Lefkowitz v. Lider

• Decision Date: 09 January 1978
• Docket Number: Civ. A. No. 76-2264-C.
• Citation: 443 F. Supp. 352
• Parties: Morris LEFKOWITZ, Plaintiff, v. Ralph LIDER et al., Defendants.
• Court: U.S. District Court — District of Massachusetts

443 F. Supp. 352

Morris LEFKOWITZ, Plaintiff, v. Ralph LIDER et al., Defendants.

Civ. A. No. 76-2264-C.

United States District Court, D. Massachusetts.

January 9, 1978.

James A. Murphy, Boston, Mass., for plaintiff.

Donald J. Fleming, Fleming & Brett, Mattapoisett, Mass., Ralph D. Lider, Lider & Lider, New Bedford, Mass., for defendants.

OPINION

CAFFREY, Chief Judge.

This matter came before the Court on defendants' motion to dismiss plaintiff's two-count complaint.

Plaintiff Morris Lefkowitz is a self-styled businessman, inventor, and investor. For the last thirty years, plaintiff says he has been engaged in the textile, furniture, and carpet businesses as a domiciliary and resident of either New Bedford, or North Dartmouth, Massachusetts. Plaintiff claims ownership of at least fifty percent of the voting stock of three Massachusetts corporations. Defendant Bertha Lefkowitz is his wife. He alleges that she owns substantial, though not controlling, shares of the voting stock in two of the three corporations. Defendant Steven H. Lefkowitz is his son, and defendant Mark H. London is his son-in-law. Along with their wives, both Steven H. Lefkowitz and London own smaller, non-controlling shares of the voting stock of two of the corporations. Defendant Ralph D. Lider is a lawyer who formerly represented plaintiff in his personal and business affairs. At some time subsequent to 1972, Attorney Lider served as a prosecuting attorney for the Commonwealth. Defendant Emile E. Morad is a lawyer who represented defendant Bertha Lefkowitz in a domestic relations dispute with plaintiff shortly before this lawsuit was instituted. Defendant Emily Peters is the bookkeeper for the three corporations formerly managed by the plaintiff.

Count 1 of plaintiff's complaint charges that defendants have conspired from at least December 5, 1972 through June 4, 1976: (1) to utilize Mass.Gen.Laws Ann. ch. 272, § 53 (West Supp.1977) as a device to secure the unlawful commitment of plaintiff to a facility of the Massachusetts Department of Mental Health; (2) to unlawfully seize plaintiff's property through guardianship or conservatorship proceedings in Bristol County Probate Court; and (3) to unlawfully apprehend plaintiff and injure his character through a series of arrests for allegedly disturbing the peace and through appearances before the Third District Court of Bristol County, all under color of Mass.Gen.Laws ch. 123, § 12(e) (West Supp.1977). Count 1 further alleges a deprivation of due process and of the assistance of counsel in connection with the Probate and District Court proceedings, in violation of the Fourth, Sixth, and Fourteenth Amendments to the United States Constitution, as well as Articles Twelve and Twenty of Part 1 of the Massachusetts Constitution. As to relief, Count 1 seeks declarations of harassment, of the infringement of various constitutional rights, and of the existence of a constitutional tort. Plaintiff also seeks damages of $2,500,000 in addition to attorney's fees and costs. Count 2, while reiterating most of the allegations in Count 1, also charges that defendants further violated plaintiff's constitutional rights by covering up their conspiracy through the preparation and filing of false financial statements concerning one of plaintiff's businesses. Count 2 separately seeks $2,500,000 damages, as well as attorney's fees and costs.

Plaintiff invokes diversity jurisdiction, 28 U.S.C.A. § 1332, by claiming that he is a resident of New Hampshire while all defendants are residents of Massachusetts. Plaintiff also claims federal question jurisdiction, 28 U.S.C.A. § 1331, because of his allegations of violations of various Amendments to the United States Constitution and of 42 U.S.C.A. § 1983. Inexplicably, plaintiff does not claim jurisdiction under 28 U.S.C.A. § 1343(3). Plaintiff further seeks declaratory relief under 28 U.S.C.A. §§ 2201-02. Venue is properly laid under 28 U.S.C.A. § 1391(b).

All defendants move to dismiss on two grounds: (1) that the Court lacks diversity jurisdiction because the plaintiff, as well as all of the defendants, are citizens of Massachusetts; and (2) failure to state a claim upon which relief can be granted.

Although the Court has had difficulty identifying the precise nature of the substantive state tort action sought to be litigated on the basis of diversity jurisdiction, the instant case will be treated for purposes of this motion as more than a simple § 1983 claim. Though not denominated as such, defendants' challenge to diversity jurisdiction will be considered to be a motion under Fed.R.Civ.P. 12(b)(1) contesting subject matter jurisdiction. Unlike the practice under Fed.R.Civ.P. 12(b)(6), the facts that defendant Lider presents an extensive affidavit on plaintiff's state citizenship and that plaintiff relies on one of his answers to defendants' interrogatories and a photocopy of an affidavit filed in his state divorce action—all of which are outside of the pleadings—does not transform this first prong of the motion to dismiss into a motion for summary judgment. Fed.R.Civ.P. 12(b). Rather, the Court, pursuant to Fed. R.Civ.P. 43(e),¹ has accepted the proffered affidavits and answer to interrogatories as evidence submitted on a motion, and, in addition, has held an evidentiary hearing on the factual issue of plaintiff's state citizenship as of the commencement of this action. See e. g., Webb v. Nolan, 361 F.Supp. 418, 419-20 (M.D.N.Car.1972); Sanial v. Bossoreale, 279 F.Supp. 940, 941 (S.D.N.Y.1967); 5A J. Moore & J. Lucas, Moore's Federal Practice ¶ 52.08, at 2738-39 (1977). See also Brown v. Kingsport Publishing Corp., 321 F.Supp. 1352, 1353 (E.D.Tenn.1971).

It is well-settled law that in a case brought under the Court's diversity jurisdiction, no plaintiff can be a citizen of the same state as any of the parties-defendant. Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267, 2 L.Ed. 435 (1806); Barker v. Lein, 366 F.2d 757, 758 (1st Cir. 1966); Charles Dowd Box Co. v. Fireman's Fund Ins. Co., 303 F.2d 57, 59 (1st Cir. 1962). Equally well established is the rule that the statute conferring diversity jurisdiction, 28 U.S.C.A. § 1332(a), is to be strictly construed. E. g., Thomson v. Gaskill, 315 U.S. 442, 446, 62 S.Ct. 673, 86 L.Ed. 951 (1942). The point in time for assessing the existence of diversity of citizenship is the date of the filing of the complaint. Conolly v. Taylor, 27 U.S. (2 Pet.) 556, 563, 7 L.Ed. 518 (1829); Janzen v. Goos, 302 F.2d 421, 424 (8th Cir. 1962). The fact that diversity of citizenship may be dissipated by a subsequent change of domicile does not defeat jurisdiction if the requisite citizenship was present when the lawsuit was instituted. Television Reception Corp. v. Dunbar, 426 F.2d 174, 177 (6th Cir. 1970); Janzen v. Goos, supra at 424.

Plaintiff's complaint alleges that he was a "resident" of New Hampshire on the critical date of June 8, 1976. A bare statement of residence or address only informs the Court as to where the plaintiff lives, not of which state he is a citizen and domiciliary. E. g., John Birch Society v. National Broadcasting, 377 F.2d 194, 199 (5th Cir. 1967). Thus, standing alone, an allegation that a party is a resident of a state is not a sufficient allegation of citizenship for purposes of 28 U.S.C.A. § 1332(a)(1) to survive a motion to dismiss. E. g., Delome v. Union Barge Line Co., 444 F.2d 225, 233 (5th Cir. 1971); Shriner v. Stong, 229 F.Supp. 71, 72-73 (N.D.Ill.1964). But the Court, in its power to survey the whole record, see, e. g., Sun Printing & Publishing Assn. v. Edwards, 194 U.S. 377, 382, 24 S.Ct. 696, 48 L.Ed. 1027 (1904); John Birch Society v. National Broadcasting Co., supra at 199, believes that plaintiff's pleading defect is cured by his interrogatory answer that he was "domiciled" in New Hampshire.

Because there has been no adjudication of plaintiff's alleged incompetency or insanity, nor any proffer of evidence thereof, the Court presumes that Mr. Lefkowitz was sui juris on June 8, 1976, and thus capable of effecting a bona fide change of domicile at an earlier date. See Janzen v. Goos, supra at 424-25. Since defendants have challenged plaintiff's allegation of domicile, the burden of proving the jurisdictional fact of a diversity of citizenship now rests with plaintiff, and must be proven by a preponderance of the evidence. E. g., Thomson v. Gaskill, supra 315 U.S. at 446, 62 S.Ct. 673. The Court will treat the issue of plaintiff's citizenship as one of fact and make a finding as to whether plaintiff has proven New Hampshire domicile by a preponderance of the evidence. Janzen v. Goos, supra at 423-24; Travis Mills Corp. v. Square D. Co., 67 F.R.D. 22, 25 (E.D.Pa. 1975); 5A J. Moore & J. Lucas, Moore's Federal Practice ¶ 52.08, at 2738-39 (1977). The controlling standard for determining the acquisition of citizenship in a new state has often been articulated by the Supreme Court:

To effect a change of one's legal domicil, two things are indispensable: First, residence in a new domicil; and, second, the intention to remain there. The change cannot be made, except facto et animo. Both are alike necessary. Either without the other is insufficient. Mere absence from a fixed home, however long continued, cannot work the change. Mitchell v. United States, 21 Wall. 350 22 L.Ed. 584.

Sun Printing & Publishing Assn. v. Edwards, supra 194 U.S. at 383, 24 S.Ct. at 698.

Having considered the entire official file, and the oral and documentary evidence introduced at the hearing, I make the following findings of fact. Plaintiff has lived and managed his various businesses in New Bedford since the end of World War II. Plaintiff alleges that as of June 8, 1976, the date of the complaint, he was a former subject of the Commonwealth of Massachusetts who now "resides" in Rockingham County, New Hampshire, where he had taken sanctuary from defendants' alleged unconstitutional harassment. In a photocopy of an...