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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-11156
Non-Argument Calendar
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D.C. Docket No. 1:17-cv-22225-KMW
IRINA CHEVALDINA,
Plaintiff-Appellant,
versus
RAANAN KATZ,
Individually,
DANIEL KATZ,
Individually,
TODD LEVINE,
Individually,
R.K. FL MANAGEMENT, INC.,
Florida Corporation,
R.K. ASSOCIATES, VII, INC.,
Florida Corporation, et al.,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Florida
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(October 8, 2019)
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Before TJOFLAT, JORDAN and BLACK, Circuit Judges.
PER CURIAM:
Irina Chevaldina appeals the district court’s grant of the motion to dismiss
her second amended complaint filed by Raanan Katz, members of his family, his
attorney, and several of his corporate entities (RK Appellees). The district court
dismissed Chevaldina’s pro se second amended complaint for lack of subject-
matter jurisdiction, in part, and for failure to state a claim, in part. See Fed. R. Civ.
P. 12(b)(1),(6). Chevaldina asserts the district court erred in determining she failed
to affirmatively allege diversity of citizenship and the district court clearly erred in
finding there was no diversity of citizenship among the parties. Chevaldina also
contends the district court erred in dismissing her Driver’s Privacy Protection Act
(DPPA) claim for failure to state a claim because the RK Appellees did not obtain
and disclose her driver’s license for an impermissible reason under the DPPA.
After review,1 we affirm the district court.
I. DISCUSSION
A. Diversity Jurisdiction
The district courts have original jurisdiction over all civil actions where the
amount in controversy exceeds $75,000 and where the parties are (1) citizens of
1
“We review a district court’s decision on a motion to dismiss de novo.” United States
ex rel. Osheroff v. Humana Inc.,
776 F.3d 805, 809 (11th Cir. 2015).
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different States or (2) citizens of a State and citizens or subjects of a foreign state.
28 U.S.C. § 1332(a)(1),(2). Citizenship is equivalent to “domicile” for purposes of
diversity jurisdiction; mere residence is not sufficient. Mas v. Perry,
489 F.2d
1396, 1399 (5th Cir. 1974).2 “A person’s domicile is the place of his true, fixed,
and permanent home and principal establishment, and to which he has the intention
of returning whenever he is absent therefrom.”
Id. at 1257-58 (quotations
omitted).
Taking the allegations in Chevaldina’s second amended complaint as true,
she failed to affirmatively allege diversity of citizenship for purposes of
establishing the district court had jurisdiction over her claims. See Lawrence v.
Dunbar,
919 F.2d 1525, 1529 (11th Cir. 1990) (stating in deciding a facial attack
on diversity jurisdiction the district court should “merely . . . look and see if the
plaintiff has sufficiently alleged a basis of subject matter jurisdiction,” and, in
doing so, assume the allegations in the pleadings are true); Taylor v. Appleton,
30
F.3d 1365, 1367 (11th Cir. 1994) (stating the filing party must affirmatively allege
the existence of jurisdiction in her complaint). Chevaldina’s second amended
complaint alleged she was domiciled in Indiana and a citizen of Indiana at the time
she filed the second amended complaint, but did not affirmatively allege she was
2
In Bonner v. City of Prichard,
661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this
Court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior
to close of business on September 30, 1981.
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domiciled in Indiana at the commencement of the action. Because diversity of
citizenship must exist at the time an action is filed in order to be proper and events
occurring after the filing of an action cannot create or destroy diversity jurisdiction,
the district court did not err in dismissing Chevaldina’s second amended
complaint. See Grupo Dataflux v. Atlas Glob. Grp., L.P.,
541 U.S. 567, 575-76
(2004) (stating if complete diversity of citizens did not exist at the time of filing,
subsequent events, such as a change in the domicile of a party will not create
diversity jurisdiction); PTA-FLA, Inc. v. ZTE USA, Inc.,
844 F.3d 1299, 1305 (11th
Cir. 2016) (explaining diversity of citizenship, or domicile, must exist at the time
the action is filed in order to be proper).
Alternatively, Chevaldina also failed to overcome the RK Appellees’ Rule
12(b)(1) factual attack to diversity jurisdiction.
Lawrence, 919 F.2d at 1529
(stating a factual attack on diversity jurisdiction challenges “the existence of
subject matter jurisdiction in fact, irrespective of the pleadings, and matters outside
the pleadings, such as testimony and affidavits, are considered” (quotations
omitted)). The RK Appellees offered the following evidence in support of their
factual attack: (1) Chevaldina’s deposition testimony she was a United States
citizen and she lived in Florida in 2012; (2) Chevaldina’s Florida driver’s license
from 2012; (3) evidence that Chevaldina made an appearance in state court in
Florida on June 1, 2017, 13 days before she filed the present action in federal
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court; (4) public records indicating she lived in Florida at the time she filed the
present action; and (5) testimony indicating Chevaldina’s Indiana address was for a
P.O. Box that had been opened eight days after the RK Appellees moved the
district court to dismiss her original complaint for lack of diversity jurisdiction.
Chevaldina, in turn, sought to show that she had not been domiciled in
Florida when she filed the action by: (1) testifying in an affidavit that she was not
domiciled in Florida; and (2) arguing the RK Appellees had not presented any
affirmative evidence she was domiciled in Florida on the specific date in 2017 on
which she filed her original complaint. Chevaldina also offered an affidavit in
which she testified she was a citizen of Indiana and domiciled in Indiana. The
affidavit, however, did not allege she was a citizen of Indiana and domiciled in
Indiana at the commencement of the present action. Chevaldina, further, did not
argue, or present any supporting evidence that she was a citizen of Indiana at the
time she filed her original complaint.
Based on the foregoing, the district court made the factual finding there was
no diversity of citizenship when Chevaldina filed her original complaint because
she had not proved she had changed her domicile from Florida to Indiana before
she filed the action. Because the district court’s factual finding was plausible in
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light of the record viewed in its entirety, 3 the district court did not clearly err in
dismissing Chevaldina’s second amended complaint, in part, pursuant to Rule
12(b)(1). See McCormick v. Aderholt,
293 F.3d 1254, 1257 (11th Cir. 2002)
(reviewing district court’s factual findings regarding domicile under a clearly
erroneous standard).
B. DPPA
“The DPPA regulates the disclosure of personal information contained in the
records of state motor vehicle departments.” Thomas v. George, Hartz, Lundeen,
Fulmer, Johnstone, King, and Stevens, P.A.,
525 F.3d 1107, 1109 (11th Cir. 2008)
(quotations omitted). It also provides for a private cause of action against persons
who (1) knowingly obtain, disclose, or use personal information, (2) from a motor
vehicle record, and (3) for a purpose not permitted under statute.
Id. at 1110-11;
18 U.S.C. § 2724(a). Among the several permissible uses for such personal
information is the “use in connection with any civil . . . proceeding in any Federal,
State, or local court . . . .” 18 U.S.C. § 2721(b)(4). The plaintiff carries the burden
of showing the personal information was disclosed for an impermissible purpose.
Thomas, 525 F.3d at 1112.
3
Although Chevaldina, in her motion for reconsideration, offered “new evidence”
including a library card and Kroger card to support her allegation she was domiciled in Indiana,
the district court’s finding is not clearly erroneous because the library card and Kroger card did
not indicate she lived in Indiana at the time she filed the action against the RK Appellees in
2017.
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The district court did not err in dismissing Chevaldina’s second amended
complaint, in part, for failure to state a DPPA claim because her second amended
complaint failed to allege the RK Appellees’ purpose for disclosing a copy of her
driver’s license was not statutorily permitted. See
id. Although Chevaldina
conclusorily stated in her second amended complaint the RK Appellees had none
of the permissible purposes listed in the statute when they disclosed and distributed
her protected driver’s license information, she did not raise any specific factual
allegations to raise her right to relief above the speculative level. See Bell Atl.
Corp. v. Twombly,
550 U.S. 544, 555 (2007) (stating a party must allege more than
“labels and conclusions,” and her complaint must include “[f]actual allegations
[adequate] to raise a right to relief above the speculative level”). This is especially
true given the fact Chevaldina’s second amended complaint claimed the RK
Appellees violated the DPPA by filing a copy of her driver’s license in support of
their motion to dismiss her original complaint. However, the DPPA provides that
using information from a motor vehicle department record is permissible in any
civil proceeding in federal court. 18 U.S.C. § 2721(b)(4). As Chevaldina’s second
amended complaint failed to show the RK Appellees’ purpose for disclosing the
copy of her driver’s license was not permitted under the DPPA, the district court
did not err in dismissing it for failure to state a claim under Rule 12(b)(6).
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II. CONCLUSION
The district court did not err in dismissing Chevaldina’s second amended
complaint for lack of subject-matter jurisdiction because the complaint did not, on
its face, allege there was complete diversity of citizenship among the parties at the
time Chevaldina commenced the action in federal court.4 Moreover, the district
court did not clearly err in its factual determination there was no diversity of
citizenship between the parties because its finding Chevaldina had not changed her
domicile prior to filing her original complaint was plausible in light of the record
viewed in its entirety. Similarly, the district court did not err in dismissing
Chevaldina’s DPPA claim because her second amended complaint failed to allege
the RK Appellees’ purpose for disclosing a copy of her driver’s license was not
statutorily permitted.
AFFIRMED.
4
Because we conclude the district court did not have jurisdiction over her diversity
jurisdiction claims, it is not necessary for us to consider Chevaldina’s arguments on appeal
concerning the merits of those claims.
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