United States District Court, D. New Hampshire
D. Portes, pro se Erin K. Higgins, Esq. Michael J. Rossi,
REPORT AND RECOMMENDATION
K. JOHNSTONE UNITED STATES MAGISTRATE JUDGE.
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.
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.
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.
Motion to Dismiss
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.
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). Because Portes is proceeding pro se, his
pleadings are construed liberally. See Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (per curiam).
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.
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) ...