Shea v. Koehler

          ORDER

          Philip G. Reinhard Judge

         For the reasons stated below, the court accepts the report and recommendation [419], finds that it lacks subject matter jurisdiction based on diversity of citizenship, and relinquishes supplemental jurisdiction over the remaining state law claims. This case is dismissed without prejudice for lack of subject matter jurisdiction.

         STATEMENT-OPINION

         On September 10, 2014, the court entered an order [151] dismissing all of plaintiff's claims against all of the defendants except for a state law battery claim against Carolyn Koehler. The battery claim proceeded to a jury trial which ended with a jury verdict [362] in favor of the defendant. Judgment [363] was entered on September 14, 2017. Plaintiff appealed and the Court of Appeals vacated the dismissal of state law claims for civil conspiracy, assault, and false imprisonment against Douglas and Carolyn Koehler, battery against Douglas Koehler, and malicious prosecution against Carolyn Koehler, remanded for further proceedings on those claims, and affirmed the judgment on all other claims. Shea v. Winnebago County Sheriff's Dept., 746 Fed. App'x 541 (7^th Cir. 2018).

         In its order, the court of Appeals stated the following:

“We note that, on remand, the district court may consider its discretion to relinquish supplemental jurisdiction over the remaining state-law claims-that is, all of the plausible claims we have identified in this decision. Shea asserts that diversity jurisdiction exists, but that proposition is dubious. At the time he filed his complaint, which named numerous Illinois actors, Shea contended that his ‘residence' was in California, but he also alleged that he had ‘moved' to his mother's home in Illinois with an intent to stay. These allegations are insufficient to establish Shea's ‘domicile,' which is distinct from his ‘residence,' and which is necessary for Shea to meet his burden to show that diversity jurisdiction existed at the time he filed his complaint. If diversity is lacking, the only basis for jurisdiction is Shea's federal statutory claims, which have now all been dismissed. In this situation, there is a ‘general presumption' that the district court will relinquish jurisdiction over the state-law claims, by dismissing the remainder of the suit without prejudice for lack of subject-matter jurisdiction.”

Id. at 550 (citations omitted).

         On remand, the court referred [409] this matter to Magistrate Judge Jensen to resolve the issue of citizenship and to submit a report and recommendation to the court on that issue. Magistrate Judge Jensen received submissions from the parties, conducted an evidentiary hearing, during which she heard testimony from the plaintiff, and issued a report and recommendation [419]. The report and recommendation found that as of the date he filed suit plaintiff was domiciled in, and therefore a citizen of, Illinois and that because some of the defendants were also domiciled in Illinois, plaintiff could not establish diversity of citizenship. 28 U.S.C. § 1332(a)(1). Plaintiff filed an objection [420] to the report and recommendation.^[1] In his objection, he also asks, in the alternative, that if the report and recommendation is accepted, that the judgment [363] entered on the jury verdict [362] and order of dismissal [151] be vacated as to all the state law claims for lack of subject matter jurisdiction.

         Starting with plaintiff's alternative request, plaintiff misapprehends the issue at hand. A federal court can have jurisdiction over state law claims either because it has original jurisdiction over them under the diversity statute (28 U.S.C. § 1332(a)(1)) or because it has supplemental jurisdiction over them (28 U.S.C. § 1367(a)) because the state law claims are related to claims arising under federal law over which the court has original jurisdiction pursuant to the federal question statute (28 U.S.C. § 1331). Plaintiff's second amended complaint alleged several federal claims along with several state law claims. Because the court had original jurisdiction over the federal claims pursuant to 28 U.S.C.§ 1331 it also has supplemental jurisdiction over the state law claims under 28 U.S.C.§ 1367(a) unless and until it declines to exercise supplemental jurisdiction over those claims pursuant to 28 U.S.C.§ 1367(c). Thus, a finding that diversity of citizenship is absent, and therefore that original jurisdiction over the state law claims pursuant to the diversity statute (28 U.S.C. § 1332(a)(1)) is lacking, is not a basis to vacate the judgment [363] entered on the jury verdict [362] and order of dismissal [151] because the court had supplemental jurisdiction over all of the state law claims at the time the judgment was entered.

         When a magistrate judge issues a report and recommendation pursuant to Fed.R.Civ.P. 72(b)(1), a party may file specific written objections to it. Fed.R.Civ.P. 72(b)(2). The objecting party “must promptly arrange for transcribing the record.” Id. “The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to.” Fed.R.Civ.P. 72(b)(3). “But this de novo determination is not the same as a de novo hearing. The district court is not required to conduct another hearing to review the magistrate judge's findings or credibility determinations.” Goffman v. Gross, 59 F.3d 668, 671 (7^th Cir. 1995) (emphasis in original). Plaintiff has not provided a transcript of the evidentiary hearing and therefore has waived any objection to the magistrate judge's findings based on the testimony provided at that hearing. Divane v. Krull Elec. Co., 95 C 2075, 1997 WL 337447 N.D.Ill. June 17, 1997).

         Magistrate Judge Jensen found in her report and recommendation that based on the pleadings, testimony, and affidavits plaintiff had relocated to Illinois on November 22, 2011 with the intent to make Illinois his home indefinitely and as such, beginning on November 22, 2011 plaintiff's domicile for purposes of diversity jurisdiction was Illinois. Magistrate Judge Jensen found plaintiff had not acquired a new domicile prior to filing this case so that at the time plaintiff filed this action plaintiff's domicile remained Illinois. Sadat v. Mertes, 615 F.2d 1176, 1181 (7^th Cir. 1980).

         Plaintiff challenges both the finding that he established his domicile in Illinois in November 2011 and that he did not establish a domicile in a state other than Illinois after being forcibly removed from his mother's house in December 2011. Plaintiff's objection argues that shortly before he moved to Illinois he executed what he believed to be a lawful move to Nevada. He registered to vote, registered his automobile, and secured a driver's license in Nevada. He then moved to Illinois with the purpose of protecting his mother against the actions of his sister and her husband (“Koehlers”). After suffering a beating in his mother's home at the hands of the Koehlers and being arrested and forcibly removed from his mother's home at the instigation of the Koehlers, he returned to California the day after he was released from jail in Illinois. He lived in California with his paralegal for five-and-a-half months prior to filing this case. In his original complaint he alleged he was a citizen of Nevada based on his belief that he was by choice a citizen of Nevada and on his voter and vehicle registrations there. When he filed his first amended complaint, he concluded based on his review of the law that by living in California, “he had been technically a resident of California at the time of filing.” In his second amended complaint he alleged he was a citizen of California.

         “It is well established that the burden of establishing proper federal subject-matter jurisdiction rests on the party asserting it-here, the plaintiff.” Musscarello v. Ogle County Bd. of Commissioners, 610 F.3d 416, 425 (7^th Cir. 2010). In his original complaint (filed May 29, 2012) plaintiff alleged the date the Koehlers attacked him (November 26, 2011) was “less than three-and-a-half days after Ronald Shea established his permanent domicile at his mother's house.” In a declaration he filed May 20, 2019 (seven years after making this allegation in the original complaint), plaintiff stated “[f]rom July 15, 2011 to November 15, 2011 (the three months prior to my November 23^rd permanent relocation to live with my mother) $29, 500.00 disappeared from my mother's brokerage account.” Dkt. 401, p.4. Magistrate Judge Jensen found these statements made prior to the time domicile was raised as an issue to carry more evidentiary weight than his statements made after the domicile issue had been raised- specifically his statement in his brief (Dkt 412, p.2) that his registration to vote in Nevada less than a month prior to moving to Illinois was made “specifically with a view toward not establishing citizenship in Illinois” and his testimony at the evidentiary hearing that while he intended to live with his mother, he had no specific intent as to where they would live and that they had discussed Nevada and Florida. Magistrate Judge Jensen found that at the evidentiary hearing plaintiff testified he never lived at the address on his Nevada voter registration and that he could not recall where in Nevada he lived prior to moving to Illinois.

         Plaintiff argues that his use of the terms “permanent relocation” and “permanent residence” in his original complaint concerning his move to Illinois was at first blush self-contradictory with his assertion in the original complaint that he was a citizen of Nevada. He contends this terminology is inconsistent with the language of the Fourteenth Amendment which defines state citizenship as a function of state residency.^[2] He argues the “permanent” language must be read in light of the original complaint's stated purpose of his relocation which was the protection of his mother. He asserts that since the only stated purpose for his move was the protection of his mother from the Koehlers that his “permanent relocation” was by definition linked to the protection of his mother and would be terminated by her death which he ...