Portes v. Masferrer

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Felix Portes
v. 	Civil No. 16-cv-393-JL
Eduardo Masferrer
REPORT AND RECOMMENDATION
Felix Portes, a federal prisoner appearing pro se, asserts
a variety of state common-law claims in this action against
Attorney Eduardo Masferrer, who represented Portes in a criminal
action in this court. 	Before this magistrate judge for a report
and recommendation is defendant’s motion to dismiss (Doc. No.
20). 	For the reasons that follow, the district judge should
grant that motion and deny plaintiff’s request for a change of
venue.1
Background
Before he was convicted in this court, Portes resided in
Massachusetts. 	When he filed this action, Portes was
incarcerated at the Strafford County House of Corrections as a
1Plaintiff makes that request in a pleading captioned
“Response to Defendant’s Motion to Dismiss, DE 20” (Doc. No.
24).
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pretrial detainee in the custody of the United States Marshals
Service, pursuant to a detention order issued in his criminal
case. 	Portes has since been sentenced, and has been moved to a
federal prison camp in Pennsylvania.
In his complaint (Doc. No. 1), Portes asserted both federal
and state claims against Atty. Masferrer. 	The federal claims
have all been dismissed. 	See Dec. 21, 2016 Order (Doc. No. 9)
(approving Dec. 6, 2016 R&R (Doc. No. 6)). 	In addition, in a
Report and Recommendation (Doc. No. 6) and Order (Doc. No. 7)
issued December 6, 2016, the court expressed concern that it
might lack diversity jurisdiction over Portes’s state-law
claims, as it appeared that both he and Atty. Masferrer may have
been domiciled in Massachusetts when plaintiff filed this
action. 	Accordingly, the court granted Portes leave to amend
his complaint to demonstrate, through factual allegations and/or
documents, that he and Atty. Masferrer were not domiciled in the
same state. 	See Dec. 6, 2016 Order (Doc. No. 7). 	Portes filed
a response (Doc. No. 8), in which the court found he had
sufficiently alleged facts establishing diversity jurisdiction
to allow the action to proceed. 	Consequently, the court
directed service of Portes’s complaint on Atty. Masferrer, but
“without prejudice to defendant’s ability to move to dismiss on
any proper basis, including jurisdictional grounds.” 	Aug. 17,
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2017 Order (Doc. No. 15), at 2.
Discussion
I. 	Motion to Dismiss
Defendant, in his motion to dismiss (Doc. No. 20), argues
that: (1) the court lacks subject-matter jurisdiction over
plaintiff’s claims because he and plaintiff are not of diverse
citizenship, and because plaintiff has failed to adequately
allege the necessary amount in controversy, see 28 U.S.C. §
1332; Fed. R. Civ. P. 12(b)(1); and (2) plaintiff has failed to
state a claim upon which relief can be granted, see Fed. R. Civ.
P. 12(b)(6). 	In Portes’s December 20, 2016 response (Doc. No.
8) to the court’s December 6, 2016 Report and Recommendation,
Portes asserts that he and Atty. Masferrer are of diverse
citizenship, as Atty. Masferrer is domiciled in Massachusetts,
and Portes, after his incarceration, will be obliged to live in
New Hampshire during a period of court-imposed supervised
release.
A. 	Standard
Under Rule 12(b)(6) of the Federal Rules of Civil
Procedure, the court accepts the factual allegations in Portes’s
complaint, construes reasonable inferences in his favor, and
“determine[s] whether the factual allegations” state a plausible
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claim upon which relief may be granted. 	Foley v. Wells Fargo
Bank, N.A., 772 F.3d 63, 71 (1st Cir. 2014) (citation omitted).
In considering whether the complaint states a claim, the court
is generally limited to considering “‘facts and documents that
are part of or incorporated into the complaint,’” as well as
“‘documents incorporated by reference in [the complaint],
matters of public record, and other matters susceptible to
judicial notice.’” 	Giragosian v. Ryan, 547 F.3d 59, 65 (1st
Cir. 2008) (citations omitted).2 	Because Portes is proceeding
pro se, his pleadings are construed liberally. 	See Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (per curiam).
B. 	Subject-Matter Jurisdiction
“A cause of action may be maintained in federal court only
if it involves a question of federal law, or if the controversy
is between citizens of different states and the amount in
controversy exceeds $75,000.” 	Hall v. Curran, 599 F.3d 70, 71
(1st Cir. 2010) (per curiam) (citing 28 U.S.C. §§ 1331 (federal
question) & 1332 (diversity)). 	Here, the federal claims that
Portes asserted against Atty. Masferrer have been dismissed, so
2For purposes of this Report and Recommendation, the court
has construed the complaint to include the assertions in
Portes’s initial complaint (Doc. No. 1), Portes’s Response (Doc.
No. 8) to the court’s December 6, 2016 Report and
Recommendation, and Portes’s Response (Doc. No. 24) to Atty.
Masferrer’s motion to dismiss.
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the only possible basis for subject-matter jurisdiction in this
court is diversity of citizenship.
“Under generally accepted principles, citizenship is
determined by domicile, which can be established by
demonstrating that the individual is physically present in the
state and has an intent to remain indefinitely.” 	Hall, 599 F.3d
at 72. 	“‘For federal jurisdictional purposes, diversity of
citizenship must be determined as of the time of suit.’”
Harrison v. Granite Bay Care, Inc., 811 F.3d 36, 40 (1st Cir.
2016) (citation omitted); see also Hall, 599 F.3d at 72
(“Domicile is determined at the time the suit is filed.”).
Here, it is undisputed that when Portes filed this suit,
Atty. Masferrer was a citizen of Massachusetts, and Atty.
Masferrer has produced evidence to that effect. 	See Def.’s Mem.
of Law (Doc. No. 21), at 24. 	Thus, the dispositive question in
the court’s determination as to whether the parties are of
diverse citizenship is Portes’s domicile at the time he filed
this action.
When Portes filed this action, he was being held in a
correctional facility in New Hampshire. 	However, “[i]n cases
involving prisoners, the courts presume that the prisoner
remains a citizen of the state where he was domiciled before his
incarceration, even if he is subsequently incarcerated in a
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different state.” 	Hall, 599 F.3d at 72. 	That presumption rests
upon the principle that because “domicile is a voluntary status,
a forcible change in a person’s state of residence does not
alter his domicile; hence the domicile of the prisoner before he
was imprisoned is presumed to remain his domicile while is in
prison.” 	Sullivan v. Freeman, 944 F.2d 334, 337 (7th Cir.
1991). 	While the law presumes that a prisoner retains his pre-
incarceration domicile while incarcerated, that presumption is
rebuttable. 	See Hall, 599 F.3d at 72.
[T]o overcome the presumption, the prisoner must offer
more than conclusory statements and unsupported
allegations. 	“No single factor is dispositive, and
the analysis focuses not simply on the number of
contacts with the purported domicile, but also on
their substantive nature.” 	Relevant factors for the
district court to consider include “the prisoner’s
declaration of intentions, ‘the possibility of parole
. . ., the manner in which [he] has ordered his
personal and business affairs, and any other factors
that are relevant to corroboration of [the prisoner’s]
statements.’”
Id. (citing Valedon Martinez v. Hosp. Presbiteriano de la
Comunidad, Inc., 806 F.2d 1128, 1132 (1st Cir. 1986) (“All that
is required is that the court afford the nonmoving party an
ample opportunity to secure and present evidence relevant to the
existence of jurisdiction.”)) (other internal citations
omitted).
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In this case, the court gave Portes ample opportunity to
secure and present evidence to support his claim to a New
Hampshire domicile. 	Portes’s argument that he should be deemed
domiciled in New Hampshire because, upon his release from prison
he will be compelled to remain in New Hampshire to serve his
term of post-incarceration supervised release, however, does not
satisfy the voluntariness aspect of domicile. 	Cf. Apiceli v.
United States, No. 18-cv-302-JD, 2018 WL 1951192, at *1 n.2
(D.N.H. Apr. 23, 2018) (citing Jackson v. Coalter, 337 F.3d 74,
78-79 (1st Cir. 2003) for the proposition that “supervised
release is sufficient to satisfy the ‘in custody’ requirement of
[28 U.S.C.] § 2255”)).
Because Portes offered nothing more than compelled
residence in New Hampshire after his release from prison, he has
not rebutted the presumption that, when he filed suit, he was
domiciled in Massachusetts. 	Because the plaintiff and defendant
were both citizens of Massachusetts at the time this action was
filed, the court concludes that it lacks subject-matter
jurisdiction over Portes’s state-law claims against Atty.
Masferrer. 	The district judge should therefore dismiss this
action, without prejudice to Portes’s ability to assert his
claims in an action filed in a court of competent jurisdiction.
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C. 	Amount in Controversy and Failure to State a Claim
Because the court finds that the lack of diversity of
citizenship between the parties in this action deprives it of
subject matter jurisdiction in this case, the court declines to
address the defendant’s argument that Portes has failed to
allege a sufficient amount-in-controversy in this matter.
Further, the court declines to address the defendant’s argument
that Portes has failed to state a claim upon which relief may be
granted, without prejudice to the defendant’s ability to assert
those arguments in state court should Portes bring suit there.
II. 	Change of Venue
Apparently in reliance upon his belief that this court had
subject-matter jurisdiction over his state-law claims when he
filed them, Portes has asked the court to transfer this matter
to the Middle District of Pennsylvania, where he is currently
incarcerated. 	The court should not do so.
The federal statute that governs change of venue provides
that “[f]or the convenience of parties and witnesses, in the
interest of justice, a district court may transfer any civil
action to any other district . . . where it might have been
brought . . . .” 	28 U.S.C. § 1404(a). 	While the First Circuit
does not appear to have spoken on the issue of subject-matter
jurisdiction in a transferring district, a judge of this court
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has noted that “‘[t]ransfer under § 1404(a) is possible only if
venue is proper in the original forum and federal jurisdiction
existed there. 	If subject matter jurisdiction is lacking, there
is no power to do anything with the case except dismiss’ or
remand it.” 	Marotta Gund Budd & Dzera LLC v. Costa, 340 B.R.
661, 663 n.2 (D.N.H. 2006) (quoting 15 Charles Alan Wright,
Arthur R. Miller and Edward H. Cooper, Federal Practice &
Procedure § 3844, at 332 (2d ed. 1984 & 2005 supp.)) (emphasis
added); see also 17 James Wm. Moore, Moore’s Federal Practice §
111.14[1], at 111-117 (3d ed. 2017) (explaining that when faced
with a request for change of venue under § 1404(a), “[i]f the
district court determines that it lacks subject matter
jurisdiction, it must dismiss the action”).
Because, for the reasons given in the previous section,
this court lacks subject-matter jurisdiction over plaintiff’s
state-law claims, the court is powerless to do anything other
than dismiss them. 	Thus, the district judge should deny
plaintiff’s request for to transfer this case to the Middle
District of Pennsylvania.
Conclusion
For the reasons detailed above, the district judge should
grant defendant’s motion to dismiss (Doc. No. 20), without
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prejudice to plaintiff’s ability to bring his claims in a court
of competent jurisdiction. 	Further, the district judge should
deny plaintiff’s request for a change of venue (Doc. No. 24).
Any objection to this report and recommendation must be
filed within 14 days of receipt of this notice. 	See Fed. R.
Civ. P. 72(b)(2). 	The 14-day period may be extended upon
motion. 	Failure to file a specific written objection to the
report and recommendation within the specified time waives the
right to appeal the district court’s order. 	See Santos-Santos
v. Torres-Centeno, 842 F.3d 163, 168 (1st Cir. 2016); Fed. R.
Civ. P. 72(b)(2).
__________________________
Andrea K. Johnstone
United States Magistrate Judge
May 29, 2018
cc: 	Felix D. Portes, pro se
Erin K. Higgins, Esq.
Michael J. Rossi, Esq.
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