NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________ No. 10

- 4734

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

v. JEFF MULLINS; JEFF MULLINS STABLES; JEFF MULLINS RACING; DAV ID 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 )

___________ OPINION

___________ PER CURIAM On August 11, 2010, plain tiffs

- appellants initiated this case in the United States2

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 counterparti es but never officially filed. Greatly condensed, the plaintiffs

appellants

—

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. T he center of thi s 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. Plaintiffs

appellants attempted to amend thei r complaint, which was again dismissed ( sua sponte ) for lack of subject

- matter jurisdiction. Then, following a brief fugue in which plaintiffs

appellants attempted to remove the presiding District Judge on the basis of his ―bias and prejudice,‖ they filed a notice of appeal. 1 W e 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

- matte r 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 ente red 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. § 129 1, an order of dismissal mu st ordinarily be with prejudice. . . . [However,] a plaintiff can appeal from a3

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 req uires 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

- in

controversy requ irement. 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 fede ral 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. Accord ingly, 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

- appel lants assert violations of, inter alia , the Hobbs Act and Racketeer Influenced and Corrupt Organizations Act (RICO) by the defendants

appellees. ―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, plaintiffs

appellants still have not sta ted 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)

.4

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 inte nt 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., E CF No. 038.
D efendant David Jolly also is a citizen of Arkansas. Therefore, a s 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 decline d 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.
F ollowing 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 might5

rea sonably 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)

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

.