Smith v. All persons claiming a present or future Interest

DISTRICT COURT OF THE VIRGIN ISLANDS
DIVISION OF ST. THOMAS AND ST. JOHN
IDA SMITH,
Plaintiff,
v.
ALL PERSONS CLAIMING A PRESENT OR
FUTURE INTEREST IN ESTATE 13,
FRIIS, BAB FRIIS NO. 1, ESTATE 15,
CONCORDIA A., CORAL BAY QUARTER,
ST. JOHN, UNITED STATES VIRGIN
ISLANDS EXCEPT THE UNITED STATES
OF AMERICA, NATIONAL PARK SERVICE,
Defendants.
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) 	Civil No. 2011-41
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ATTORNEYS:
Ida Smith
New York, NY
Pro se plaintiff.
Matthew J. Duensing, Esq.
Stryker, Duensing, Casner & Dollison
St. Thomas, U.S.V.I.
For the defendants all persons claiming a present or future
interest and Clotte Diede.
Maria Takenson Hodge, Esq.
Hodge & Francois
St. Thomas, U.S.V.I.
For the defendants Paul Hoffman; Jane Hoffman Walker; and
David A. Bornn, Trustee of the GAF Trust.
Rafael F. Muilenburg, Esq.
Morrisette & Muilenburg
St. John, U.S.V.I.
For the defendants William E. Smith; Eloise V. Smith;
Deborah Pillorge; Claudette C. Hartshorn; Scott L.
Hartshorn; Linda V. Smith-Francis; and George Pillorge.
Gloria McGowan
Pro se defendant.
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Smith v. All Persons Claiming a Present or Future Interest, et al.
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Wayne Chesterfield
Pro se defendant and cross claimant.
Monique Francois
Pro se defendant.
Pedrito Francois
Pro se defendant.
Joseph Palminteri
Pro se defendant.
W. Mark Hillsman, Esq.
Law Offices of Norman P. Jones, P.C.
St. Thomas, U.S.V.I.
For the defendants Carrie Glenn; Lori Jane Snack; William
B. Poppelton; Lorraine A. Poppelton; Maria K. Sturaitis;
Charles M. Purdue; Monica Purdue; Salt Pond Vista, LLC;
Heinz G. Fisher; Linda G. Burdet, Trustee of the Heinz G.
Fisher; Safia B. Durante; Donald Durante.
Marc Kave
Pro se defendant.
Emily J. Bratton
Pro se defendant.
Rick Hathaway
Pro se defendant.
Rene A. Servant
Pro se defendant.
Marie Therese Servant
Pro se defendant.
Brian K. Walden
Pro se defendant.
John H. Benham, III, Esq.
Watts, Benham & Sprehn, P.C.
St. Thomas, U.S.V.I.
For the defendant Stanley Selengut.
Mark D. Hodge, Esq.
Hodge & Francois
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Smith v. All Persons Claiming a Present or Future Interest, et al.
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St. Thomas, U.S.V.I.
For the defendants Kevin M. Walsh and Treasure View LLC.
Scott E. Wilmoski
Pro se defendant.
Jozef Nemeth
Pro se defendant.
Nancy Nemeth
Pro se defendant.
Fred S. Patterson
Pro se defendant.
Margaret D. Patterson
Pro se defendant.
John R. Perqulizzi
Pro se defendant.
Terryhill Entrprises, II
Pro se defendant.
Missouri LLC
Pro se defendant.
Craig E. Mitchell
Pro se defendant.
Michael E. Fitzsimmons, Esq.
Stryker, Duensing, Casner & Dollison
St. Thomas, U.S.V.I.
For the defendant Alan Martin Kaufman.
Ann McCrave
Pro se defendant.
Jeffrey J. McCrave
Pro se defendant.
William R. Kincer
Pro se defendant.
Susan B. Kincer
Pro se defendant.
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Smith v. All Persons Claiming a Present or Future Interest, et al.
Civil No. 2011-41
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Susan Greer Littlefield
Pro se defendant.
Kurt Shore
Pro se defendant.
Suzanne L. Shore
Pro se defendant.
Dorothy Janosko (also known as “Dorothy K. Janoko”)
Pro se defendant.
MEMORANDUM OPINION
GÓMEZ, C.J.
In March, 2011, Ida Smith (“Smith”), a New York resident,
filed this action to determine boundaries and to quiet title to
various parcels of property in St. John, United States Virgin
Islands. Smith asserted that this Court has subject matter
jurisdiction based on diversity of citizenship. Smith brought
this action against “all persons claiming a present or future
interest” in the property.
Smith filed an amended complaint. Subsequently, Smith filed
a motion for leave to file a second amended complaint. Smith did
not allege the citizenship of each party. As such, the
Magistrate Judge issued a report and recommendation which
recommended that Smith’s motion be denied as futile.
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The Court adopted the Magistrate’s report and
recommendation. Thus, Smith’s motion for leave to file a second
amended complaint was denied.
Smith filed a second motion for leave to file a second
amended complaint. In her proposed second amended complaint
Smith alleged the citizenship of all parties to the action with
the exception of William B. Poppelton and Lorraine A. Poppelton
(collectively referred to as “the Poppeltons”), and Donald
Durante and Safia Durante (collectively referred to as “the
Durantes”). Smith, in pertinent part, alleged that “[a]ll of the
defendants listed in the caption under Estate 15 Concordia A
also have citizenship diverse from the Plaintiff’s ... with the
exception of the Durantes and the Poppeltons having residences
in New York as [does] the Plaintiff.” (Proposed Am. Compl. 3-4,
ECF No. 194). In her supporting memorandum Smith asserted that
“all defendants except two (the Durantes and the Poppeltons)
have citizenship diverse to the Plaintiff’s.” (Mem. in Supp. of
Mot. for Leave to File Second Am. Compl. 3, ECF No. 192).
In a February 1, 2012, order, the Court denied Smith’s
second motion as futile. The Court also ordered the parties to
brief whether this Court has subject matter jurisdiction over
this matter.
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Smith submitted a brief as ordered by the Court. Smith
requests a hearing to “align the parties to produce the
necessary diversity of citizenship.” (Pl.’s Br. 3, ECF No. 215).
The Court received a joint brief from Treasure View, LLC
(“Treasure View”), Kevin Walsh (“Walsh”), Paul Hoffman, David A.
Bornn as Trustee of the GAF Trust (successor in interest to
Gloria McGowan), and Jane Hoffman Walker, (collectively referred
to as the “Friis Owners”).1 The Court received a brief from Wayne
Chesterfield. The Court also received a joint brief from William
E. Smith, Eloise V. Smith, and Linda V. Smith-Francis.
II. DISCUSSION
28 U.S.C. § 1332, in pertinent part, provides that “[t]he
district courts shall have original jurisdiction of all civil
actions where the matter in controversy exceeds the sum or value
of $75,000, exclusive of interest and costs, and is between ...
Citizens of different States...” 28 U.S.C. § 1332(a)(1).
“Where the jurisdiction of the federal court is invoked on
the basis of diversity of citizenship, the pleadings should
affirmatively disclose that such diversity exists.” Osthaus v.
Button, 70 F.2d 392, 393 (3d Cir. 1934).
1 The Friis Owners assert that “the Court lacks subject matter jurisdiction in
this matter based upon diversity of citizenship, and Plaintiff has failed to
offer any valid alternative basis for subject matter jurisdiction.” (Defs.’
Br. 4, ECF No. 214). As such, they argue that this action should be dismissed
with prejudice.
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Smith v. All Persons Claiming a Present or Future Interest, et al.
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A naked averment that one is a ‘domiciliary’ or a
‘resident’ of a state is insufficient. The statute
requires that the averment be that one is a ‘citizen’
of a state. ‘The whole record, however, may be looked
to, for the purpose of curing a defective averment of
citizenship ... and if the requisite citizenship, is
anywhere expressly averred in the record, or facts are
therein stated which in legal intendment constitute
such allegation, that is sufficient.’
Tanzymore v. Bethlehem Steel Corp., 457 F.2d 1320, 1324 n.5 (3d
Cir. 1972)(quoting Sun Printing & Publishing Ass’n. v. Edwards,
194 U.S. 377, 382 (1904))(emphasis added).
III. ANALYSIS
Smith asserts that the Court has subject matter
jurisdiction based on diversity of citizenship. Smith also
asserts that her alignment of the parties is not binding on the
Court in determining whether diversity of citizenship exists.
She argues that “[t]he Court has the affirmative duty to
determine whether the ‘necessary collision of interests’ exists
between the opposing parties.” (Pl.’s Br. 9-10, ECF No. 215).
“In determining the alignment of the parties for
jurisdictional purposes, the courts have a ‘duty’ to ‘look
beyond the pleadings and arrange the parties according to their
sides in the dispute.’” Development Finance Corp. v. Alpha Hous.
& Health Care, 54 F.3d 156, 159 (3d Cir. 1995)(citing
Indianapolis v. Chase Nat’l Bank, 314 U.S. 63, 69
(1941))(emphasis added). “Opposing parties must have a
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‘collision of interests’ over the ‘principal purpose of the
suit.’” Alpha, 54 F.3d at 159 (citing Indianapolis, 314 U.S. at
69).
In Development Finance Corp. v. Alpha Hous. & Health Care,
54 F.3d 156 (3d Cir. 1995), Development Finance Corp. (“DEFCO”)
and The National Housing and Health Care Trust, Inc. (“National
Housing”) brought a breach of contract action against Alpha
Housing & Health Care, Inc. (“Alpha”) in federal district court.
“Federal jurisdiction for the original claims [was] based on the
diversity of citizenship between plaintiffs and defendant
pursuant to 28 U.S.C. § 1332.” Id. at 158.
Thereafter, Sylvan Associates, Inc. (“Sylvan”), sole member
of Alpha, filed a motion to intervene as a defendant. The
district court denied the motion. Sylvan then filed a motion to
intervene as a third-party plaintiff. Sylvan sought to enjoin
the performance of Alpha’s contracts with DEFCO and National
Housing. The district court denied Sylvan’s motion. Sylvan
appealed.
On appeal, the Third Circuit addressed the issue of subject
matter jurisdiction. Specifically, the Circuit addressed whether
Sylvan’s claims were properly before the district court. Sylvan
conceded that “there [was] no diversity of citizenship between
itself and Alpha; both are Pennsylvania corporations.” Id.
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Smith v. All Persons Claiming a Present or Future Interest, et al.
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The Circuit determined that “where party designations have
jurisdictional consequences, we must align the parties before
determining jurisdiction.” Id. at 160 (internal citation
omitted). In aligning the parties, the Third Circuit found that
The “principal purpose” of the suit by DEFCO and
National Housing is to enforce their agreements with
Alpha. Both Alpha and Sylvan seek to set aside their
agreements, paying at most the “equitable
compensation” required by 15 Pa.C.S. § 5503(a).
Although Sylvan’s claim nominally opposes Alpha, in
fact the basic interests of Alpha and Sylvan coincide
with each other and collide with those of DEFCO and
National Housing over the principal issue of the case.
The ‘actual adversity of interest’ pits Alpha and
Sylvan against DEFCO and National Housing.
Consequently, Sylvan must be aligned with Alpha as a
defendant. Sylvan’s motion to intervene should be
treated as raising a cross-claim against Alpha and a
counterclaim against DEFCO and National Housing.
Alpha, 54 F.3d at 160.
Here, the “principal purpose” of Smith’s suit is to claim
superior title to, and to determine the boundary lines of, a
specific parcel of real property (“Estate 14”). The Durantes and
the Poppeltons own interests in property on an adjoining parcel
of real property (“Estate 15”). Smith’s claim to determine the
boundaries of Estate 14 includes the boundary between Estate 14
and Estate 15. As such, the basic interests of Smith collide
with those of both the Durantes and the Poppeltons “over the
principal issue of the case.” See Alpha, 54 F.3d at 160. The
“actual adversity of interest pits” Smith against the Durantes
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and against the Poppletons. See id. at 159-60 (explaining that
“[i]n this circuit we have described the alignment inquiry as
one which obliges the court to penetrate the nominal party
alignment and to consider the parties’ actual adversity of
interest”)(internal citation omitted). As such, the current
alignment is appropriate.
Smith, as the party asserting diversity jurisdiction,
“bears the burden of proving that the federal court has
jurisdiction.” McCracken v. Murphy, 129 Fed. Appx. 701, 702 (3d
Cir. 2005)(citing McNutt v. General Motors Acceptance Corp., 298
U.S. 178, 188-89 (1936)). Smith must prove “that diversity of
citizenship exists by a preponderance of the evidence.”
Washington v. Hovensa LLC, 652 F.3d 340, 345 (3d Cir. 2011)
(citing Krasnov v. Dinan, 465 F.2d 1298, 1301 (3d Cir. 1972)).
Smith does not allege her citizenship in her proposed
amended complaint. She alleges only that she is a “resident” of
New York. However, Smith states in another part of the record
that “[p]laintiff is a citizen of New York.” (Pl.’s Br. 4, ECF
No. 215). Such a statement is sufficient to evidence Smith’s
citizenship for the purpose of determining whether diversity of
citizenship exists. See generally Shamoon Industries, Inc. v.
Imperato, 338 F.2d 449 (3d Cir. 1964)(finding that the pleadings
and record revealed facts that were inconsistent with the
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Smith v. All Persons Claiming a Present or Future Interest, et al.
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plaintiff’s allegation of jurisdiction based on diversity of
citizenship).
With respect to the Durantes and the Poppeltons, Smith
merely alleges that they have “residences” in New York. Such an
allegation is inadequate to plead citizenship. See Tanzymore v.
Bethlehem Steel Corp., 457 F.2d 1320, 1324 n.5 (3d Cir.
1972)(explaining that “[a] naked averment that one is a
‘domiciliary’ or a ‘resident’ of a state is insufficient.”)
Indeed, in at least two instances, Smith concedes that
there is no complete diversity of citizenship. First, Smith
states in her proposed second amended complaint that “[a]ll of
the defendants listed in the caption under Estate 15 Concordia A
also have citizenship diverse from the Plaintiff’s ... with the
exception of the Durantes and the Poppeltons...” (Proposed Am.
Compl. 3-4, ECF No. 194)(emphasis added). Second, in her brief
regarding the Court’s subject matter jurisdiction, she asserts
that the Court should realign the parties to “produce the
necessary diversity of citizenship.” (Pl.’s Br. 11, ECF No.
215)(emphasis added).
Based on the record, the Court finds that Smith has failed
to prove “that a diversity of citizenship exists by a
preponderance of the evidence.” See Washington v. Hovensa LLC,
652 F.3d 340, 345 (3d Cir. 2011)(internal citation omitted); see
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also Ramsey v. Mellon Nat’l Bank & Trust Co., 350 F.2d 874, 878
(3d Cir. 1965)(“Undoubtedly, the burden of proving diversity of
citizenship is on the plaintiff.”)
Smith also asserts that the Court has jurisdiction over the
territorial law claims in “this matter pursuant to Title 28
U.S.C. § 1367...” (hereinafter referred to as “Section 1367”).
(Pl.’s Br. 1, ECF No. 215). Indeed, all of Smith’s claims are
territorial law claims. Section 1367 governs a district court’s
supplemental jurisdiction. Smith, however, does not assert a
valid basis for original jurisdiction in this Court. As such,
Smith’s argument is unavailing. See 28 U.S.C. § 1367 (a)(2012)
(instructing that “[e]xcept as provided in subsections (b) and
(c) ... in any civil action of which the district courts have
original jurisdiction, the district courts shall have
supplemental jurisdiction over all other claims that are so
related to claims in the action within such original
jurisdiction that they form part of the same case or controversy
under Article III of the United States Constitution....”)
(emphasis added).
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IV. CONCLUSION
For the reasons discussed above, the Court will dismiss
this matter for lack of subject matter jurisdiction. An
appropriate order follows.
S\
Curtis V. Gómez
Chief Judge
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