United States District Court, N.D. Illinois, Western Division
Ronald R. Shea, Plaintiff,
v.
Douglas Koehler and Carolyn Shea Koehler, Defendants.
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 (7th 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 (7th 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 (7th
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
(7th 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 23rd 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
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