1 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________ No. 16

- 1532

_____________ JOSHUA PARK, Appellant

v. DIMITRI TSIAVOS; LEONIDAS TSIAVOS, ELIZABETH TS IAVOS, CHODAE COMMUNITY CHURCH;

_____________ On Appeal from the United States District Court for the District of New Jersey District Court No. 2

- 13

- cv - 00616 District Judge: The Honorable William J. Martini Submitted Pursuant to Third Circuit L.A.R. 34.1(a)

January 12, 2017 Before: SMITH, Chief Judge, JORDAN, and SHWARTZ , Circuit Judges

(Filed: February 9, 2017 )

_____ ________________ OPINION *

_____________________

* This disposition is not an opini on of the full court and pursuant to I.O.P. 5.7 does not constitute binding precedent.2

SMITH, Chief Judge. Plaintiff Joshua Park regularly played recreational basketball in the gym of
the Cho Dae Presbyterian Church of New Jersey (“ the Church ”). During one game

on J une 13, 2012, several members of an opposing team , including defendant Dimitri Tsaivos, engaged Park in a fight. According to Park, his attackers made several comments that referred to Park’s Asian race

. Park asserts the following claims: (1) premises liab ility against the Church ; (2) conspiracy to interfere with his civil rights in violation of 42 U.S.C. § 1985(3), against Tsaivos and several
John Doe defendants ; (3) negligence, assault, and b attery against Tsaivos; and (4) negligent supervi sion against Ts aivos’s parents.
The District Court granted summary judgment on the state premises

- liability
claim and the federal conspiracy claim. It then declined supplemental jurisdiction over the remaining state

- law claims. This timely appeal followed. 1 For the foll owing reasons, we will affirm.
I We begin with the District Court’s decision to grant summary judgment on the claims for premises liability and civil rights conspiracy . We review de novo ,

1 The District Court had jurisdiction pursuant to 28 U.S.C. § § 1331 , 1367

. We have jurisdiction pursuant to 28 U.S.C. § 1291. For the reasons discussed in Section II.A of this opinion, diversity jurisdiction is lacking.3

applying the same standard as the District Court

. Fraternal Order o f Police, Lodge 1 v. City of Camden , 842 F.3d 231, 238 (3d Cir. 2016)

. W e will affirm as to each
claim.
A
T he District Court held that the Church is immune from Park’s claim of premises liability under the New Jersey Charitable Immunity Act. 2 We agree. The Charitable Immunity Act provides, inter alia , as follows: No nonprofit corporation, society or association organized exclusively for religious, charitable or educational purposes

. . . shall, except as is hereinafter set forth, be liable to respond i n damages to any person who shall suffer damage from the negligence of any agent or servant of such corporation, society or association, where such person is a beneficiary, to whatever degree, of the works of such nonprofit corpo r ation , society or associat ion; provided, however, that such immunity from liability shall not extend to any person . . . [who is] unconcerned in and unrelated to and outside of the benefactions of such corporation, society or association.

2 As a preliminary matter , Park argues that the Church failed to comply with Rule 56.1 of the Local Civil Rules of the United States Dist rict Court for the District of N ew Jersey , which requires a party moving for summary judgment to enumerate the undisputed facts. According to Park, the Church did so, but not in a separate document as required by the rule. But a distri ct court is permitted “ to waive a requirement of its local rules ” where it has “a sound reason for doing so” and “no party’s substantial rights are unfairly jeopardized.” Un ited States v. Eleven Vehicles , 200 F.3d 203, 215 (3d Cir. 2000) (citation omitted). The District Court did so in this case because the Church substantially complied with the rule , providing full notice to the court and parties as to the grounds for the Church’s motion . We conclude that the District Court did not abuse its discretion by excusing a technical error in the statement of undisputed facts. See id. at 214 (applyi ng abuse of discretion review).4

N.J. Stat. Ann. § 2A:53A

- 7 (a)

. Under this provision, “an entity qualifies for charitable immunity when it ‘(1) was formed for nonprofit purposes; (2) is organized exclusively for religious, charitable or educational purposes; and (3) was promoting such objectives and purposes at the time of the in jury to plaintiff who was then a benefi ciary of the charitable works.’ ” Hardwicke v. Am. Boychoir Sch. , 902 A.2d 900, 916 ( N.J. 2006) (quoting O’Connell v. State , 795 A.2d 857, 860 ( N.J. 2002) ). The Charitable Immunity Act is supported by “strong” public policy considerations. P.V. ex rel. T.V. v. Camp Jaycee , 962 A.2d 453, 463 ( N.J. 2008)

.

“ The Legislature has determined that the proper way to encourage charity in New Jersey and to guarantee continuance of the good works charities provide is to insure the y will not have to expend their resources on litigation. ” Id. Thus, the Supreme Court of New Jersey has instructed that the statute be “liberally construed.” Id. (quoting Monaghan v. Holy Trinity Church , 646 A.2d 1130 , 1133 ( N.J. Super. Ct. App. Div. 1994) )

. In light of those policy considerations , the Supreme Court of New Jersey has held that charitable work include s providing “facilities for the social and recreational needs of organizations and individuals.” Bieker v. Cmty. House of
Moorestown , 777 A.2d 37 , 43 ( N.J. 2001)

. The Court recognized that principle in a case factually similar to this one: a young victim was injured when he fell off the5

fire escape of a nonprofit’s gymnasium where his father was playing basketball. Id.
at 40. The Supreme Cour t o f New Jersey concluded that operating “a center of community life” serves “a recognized charitable purpose.” Id. at 43. The Court also held that “[t] he child was plainly a recipient of [ the organization’s ]

‘ benefactions, ’ even if only as a companion of hi s fathe r and a spectator at his father’ s basketball game. ” Id. at 45. In this case, t he only question is whether Park was a beneficiary of the Church’s charitable works at the time he was injured on the premises. In accordance with Bieker , we conclude tha t he was. If the spectator child in Bieker was a recipient of the defendant’s benefactions , it follows that Park was even more directly a recipient by participating in a similar basketball game. See also Pomeroy v. Little League Baseball of Collingswood , 3 62 A.2d 39, 41 ( N.J. Super. Ct. App. Div. 1976) (“ Clearly a spectator at a Little League baseball gam e is a beneficiary of defendant’ s works

. . . . ”); Anasiewicz v. Sacred Heart Church of New Brunswick , 181 A.2d 787 , 790 ( N.J. Super. Ct. App. Div. 1962 ) ( wedding guest is a beneficiary ). Park relies on several pre

- Bieker cases where New Jersey’s intermediate appellate court denied charitable immunity. See, e.g. , Jerolamon v. Fairleigh Dickinson Univ. , 488 A.2d 1064 (N.J. Super. Ct. App. Div. 1985); Book v . Aguth Achim Anchai of Freehold , 245 A.2d 51 ( N.J. Super. Ct. App. Div. 1968)

. T hese6

cases are distinguishable because they involved for

- profit activities , not benefactions. Jerolamon involved a social gathering at a university organized by a group that p aid a fee to use certain property , 488 A.2d at 1066, and the plaintiff in Book paid an admission fee to attend a synagogue bingo game , 245 A.2d at 52. Likewise in Bieker , the Supreme Court of New Jersey noted that the defendant rented space to various grou ps and individuals. The Court remanded for further proceedings on the question of whether the “dominant motive [here] is charity or some other form of enterprise.” 777 A.2d at 45 (alteration in original) (citation omitted). Here, Park has not created a dis pute of fact as to the Church’s dominant
motive. Park has not claimed that the Church rented the gymnasium , charged a fee to play recreational basketball, or otherwise had a profit motive in tension with its charitable purpose of providing a “center of com munity life.” Id. at 43. Park also argues that the Church is not immune because he was not invited onto the premises. However, Park has not identified any authority requiring him to be an invitee. I f he were a “stranger” to the church , the Charitable Immu nity Act might not apply. Cf. Brown v. St. Venantius Sch. , 544 A.2d 842, 847 ( N.J. 1988) (no immunity where charity failed to remove snow and ice from an abutting sidewalk, injuring a pedestrian ); Mayer v. Fairlawn Jewish Ctr. , 186 A.2d 274, 277 ( N.J. 1962 ) ( no immunity because the injured individual was on the religious organization’s premises for the “fulfillment of his function and obligation as an7

employee”). But Park is no stranger to the church

. It is undisputed that h is parents belonged to the congre gation and Park played basketball in the gymnasium with his friends “at least once a week.” PA0362

. His use of the gymnasium was therefore in fulfillment of the church’s recognized charitable purpose : providing for the “ s ocial and recreational needs ” of th e community. Bieker , 777 A.2d at 44

. We thus conclude that the Church is immune from Park’s premises

- liability claim pursuant to N.J. Stat. Ann. § 2A:53A

- 7

. B Park’s next claim is that his attackers conspired to interfere with his civil rights in violati on of 42 U.S.C. § 1985 (3). Park argues that the District Court erred by granting summary judgment on the basis of the attackers’ state of mind (i.e., the presence or absence of racial animus) , which should have been a question reserved for the jury. But th at is not what the District Court did. The District Court granted summary judgment “for a second, independent reason:” Park’s failure to identify a “right guaran teed against private impairment

. ” Bray v. Alexandria Women’ s Health Clinic , 506 U.S. 263, 274 ( 1993)

. Section 1985(3) makes it unlawful for “two or mo re persons . . . [to] conspire

. . . for the purpose of depriving . . . any person . . . of the equal protection of the laws, or the equal privileges and i mmunities under the laws. ” 42 U.S.C. § 1985(3 ). The Supreme Court has held that the statute covers private conspiracies.8

Griffin v. Breckenridge , 403 U.S. 88, 101 (1971)

. But this Court has interpreted the statute to apply to private conspiracies in “rather limited circumstances” in order to avoid cr eating a “general federal tort law.” Brown v. Philip Morris Inc. , 250 F.3d 789, 805 (3d Cir. 2001)

. Because § 1985(3) “does not itself create any substantive rights,” id. , a private conspiracy claim must rely on the violation of a right “constitutionally protect ed against private interference, ” Bray , 506 U.S. at 274 ; cf. United Bhd. of Carpenters & Joiners of Am. v. Scott , 463 U.S. 825, 833 (1983) (“[T] he right

c laimed to have been infringed has its source in the First Amendment. Because that
Amendment re strains only official conduct, to make out their § 1985(3) case, it was necessary for respondents to prove that the state was somehow involved in or affected by the conspiracy. ”). Under those principles, the Supreme Court has recognized only two rights pro tected from private conspiracy under § 1985(3): “ the right to be free from involuntary servitude and the right to interstate travel. ”
Brown , 250 F.3d at 805

. In this case, Park has not alleged a violation of either

. See id. at 806 (“ The great weight of pr ecedent ial authority

. . . supports the traditional limitation of § 1985(3) to questions of interstate travel and involuntary servitude . . . .”). Nor has Park argued that the list of cognizable rights should be expanded

. While Park invokes general princip les of equal protection, it is “ firmly embedded in our9

constitutional law ” that the equal protection guaranteed by the Fourteenth Amendment “erects no shield against merely private conduct, however discriminatory or wrongful .” United States v. Morrison , 52 9 U.S. 598, 621 (2000) (quoting Shelley v. Kraemer , 334 U.S. 1, 13 (1948) ). Thus, because Park has not identified a constitutional right guaranteed against private impairment, Park’s claim under § 1985(3) is not viable.
II After correctly granting sum mary judgment on those two claims, including the only federal cause of action, the District Court declined to exercise supplemental jurisdiction over the remaining state

- law claims. Park argues that this was error for two reasons : (1) diversity jurisdictio n is proper, and (2) it was error for the District Court to exercise supplemental jurisdiction over one , but not all,

state

- law claims

. We reject both arguments.
A Park avers that the District Court had diversity jurisdiction over the state

- law
claim s p ursuant to 28 U.S.C. § 1332 , notwithstanding the absence of a federal question

. “Our review for lack of subject matter jurisdiction is plenary.” Swiger v. Allegheny Energy, Inc. , 540 F.3d 179, 180 (3d Cir. 2008) . “ A district court’ s determination regarding domicile or citizenship is a mixed question of fact and law, but primarily one of fact, w hich we review for clear error.” McCann v.10

Newman Irrevocable Tr. , 4 58 F.3d 281, 286 (3d Cir. 2006). We conclude that diversity jurisdiction is lacking. For purposes of diversity jurisdiction, “the domicile of an individual is his true, fixed and permanent home and place of habitation.” Vlandis v. Kline , 412 U.S. 441, 454 (1973). “[A] domicile once acquired is presumed to continue until it is shown to have been change d.” Washington v. Hovensa LLC , 652 F.3d 340, 345 (3d Cir. 2011). A party claiming to have a new domicile must: (1) “carry the burden of production to rebut the presumption in favor of an established domicile,” and (2) “carry the burden of persuasion by pro ving that a change of domicile occurred, creating diversity of citizenship ” by a “preponderance of the evidence.”
McCann , 45 8 F.3d at 289. In this case, it is undisputed that defendants are New Jersey domiciliaries. Therefore, for diversity jurisdiction t o be proper, Park must have been domiciled in a state other than New Jersey at the time of filing. See Kaufman v. Allstate N.J. Ins.
Co. , 561 F.3d 144, 152 (3d Cir. 2009 ). Following jurisdictional discovery, the record discloses that Park attended colleg e in New York at the time of filing, but his family’s permanent residence remained in New Jersey. Park does not dispute that he was listed as a resident dependent on his parents’ most recent New Jersey state tax returns , or that he renewed his New Jersey d river’s licen se as recently as January 2013

— the sam e11

month this action was filed. Park has not obtained a driver’s license, registered to vote, or paid taxes in New York. See Bradley v. Zissimos , 721 F. Supp. 738, 739
n.3 (E.D. Pa. 1989) (“It is generally presumed that a student who attends a university in a state other than the student’s ‘home’ state intends to return ‘home’ upon completion of studies.”). On this record, the District Court did not commit clear error in concluding that Park failed to overco me the presumption in favor of his existing domicile. We therefore conclude that he was a New Jersey domiciliary at the time of filing, rendering diversity jurisdiction improper. Accordingly, the District Court’s jurisdiction depended solely on Park’s
fed eral cause of action. Once the District Court granted summary judgment on that claim, it was appropriate to determine whether to retain supplemental jurisdiction over the remaining state

- law claims pursuant to 28 U.S.C. § 1367(c).
B Second, Park argues that the District Court erred by granting summary judgment on the premises

- liability claim while declining supplemental jurisdiction over the other state

- law claims. According to Park, the District Court’s decision was “self

- contradictory,” and violates t he principle that a court cannot decide the merits of a claim over which it lacks jurisdiction. We reject Park’s argument

. The District Court’s decision is not self

- contradictory because it is “absolutely clear” that “ dismissal u nder § 1367(c) is discreti onary[] and not12

ju risdictional. ” 13D Charles Alan Wright & Arthur R. Miller , Federal Practice and Procedure § 3567.3 (3d ed. 2008 ). This Court’s decision in Figueroa v. Buccaneer Hotel Inc. , 188 F.3d 172 (3d Cir. 1999) , is directly on point. Figueroa held that “[i] t is of no effect that the District Court exercised jurisdiction over one of [plaintiff’s] territorial claims

— Count III based on the Virgin Islands Civil Rights Act

— before declining to exercise supplemental jurisdiction over the remaining claims. ” Id. at 181 n.10. “[A] lthough exercising supplemental jurisdiction over one claim and declining to exercise jurisdiction over other claims is unusual, it is not an abuse of discretion.” Id. (citing Southerland v. Hardaway Mgmt. , Inc. , 41 F.3d 250, 256

– 57 ( 6th Cir. 1994) ). 3 Accordingly, the District Court’s decision to enter summary judgment on the premises

- liability claim did not exceed the bounds of the Court’ s jurisdiction

. IV For the foregoing reasons, we will affirm.

3 The d istrict c ourts should continue to apply the usual standard , which requires dismissal under § 1367(c)(3) “ unless considerations of judicial economy, convenience, and fairness to the parties provide an affirmative just ification ” for retaining supplemental jurisdiction

. Hedges v. Musco , 204 F.3d 109, 123 (3d Cir. 2000) (quoting Borough of W. Mifflin v. Lancaster, 45 F.3d 780, 788 (3d Cir. 1995) ). We review that determination for abuse of discretion. Maher Terminals, LLC v. Port Auth. of N.Y. & N.J. , 805 F.3d 98, 104 (3d Cir. 2015). Park has not argued that the District Court abused its discretion under that standard.