# Bellezza v. Duffy

> District Court, M.D. Pennsylvania · September 9, 2020

URL: https://www.frixlaw.com/law-library/cases/10409212

## Case

- **Court:** District Court, M.D. Pennsylvania
- **Decided:** September 9, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10409212

## How later opinions describe it (automated extraction)

- noting that “jurisdiction, once attached, is not impaired by a party's later change of domicile.”

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
NICHOLAS F. BELLEZZA,
Plaintiff :
V. : 3:17-CV-1884
: (JUDGE MARIANI)
TERRANCE DUFFY, M.D.,
Defendant
MEMORANDUM OPINION
On October 16, 2017, Plaintiff Nicholas Bellezza filed a Complaint against Defendant
Dr. Terrance Duffy (Doc. 1), asserting that Dr. Duffy did not provide him with an “adequate
medical diagnosis.”
In response to a motion to dismiss filed by Defendant on April 24, 2018 (Doc. 16),
Chief Magistrate Judge Schwab issued a Report and Recommendation (“R&R”) (Doc. 22)
stating that the Complaint should be dismissed with leave to amend because Plaintiff failed
to “put forth any allegations in his complaint that allow us to conclude whether we have
subject-matter jurisdiction” and because Plaintiff failed to state a claim upon which relief
could be granted for medical malpractice under Pennsylvania law. Plaintiff thereafter filed an
amended complaint (Doc. 24), and this Court adopted the R&R. (Doc. 26).
On February 27, 2019, Defendant filed a motion to dismiss the Amended Complaint
(Doc. 27). Chief Magistrate Judge Schwab issued an R&R (Doc. 35) again recommending
that the complaint be dismissed “[b]ecause Bellezza has not pleaded jurisdiction,” but with

leave to amend. In so doing, Chief Magistrate Judge Schwab explained that Plaintiff was
attempting to assert diversity of citizenship jurisdiction, that Plaintiff had pleaded that the
amount in controversy exceeded $75,000, but had failed to allege his citizenship or the
citizenship of Defendant. The R&R thereafter set forth the applicable law with respect to
diversity jurisdiction and provided Bellezza with certain “principles regarding diversity
jurisdiction” which he should take into account when filing a second Amended Complaint.
(Id. at 8-9). In response to this R&R, Plaintiff filed a second Amended Complaint (Doc. 40).
The Court thus adopted the R&R and deemed Plaintiffs second Amended Complaint as the
operative complaint in this case.
On August 30, 2019, Chief Magistrate Judge Schwab filed a third R&R (Doc. 42),
recommending that this case be dismissed “because plaintiff Nicholas F. Bellezza has not
pleaded facts from which it can reasonably be inferred that the court has subject-matter
jurisdiction.” Plaintiff filed Objections thereto. (Doc. 43).
Upon de novo review of Chief Magistrate Judge Schwab’s R&R (Doc. 42), Plaintiff's
Objections thereto (Doc. 43), and all relevant filings, the Court will overrule the Objections
and adopt the pending R&R.
A District Court may “designate a magistrate judge to conduct hearings, including
evidentiary hearings, and to submit to a judge of the court proposed findings of fact and
recommendations for the disposition” of certain matters pending before the Court. 28 U.S.C.
§ 636(b)(1)(B). If a party timely and properly files a written objection to a Magistrate Judge's

Report and Recommendation, the District Court “shall make a de novo determination of those
portions of the report or specified proposed findings or recommendations to which objection
is made.” /d. at § 636(b)(1)(C); see also, Brown v. Astrue, 649 F.3d 193, 195 (3d Cir. 2011);
M.D. Pa. Local Rule 72.3.
Here, in response to the pending R&R, Plaintiff filed a one-page Objection, arguing
that he has “come to realize that my actural [sic] State of Residence is Florida”, and
attaching multiple exhibits in support of this assertion. (See Doc. 43). However, even if the
Court were to accept as true Plaintiffs factual assertions set forth in his Objections, these
statements do not serve to establish that the Court has subject matter jurisdiction over this

case.
Because the relevant time for determining the status of a party’s citizenship for the
purpose of establishing diversity of citizenship is at the time the action is filed, at issue
before the Court is Nicholas Bellezza’s citizenship in October of 2017. See Grupo Dataflux
v. Atlas Global Grp., L.P., 541 U.S. 567, 570-571 (2004) (“It has long been the case that the
jurisdiction of the court depends upon the state of things at the time of the action brought. . .

. [This rule] measures all challenges to subject-matter jurisdiction premised upon diversity
of citizenship against the state of facts that existed at the time of filing - whether the
challenge be brought shortly after filing, after the trial, or even for the first time on appeal.”)
(internal quotations and citations omitted). Events subsequent to the filing of an action,
such as a change in a party’s citizenship, do not defeat diversity jurisdiction if such

jurisdiction existed at the commencement of the case. See Smith v. Sperling, 354 U.S. 91,
93 n.1, 77 S.Ct. 1112, 1 L.Ed.2d 1205 (1957) (noting that “jurisdiction, once attached, is not
impaired by a party's later change of domicile.”). As the party asserting jurisdiction, Plaintiff
bears the burden of proving the presence of diversity of citizenship by a preponderance of
the evidence. McCann v. Newman Irrevocable Trust, 458 F.3d 281, 286 (3d Cir. 2006).
To establish citizenship within the meaning of 28 U.S.C. § 1332, “a natural person
must both be a citizen of the United States and be domiciled within the State.” Newman-
Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 828 (1989) (emphasis in original).
Citizenship is synonymous with domicile, and “the domicile of an individual is
his true, fixed and permanent home and place of habitation. It is the place to
which, whenever he is absent, he has the intention of returning.” Viandis v.
Kline, 412 U.S. 441, 454, 93 S.Ct. 2230, 37 L.Ed.2d 63 (1973). In determining
an individual's domicile, a court considers several factors, including
“declarations, exercise of political rights, payment of personal taxes, house of
residence, and place of business.” Krasnov [v. Dinan, 465 F.2d 1298, 1301 (3d
Cir. 1972)] (quotation omitted). Other factors to be considered may include
location of brokerage and bank accounts, location of spouse and family,
membership in unions and other organizations, and driver's license and vehicle
registration. 13B Charles Alan Wright, Arthur R. Miller & Mary Kay Kane,
Federal Practice and Procedure § 3612 (3d ed.2005).
McCann, 458 F.3d at 286. “[A] domicile once acquired is presumed to continue until it is
shown to have been changed. This principle gives rise to a presumption favoring an
established domicile over a new one.” /d. at 286-287 (internal quotation marks and citations
omitted).
In Plaintiff Bellezza’s second Amended Complaint, he asserts that he “is a lifelong
resident of Hazleton, PA”, is “a registered property owner, a registered tax payer, a

registered voter and has held a Pennsylvania Driver's License since the age of 17” and that
his “vehicle is also registered in Pennsylvania.” (Doc. 40). Although Plaintiff pleads that in
“December of 2012 my family and | moved to Largo, Florida’, he states that “[a]lthough | live
in Florida, my primary residence has always been in Pennsylvania” and that “from January
2103 through December 2018, the amount of time | spent in Florida and Pennsylvania was
pretty equal because | was trying to sell a property in Pennsylvania.” (/d. at 1). Plaintiff
further pleads that he has “another property in Pennsylvania that [he] will be trying to sell” in
the future. (/d.). Attached to this complaint is a copy of Plaintiffs Pennsylvania Driver's
License, issued on June 16, 2015.
In Bellezza’s Objections, he now claims that his “State of Residence is Florida.”
(Doc. 43, at 2). Bellezza explains that:
For the past seven years | really believed Pennsylvania was my State of
Residence because | owned property there, payed taxes on the property there,
had a valid Pennsylvania Driver's License there since | was 17 years old and
also my vehicle is registered there.
(Doc. 43, at 2). Plaintiff further states that he now believes that he is a “Resident of The
State of Florida because | have owned a home in the State of Florida since December of
2012”, and that he has “lived in the same home since the time of purchase” in 2012. (Id.).
Plaintiff now asserts, contrary to his pleadings, that he would only return to Pennsylvania for
“several months during the Spring and Summer’ of every year from 2013 through 2018, with
the exception of 2016. (/d.; compare with Doc. 40, at 1 (“from January 2103 through
December 2018, the amount of time | spent in Florida and Pennsylvania was pretty equal

because | was trying to sell a property in Pennsylvania.”)). In his Objections, Bellezza
explains that when he returned to Pennsylvania after 2012, he “would stay with family and
friends because [he was] not able to stay in [his] house” because the utilities had been
turned off. (Doc. 43, at 2).
Upon review of the R&R, Plaintiffs Objections to the R&R and the exhibits attached
to the Objections, and all other relevant documents, Plaintiff has failed to meet his burden of
proving the presence of diversity of citizenship by a preponderance of the evidence.
Although Plaintiff has demonstrated that he has had a residence in Florida since late-2012,
he has not established that he changed his established domicile of Hazleton, Pennsylvania,
to Largo, Florida, prior to the filing of his complaint in October of 2017. Plaintiff's second
Amended Complaint, as well as his Objections, confirm that, in 2017, he owned two
properties in Pennsylvania, paid taxes in Pennsylvania, was registered to vote in
Pennsylvania, held a Pennsylvania driver's license, and had his vehicle registered in
Pennsylvania. Bellezza’s second Amended Complaint, the statements in which consist of
judicial admissions, further establishes that he spent his time equally in Pennsylvania and
Florida from 2013 to 2018.1 Further, Bellezza’s renewal of his Pennsylvania driver's license

' The Third Circuit has made clear that a fact expressly conceded in a complaint constitutes a
judicial admission and is binding on the plaintiff. See Sovereign Bank v. BJ’s Wholesale Club, Inc., 533
F.3d 162, 181 (3d Cir. 2008) (“Although [Plaintiff]'s attempt to salvage its unjust enrichment claim now
requires that it take a contrary position, the allegation in the Amended Complaint is a binding judicial
admission.”); Berckeley Inv. Grp., Ltd. v. Colkitt, 455 F.3d 195, 211 n. 20 (3d Cir. 2006) (“Judicial
admissions are concessions in pleadings or briefs that bind the party who makes them.”); Parilla v. IAP
Worldwide Serv., VI, Inc., 368 F.3d 269, 275 (3d Cir. 2004) (“Judicial admissions are formal concessions in
the pleadings, or stipulations by the party or its counsel, that are binding upon the party making them.”).

in 2015, three years after he claims he moved to Florida, further diminishes his claim that, in
2017, he was domiciled in Florida. As properly noted in the pending R&R, “residence is not
the same as domicile and does not establish citizenship for diversity purposes.’ Pepper v.
Covington, No. 3:19-CV 00758, 2019 WL 2324558, at *2 (M.D.Pa. May 31, 2019). Thus,
‘alleging residency alone is insufficient to plead diversity of citizenship.’ GBForefront, L.P. v.
Forefront Mgmt. Grp., LLC, 888 F.3d 29, 35 (3d Cir. 2018).” (Doc. 42, at 3).
For these reasons, in applying the factors which a court should consider in
determining an individual's domicile, it is clear that the majority of these considerations
weigh in favor of a finding that Plaintiff remained domiciled in Pennsylvania in 2017, despite
also owning a residence in Florida at that time. Plaintiff has not overcome the presumption
favoring an established domicile, i.e. Hazleton, Pennsylvania, over a new one, i.e. Largo,

“The scope of judicial admissions is restricted to matters of fact which otherwise would require
evidentiary proof.” Glick v. White Motor Co., 458 F.2d 1287, 1291 (3d Cir. 1972). Thus, for a judicial
admission to be binding on a party, the admission must be a statement of fact that requires evidentiary
proof, not a statement of legal theory, and that statement must be unequivocal. /n re Teleglobe Commc’ns
Corp., 493 F.3d 345, 377 (3d Cir. 2007) (citing Glick, 458 F.2d at 1291); see also, Elec. Mobility Corp. v.
Bourns Sensors/Controls, Inc., 87 F.Supp.2d 394, 405 (D.N.J. 2000) (collecting cases).
As explained by another District Court in this Circuit,
Because a complaint is intended to summon the resources of the court, and given the
responsibility placed on parties to ensure that claims filed with the court are properly based
on fact, a party's pleadings are viewed with solemnity. See, e.g., Giannone v. U.S. Steel
Corp., 238 F.2d 544, 547(3d Cir. 1956) (pleadings are supposed to be factual rather than
fictional). Given the seriousness of pleadings, and to “preserv[e] the integrity of the courts
by preventing litigants from playing fast and loose with the courts” in offering intentional self-
contradictions, factual assertions made in pleadings are binding on the party asserting the
fact, absent a later amendment. Cf., Chaffee v. Kraft General Foods, Inc., 886 F.Supp. 1164,
1169 (D.N.J. 1995) (discussing judicial estoppel). Thus, facts asserted in pleadings may be
regarded as “judicial admissions” which are binding on the party asserting them for the
purpose of that case and any later appeal and which do not have to be later proven... .
Sobratti v. Tropical Shipping and Const. Co., Ltd, 267 F.Supp.2d 455, 462-463 (D.V.I. 2003).

Florida. As explained, Plaintiffs second Amended Complaint, as well as his Objections,
admit that in 2017, he owned property in Pennsylvania, paid taxes in Pennsylvania,
exercised his political rights, i.e. was registered to vote, in Pennsylvania, held a
Pennsylvania driver's license, and had his vehicle registered in Pennsylvania. See
McCann, 458 F.3d at 286. On the record, the only factors weighing in favor of a finding that
he was domiciled in Florida at that time is his assertion that he owns a home in Largo,
Florida and that he and his family moved into this home in 2012. (Doc. 40, at 1; Doc. 43, at
2). This alone is insufficient show that Florida “is the place to which, whenever he is absent,
he has the intention of returning.” Viandis, 412 U.S. at 454.
Finally, it must be noted that despite being instructed in the prior R&R that he must
also plead the citizenship of the defendant in his Amended Complaint (see Doc. 35, at 8-9),
he has still not done so in his second Amended Complaint, nor has he provided this Court
with any documents which may aid in a determination of Dr. Duffy's citizenship. This further
weighs in favor of a finding that Plaintiff has failed to meet his burden and that dismissal of
this action for lack of subject matter jurisdiction is appropriate.
For the above-discussed reasons, the Court will adopt the pending R&R and dismiss
Plaintiff Bellezza’s case for lack of subject matter jurisdiction. Plaintiff should understand
that this Court's decision is limited to a finding that it does not have jurisdiction over this
case. The dismissal of Plaintiff's second Amended Complaint does not reflect any decision

on the merits of Plaintiff's claims and does not preclude Plaintiff from attempting to file this
action in Pennsylvania state court. .

Pte Vy Mid.
Robert D. Mariani
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10409212. Public record. Not legal advice.