, driver's license registration, and payment of taxes”). In the last six years, plaintiff has personally appeared at a motion hearing in this case, used Washington, D.C. and Wisconsin addresses in court filings, settled lawsuits related to tax issues in Chicago, filed federal lawsuits in New York, Texas, Pennsylvania, and Wisconsin, and filed at least two state court cases in Illinois. Further, it is clear that plaintiff would rather litigate this case in Illinois state court (unless he is allowed to amend his complaint), and alleges that the underlying fraud and conspiracy occurred at least in part in Illinois. Regardless of where in the United States plaintiff is domiciled, the Court has jurisdiction pursuant to 28 U.S.C. § 1332(a)(2). See Macneil Auto. Prods., Ltd. v. Cannon Auto. Ltd., No. 08 C 0139, 2012 WL 5306281, at *7 (N.D. Ill. Oct. 26, 2012) (jurisdiction existed “because the action involve[d] a citizen of the United States and a citizen . . . of a foreign state[.]”)

         Finally, the Court finds that the amount in controversy has been met. Plaintiff asks for a judgment in excess of $60, 000, costs, and the maximum allowable punitive damages. While plaintiff has not specified an amount of punitive damages, in prior federal lawsuits against four of the five defendants in this case, plaintiff sought one million dollars and twenty million dollars. (Notice of Removal Ex. 5 ¶ 14; Ex. 6 at 50.) The Seventh Circuit recognizes that it is “easier said than done” for defendants to establish jurisdiction “when the plaintiff, the master of the complaint, does not want to be in federal court and provides little information about the value of her claims.” Oshana v. Coca-Cola Co., 472 F.3d 506, 511 (7th Cir. 2006). In such circumstances, “a good-faith estimate of the stakes is acceptable if it is plausible and supported by a preponderance of the evidence.” Id. Here, defendants have submitted evidence to suggest that plaintiff is seeking damages in excess of $75, 000 and plaintiff has failed to show that such recovery is legally impossible. Accordingly, the Court finds that the amount-in-controversy threshold has been met and that it has jurisdiction. Plaintiff's motion to remand is denied.

         Motion ...


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