Opinion
Stephen Yagman, Plaintiff, Pro se, Venice Beach, CA.
For Paul Lewis Gabbert, Defendant: Edmund Gerard Farrell, III, LEAD ATTORNEY, Gina E Och, Lisa D Angelo, Murchison and Cumming LLP, Los Angeles, CA.
Present: The Honorable Fernando M. Olguin, United States District Judge.
PROCEEDINGS: (IN CHAMBERS) ORDER DISMISSING STATE CLAIMS WITHOUT PREJUDICE
Honorable Fernando M. Olguin, United States District Judge.
Having reviewed all the briefing filed in connection with the Order to Show Cause re: Dismissal for Lack of Jurisdiction (" OSC" ) filed on May 14, 2015, the court concludes as follows.
BACKGROUND
On December 12, 2014, plaintiff Stephen Yagman (" plaintiff" or " Yagman") filed the operative First Amended Complaint (" FAC") against Paul Lewis Gabbert (" defendant" or " Gabbert") (see FAC at ¶ 3), asserting claims for: (1) breach of contract, ( see id. at ¶ 25); (2) fraud, ( see id. at ¶ 26); (3) mail fraud, wire fraud, and extortion, ( see id. at ¶ 27); (4) intentional infliction of emotional distress, ( see id. at ¶ ¶ 28 & 30); (5) negligent infliction of emotional distress, ( see id. at P 29); (6) professional negligence and legal malpractice, ( see id. at ¶ ¶ 31-33); and (7) violation of the Racketeer Influenced and Corrupt Organizations Act (" RICO"), 18 U.S.C. § § 1961, et seq. ( See id. at ¶ ¶ 42-66). On May 14, 2015, the court dismissed the RICO claim with prejudice. (See Court's Order of May 14, 2015, at 9).
Based on the court's independent duty to police its own subject-matter jurisdiction, see Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583, 119 S.Ct. 1563, 1569, 143 L.Ed.2d 760 (1999) (" Article III generally requires a federal court to satisfy itself of its jurisdiction over the subject matter before it considers the merits of a case."), the court issued an OSC regarding whether diversity jurisdiction existed over the remaining state-law claims. (See Court's Order of May 14, 2015, at 9). More specifically, the court ordered plaintiff to provide additional facts regarding his allegations in the FAC that he is a citizen of New York. ( See id. ). In response, plaintiff filed a document entitled " Plaintiff's Declaration and Memorandum in Response to May 14, 2015 Court Order Re: Diversity Jurisdiction" (" Plf. Resp."). Pursuant to the Court's Order of May 14, 2015, defendant filed a document entitled " Response to Plaintiff's Declaration and Memorandum in Response to May 14, 2015 Court Order Re Diversity Jurisdiction" (" Def. Resp."). Although not specifically requested in the OSC, plaintiff filed a document entitled " Reply to Defendant's Response and Request for Judicial Notice, with Respect to Plaintiff's Declaration Regarding Diversity Jurisdiction" (" Reply").
" Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute[.]" Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 1675, 128 L.Ed.2d 391 (1994). The courts are presumed to lack jurisdiction unless the contrary appears affirmatively from the record. DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342 n. 3, 126 S.Ct. 1854, 1861, 164 L.Ed.2d 589 (2006). Federal courts have a duty to examine jurisdiction sua sponte before proceeding to the merits of a case, see Ruhrgas AG, 526 U.S. at 583, 119 S.Ct. at 1569, " even in the absence of a challenge from any party." Arbaugh v. Y& H Corp., 546 U.S. 500, 514, 126 S.Ct. 1235, 1244, 163 L.Ed.2d 1097 (2006). Indeed, " [i]f the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action." Fed.R.Civ.P. 12(h)(3); see Snell v. Cleveland, Inc., 316 F.3d 822, 826 (9th Cir. 2002) (" Federal Rule of Civil Procedure 12(h)(3) provides that a court may raise the question of subject matter jurisdiction, sua sponte, at any time during the pendency of the action, even on appeal.") (footnote omitted).
The party asserting jurisdiction has the burden of establishing subject matter jurisdiction. See Kokkonen, 511 U.S. at 377, 114 S.Ct. at 1675. Federal subject matter jurisdiction may be established on the basis of diversity jurisdiction under 28 U.S.C. § 1332. A district court has diversity jurisdiction " where the matter in controversy exceeds the sum or value of $75,000, . . . and is between citizens of different states[.]" 28 U.S.C. § 1332(a). Citizenship is determined as of the time the lawsuit is filed. Lew v. Moss, 797 F.2d 747, 750 (9th Cir. 1986).
A natural person is a citizen of the state in which he has his domicile, i.e., his " permanent home, where [he] resides with the intention to remain or to which [he] intends to return[.]" Kanter v. Warner-Lambert Co., 265 F.3d 853, 857 (9th Cir. 2001); see also Lew, 797 F.2d at 749-50 (A person'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.") (internal quotation marks and alteration omitted). Determining a person's domicile " involves a number of factors[, ]" Lew, 797 F.2d at 750, including: (1) current residence; (2) voting registration and voting practices; (3) location of personal and real property; (4) location of brokerage and bank accounts; (5) location of spouse and family; (6) membership in unions and other organizations; (7) place of employment or business; (8) driver's license and automobile registration; and (9) payment of taxes. Id. No single factor is determinative. Id.
DISCUSSION
Yagman alleges that he is a citizen of New York and that Gabbert is a citizen of California, and therefore, there is complete diversity among the parties. (See Complaint at ¶ 1; FAC at ¶ 1). The court addresses Yagman's citizenship below by referring to the factors set forth in Lew.
Gabbert requests that the court take judicial notice of several documents. (See Request for Judicial Notice in Support of Defendant Gabbert's Response to Plaintiff's Declaration and Memorandum in Response to May 14, 2015 Court Order Re: Diversity Jurisdiction (" RJN")). Plaintiff objects to several of the documents included in the RJN, (see Reply at 11), however, he does not object to Exhibits 2, 3, 4, 6, and 8. ( See id. ). Because the court does not rely on the objected-to exhibits, Yagman's objections are denied as moot.
A. Current Residence.
Yagman concedes that since November 2010, his current residence has been in California, (see Plf. Resp. at ¶ 3), and that he ceased having a residence in New York in May 2009. ( See id. at ¶ 4). Up until that time, he resided in both California and New York. (Id.). Although Yagman states that he returned to California upon his release from prison because the U.S. Probation Office refused to let him return to New York, he acknowledges that this was because " he had no residence to which to return in New York." (Reply at 9). And even now, five years later, he does not appear to have a residence in that state. (See, generally, Plf. Resp. & Reply). Moreover, as noted by the New York Supreme Court, Yagman had " resided and practiced law" in California prior to November 2010. See Matter of Yagman, 61 A.D.3d 30, 31, 871 N.Y.S.2d 118 (N.Y.App.Div. 2009) (noting that Yagman had been admitted to the California bar " where, at all times relevant herein, he has resided and practiced law.").
B. Voting.
Yagman represents that he has always registered to vote and voted in New York, and has never done so in California. (See Plf. Resp. at ¶ 5). However, Yagman does not address whether he has voted in New York since his felony conviction and incarceration. (See, generally, Plf. Resp.; see also Def. Resp. at 4).
C. Location of Property.
Yagman has personal property in New York, California, and Florida, (see Plf. Resp. at ¶ 6), and " an interest" in real property in New York, for which he has paid taxes since 2006. (Id. at P 7). Between 1983 and 2009, he had two additional interests in real property in New York, ( see id. ), and in 1980 and between 1989 and 1995, he had interests in real property in California. ( See id. ). Yagman does not identify or describe the personal or real property located in any state.
D. Location of Brokerage and Bank Accounts.
Yagman states that he does not have a brokerage account, (see Plf. Resp. at ¶ 8), but does have a bank account in California. ( See id. at ¶ 9). He argues, however, that he only has that account because he is required by the federal government to maintain it. ( See id. ).
E. Location of Spouse and Family.
Yagman's wife resides in California and Florida. (See Plf. Resp. at ¶ 10). Yagman states that he has three " immediate family members" residing in New York, that several of his family members are interred there, and that he has instructed that he also be interred in New York. ( See id. at ¶ 11).
F. Membership in Unions and Other Organizations.
Yagman does not belong to any unions or other organizations. (See Plf. Resp. at ¶ 12). However, Yagman was admitted to the New York Bar in 1975 and to the State Bar of California in August 1976. See Matter of Yagman, 61 A.D.3d at 31; (State Bar of California, Attorney Search (last visited on June 6, 2015)). However, he did not apply for reinstatement after he was suspended for one year from the New York Bar in 1999. See Matter of Yagman, 61 A.D.3d at 31. Subsequently, in 2010, he was disbarred from the California Bar due to his felony conviction. See In the Matter of Stephen G. Yagman, 06-C-13000 (Cal. State Bar Rev. Dept., 2010) (Amended Recommendation of Summary Disbarment); (see also State Bar of California, Attorney Search).
G. Place of Employment or Business.
Yagman represents that he is " not employed" and does not have a business. (See Plf. Resp. at ¶ 13). However, as pointed out by Gabbert, in July 2014 -- a couple of months before the instant case was commenced -- Yagman, in connection with a motion for attorney's fees in another matter pending in this District, submitted a declaration to the court stating that " since November 9, 2010 [he has] functioned as a paralegal assistant." See Thomas, CV 04-8448 DDP (SHx), Dkt. No. 1047-2 (Plaintiffs' Submission of Declaration of Stephen Yagman in Support of Motion for Award of Costs and Attorney's Fees, Pursuant to 42 U.S.C. § 1988(b), Declaration of Stephen Yagman (" Yagman Decl.") at ¶ 1; see also id. at ¶ 9 (" it matters not what my job title is")). In advocating for the fee request, Yagman explained that the case took up the majority of his time from November 2004 to July 2014, and that " from November 2010 to present, a majority of all [his] time working was taken up by [that] case[.]" (Id. at ¶ 11). According to Yagman, he (and his law partners) took the case based on his belief that if they prevailed, they " would get a multiplier[, ]" and he " took the risk, and now the risk should be rewarded" by the court granting the fee request. (Id. at ¶ 10). On December 19, 2014, the district court granted in part the motion for attorney's fees and included in the fee award Yagman's work as an attorney and as a paralegal. See Thomas, CV 04-8448 DDP (SHx), Dkt. No. 1098 (Order re: Attorneys' Fees) at 8-9.
Between 1978 and 1999, Yagman was a shareholder of Yagman & Yagman, and between 1999-2010, he represented that he was a partner in Yagman & Yagman & Reichmann. See Thomas v. County of Los Angeles, CV 04-8448 DDP (SHx), Dkt. No. 1047-3 at 1. Both law firms were located in Venice Beach, California. See id.
Yagman asserts that the above facts do not negate his statement that he is not employed, (see Reply at 6), because he " does legal work for his former law partners -- for which he has not and does not receive any compensation, " ( id.) (emphasis in original), and he " has not worked for compensation or had any business in California since 2008." (Id.). Yagman's assertions are unpersuasive. Yagman asserted, under penalty of perjury, that he worked hundreds of hours for his former firm. (See Yagman Decl. at ¶ 11; RJN, Exh. 3 (Time for Stephen Yagman)). Whether or not he actually received compensation for all that work does not negate or otherwise undermine the fact that he was employed by his former firm to work as a paralegal after his release from custody.
H. Driver's License and Automobile Registration.
Yagman has had a New York driver's license since 1960, which now bears a California address. (See Plf. Resp. at ¶ 14). Moreover, since May 2010, he has had a California driver's license, which he argues is because he was forced to obtain one by the government. ( See id. ). Yagman also claims that he does not have a vehicle " registered or titled in [his] name." ( See id. at ¶ 15). However, as Gabbert notes, in a class action lawsuit Yagman filed on June 18, 2014, against General Motors Company, Yagman alleged that he " is an owner of a 2007 Buick Lucerne." (See Def. Resp. at 7; RJN, Exh. 6, Yagman v. General Motors Co., et al., CV 14-4696 MWF (AGRx), Dkt. No. 1 (Complaint) at ¶ 5). Yagman responds that he did not allege in the class action lawsuit that he was " the" owner of the Buick, but merely that he was " an" owner, (see Reply at 8), and that he " believe[s] he has an equitable ownership interest in the vehicle by virtue of his beneficiary status." (Id.). According to Yagman, " the court called for only legal ownership information and plaintiff has no legal ownership[.]" (Id. at 10).
I. Payment of Taxes.
Yagman has not paid taxes since approximately 2007. (See Plf. Resp. at ¶ 16).
J. Conclusion.
Yagman has presented evidence that he holds a New York driver's license, (see Plf. Resp. at ¶ 14), prior to his conviction or incarceration he voted in New York, ( see id. at ¶ 5), and served on a New York jury. ( See id. at ¶ 17). Yagman's evidence, and his statements that he intends to return to New York, ( see id. at ¶ 18), and to acquire a residence there, ( see id. at ¶ 20), are insufficient to establish that he is domiciled in New York. See Lew, 797 F.2d at 750 (" [D]omicile is evaluated in terms of objective facts, and . . . statements of intent are entitled to little weight when in conflict with facts.") (internal quotation marks omitted); Charles Alan Wright & Arthur R. Miller, 13E Federal Practice & Procedure § 3612, at 549 (3d ed. 2004) (" A party's own declarations concerning the identity of his domicile, particularly with regard to an intent to retain or establish one, as is true of any self-serving statement, are subject to judicial skepticism."). Further, Yagman's evidence is substantially outweighed by the following facts: (1) prior to May 2009, when Yagman ceased having a residence in New York, he resided in both New York and California, (see Plf. Resp. at ¶ 4); (2) he has resided exclusively in California since 2010, ( see id. at ¶ 3); (3) he does not have a residence in New York, (see Reply at 9); (4) his spouse resides in California (and Florida) but not New York, (see Plf. Resp. at ¶ 10); (5) he holds a California driver's license and has a California bank account, ( see id. at ¶ ¶ 9 & 14), and (6) he has worked (apparently on a volunteer basis) for his former California law firm as a paralegal since 2010. (See Reply at 6 & 9). Moreover, prior to his disbarment, Yagman had been a member of the California Bar since 1976. While he was also a member of the New York Bar, he was suspended in 1999, and never sought reinstatement. See Matter of Yagman, 61 A.D.3d at 31. These facts show that as of the filing of the action, Yagman was domiciled in California.
According to Yagman, he worked over 600 hours on one matter alone, (see RJN, Exh. 3 (Time for Stephen Yagman), which does not include approximately 125 hours for which he did not bill his time. ( See id. at 1, n. 1). Yagman does not claim to have performed work in any other state other than California. (See, generally, Plf. Resp.; Reply).
The court finds neutral the evidence relating to the nonpayment of taxes, (see Plf. Resp. at ¶ 16), registration of vehicles, ( see id. at ¶ 15), the location of personal and real property, ( see id. at ¶ ¶ 6-7), and the location of family members other than Yagman's wife. (See id. at ¶ 11).
Yagman argues that his residency is irrelevant. (See Reply at 4). The court disagrees. Although residency is not controlling, it is certainly an important factor in determining a person's domicile. See Lew, 797 F.2d at 750 (current residence one factor among many used to determine domicile); see also Mondragon v. Capital One Auto Fin., 736 F.3d 880, 886 (9th Cir. 2013) (recognizing that " numerous courts treat a person's residence as prima facie evidence of the person's domicile" but declining to reach the issue on the record presented).
Plaintiff asserts that he was forced to move to California, obtain a California bank account, and a California driver's license by the federal government. (See Reply at 10; Plf. Resp. at ¶ ¶ 9 & 14). Plaintiff's assertions are unpersuasive. There is no explanation or evidence as to what branch of the federal government requires plaintiff to maintain a driver's license and bank account. Since driver's licenses are issued by the states, the court is not aware of any branch of the federal government -- and plaintiff did not name a branch in his papers -- that has the authority to require driver's licenses. Finally, assuming Yagman's reference to the federal government is intended to the refer to the Probation Office which would have been responsible for overseeing Yagman while he was on supervised release, Yagman provides no evidence regarding the conditions of his supervised release or even whether he was still on supervised release at the time he filed the instant action. (See, generally, id.). In any event, at least with respect to his California residence, Yagman concedes that he did not have a residence in New York when he was released from custody. (See Reply at 9).
In short, Yagman has not met his burden of establishing diversity jurisdiction. See Kokkonen, 511 U.S. at 377, 114 S.Ct. at 1675. The court, therefore, does not have subject matter jurisdiction over the remaining state-law claims.
Yagman contends that in another matter, Yagman v. Markovich, CV 05-1745 MMM (PJWx), Judge Morrow found that Yagman was a citizen of New York. (See Plf. Resp. at ¶ 22; Errata and Supplement to Plaintiff's Reply to Defendant's Response and Request for Judicial Notice, with Respect to Plaintiff's Declaration Regarding Diversity Jurisdiction at 4). As an initial matter, the Markovich case was filed in March 2005, more than a decade ago, and before plaintiff's conviction. Also, the court cannot determine which set of facts Yagman submitted in connection with the Markovich case, and therefore declines to base its determination on the findings in that case, and instead " views evidence of [Yagman's] citizenship with fresh eyes[, ]" Vesci v. Pac. W. Site Servs., Inc., 2014 WL 2918860, *3 (E.D. Cal. 2014), particularly since federal courts have a duty to examine jurisdiction before proceeding to the merits of a case. See Ruhrgas AG, 526 U.S. at 583, 119 S.Ct. at 1569.
This Order is not intended for publication. Nor is it intended to be included in or submitted to any online service such as Westlaw or Lexis.
CONCLUSION
Based on the foregoing, IT IS ORDERED THAT the remaining state-law claims in the First Amended Complaint are dismissed without prejudice. Judgment shall be entered accordingly.