1

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JACK MANN, : Case No. 4:15-CV-01440

:

Plaintiff, : (Judge Brann)

:

v. :

:

HEATHER BALES, et al., :

: (Magistrate Judge Schwab)

Defendants. :

MEMORANDUM

October 7, 2016

Before the Court for disposition are (1) Defendants Heather Bales and Mann 

Insurance Agency, Inc.’s Motion to Dismiss, and (2) Defendants George F. Mann, 

III, Julia A. Mann, Judson H. Mann, G.F. Mann Agency, Ltd., and Global Risk 

Services’ Motion to Dismiss. Magistrate Judge Susan E. Schwab has prepared a 

Report and Recommendation concerning these Motions. For the following 

reasons, this Report and Recommendation will be adopted in its entirety. 

Defendants’ Motions to Dismiss will be granted for lack of personal jurisdiction, 

and the case transferred to the United States District Court for the Northern District 

of Illinois.1

 

1 Also pending before the Court are Plaintiff’s subsequently filed “Motion 'to Recall Pltf's 

Opposition Motions to Docs. 76 & 78,” (ECF No. 92), and “Motion to Compel MiniTrial, 

Mediation or Arbitration” (ECF No. 99). Because the Court lacks personal jurisdiction over 

Defendants, it cannot rule on these two motions.

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I. BACKGROUND AND PROCEDURAL HISTORY

On July 27, 2015, Plaintiff Jack Mann (“Plaintiff”), a prisoner then

incarcerated at FCI Allenwood, filed a Complaint against (1) Heather Bales; (2) 

Judson Mann; (3) George F. Mann, III; (4) Julia A. Mann; (5) G.F. Mann Agency, 

Ltd.; (6) Mann Insurance Agency, Inc.; (7) Global Risk Services, Ltd; and (8) all 

members of the Board of Directors of each corporation.2 Plaintiff alleged within 

this Complaint that Defendants had converted to their own use his book of business 

relating to an insurance business. Ownership of this insurance business, Mann 

Insurance Agency, Inc., had previously been transferred to Plaintiff’s ex-wife,

Heather Bales, as part of their divorce proceeding. She thereafter sold the 

insurance company and book of business to Judson Mann, George F. Mann, III, 

Julia A. Mann, G.F. Mann Agency, Ltd., and Global Risk Services.3 Based on 

these facts, Plaintiff asserted seventeen state law claims and one claim under the 

Telephone Consumer Protection Act of 1991 (“TCPA”).4

On October 14, 2015, Magistrate Judge Schwab directed Plaintiff to file an 

Amended Complaint on or before November 9, 2015.5 The court found that it 

lacked subject matter jurisdiction over the complaint under federal question6and

 

2 Complaint (ECF No. 1).

3 Compl. ¶¶ 1-3, at 1.

4

47 U.S.C. § 227 et seq.

5 Order of Oct. 14, 2015 (ECF No. 11). 

6

28 U.S.C. § 1331 (“The district courts shall have original jurisdiction of all civil actions arising 

under the Constitution, laws, or treaties of the United States”).

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diversity jurisdiction.7 Magistrate Judge Schwab reasoned that (1) the court lacked 

federal question jurisdiction because Plaintiff had failed to assert an arguable claim 

under the TCPA, and (2) Plaintiff failed to allege facts from which diversity 

jurisdiction could reasonably be inferred.

In accordance with the leave to amend granted by Magistrate Judge Schwab, 

Plaintiff filed an Amended Complaint on November 3, 2015.8 The amended 

pleading again contained seventeen state law claims and a TCPA claim. In 

addition, however, Plaintiff alleged a claim under the Racketeer Influenced and 

Corrupt Organizations (RICO) Act.9 On January 11, 2016, Defendants Heather 

Bales and Mann Insurance Agency, Inc. (“Bales Defendants”) filed a Motion to 

Dismiss the Amended Complaint.10 Defendants George F. Mann, III, Julia A. 

Mann, Judson H. Mann, G.F. Mann Agency, Ltd., and Global Risk Services

(“Mann Defendants”) then filed a Motion to Dismiss.11 These Motions were 

subsequently fully briefed by all parties.12

 

7

28 U.S.C. § 1332 (“The district courts shall have original jurisdiction of all civil actions where 

the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, 

and is between . . . citizens of different States”).

8 Amended Compl. (ECF No. 14). 

9

Id. at 40.

10 ECF No. 30.

11 ECF No. 35.

12 ECF Nos. 36, 42, 59, 68, 71, & 74. 

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On July 12, 2016, Magistrate Judge Schwab issued a Report and 

Recommendation concerning these pending Motions to Dismiss.13 The Report 

advised the Court to grant Defendants’ motions to dismiss due to a lack of personal 

jurisdiction over the Defendants. The Report further recommended the transfer of 

this case to the United States District Court for the Northern District of Illinois,

pursuant to 28 U.S.C. § 1631. On July 26, 2016, both the Bales Defendants and 

the Mann Defendants filed Objections to the Report and Recommendation.14 

These Objections have since been fully briefed by all parties.15

II. LEGAL STANDARD

Upon designation, a magistrate judge may “conduct hearings, including 

evidentiary hearings, and ... submit to a judge of the court proposed findings of fact 

and recommendations.”16 Once filed, this Report and Recommendation is 

disseminated to the parties in the case who then have the opportunity to file written 

objections.17 When objections are timely filed, the District Court must conduct a 

de novo review of those portions of the report to which objections are made.18 

Although the standard of review for objections is de novo, the extent of review lies 

 

13 ECF No. 85.

14 ECF Nos. 87 & 89. 

15 ECF Nos. 88, 90, 96, 97, & 98.

16 28 U.S.C. § 636(b)(1)(B).

17 28 U.S.C. § 636(b)(1).

18 28 U.S.C. § 636(b)(1); Brown v. Astrue, 649 F.3d 193, 195 (3d Cir. 2011).

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within the discretion of the District Court, and the court may otherwise rely on the 

recommendations of the magistrate judge to the extent it deems proper.19

For portions of the Report and Recommendation to which no objection is 

made, the court should, as a matter of good practice, “satisfy itself that there is no 

clear error on the face of the record in order to accept the recommendation.”20

Regardless of whether timely objections are made by a party, the District Court 

may accept, not accept, or modify, in whole or in part, the findings or 

recommendations made by the magistrate judge.21

III. DISCUSSION

Having reviewed those portions of the Report and Recommendation to 

which no objections were made, the Court is satisfied that, on its face, it has no 

clear error. As noted above, the Mann Defendants and Bales Defendants have filed 

Objections to the findings of the Report and Recommendation. Following a de 

novo review of those portions of the Report to which objection was made, I note 

that these objections do not contest the finding that this Court lacks personal

jurisdiction over Defendants. Rather, they are limited to Magistrate Judge 

Schwab’s recommendation that the case be transferred. The Court adopts the 

 

19 Rieder v. Apfel, 115 F.Supp.2d 496, 499 (M.D.Pa. 2000) (citing United States v. Raddatz, 447 

U.S. 667, 676 (1980)).

20 Fed.R.Civ.P. 72(b), advisory committee notes; see also Univac Dental Co. v. Dentsply Intern., 

Inc., 702 F.Supp.2d 465, 469 (M.D.Pa. 2010) (citing Henderson v. Carlson, 812 F.2d 874, 878 

(3d Cir. 1987)) (explaining that judges should give some review to every report and 

recommendation).

21 28 U.S.C. § 636(b)(1); Local Rule 72.31.

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sound reasoning of the Report and Recommendation and will transfer this case to 

the Northern District of Illinois. 

Title 28 of United States Code Section 1631 permits a court that lacks 

jurisdiction to transfer a civil action to a district where the action could have 

originally been brought.

22

 Transfer pursuant to Section 1631 is thus appropriate 

when (1) jurisdiction is wanting in the transferor court, (2) the transfer is in the 

interest of justice, and (3) the action could have been brought in the transferee 

court at the time it was filed.23

In their objections, Defendants do not take exception to this Court lacking 

personal jurisdiction. They do, however, argue that (1) the action could not have 

been brought in the transferee court at the time it was filed, and (2) transfer is not 

in the interest of justice. 24 In support of their first contention, Defendants argue 

that the Report and Recommendation erred by advising transfer and not 

recognizing that the Northern District of Illinois lacked subject matter jurisdiction. 

 

22 Whenever a civil action is filed in a court as defined in section 610 of this title or an appeal, 

including a petition for review of administrative action, is noticed for or filed with such a court 

and that court finds that there is a want of jurisdiction, the court shall, if it is in the interest of 

justice, transfer such action or appeal to any other such court in which the action or appeal 

could have been brought at the time it was filed or noticed, and the action or appeal shall 

proceed as if it had been filed in or noticed for the court to which it is transferred on the date 

upon which it was actually filed in or noticed for the court from which it is transferred. 28 U.S.C. 

§ 1631 (emphasis added).

23 Farber v. Tennant Truck Lines, Inc., 84 F.Supp.3d 421, 435 (3d Cir. 2015); Rodriguez v. Bush, 

367 F.Supp.2d 765, 772 (E.D.Pa. 2005).

24 See Br. in Supp. of Objections of Bales Defs. to Magistrate’s Report and Recommendations 

(“Bales Defs.’ Brief”)(ECF No. 90), at i; Br. in Supp. of Objections of Mann Defs. to 

Magistrate’s Report and Recommendation (“Mann Defs.’ Brief”) (ECF No. 88), at i. 

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Defendants specifically state that (1) no diversity jurisdiction exists to support 

subject matter jurisdiction under 28 U.S.C. § 1332, and (2) no federal question 

jurisdiction exists under 28 U.S.C. § 1331 because Plaintiff has failed to allege

plausible TCPA and civil RICO claims.

25

A. Plaintiff’s Complaint Could Not Have Been Filed in the Northern 

District of Illinois Based On Diversity of Citizenship Jurisdiction.

Concerning the first argument, the Court agrees with Defendants that this 

case could not have been brought in the Northern District of Illinois based on 

diversity jurisdiction. Because federal courts are of limited jurisdiction, they must 

possess jurisdiction over a case to address its merits.26 Under 28 U.S.C. § 1332, a

District Court has jurisdiction by way of diversity of citizenship “where the matter 

in controversy exceeds the sum or value of $75,000, exclusive of interests and 

costs, and is between . . . citizens of different states.”27 The Supreme Court of the 

United States has interpreted diversity of citizenship to require complete 

diversity—i.e. diversity between each plaintiff and each defendant.

28

 

25 See Bales Defs.’ Brief at 11–15; Mann Defs.’ Brief at 12–16.

26 Auto-Owners Insurance Co. v. Stevens & Ricci Inc., F.3d , 2016 WL 4547641 at *19 

(3d Cir. Sept. 1, 2016) (quoting Packard v. Provident Nat. Bank, 994 F.2d 1039, 1042 (3d Cir. 

1993)).

27 28 U.S.C. § 1332.

28 Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 373 (1978); Barefoot Architect, Inc. v. 

Bunge, 632 F.3d 822, 836 (3d Cir. 2011).

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To establish citizenship within the meaning of Section 1332, a person must 

be both “a citizen of the United States and be domiciled within the 

State.”29 Concerning domicile, the Supreme Court has stated that:

[T]he domicile of an individual is his true, fixed and permanent home and 

place of habitation. It is the place to which, whenever he is absent, he has the 

intention of returning. This general statement, however, is difficult of 

application. Each individual case must be decided on its own particular facts. 

In reviewing a claim, relevant criteria include year-round residence, voter 

registration, place of filing tax returns, property ownership, driver's license, 

car registration, marital status, vacation employment, etc.’30

Once acquired, a domicile is presumed to continue until circumstances demonstrate 

otherwise.31 To demonstrate a change in domicile, an individual must (1) take up 

residence in a new domicile, and (2) intend to remain there indefinitely.

32 The 

burden is on plaintiff to establish that diversity of citizenship exists.

33

Here, the Court finds that Plaintiff has failed to meet his burden of 

establishing diversity of citizenship. Prisoners, such as Plaintiff, are presumed to 

retain their prior citizenship when the gates close behind them.34 Prior to his 

incarceration, Plaintiff was a legal resident of the State of Illinois.35 By operation 

 

29 Newman–Green, Inc. v. Alfonzo–Larrain, 490 U.S. 826, 828 (1989) (emphasis in original)

30 Vlandis v. Kline, 412 U.S. 441, 454 (1973).

31 McCann v. Newman Irrevocable Trust, 458 F.3d 281, 287 (3d Cir. 2006) (citing Mitchell v. 

United States, 88 U.S. 350 353 (1874)).

32 Id. (citing Krasnov v. Dinan, 465 F.2d 1298, 1299–1300 (3d Cir. 2003)).

33 Petruska v. Gannon University, 462 F.3d 294, 301 n. 3 (3d Cir. 2006).

34 Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 247 (3d Cir. 2013) (citing Hall v. Curran, 599 

F.3d 70, 72 (1st Cir. 2010); Smith v. Cummings, 445 F.3d 1254, 1260 (10th Cir. 2006); Sullivan 

v. Freeman, 944 F.2d 334, 337 (7th Cir. 1991)).

35 Amended Compl. ¶ 5, at 2. 

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of law, he is therefore rebuttably presumed to retain this citizenship during his term 

of incarceration. At the time he commenced suit,36 Plaintiff was incarcerated at 

FCI Allenwood, White Deer, Pennsylvania.37 He could, therefore, overcome this

presumption of Illinois citizenship, and thus demonstrate diversity of citizenship, 

by establishing Pennsylvania as his new domicile.

38

 

Plaintiff however, fails to satisfy the two domiciliary requirements. While 

he was unquestionably residing in Pennsylvania at the time this action was 

commenced, he failed to allege intent to remain in the state or to return there

following an absence.39 To the contrary, Plaintiff has expressed an intention to 

reside in the State of New York following his release.40 Because Plaintiff does not 

intend to remain in the state in which he is permanently residing—Pennsylvania—

he has failed to rebut the presumption of Illinois citizenship. This failure renders 

him non-diverse from Defendants whom Plaintiff concedes are all citizens of 

Illinois.

41

 

36 See Grupo Dataflux v. Atlas Global Grp., L.P., 541 U.S. 567, 570–571 (2004) (“It has long 

been the case that the jurisdiction of the court depends upon the state of things at the time of the 

action brought.... [This rule] measures all challenges to subject-matter jurisdiction premised upon 

diversity of citizenship against the state of facts that existed at the time of filing”) (internal 

quotations and citations omitted).

37 Compl. (ECF No. 1), at 34. 

38 See, e.g., Robinson v. Temple University Health Servs., 506 F.App’x 112, 115 (3d Cir. 2012) 

(noting that circuits which follow the rebuttable presumption model allow a prisoner to establish 

domicile only in the state of incarceration and opining that it is doubtful that instant plaintiff can 

establish domicile in a third state). 

39 Amended Compl. ¶¶ 3, 5, at 1–2.

40 Id.

41 Id. at 2.

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B. Plaintiff’s Complaint Could Have Been Filed in the Northern District 

of Illinois Based On Federal Question Jurisdiction.

Concerning Defendants’ argument that Plaintiff failed to establish federal 

question jurisdiction, the Court finds that Plaintiff alleged arguable federal claims 

sufficient to grant the Northern District of Illinois federal question subject matter 

jurisdiction. Defendants claim that the Northern District of Illinois would lack 

federal question jurisdiction because Plaintiff has failed to allege plausible federal 

claims.42 This line of reasoning, however, fails to correctly cite Plaintiff’s burden 

in establishing subject matter jurisdiction based on a federal claim. 

In Steel Co. v. Citizens for a Better Environment, the Supreme Court opined 

that “the absence of a valid (as opposed to arguable) cause of action does not 

implicate subject-matter jurisdiction.”43 Rather, the Court stated: 

Dismissal for lack of subject-matter jurisdiction because of the inadequacy 

of the federal claim is proper only when the claim is “so insubstantial, 

implausible, foreclosed by prior decisions of this Court, or otherwise 

completely devoid of merit as not to involve a federal controversy.”

44

 

42 See Bales Defs.’ Brief at 11–15; Mann Defs.’ Brief at 12–16

43 Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 89 (1998) (“[J]urisdiction ... is not 

defeated ... by the possibility that the averments might fail to state a cause of action on which 

petitioners could actually recover.”).

44 Id. (quoting Oneida Indian Nation of N.Y. v. County of Oneida, 414 U.S. 661, 666 (1974))

(emphasis added).

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The determination of claim’s plausibility is therefore a separate inquiry and the 

Court must first ensure that it has subject matter jurisdiction prior to addressing the 

merits of a claim.

45

Here, Plaintiff alleges federal claims under both the TCPA and RICO, and 

thus two potential bases exist for federal question jurisdiction. This Court’s 

analysis, therefore, will focus on whether these claims are “so insubstantial, 

implausible, foreclosed by prior decisions of this Court, or otherwise completely 

devoid of merit as not to involve a federal controversy.” Based on a review of the 

Plaintiff’s Amended Complaint, this Court finds that Plaintiff’s TCPA claim is not 

so devoid of merit so as to not involve a federal controversy.46

When presented with a pro se litigant such as Plaintiff, courts have a special 

obligation to construe his complaint liberally.47 This Court must therefore liberally 

read Plaintiff’s Amended Complaint to determine if it alleges arguable federal 

claims not completely devoid of merit. I find that Plaintiff has met this lessened 

burden. First, the Court notes that Plaintiff has cited law concerning both a TCPA 

claim and a civil RICO claim. He has further adduced facts in support of his 

TCPA claim which raise it beyond the mere frivolous to a level justifying a merits 

 

45 Advanced Fluid Sys., Inc. v. Huber, Civil Action No. 1:13-CV-3087, 2014 WL 1808652 at *5 

(M.D.Pa. May 7, 2014)(Conner, C.J.)(citing Steel Co., 523 U.S. at 93–95).

46 In so finding, the Court will not determine if Plaintiff’s RICO claim is “arguable.” Subject 

matter jurisdiction of the Northern District of Illinois is established by virtue of Plaintiff’s 

arguable TCPA claim.

47 Higgs v. Atty. Gen. of the U.S., 655 F.3d 333, 339 (3d Cir. 2011) (citing, inter alia, Estelle v. 

Gamble, 429 U.S. 97, 106 (1976)).

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determination by a court with proper jurisdiction. In her Order of October 14, 

2015, Magistrate Judge Schwab found that the TCPA claim within Plaintiff’s 

original complaint failed to allege an “arguable” federal claim.48 She specifically 

stated, as justification for this finding, that Plaintiff’s complaint “does not contain 

any allegations about telephone calls or fax messages.”49 Plaintiff’s amended 

complaint, filed on November 3, 2015, contains factual averments of both 

telephone calls and faxes messages by Defendants.50 These averments, added in 

accordance with Magistrate Judge Schwab’s direction, raise at least an “arguable” 

TCPA claim necessary to bestow federal question jurisdiction.51

Second, I note, like the Report and Recommendation, that Plaintiff’s 

potential lack of statutory standing under the TCPA does not implicate a lack of 

subject-matter jurisdiction.52 Such an allegation is more properly brought under 

Federal Rule of Civil Procedure 12(b)(6).53 Finally, the Court concludes that

transfer is “in the interest of justice” as required by 28 U.S.C. § 1631. Plaintiff, a 

pro se prisoner, has yet to receive adjudication on the merits of his complaint. 

 

48 Order (ECF No. 11), at 4–5.

49 Id.

50 Amended Compl. ¶¶ 5–7, at 2–4.

51 This determination does not foreclose the possibility that Plaintiff’s claims nevertheless failed 

to meet the plausibility requirements set forth by the Supreme Court in Bell Atlantic Corp. v. 

Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 566 U.S. 662 (2009). This decision on the 

merits would be appropriately decided by the Northern District of Illinois. 

52 Leyse v. Bank of America Nat. Ass’n, 804 F.3d 316, 320 (3d Cir. 2015) (finding that 

“[s]tatutory standing goes to whether Congress has accorded a particular plaintiff the right to sue 

under a statute, but it does not limit the power of the court to adjudicate the case.”).

53 Id. (citing Baldwin v. Univ. of Pittsburgh Med. Ctr., 636 F.3d 69, 73–74 (3d Cir. 

2011); Sullivan v. DB Invs., Inc., 667 F.3d 273, 307 (3d Cir. 2011)).

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Transfer to a court with jurisdiction and one in which all defendants are 

domiciled—the Northern District of Illinois— is therefore necessary to provide 

parties both the benefit of litigation on the merits and the possibility of a final 

judgment.

IV. CONCLUSION

Based on the above discussion and analysis, the Court adopts in its entirety 

the Report and Recommendation of Magistrate Judge Schwab. Defendants’ 

Motions to Dismiss will be granted for lack of personal jurisdiction within the 

Commonwealth of Pennsylvania. Pursuant to 28 U.S.C. § 1631, Plaintiff’s case 

will be transferred to the United States District Court for the Northern District of 

Illinois.

An appropriate Order follows.

BY THE COURT:

 s/ Matthew W. Brann 

Matthew W. Brann

 United States District Judge

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