NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 10-4734

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SOLANGE CHADDA; NICKY BOY; POUCH; RAMBLER; KELLY HALL; TUFF

v.

JEFF MULLINS; JEFF MULLINS STABLES; JEFF MULLINS RACING; DAVID 

JOLLY; STEPAHEAD FARM; CALDER RACE COURSE, INC; MIKE ANIFANTIS; 

JESSE MALDONADO; GALO VERDE RANCH; WOODY HILDEBRANDT; JONI 

HILDEBRANDT; H.E.C.K. RANCH

Solange Chadda; Kelly Hall,

 Appellants

____________________________________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civil Action No. 2-10-cv-04029)

District Judge: Honorable Robert F. Kelly

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

June 8, 2011

Before: FUENTES, GREENAWAY JR., and COWEN, Circuit Judges

(Opinion filed: June 9, 2011)

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OPINION

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PER CURIAM

On August 11, 2010, plaintiffs-appellants initiated this case in the United States 
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District Court for the Eastern District of Pennsylvania, unleashing a torrent of amended 

complaints, responses, motions to dismiss, and motions to strike, some of which were 

served to counterparties but never officially filed. Greatly condensed, the plaintiffsappellants—who include Nicky Boy, a ―Thoroughbred Female Horse,‖ a dog named 

―Pooch‖ or ―Pouch,‖ and human parties Solange Chadda and Kelly Hall—accused the 

defendants-appellees of engaging in a conspiracy to injure them and their animals, 

commit fraud upon them, extort them, threaten them, and defraud them of revenue, all 

ostensibly in connection with a series of events and misadventures connected to 

competitive horseracing. The center of this conspiracy was alleged to be Jeff Mullins, a 

well-known figure in the horseracing world. The storm of filings having settled, the 

District Court dismissed the action for lack of subject-matter jurisdiction. Plaintiffsappellants attempted to amend their complaint, which was again dismissed (sua sponte) 

for lack of subject-matter jurisdiction. Then, following a brief fugue in which plaintiffsappellants attempted to remove the presiding District Judge on the basis of his ―bias and 

prejudice,‖ they filed a notice of appeal.1 We will now affirm.

 

1 Respondents David G. Jolly and Stepahead Farm assert that we lack jurisdiction over 

this appeal, as the plaintiffs-appellants ―have never filed an Appeal from the Order of 

November 9, 2010‖ that originally dismissed the suit for lack of subject-matter 

jurisdiction. While correctly observing that plaintiffs-appellants’ notice of appeal is not 

timely when measured from the November 9, 2010, order, see Fed. R. App. P. 4(a)(1)(A), 

the order from which the appeals period should be measured is the one entered November 

22, 2010. Dismissal on the basis of subject-matter jurisdiction is generally without 

prejudice. See Ray v. Eyster (In re Orthopedic ―Bone Screw‖ Prods. Liab. Litig.), 132 

F.3d 152, 155 (3d Cir. 1997). ―To be appealable under 28 U.S.C. § 1291, an order of 

dismissal must ordinarily be with prejudice. . . . [However,] a plaintiff can appeal from a 
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As tribunals of limited jurisdiction, federal courts must determine whether the case 

before them properly invokes either federal-question jurisdiction or diversity jurisdiction. 

Federal-question jurisdiction requires that a complaint ―aris[e] under the Constitution, 

laws, or treaties of the United States,‖ 28 U.S.C. § 1331, while diversity jurisdiction 

requires parties to be, inter alia, ―citizens of different States,‖ and to fulfill an amount-incontroversy requirement. 28 U.S.C. § 1332(a). Here, despite plaintiffs-appellants’ 

assertions regarding violations of ―federal law,‖ we discern no claims that may be fairly 

construed as arising under or involving federal law; as the District Court observed, the 

one federal statute to which plaintiffs-appellants cite is a criminal statute that does not 

grant a private right of action.2 Therefore, the plaintiffs-appellants may proceed only by 

demonstrating facts by which diversity jurisdiction can be sustained.

 

dismissal without prejudice when he declares his intention to stand on his complaint or 

when he cannot cure the defect in his complaint.‖ Booth v. Churner, 206 F.3d 289, 293 

n.3 (3d Cir. 2000); see also Borelli v. City of Reading, 532 F.2d 950, 951–52 (3d Cir. 

1976) (per curiam). Plaintiffs-appellants attempted to amend before ―standing‖ on their 

complaint after the November 22, 2010, order. Accordingly, the appeal was timely, and 

we have jurisdiction under 28 U.S.C. § 1291 to exercise de novo review over the 

dismissal for lack of subject-matter jurisdiction. See Huber v. Taylor, 532 F.3d 237, 243 

(3d Cir. 2008). 

2 On appeal, the plaintiffs-appellants assert violations of, inter alia, the Hobbs Act and 

Racketeer Influenced and Corrupt Organizations Act (RICO) by the defendantsappellees. ―Absent compelling circumstances[,] [we] will not consider issues that are 

raised for the first time on appeal.‖ Shell Petroleum, Inc. v. United States, 182 F.3d 212, 

219 (3d Cir. 1999) (quoting Patterson v. Cuyler, 729 F.2d 925, 929 (3d Cir. 1984)). No 

such circumstances are apparent. Procedural hurdles notwithstanding, plaintiffsappellants still have not stated a plausible federal claim. See Ashcroft v. Iqbal, ___ U.S. 

___, 129 S. Ct. 1937, 1950 (2009); Santiago v. Warminster Twp., 629 F.3d 121, 128 (3d 

Cir. 2010). 
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Instead, they have demonstrated to the contrary. Federal subject-matter 

jurisdiction may only be premised on diversity of citizenship when that diversity is 

complete: no plaintiff can be a citizen of the same state as any defendant. Strawbridge v. 

Curtiss, 7 U.S. (3 Cranch) 267 (1806); Midlantic Nat’l Bank v. Hansen, 48 F.3d 693, 696 

(3d Cir. 1995). Citizenship for the purposes of jurisdiction is determined at the start of 

suit. Smith v. Sperling, 354 U.S. 91, 93 n.1 (1957); Grand Union Supermarkets of the 

V.I. v. H.E. Lockhart Mgmt., 316 F.3d 408, 410 (3d Cir. 2003). ―A natural person is 

deemed to be a citizen of the state where she is domiciled,‖ Swiger v. Allegheny Energy, 

Inc., 540 F.3d 179, 182 (3d Cir. 2008), and we define ―domicile‖ as residency with intent 

to remain. See Krasnov v. Dinan, 465 F.2d 1298, 1300 (3d Cir. 1972). Here, it is 

undisputed that plaintiff-appellant Hall is a citizen of Arkansas who ―visit[s] Philadelphia 

. . . on occasion‖ to stay with plaintiff-appellant Chadda. See Hall Aff., ECF No. 038. 

Defendant David Jolly also is a citizen of Arkansas. Therefore, as a plaintiff and a 

defendant shared the same state of citizenship, diversity jurisdiction could not lie. 

While the plaintiffs-appellants have filed a pro se appellate brief, they declined to 

address the relevant jurisdictional issue, presenting instead a confusing, jumbled array of 

conclusory arguments and accusations. Accordingly, the District Court correctly 

dismissed the action for lack of subject-matter jurisdiction. 

Following this dismissal, the plaintiffs-appellants accused Judge Kelly of ―bias 

and prejudice,‖ because of his ―gain from the racing entitity [sic].‖ They declined to 

substantiate these allegations, let alone show how Judge Kelly’s ―impartiality might 
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reasonably be questioned.‖ 28 U.S.C. § 455(a). We perceive no error in Judge Kelly’s 

failure to recuse. See Securacomm Consulting v. Securacom, 224 F.3d 273, 278 (3d Cir. 

2000). 

For the foregoing reasons, we will affirm the judgment of the District Court.