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Portes v. Masferrer

United States District Court, D. New Hampshire

May 29, 2018

Felix Portes
v.
Eduardo Masferrer

          Felix D. Portes, pro se Erin K. Higgins, Esq. Michael J. Rossi, Esq.

          REPORT AND RECOMMENDATION

          ANDREA K. JOHNSTONE UNITED STATES MAGISTRATE JUDGE.

         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 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, 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 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 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) ...


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