Bethany Farmer v. Roger Fisher ( 2010 )

                                File Name: 10a0460n.06
                                               No. 09-3240                                 FILED
                                                                                        Jul 28, 2010
                               UNITED STATES COURT OF APPEALS                     LEONARD GREEN, Clerk
                                    FOR THE SIXTH CIRCUIT
    BETHANY FARMER,                    )
         Plaintiff-Appellant,          )
    v.                                 )                        On Appeal from the United States
                                       )                        District Court for the Southern
    ROGER FISHER; SAM ROBERTSON; KAREN )                        District of Ohio
         Defendants-Appellees.         )
    Before:          BOGGS, ROGERS, and COOK, Circuit Judges
              PER CURIAM. Bethany Farmer appeals the order of the district court denying her motion
    to vacate its earlier judgment dismissing with prejudice Farmer’s complaint, which sought punitive
    and compensatory damages from the appellees for various torts allegedly committed during Farmer’s
    childhood. Farmer’s complaint alleged that, during the course of a bitter custody dispute between
    her parents in the State of Ohio’s court system in 1995 and earlier, the defendants–appellees
    breached various professional duties owed to Farmer by virtue of their testimony and arguments to
    the Ohio courts, which Farmer characterized as designed to ensure that she would be placed in the
    sole custody of her allegedly abusive and neglectful father. According to the complaint, Roger
    Fisher was a clinical psychologist with whom Farmer had a doctor–patient relationship; Sam
    Robertson and Karen Christian were psychiatrists with whom Farmer had doctor–patient
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    relationships; and Debra Rothstein was an attorney with whom Farmer had an attorney–client
           Though the record in this case is somewhat unclear as to the disposition of the custody action
    in question, it is evident that at some point Farmer left the United States in the company of her
    mother and remained abroad at least up until the time she filed suit against the defendants, a period
    of several years. Her brief on appeal discloses that “[f]rom the age of eight to the present, [Farmer]
    has resided in Europe as a result of her mother’s decision to remove her to escape claimed sexual
    abuse at the hands of [her] biological father.” In a motion seeking appointed counsel in the district
    court below, Farmer alleged that, “[d]esperate to avoid returning to the possession of a man she
    feared and hated, complainant, along with her mother, was forced to take drastic action by moving
    out of the country.” Farmer appears to have remained in Europe indefinitely; though in her
    complaint she alleges that she “is an eighteen (18) year old female citizen of the United States of
    America,” the complaint—and the rest of the record—contains no representation that she is a citizen
    of any particular state, and indeed the complaint appears to identify her residence as “various
    European locations.”
           Acting pro se, Farmer filed her complaint in the district court on March 13, 2006, alleging
    that each of the defendants–appellees were citizens of Ohio and that “[t]his court has jurisdiction
    over this action pursuant to 28 U.S.C. 1332, as there is complete diversity of citizenship between the
    parties and the damages exceed $75,000 exclusive of costs and interest.” The defendants timely
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    Farmer v. Fisher
           Over the next several months, however, Farmer missed several scheduled depositions,
    conferences, and deadlines relevant to her lawsuit. She failed to attend her own deposition on July
    21, September 1, and September 14, 2006, nor did she attend a pretrial scheduling conference on July
    27, 2006 or a telephone status conference on September 14, 2006. On September 15, 2006, the
    defendants filed a motion to dismiss Farmer’s complaint for lack of prosecution and failure to
    appear; Farmer filed no response to that motion, and on May 17, 2007 the magistrate recommended
    that it be granted. Farmer again filed no objections to the magistrate’s recommendation, and the
    district court adopted it and dismissed the complaint with prejudice on August 2, 2007.
           Nearly a full year later, on July 29, 2008, Farmer filed a motion to vacate the district court’s
    judgment, citing Ohio Civil Rule 60(B). In her motion, Farmer argued that, due to her location in
    Europe, she had a difficult time getting timely notice of court business and had difficulties finding
    counsel. She further claimed to have eventually retained an attorney in March 2007, but that the
    attorney had misled her into believing that he was qualified to appear on her behalf when he in fact
    was not, and that ultimately his lack of diligence resulted in her failure to file any response to the
    defendants’ motion to dismiss. The district court denied Farmer’s motion to vacate on January 30,
    2009, and this timely appeal followed.
           On appeal, Farmer argues that the district court erred in construing her motion to vacate as
    having been made exclusively pursuant to Federal Rule of Civil Procedure 60(b)(1), which permits
    relief from judgment on the grounds of “excusable neglect,” and contends that her motion was, in
    fact, also made pursuant to Federal Rule of Civil Procedure 60(b)(6), which permits such relief for
    “any other reason that justifies relief.” Ultimately, she argues that her geographic distance from the
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    court proceedings, the failings of her allegedly faithless attorney, and the fact that she has been
    diagnosed with Asperger’s Syndrome justify vacatur of the district court’s dismissal of her
    complaint. We will not reach the merits of these arguments, however, because the district court
    apparently lacked jurisdiction to decide this case.
           The presence or absence of jurisdiction to hear a case is the “first and fundamental question
    presented by every case brought to the federal courts.” Caudill v. N. Am. Media Corp., 
    200 F.3d 914
    , 916 (6th Cir. 2000) (internal citation and quotation marks omitted). Accordingly, “federal
    courts have a duty to consider their subject matter jurisdiction in regard to every case and may raise
    the issue sua sponte.” Answers in Genesis of Ky., Inc. v. Creation Ministries Intern., Ltd., 
    556 F.3d 459
    , 465 (6th Cir. 2009). Thus even in cases where the issue of jurisdiction was not raised
    below—such as this one—we must evaluate whether a federal court is empowered to decide the
    questions raised by the parties. See Mitchell v. Maurer, 
    293 U.S. 237
    , 244 (1934) (“An appellate
    federal court must satisfy itself not only of its own jurisdiction, but also that of the lower courts in
    a cause under review.”).
           That evaluation is shaped by the fact that “[f]ederal 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 (1994). As a result, “[i]t is to be presumed that a cause lies
    outside this limited jurisdiction, and the burden of establishing the contrary rests upon the party
    asserting jurisdiction.” Ibid. (internal citations omitted).
           Farmer has failed to meet that burden. Most prominently, her complaint does not comply
    with the prima facie requirement that a plaintiff seeking diversity jurisdiction set forth the factual
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    Farmer v. Fisher
    basis on which that jurisdiction is predicated. Federal Rule of Civil Procedure 8(a) mandates that
    “[a] pleading that states a claim for relief must contain . . . a short and plain statement of the grounds
    for the court’s jurisdiction, unless the court already has jurisdiction and the claim needs no new
    jurisdictional support . . . .” In her complaint, Farmer avers merely that she is a “citizen of the
    United States of America,” that the four named defendants are each citizens of Ohio, and that federal
    jurisdiction pursuant to 28 U.S.C. § 1332 is therefore proper “as there is complete diversity of
    citizenship between the parties and the damages exceed $75,000 exclusive of costs and interest.”
            Yet the language of 28 U.S.C. § 1332(a)(1) authorizes a federal court to take diversity
    jurisdiction over a civil action only if the action is between “citizens of different States.” Farmer
    does not allege in her complaint that she is a citizen of any state, and thus fails to overcome the
    presumption against federal subject matter jurisdiction by pleading an adequate basis for diversity
            We recognize, of course, that “the Federal Rules of Civil Procedure ‘do not extend or limit
    federal jurisdiction, but they implement the exercise of existing jurisdiction, which has been
    conferred by statute.’” Post v. Bradshaw, 
    422 F.3d 419
    , 423–24 (6th Cir. 2005) (quoting Edwards
    v. E.I. Du Pont de Nemours & Co., 
    183 F.2d 165
    , 168 (5th Cir. 1950)). But our decision is no mere
    exaltation of form over substance: it is well-settled that subject matter jurisdiction under 28 U.S.C.
    § 1332(a)(1) requires that the parties be both citizens of the United States and domiciliaries of
    individual states. See Newman-Green, Inc. v. Alfonzo-Larrain, 
    490 U.S. 826
    , 828 (1989) (“In order
    to be a citizen of a State within the meaning of the diversity statute, a natural person must both be
    a citizen of the United States and be domiciled within the State.”); see also Von Dunser v. Aronoff,
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    915 F.2d 1071
    , 1072 (6th Cir. 1990) (“State citizenship for the purpose of the diversity requirement
    is equated with domicile.”). “Domicile,” in turn,
           is, of course, a concept widely used in both federal and state courts for jurisdiction
           and conflict-of-laws purposes, and its meaning is generally uncontroverted.
           “Domicile” is not necessarily synonymous with “residence,” and one can reside in
           one place but be domiciled in another. For adults, domicile is established by physical
           presence in a place in connection with a certain state of mind concerning one’s intent
           to remain there. On acquires a “domicile of origin” at birth, and that domicile
           continues until a new one (a “domicile of choice”) is acquired. Since most minors
           are legally incapable of forming the requisite intent to establish a domicile, their
           domicile is determined by that of their parents.
    Miss. Band of Choctaw Indians v. Holyfield, 
    490 U.S. 30
    , 48 (1989) (citations omitted).
           Diversity for the purpose of subject matter jurisdiction is determined as of the time of the
    filing of a lawsuit. Curry v. U.S. Bulk Transp., Inc., 
    462 F.3d 536
    , 540 (6th Cir. 2006). Farmer’s
    complaint and other record documents indicate that she had lived in Europe for at least ten years
    before filing her complaint. Because for most of that time she was a minor and thus “legally
    incapable of forming the requisite intent to establish a domicile,” her domicile up until her eighteenth
    birthday was that of her custodial parent. See Toledo Traction Co. v. Cameron, 
    137 F. 48
    , 56–57
    (6th Cir. 1905) (child of divorced parents took his mother’s domicile because she was the custodial
           Nothing in the record indicates which of her parents had legal custody of Farmer, but there
    is likewise no material in the record indicating that she was eligible to seek federal jurisdiction over
    her claims at the time she filed her complaint. Farmer’s mother evidently remained in Europe with
    Farmer after they left the United States, likely establishing a domicile abroad that would have
    likewise applied to Farmer herself under Holyfield. The only affirmative evidence in the record of
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    Farmer v. Fisher
    the domiciliary status of either of Farmer’s parents prior to Farmer’s departure includes (1) the bare
    fact that their custody litigation took place in the Hamilton County, Ohio Juvenile Court and (2) that
    Farmer’s complaint avers that she suffered ongoing abuse as the result of the defendants’ actions
    “extending to years after [her] departure from her home in Warren County.”1 Thus all available
    evidence indicates that, even if Farmer had somehow retained her previous state citizenship while
    living in Europe, she would have been a citizen of Ohio and therefore unable to sue the defendants
    in diversity. In either scenario—domiciled abroad or domiciled in Ohio—Farmer would have had
    to establish a domicile in a state other than Ohio at some point in the interval after her eighteenth
    birthday and before the filing of her complaint in order to successfully invoke 28 U.S.C. § 1332.
    Because there is no evidence even hinting that this occurred, or that Farmer was otherwise a citizen
    of any state, her failure to comply with Rule 8(a) requires dismissal of her complaint. See Von
    Dunser, 915 F.2d at 1075 (“Although, as a general rule, federal courts will accept at face value a
    complaint’s factual allegations regarding the existence of jurisdiction and not require production of
    specific evidence unless jurisdiction is challenged, Von Dunser’s complaint does not, by itself,
    necessarily allege sufficient facts to establish federal jurisdiction. . . . [T]he complaint fails to
    establish diversity of state citizenship, since it does not specify that Von Dunser is a citizen of a
    particular state. In fact, the statement that he resides in Switzerland seems to suggest that he is not
    a citizen of any state.”).
                Warren County, Ohio adjoins Hamilton County.
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           “Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to
    declare the law, and when it ceases to exist, the only function remaining to the court is that of
    announcing the fact and dismissing the cause.” Ex parte McCardle, 74 U.S. (7 Wall.) 506, 514
    (1869). Accordingly, we REMAND this case to the district court with instructions that it be
    dismissed for lack of jurisdiction.