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Luna v. Estate of Irigoyen

United States District Court, E.D. California

August 28, 2014

OSCAR LUNA, Plaintiff,


LAWRENCE J. O'NEILL, District Judge.


Oscar Luna ("Plaintiff"), a prisoner in federal custody, is proceeding pro se in his complaint against the Estate of J.M. Irigoyen, J.M. Irigoyen, J.M. Irigoyen Law Corporation, and Calfed Law Corporation ("Defendant"). Plaintiff's complaint asks the Court to dissolve several trusts and return trust property to Plaintiff. Defendant moves for the complaint to be dismissed for lack of subject matter jurisdiction. Doc. 10. For the reasons discussed below, this Court GRANTS Defendant's Motion.


Plaintiff filed a complaint on June 19, 2014 and an amended complaint on June 23, 2014. Docs. 1 and 6. On July 18, 2014, assigned Magistrate Judge Gary S. Austin ordered the Plaintiff to show cause why the case should not be dismissed, specifically ordering that the issue of subject matter jurisdiction and diversity of citizenship be addressed.[1] Doc. 9. Defendant filed a motion to dismiss for lack of subject matterCase 1:14-cv-00955-LJO-GSA Document 18 Filed 08/29/14 Page 2 of 4jurisdiction on the same day. Doc. 10. Plaintiff filed his opposition to the motion to dismiss on August 18, 2014. Doc. 16.


After being convicted of one count of conspiracy to distribute methamphetamine and one count of conspiracy to distribute marijuana, Plaintiff was sentenced to 360 months in federal custody. In or about March 1997, Plaintiff was assigned to the custody of the Authority of the Bureau of Prisons, Tucson USP, Safford Arizona. Doc. 10 at 2. In August 1998, Plaintiff transferred possessory lease rights to the commercial property where Plaintiff's law office had been located to Defendant J.M. Irigoyen. Plaintiff also sold Defendant Irigoyen his office furniture, the phone number to Plaintiff's former law office, as well as the goodwill of his former practice. Doc. 6 at 4. The proceeds from these transactions were to be held in several revocable living trusts to which Defendant was a trustee. The trusts were terminable when any of Plaintiff's children became lawyers, at Plaintiff's oral termination or his death, or at the death, legal incompetency or bankruptcy of Defendant. Doc. 6 at 4. Using trust funds, Defendant purchased four automobiles to be used by Plaintiff and his family. All four cars were registered in California. Doc. 6 at 5-7.

Plaintiff requested the termination of the trusts on or before April 13, 2014. Doc. 6 at 7. Furthermore, Plaintiff asserted Defendant was deemed legally incompetent in April 2014 therefore the trust should have been terminated. Doc. 6 at 2.


Parties may assert a lack of subject matter jurisdiction in response to a pleading. Fed.R.Civ.P. 12(b)(1). A court has a similar responsibility to dismiss an action if it determines that it lacks subject matter jurisdiction. Fed.R.Civ.P. 12(h)(3). Federal courts are courts of limited jurisdiction and can only adjudicate those cases which are authorized by the United States Constitution and Congress.

Here, Plaintiff asserted federal jurisdiction based on diversity of citizenship. Doc. 6 at 2. "The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75, 000... and is between citizens of different States." 28 U.S.C. ยง 1332. Defendant is a citizen of California. Plaintiff contends that he is a resident of Arizona. However, a "natural person's state of citizenship is... determined by [his] state of domicile, not [his] state of residence.... A person's domicile is [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).

As the party asserting diversity jurisdiction, Plaintiff bears the burdening of proving the parties' domiciles to establish complete diversity. Lew v. Moss, 797 F.2d 747, 749 (9th Cir. 1986). Furthermore, although the Ninth Circuit has not yet adopted this standard, [2] the majority of Federal Courts of Appeal have adopted a rebuttable presumption that a prisoner retains residency in the place where he lived prior to incarceration for the purposes of diversity jurisdiction. For example, the Eighth Circuit held:

While retaining the usually valid presumption that a prisoner retains his pre-incarceration domicile, it is sufficiently flexible to allow a prisoner to show truly exceptional circumstances which would justify a finding that he has acquired a new domicile at the place of his incarceration... however, a prisoner must still introduce more than unsubstantiated declarations to rebut the presumption that he retains his pre-incarceration domicile.

Jones v. Hadican, 552 F.2d 249, 251 (8th Cir. 1977) (adopting the standard set forward in Stifel v. Hopkins, 477 F.2d 1116, 1126 (6th Cir. 1973)). To rebut the presumption, courts have looked to a variety of factors including, "the prisoner's declaration of intention, the possibility of parole... the manner in which [he] has ordered his personal and business transactions, and any other factors that are relevant to corroboration of [the prisoner's] statements." Smith v. Cummings, 445 F.3d 1254, 1260 (10th Cir. 2006). See also Hall v. Curran, 599 F.3d 70, 72 (5th Cir. 2010) ("In order to overcome the presumption, the prisoner must offer more than conclusory statements and unsupported allegations. No single factor is dispositive, and the analysis focuses not simply on the ...

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