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Brimm v. Genao-Gomez

United States District Court, D. Montana, Missoula Division

October 28, 2014

TROY DOUGLAS BRIMM, Plaintiff,
v.
DIOMEDES GENAO-GOMEZ, MARIA CORNELIA MARTlNEZ-TOMAS, BERNARDO SILVERIO, ROMITA RODRIGUEZ, D.S.G.M., and J.A.R.P., Defendants.

ORDER

DANA L. CHRISTENSEN, Chief District Judge.

United States Magistrate Judge Jeremiah C. Lynch entered his Findings and Recommendations on July 10, 2014, recommending that Troy D. Brimm's ("Brimm") Complaint be dismissed for lack of subject matter jurisdiction. Judge Lynch further found Brimm's Complaint frivolous and malicious and recommended that the dismissal count as a strike pursuant to 28 U.S.C. § 1915(g). Judge Lynch recommended that a certificate of appealability be denied. Brimm timely objected to the Findings and Recommendations and is therefore entitled to de novo review ofthe specified findings or recommendations to which he objects. 28 U.S.C. § 636(b)(I). For the reasons stated below, the Court adopts Judge

Lynch's Findings and Recommendations in full.

Brimm is a federal prisoner proceeding pro se. Because Brimm moved to proceed in forma pauperis, Judge Lynch conducted a preliminary screening ofthe Complaint under Title 28 U.S.C. § 1915(e)(2). Judge Lynch then examined whether the Court has jurisdiction over this action. Insurance Corp. ofIre/and, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702 (1982).

I. Subject Matter Jurisdiction

Based on the examination ofjurisdiction, Judge Lynch found that Brimm is domiciled in the Dominican Republic and is therefore "stateless." A United States citizen who is domiciled abroad is "stateless" for purposes ofsubject matter jurisdiction and cannot sue or be sued in federal court based on diversity jurisdiction. Newman-Green, Inc. v. AlJonzo-Larrain, 490 U.S. 826, 828 (1989).

Judge Lynch's finding was based on information from the underlying criminal case in which Brimm was convicted. In that case, Brimm stipulated that "[f]rom October 20, 2009 through May 8, 2012, the defendant did not travel outside ofthe Dominican Republic." United States v. Troy Doug/as Brimm, 1:12cr-20482-KMM (S.D. Florida, Doc. 48 filed Aug. 28, 2012). During his time in the Dominican Republic, Brimm lived in at least three different apartments. United States v. Troy Doug/as Brimm, 1:12-cr-20482-KMM (S.D. Florida, Doc. 66: Trial Transcript at 10-11, 62, 65, 73). Brimm also failed to self-surrender after the Ninth Circuit Court ofAppeals affirmed the revocation ofhis supervised release from a different prior criminal conviction. Appellee's Br. at 49-50, United States v. Troy Brimm, (11th Cir. June 25, 2014) (No. 13-10392, available on PACER). Brimm remained in the Dominican Republic for 18 months following the revocation ofhis supervised release and only returned to the United States when he was arrested and extradited. Id.

Brimm objects to Judge Lynch's finding that he is "stateless" and claims that he is domiciled in Montana. As the party asserting diversity jurisdiction, Brimm bears the burden ofproving he is domiciled in Montana. Lew v. Moss, 797 F.2d 747, 749 (9th Cir. 1986). To support his claim, Brimm states that he "fully intends to remain [in Montana] permanently or indefinitely.'" (Doc. 6 at 8.) He provides a general affidavit which simply declares he is domiciled in Montana and that he intends "to remain there indefinitely." (Doc. 6-1 at 8.) He alleges that Montana is where his personal and real property is located, where he last paid taxes, where his mother lives, and where he maintains a business address. The nominal exhibits Brimm provides to support these claims consist of a single page from a 2009 1099 form, California bank account statements, and a health insurance statement that all list a Libby Montana address.

To be a citizen of a state within the meaning ofTitle 28 U.S.C. § 1332, a person must be domiciled within the state. Lew, 797 F.2d at 749. An individual's domicile is the "location where he or she has established a fixed habitation or abode in a particular place, and [intends] to remain there permanently or indefinitely.'" Id. at 749-750 (quoting Owens v. Hunting, 115 F.2d 160, 162 (9th Cir. 1940)). Courts evaluate domicile "in terms of objective facts, ' and [] statements ofintent are entitled to little weight when in conflict with facts.'" Id. at 750. (quoting Freeman v. Northwest Acceptance Corp., 754 F.2d 553, 556 (5th Cir. 1985)).

The Court is unconvinced by Brimm's claim that he is domiciled in Montana. Brimm's statements ofintent in his objections and affidavit are entitled to little weight. Id. Brimm only lived in Montana for a period of four months, from April to October of 2009, before departing to the Dominican Republic. He did not return to the United States until he was extradited in May 2012. These objective facts lead the Court to conclude that Brimm intended to stay in the Dominican Republic indefinitely. Brimm's exhibits do not establish a Montana domicile. At most, these exhibits prove that he listed his mother's address in Montana for his California bank accounts and health insurance. Furthermore, the 1099 he provides does not indicate that it was filed in Montana. The Court agrees with Judge Lynch's determination that Brimm was domiciled in the Dominican Republic and is consequently "stateless." The Court therefore lacks subject matter jurisdiction. Moreover, Brimm's complaint must be dismissed because of other obvious and independent deficiencies.

II. Personal Jurisdiction

An in forma pauperis complaint which can allege no set of facts that would support personal jurisdiction may be deemed frivolous and dismissed sua sponte. Sanders v. U.S., 760 F.2d 869, 871 (11th Cir. 1985); Martin-Trigona v. Smith, 712 F.2d 1421, 1424 (D.C. Cir. 1983). The Court thus undertakes a sua sponte review of personal jurisdiction here.

There is no applicable statute governing personal jurisdiction in this case; thus, the Court must apply the law of Montana. King v. American Family Mut. Ins. Co., 632 F.3d 570, 578 (9th Cir. 2011). The Ninth Circuit recognizes that Montana's long arm-statute "permit[s] the exercise ofpersonal jurisdiction over nonresident defendants to the maximum extent permitted by federal due process." Davis v. Am. Family Mut. Ins. Co., 861 F.2d 1159, 1161 (9th Cir. 1988). The jurisdictional analysis, therefore, is the same under Montana law and federal due process. King, 632 F.3d at 579. In order to establish personal jurisdiction under the federal due process analysis, "the defendant must have certain minimal contacts with the forum such that the maintenance ofthe suit does not offend traditional notions offair play and substantial justice." Data Disc, Inc. v. Sys. Tech. Associates, Inc., 557 F.2d 1280, 1287 (9th Cir. 1977) (citing Inti. Shoe Co. v. Wash., 326 U.S. 310, 316 (1945)).

Brimm has the burden ofestablishing that the Court has jurisdiction over the Defendants. Davis, 861 F.2d at 1161. Brimm alleges no facts to support the Court's exercise ofpersonal jurisdiction over the Defendants. Brimm claims that all the Defendants are citizens and residents ofthe Dominican Republic. (Doc. 2 at 1-2.) Moreover, all events forming the alleged basis ofthe action occurred in the Dominican Republic. (Doc. 2 at 2.) The Defendants have no alleged contacts with Montana. At least one Defendant had never been out ofthe Dominican Republic before testifying ...


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