1

The Plaintiff is not complaining about any conditions of his confinement at USP

Allenwood. Nor is the Plaintiff challenging, under 28 U.S.C. § 2241, his federal judgment of

conviction, which resulted in his confinement. 

2A court may transfer venue under 28 U.S.C. § 1404(a) sua sponte. Brown v. Woodring,

174 F.Supp. 640, 644 (M.D. Pa. 1959). Brown states that “wisely it has not been attempted to

catalogue the circumstances which will justify or require grant or denial of transfer. Given the

statutory standards the decision is left to the sound discretion of the court.” Id. 

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

SHEMTOV MICHTAVI, : CIVIL ACTION NO. 4:CV-06-0628 

:

Plaintiff : (Judge Jones)

:

v. : (Magistrate Judge Blewitt)

:

NEW YORK DAILY NEWS, et al., :

:

Defendants :

 REPORT AND RECOMMENDATION

I. Background

The Plaintiff, Shemtov Michtavi, an inmate at the Low Security Correctional Institution at

Allenwood (“USP Allenwood”), in White Deer, Pennsylvania, filed pro se this defamation action on

March 27, 2006, naming as Defendants New York Daily News (“Daily News”) and Mathew Kalman,

a reporter employed by Daily News.1 (Doc. 1, p. 1). The Plaintiff paid the requisite filing fee.

(Doc. 9). We must determine whether federal subject matter jurisdiction exists, and whether the

Middle District of Pennsylvania is the proper venue in this case.

2

 

Case 4:06-cv-00628-JEJ Document 10 Filed 07/19/06 Page 1 of 11
3

The story is entitled “Alleged Israeli Ecstasy King Is Reined in By Feds.” 

http://www.nydailynews.com/news/wn_report/v-pfriendly/story/397094p-336586c.html. The

story describes the Plaintiff’s conviction and 20-year sentence in federal prison for drug offenses,

including conspiracy to distribute the drug “ecstasy,” and his status as “key lieutenant” to Ze’ev

Rosenstein, “Israel’s Public Enemy No. 1” and “an accused Israeli drug kingpin charged with

smuggling millions of dollars to New York and other U.S. cities.” Id. Many of the story’s

statements duplicate those ina Press Release from the Department of Justice (DOJ) regarding the

case, which describes the Plaintiff as a “Rosenstein lieutenant.” See Department of Justice,

Alleged Israeli Organized Crime Figure Arrested in Tel Aviv on U.S. Drug Trafficking Charges,

November 8, 2004, http://ww.usdoj.gov/usao/fls/Rosenstein.html. 

We note that the Plaintiff’s claims are indeed suspect. 

“Although a defamation suit has profound First Amendment implications, it is

fundamentally a state cause of action.” Tucker v. Fischbein, 237 F.3d 275, 281 (Pa. 2001)

(citation omitted). “Under Pennsylvania law, a defamation plaintiff bears the burden to show (1)

the defamatory character of the communication, (2) its publication by the defendant, (3) its

application to the plaintiff, (4) the understanding by the recipient of its defamatory meaning,

and (5) the understanding by the recipient of it as intended to be applied to the plaintiff. 42 PA.

CONS. STAT. ANN. § 8343(a).” Id. 

“A public figure must adduce sufficient evidence to permit the conclusion that the

defendant entertained serious doubts as to the truth of his publication in order to establish

actual malice required under First Amendment to allow recovery in defamation action.” Id. at

284 (citation omitted). “A court ruling on a motion for summary judgment in a defamation

action brought by a public official or a public figure must be guided by New York Times ‘clear

and convincing’ evidentiary standard in determining whether a genuine issue of actual malice

exists–that is, whether the evidence presented is such that a reasonable jury might find that

actual malice has been shown with convincing clarity.” Id. 

Further, “[u]nder Pennsylvania law, truth is an affirmative defense to a defamation

2

II. Allegations of Complaint

The Plaintiff alleges that, on or about March 6, 2006, the Defendants Daily News and

Kalman “devised a scheme to defame Plaintiff and to inflict emotional distress upon Plaintiff.”

(Doc. 1, p. 2). The Plaintiff avers that, on or about March 7, 2006, the Defendants Daily News and

Kalman printed a story about the Israeli “mob,” which described the Plaintiff as a “key lieutenant”

in the Israeli mob and stated that the Plaintiff was “expected to give evidence against [Ze’ev]

Rosenstein,” which the Plaintiff denies.3 Id. The Plaintiff alleges that the Defendants maliciously

Case 4:06-cv-00628-JEJ Document 10 Filed 07/19/06 Page 2 of 11
action. 42 PA. CONS. STAT. ANN. § 8343(b)(1).” Id. at 287. “Under the First Amendment, [a]

public figure who brings a defamation action must bear the burden of proving [the] falsity of

[the] challenged statements.” Id. 

Here, the Plaintiff may find it difficult to sufficiently substantiate his defamation suit in

light of his federal conviction and the DOJ’s ensuing press release.

4

See infra n. 5.

5According to the Plaintiff, “Sammy the Bull” or “Sammy the Rat,” refers to Sammy

Gravano, who turned state witness against the mafia. (Doc. 1, p. 6).

3

intended to spread “vicious ‘lies’” about the Plaintiff “with wanton disregard for the truth” and urges

that his “good name and reputation” have been harmed within his community and the state of

Israel. (Doc. 1, p. 3). The Plaintiff further claims that the alleged actions of the Defendants are

“libel per se.” (Doc. 1, p. 5). 

Without alleging that the Defendants were connected to his conviction for drug offenses,

the Plaintiff further asserts that he was wrongfully convicted.4 Id. While the Plaintiff does not claim

that the Defendants have harassed, ridiculed, scorned, or threatened him, he contends that, as a

result of the Daily News story, unnamed members of his community have done so. Id. The Plaintiff

also claims that, because of the story, community members have greatly harmed and abused him

in undescribed ways, calling him a “mob rat,” “Sammy the Bull,” and “Sammy the Rat.”5 Id. 

The complaint also avers that the Defendants’ “sophistication” gave them cause to know

that the story would harm the Plaintiff and cause him damages, including emotional distress. (Doc.

1, p. 6). The Plaintiff claims that the Defendants intentionally falsely reported that he was

“expected to give evidence against Rosenstein,” which allegedly subjected him to threats, scorn,

and ridicule. Id. The Plaintiff claims that he has been “great[ly] upset and severe[ly] emotional[ly]

Case 4:06-cv-00628-JEJ Document 10 Filed 07/19/06 Page 3 of 11
6

The Plaintiff does not indicate what amount of this distress is attributable to the

Defendants and what amount is caused by his twenty-year term of incarceration in a federal

prison for drug offenses. (Doc. 1, p. 7). U.S. v. Michtavi, 155 Fed.Appx. 433 (Fla. 2005).

4

distress[ed],” and has suffered from anxiety, sleeplessness, and headaches.6 (Doc. 1, p. 7). 

For relief for the libel claims, the Plaintiff requests compensatory, punitive, and exemplary

damages “in an amount greater than one million dollars.” (Doc. 1, p. 5). For relief for the claims

of intentional infliction of emotional distress, the Plaintiff also seeks compensatory, punitive, and

exemplary damages “in an amount greater than one million dollars.” (Doc. 1, p. 7). 

III. Discussion

A. This Court has federal subject matter jurisdiction in this case based on foreign

diversity.

The Plaintiff asserts that this Court has subject matter jurisdiction to hear his claims based

on diversity. We agree. 

McCracken v. Murphy discusses the requirements for federal subject matter jurisdiction as

follows:

Generally, there is a presumption against the existence of federal

jurisdiction, and the party invoking the federal court’s jurisdiction

bears the burden of proof. 13A Federal Practice and Procedure 

§ 3522, at 62; Basso v. Utah Power and Light Co., 495 F.2d 906, 909

(10th Cir. 1974). A plaintiff bears the burden of proving that diversity

of citizenship exists and ordinarily must prove diversity of citizenship

exists by a preponderance of the evidence. See Krasnov v. Dinan, 465

F.2d 1298, 1301 (3d Cir. 1972). 

For purposes of determining diversity, state citizenship is equated with

domicile. Krasnov, 465 F.2d at 1300; Parr v. Grenko, 1993 WL

259327, *1, 1993 U.S. Dist. LEXIS 9122, at *3 (E.D. Pa. July 9, 1993).

Domicile, however, is not necessarily synonymous with residence;

Case 4:06-cv-00628-JEJ Document 10 Filed 07/19/06 Page 4 of 11
5

one can reside in one place and be domiciled in another. Id.

Residence and an intent to make the place of residence one’s home

are required for citizenship and to establish a new domicile. Id.

Although the analysis is necessarily case specific, courts have looked

to certain factors, including state of employment, voting, taxes,

driver’s license, bank accounts and assets, and civic and religious

associations in determining the citizenship of an individual. See

Federal Practice & Procedure § 3612, at 530-31; see also Juvelis v.

Snider, 68 F.3d 648, 654 (3d Cir. 1995); Krasnov, 465 F.2d at 1301;

Conners v. UUU Products, No. 03-6420, 2004 WL 834726, *3, 2004

U.S. Dist. LEXIS 6417, at *8 (E.D. Pa. Mar. 15, 2004). 

328 F. Supp. 2d 530, 532 (E.D. Pa. 2004). Diversity jurisdiction exists only in a judicial district

where either any of the defendants reside, where a substantial part of the events giving rise to the

claim occurred, or where any of the defendants is subject to personal jurisdiction at the time the

action is commenced. 28 U.S.C. § 1391(a) 

Further, “a prisoner remains a citizen of the state where he lived before being incarcerated

unless he plans to live elsewhere once released.” McCracken, 328 F. Supp. 2d at 532 (citations

omitted). “For inmates, citizenship for diversity purposes is [in] the state which the inmate was

domiciled prior to incarceration, unless the inmate plans to live elsewhere when he is released, in

which event citizenship would be that state.” See Flanagan v. Shively, 783 F. Supp. 922, 935 (E.D.

Pa. 1992) (aff’d without opinion, 980 F.2d 722 (3d Cir. 1992); see also Mitchell v. Brown &

Williamson Tobacco Corp., 294 F.3d 1309, 1314 (11th Cir. 2002). “An inmate does not become

a resident of a state merely by virtue of his incarceration there if he was a resident of another state

before his incarceration and there is no indication that he intends to relocate to the state of

incarceration upon his release.” Flanagan, 783 F. Supp. at 935. 

Case 4:06-cv-00628-JEJ Document 10 Filed 07/19/06 Page 5 of 11
6

Here, the Plaintiff has met the burden of proof to show that he is not a domiciliary of this

state for the purposes of federal jurisdiction based on diversity. (Doc. 1, p. 3, 5). The Plaintiff is

an incarcerated alien in a federal prison here, with seemingly no other connection to Pennsylvania.

(Doc. 1, p. 1). He was born and arrested in Israel, and his wife and children continue to live in

Israel. (Doc. 1, p. 5). http://ww.usdoj.gov/usao/fls/Rosenstein.html. Further, he was convicted in

a federal court in Florida. (Doc. 1, p. 3). 

Therefore, the Plaintiff has established federal subject matter jurisdiction based on alienage,

or foreign, diversity of citizenship under 28 U.S.C. § 1332(a)(2). As the Court stated in Southern

Cross: 

Section 1332(a)(2) confers original jurisdiction on federal courts in

civil actions in which the matter in controversy exceeds $75,000

between “citizens of a State and citizens or subjects of a foreign

state.” This tracks the language of Article III of the Constitution, which

extends the federal judicial power to “all cases . . . between a State,

or Citizens thereof, and foreign States, Citizens, or Subjects. 

Southern Cross Overseas Agencies, Inc. v. Wah Kwong Shipping Group Ltd., 181 F.3d 410, 414. In

our case, the Plaintiff is a citizen of Israel and the Defendants are New York citizens. Thus, alienage

diversity jurisdiction exists in this case. 

B. The Middle District of Pennsylvania is an improper venue for this case.

We find that, although this Court has alienage diversity jurisdiction in this case, the Middle

District of Pennsylvania is not the proper venue for this case due to the temporary nature of the

Plaintiff’s residence in a federal prison located in the Middle District of Pennsylvania. (Doc. 1, p.

1). 

Case 4:06-cv-00628-JEJ Document 10 Filed 07/19/06 Page 6 of 11
7We assume arguendo that the Plaintiff’s alleged harm occurred in Pennsylvania,

although he describes threats, scorn, and ridicule in “his community,” which presumably is

Israel. (Doc. 1, p. 6, 7). The Plaintiff also refers to distress suffered by his wife and daughter,

who reside in Israel. (Id., p. 5). 

7

Venue is generally proper in “a judicial district in which any defendant is subject to personal

jurisdiction at the time the action is commenced, if there is no district in which the action may

otherwise be brought. 28 U.S.C. § 1391(a)(3). A newspaper’s circulation of subscriptions in a state

establishes sufficient minimum contacts within that state to establish personal jurisdiction.

International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). Moreover, a venue is particularly

appropriate if it is where the harm that the Plaintiff allegedly experienced occurred. Keeton v.

Hustler Magazine, Inc., 465 U.S. 770, 780 (1984). 

Here, although this Court has personal jurisdiction over the Defendants, insofar as the

circulation of their newspaper story in Pennsylvania was the source of the alleged harm7, this case

fails to meet the second requirement for proper venue under 28 U.S.C. § 1391(a)(3), because a

more appropriate venue exists. For the convenience of parties and witnesses, a district court may

transfer a civil action to any other district where it may have been brought. 28 U.S.C. 1404(a).

District courts have broad discretion in deciding whether to transfer a case under 28 U.S.C.

§1404(a). Plum Tree v. Stockment, 488 F.2d 754, 756 (3d Cir. 1973). Courts weigh private and

public interest factors, including the plaintiff’s and defendant’s forum preference, where the claim

arose, the convenience of the parties and witnesses, the familiarity of the trial judge with the

applicable state law in diversity cases, and the practical considerations that could make the trial

easy, expeditious, or inexpensive. Jumara v. State Farm Ins. Co., 55 F.3d 873, 879-80 (3d Cir.

Case 4:06-cv-00628-JEJ Document 10 Filed 07/19/06 Page 7 of 11
8As this Court recently stated in Shumate v. U.S., “the BOP has the power pursuant to 18

U.S.C. § 3621(b) to ‘designate the place of the prisoner’s imprisonment,’ and for that purpose to

‘designate any available penal or correctional facility whether maintained by the Federal

Government or otherwise.’” 2006 WL 83506, *4 (M.D. Pa. 2006) (citation omitted). 

This Court in Shumate also noted that “it is well established that a federal prisoner

8

1995); High River Ltd. Partnership v. Mylan Laboratories, Inc., 353 F. Supp. 2d 487 (M.D. Pa.

2005). 

In this case, an alternative venue exists in the Southern District of New York, the place

where the alleged defamatory article was actually published, and the considerations weigh in favor

of transferring this case to that venue, which is the most convenient forum for the Defendants and

their witnesses. First, because they are residents of the Southern District of New York, that court

has personal jurisdiction over the Defendants; thus, it is a proper alternative venue. See Sunbelt

Corp. V. Noble, Denton & Assocs., Inc., 5 F.3d 28, 31 (3d Cir. 1993). Second, the Defendants

seemingly would prefer the Southern District of New York for its convenience to both them and

their witnesses. Third, that district is more familiar with cases alleging libel against New York-based

newspapers. See e.g. Van Buskirk v. New York Times Co., 2000 WL 1206732, (S.D.N.Y. 2000);

Chaiken v. VV Pub. Corp., 119 F.3d 1018 (N.Y. 1997) (affirming that the District of Massachusetts’s

long-arm statute did not give that district personal jurisdiction over a New York-based newspaper

and its Israeli correspondent in a libel case). Most importantly, although the Plaintiff is an inmate

at a federal prison in the Middle District of Pennsylvania now, his choice of venue is unstable, as

he may be removed within the discretion of the Federal Bureaus of Prisons (BOP) to another prison

elsewhere at some time during his twenty-year term of incarceration, which would then result in

neither party residing in or having any remaining ties to the Middle District of Pennsylvania.8 Thus,

Case 4:06-cv-00628-JEJ Document 10 Filed 07/19/06 Page 8 of 11
generally has no constitutional right to placement in any particular penal institution. See Olim v.

Wakinekona, 461 U.S. 238, 245, 103 S. Ct. 1741, 75 L. Ed. 2d 813 (1983) (prisoner has no

constitutional right to be incarcerated in any particular facility or state). In Montanye v. Haymes,

427 U.S. 236, 242, 96 S. Ct. 2543, 49 L. Ed. 2d 466 (1976), the Supreme Court held that “[a]s

long as the conditions or degree of confinement to which the prisoner is subjected is within the

sentence imposed of confinement to which the prisoner is subjected is within the sentence

imposed upon him and is not otherwise violative of the Constitution, the Due Process Clause

does not itself subject an inmate’s treatment by prison authorities to judicial oversight.” Id. at

*4, n. 5. 

the Plaintiff’s sole connection with the Middle District of Pennsylvania is his incarceration here,

which we find to be a tenuous basis for purposes of establishing venue with this Court. 

Therefore, we shall recommend that this case be transferred to the Southern District of New

York. 

IV. RECOMMENDATION

Based on the foregoing, it is respectfully recommended that the Plaintiff’s action against

Defendants Daily News and Kalman be transferred to the U.S. District Court for the Southern

District of New York. 

s/ Thomas M. Blewitt

THOMAS M. BLEWITT

United States Magistrate Judge

Dated: July 19, 2006

Case 4:06-cv-00628-JEJ Document 10 Filed 07/19/06 Page 9 of 11
10

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

SHEMTOV MICHTAVI, : CIVIL ACTION NO. 4:CV-06-0628 

:

Plaintiff : (Judge Jones)

:

v. : (Magistrate Judge Blewitt)

:

NEW YORK DAILY NEWS, et al., :

:

Defendants :

 NOTICE

NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing

Report and Recommendation dated July 19, 2006. 

Any party may obtain a review of the Report and Recommendation pursuant to 

Rule 72.3, which provides:

Any party may object to a magistrate judge’s proposed findings, 

recommendations or report addressing a motion or matter described in 

28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the 

disposition of a prisoner case or a habeas corpus petition within ten (10)

days after being served with a copy thereof. Such party shall file

with the clerk of court, and serve on the magistrate judge and all

parties, written objections which shall specifically identify the

portions of the proposed findings, recommendations or report to which

objection is made and the basis for such objections. The briefing

requirements set forth in Local Rule 72.2 shall apply. A judge shall

make a de novo determination of those portions of the report or

specified proposed findings or recommendations to which objection

is made and may accept, reject, or modify, in whole or in part, the findings

or recommendations made by the magistrate judge. The judge, however,

need conduct a new hearing only in his or her discretion or where 

required by law, and may consider the record developed before the

Case 4:06-cv-00628-JEJ Document 10 Filed 07/19/06 Page 10 of 11
11

magistrate judge, making his or her own determination on the basis

of that record. The judge may also receive further evidence, recall

witnesses or recommit the matter to the magistrate judge with

instructions.

s/ Thomas M. Blewitt 

THOMAS M. BLEWITT 

United States Magistrate Judge 

Dated: July 19, 2006

Case 4:06-cv-00628-JEJ Document 10 Filed 07/19/06 Page 11 of 11