Jenkins, Lindsay v. Martin, Anthony ( 2006 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued September 29, 2006
Decided October 3, 2006
Before
Hon. FRANK H. EASTERBROOK, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
No. 05-4729 Appeal from the United
States District Court for the
LINDSAY JENKINS, Northern District of Illinois,
Plaintiff-Appellant, Eastern Division.
v.
No. 05 C 4037
ANTHONY MARTIN, et al., James F. Holderman, Chief
Defendants-Appellees. Judge.
Order
Through litigation in New York’s state courts, the Ulster County Department of
Human Services sought to collect—from an account at Washington Mutual Bank
held jointly by Lindsay Jenkins and Anthony Martin—a $70,000 child-support obli-
gation that Martin owes to Roswitha Tisch. Jenkins removed that proceeding to
federal court in New York; a remand ensued after the district court concluded that
the domestic-relations exception to the diversity jurisdiction applies. Jenkins then
filed this suit in federal court in Illinois, seeking a declaration that she owns all of
the funds in the account, which exceeds $75,000 in value. Defendants maintained
that the suit should be dismissed for lack of jurisdiction; without reaching the ques-
tion whether the requirements of 28 U.S.C. §1332 have been satisfied, the district
court invoked the doctrine of Younger v. Harris, 401 U.S. 37 (1971).
No. 05-4729 Page 2
It is unfortunate that the district court bypassed the motion to dismiss for lack
of jurisdiction, as subject-matter jurisdiction is the first issue in every case. Younger
is not a jurisdictional doctrine; it concerns abstention, and it applies only to suits
under 42 U.S.C. §1983 (which this is not) and otherwise within federal jurisdiction
(as all §1983 suits are). For diversity litigation, it is the Anti-Injunction Act, 28
U.S.C. §2283, that limits the remedies available in federal litigation running in
parallel to state litigation, and §2283 is not a limit on jurisdiction.
It is also unfortunate that the appellate lawyers have ignored the jurisdictional
questions. Jenkins’s appellate brief asserts that diversity jurisdiction is present but
omits all of the details required by Circuit Rule 28(a)(1). Instead of remedying this
deficiency, Ulster County’s brief states that the appellant’s jurisdictional statement
is “complete and correct”—which it transparently is not. Ulster County has not at-
tempted to explain why, after maintaining in the district court that the require-
ments of §1332 are unsatisfied, it switched grounds and supported the plaintiff’s in-
vocation of the diversity jurisdiction. Only Tisch, who filed a brief pro se, noted the
jurisdictional problems. She has our warm thanks; the lawyers should be ashamed
to have a pro se litigant show them up on this vital topic.
Tisch observed that at least one defendant (the County) is a citizen of New York,
see Moor v. County of Alameda, 411 U.S. 693 (1973), and that Jenkins also appears
to be a citizen of New York. She owns two parcels of real estate in New York, and
the fact that she asked all papers associated with this litigation to be sent to her in
New York strongly implies that she lives there. When asked at oral argument
whether he had any reason to believe that Jenkins is a domiciliary of Florida, as her
complaint asserts—a Florida driver’s license, for example, or registration to vote
there—counsel said that he had none. Instead Roy P. Amatore, who represents Jen-
kins on this appeal, took the position that because he was not counsel in the district
court he had no obligation to consider jurisdictional questions. Our Rule 28 (and
Fed. R. App. P. 28), and two centuries of jurisprudence, say otherwise. Every lawyer,
at every stage of the case, has an obligation to consider jurisdictional questions.
It is not as if the subject came as a bolt out of the blue. It was raised in the dis-
trict court. Under Rule 28, it had to be covered in the appellant’s opening brief. It
was raised in Tisch’s brief—yet Amatore’s reply brief on Jenkins’s behalf ignored
the subject. At oral argument Amatore asked for an opportunity to deal with juris-
diction in a supplemental filing, but that is too late. The plaintiff, as the proponent
of jurisdiction, bears the burden of production and persuasion. See Brill v. Country-
wide Home Loans, Inc., 427 F.3d 446 (7th Cir. 2005) (collecting authority). Twice
presented with apparently well-grounded challenges to the existence of complete
diversity (once in the district court, again by Tisch’s brief), Jenkins chose to remain
silent. That is enough; a plaintiff is not entitled to a third opportunity. See Guar-
anty National Title Co. v. J.E.G. Associates, 101 F.3d 57 (7th Cir. 1996).
Not that another opportunity would have mattered. Even if complete diversity
could be established (which is impossible because Washington Mutual Bank, as a
federal savings and loan association, does not appear to be a citizen of any state for
purposes of §1332, see Bankers Trust Co. v. Texas & Pacific Ry., 241 U.S. 295(1916)), and even if the amount in controversy exceeds $75,000 (there is doubt on
No. 05-4729 Page 3
that score too, see Macken v. Jensen, 333 F.3d 797 (7th Cir. 2003); Gardynski-
Leschuck v. Ford Motor Co., 142 F.3d 955 (7th Cir. 1998)), a federal court would not
interfere with a quasi in rem proceeding pending in state court. The question in the
New York litigation is not whether Martin owes a particular amount to Tisch. It is
whether Martin owns part or all of the bank account; the dispute, in other words, is
about how to apportion ownership interests in a single fund. It has long been settled
that a federal court will not interfere with a state-court proceeding of this kind, pro-
vided that the state court has jurisdiction over the asset. See, e.g., Penn General
Casualty Co. v. Pennsylvania, 294 U.S. 189, 195–96 (1935). Jenkins does not deny
that the New York court properly exercised jurisdiction over this fund. She must
litigate there, or nowhere.
The judgment of the district court is modified to reflect dismissal for lack of sub-
ject-matter jurisdiction under 28 U.S.C. §1332, and as so modified is affirmed.
One final observation. Defendant Anthony Martin, also known as Anthony Mar-
tin-Trigona, is the subject of an injunction designed to curb his penchant for frivo-
lous and vexatious litigation. See In re Martin-Trigona, 573 F. Supp. 1245 (D. Conn.
1983), modified, 592 F. Supp. 1566 (1984). This injunction prohibits Martin-Trigona
from initiating new litigation, directly or by proxy, without steps that he did not
take before this case began. The district court should consider whether it would be
prudent to open an inquiry into whether Martin-Trigona recruited Jenkins to act as
his proxy in an effort to avoid satisfying his child-support obligations. If that oc-
curred, then Martin-Trigona is in criminal contempt of court. The injunction was
not issued within this circuit, however, though it applies to Martin-Trigona’s con-
duct of litigation in any federal court, so perhaps the Northern District of Illinois
should refer the matter to the District of Connecticut—or perhaps to the Depart-
ment of Justice, which is principally responsible for initiating proceedings in crimi-
nal contempt of court. The Clerk will forward this order, and the short record in the
case, to the United States Attorneys for the Northern District of Illinois and the
District of Connecticut.