REPORT AND RECOMMENDATION

SARAH NETBURN, Magistrate Judge.

TO THE HONORABLE RONNIE ABRAMS:

Plaintiff, proceeding pro se, filed a complaint against Alvin Ernest Entin, Entin & Della Fera, P.A. (the "Entin Defendants"), Joyce London, and Joyce London, P.C. (the "Joyce Defendants"), and Christopher Madiou, Plaintiff's former criminal defense attorneys and their law firms (collectively, "Defendants"). ECF No. 1. All Defendants moved to dismiss under Rule 12(b)(1) for lack of subject matter jurisdiction and Rule 12(b)(6) for failure to state a claim. See Christopher Madiou Motion to Dismiss, ECF No. 35; London Defendants Motion to Dismiss, ECF No. 36-38; Entin Defendants Motion to Dismiss, ECF Nos. 40-41. On July 19, 2019, the Honorable Ronnie Abrams referred the motions to dismiss to me for a Report and Recommendation. ECF No. 33. I recommend that each of Defendants' motions be granted and that this case be dismissed with prejudice.

BACKGROUND

The following facts are taken from the complaint, ECF No. 1 ("Compl.") and are accepted as true for purposes of this motion to dismiss.

Plaintiff, who is currently incarcerated in Florida, filed the complaint in this action on March 11, 2019, against Defendants, three attorneys who represented him in a federal criminal case and appeal, United States v. Philander Philippeaux, 1:13-CR-0277 (RWS). See Compl. 5-10. The complaint alleges that each Defendant committed legal malpractice, made negligent misrepresentations, breached duties, and conspired to commit malicious acts that "directly led to Plaintiff's federal conviction and length of sentence imposed." Id. at 11.

Specifically, Plaintiff argues that the government introduced fraudulent evidence at his trial in order to justify the court's jurisdiction to convict him and to establish that venue was proper in the Southern District of New York. See id. at 6. Plaintiff alleges that he wrote letters and emails to his trial counsel, Defendants London and Madiou, raising concerns that the government had introduced fabricated phone records. Id. Defendants London and Madiou declined to file a motion based on Plaintiff's contentions and instead tried to convince him to accept a guilty plea. Id.

Plaintiff was ultimately convicted following his trial. Id. at 7. Before his sentencing, Plaintiff requested that Defendants London and Madiou state to the court that "a travesty of Justice has been committed." Id. Defendant London responded that she instead wished to emphasize that Plaintiff's case "was about `guns,' `violence,' and [the] `threat of violence.'" Id. Plaintiff states that his case did not involve guns, violence, or the threat of violence and that, at sentencing, his trial counsel "attempted to get [him] the maximum sentence of Life in Prison." Id. Plaintiff was sentenced to 17 years' imprisonment. Id.

Defendant Entin represented Plaintiff on his appeal to the Court of Appeals. Id. Plaintiff states that he paid Defendant Entin $25,000 for his services. Id. Plaintiff reiterated his concern to Entin that the government had introduced fabricated evidence at his trial to justify the court's jurisdiction over him and to establish that venue was proper in the Southern District of New York. Id. at 7-8. Plaintiff states that an "investigative attorney" named Ronald Garnet, who is not named as a defendant, "found that there was no [j]urisdiction, that [v]enue was obtained through fraud, that the phone number and call used to obtain venue [were] in fact a fraud." Id. at 8. Plaintiff does not state when Garnet made this finding or whether he was retained by another attorney, but Plaintiff appears to allege that Garnet's statements were made in preparation for or during his trial. According to the complaint, Garnet told Plaintiff that "a recommendation report would be written to the Court." Id. Defendant Entin "was aware" that Defendants London and Madiou had told Plaintiff that they did not intend to discuss Garnet's findings, that Plaintiff's proposed jurisdiction and venue arguments were frivolous, and that Plaintiff's best option was to accept a guilty plea. Id.

In the course of preparing the appeal, Defendant Entin travelled to New York to meet with Defendant London to discuss the phone records that Plaintiff alleged were fraudulent. Id. at 9. Plaintiff alleges that, at their meeting, Defendants Entin and London agreed to conspire to make false representations to Plaintiff. Id. Following his meeting with Defendant London, Defendant Entin "started a campaign of persuasion and inducement to have Plaintiff agree to give up the issues if [j]urisdiction and [v]enue that was obtained through fraud." Id. On appeal, Defendant Entin did not argue that venue was improper "but instead stated lies in Plaintiff's appeal brief." Id. (emphasis in original). Defendant Entin filed the appellate brief without Plaintiff's review or agreement. Id. Plaintiff confronted Defendant Entin, who "agreed Plaintiff was in fact correct," and "acknowledged that it was a simple mistake that would have no negative outcome on the appeal, that he could not correct it, it was too late." Id. at 10 (emphasis in original). Plaintiff "then dispatched members of his family and a professional to meet Defendant in person at his office." Id. Defendant Entin then agreed to amend the appeal brief, but it was too late to do so. Id. The appeal was unsuccessful. Id.

Plaintiff seeks $13 million in damages from each of the Defendant law firms, Entin & Della Fera, P.A. and Joyce London, P.C., $7 million in damages from Defendants London and Madiou, and $7 million in damages from Defendant Entin. Id. at 14.

Defendants filed three motions to dismiss the complaint. ECF Nos. 35, 36, 40-41. Defendant Madiou adopted the arguments in Defendant London's memorandum of law, ECF No. 34, and Defendant Entin filed a separate memorandum of law. ECF No. 41. But all Defendants argue that Plaintiff's complaint should be dismissed because the Court lacks subject matter jurisdiction over the claims and because Plaintiff failed to state a claim for relief. See Joyce London and Joyce London, P.C. Memorandum of Law in Support of Motion to Dismiss, ECF No. 38 ("London Br."); Alvin Ernest Entin and Entin & Della Fera, P.A. Memorandum of Law in Support of Motion to Dismiss ("Entin Br.").

DISCUSSION

I. Motion to Dismiss for Lack of Subject Matter Jurisdiction

"A district court properly dismisses an action under Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction if the court `lacks the statutory or constitutional power to adjudicate it.'" Cortlandt St. Recovery Corp. v. Hellas Telecommunications, S.à.r.l, 790 F.3d 411, 416-17 (2d Cir. 2015) (citing Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000)). The plaintiff bears the burden to prove by a preponderance of the evidence that subject matter jurisdiction exists. See Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000).

Plaintiff alleges that the Court has subject matter jurisdiction over his claims based on either diversity of citizenship under 28 U.S.C. § 1332 or admiralty and maritime jurisdiction under 28 U.S.C. § 1333. See Compl. 1. Defendants argue that Plaintiff has not established the Court's jurisdiction on either basis. When motions to dismiss are based on more than one ground, the court should consider a 12(b)(1) motion first "since if it must dismiss the complaint for lack of subject matter jurisdiction, the accompanying defenses and objections become moot and do not need to be determined." Rhulen Agency, Inc. v. Alabama Ins. Guar. Ass'n, 896 F.2d 674, 678 (2d Cir. 1990) (citing Wright and A. Miller, Federal Practice and Procedure, § 1350).

A. The Court Lacks Diversity Jurisdiction

Diversity jurisdiction exists "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." 28 U.S.C. § 1332(a). For diversity jurisdiction to apply, all adverse parties to a litigation must be "completely diverse in their citizenships." Herrick Co. v. SCS Commc'ns, Inc., 251 F.3d 315, 322 (2d Cir. 2001). Where jurisdiction is premised on diversity of citizenship, "diversity must exist at the time the action is commenced." Universal Licensing Corp. v. Paola del Lungo S.p.A., 293 F.3d 579, 581 (2d Cir. 2002).

A prisoner is presumed to be citizen of the state where he was domiciled before he was incarcerated. See Fermin v. Moriarty, No. 96-CV-3022 (MBM), 2003 WL 21787351, at *2 (S.D.N.Y. Aug. 4, 2003) ("It is well-established that a prisoner does not acquire a new domicile when he is incarcerated in a state different from his previous domicile."). In this Circuit, that presumption is rebuttable where a prisoner shows by a preponderance of the evidence that he has made the state of incarceration his new domicile. See id., at *3; Braten v. Kaplan, No. 07-CV-8498 (HB), 2009 WL 614657, at *4 (S.D.N.Y. Mar. 10, 2009), aff'd, 406 F. App'x 516 (2d Cir. 2011).

Here, Plaintiff alleges $40 million in damages, satisfying § 1332(a)'s amount in controversy requirement. But Plaintiff has not alleged complete diversity between the adverse parties. See Herrick Co., 251 F.3d at 322-23 (quoting Advani Enter., Inc. v. Underwriters at Lloyds, 140 F.3d 157, 160 (2d Cir.1998)) (The party seeking to invoke diversity jurisdiction "bears the burden of demonstrating that the grounds for diversity exist and that diversity is complete.") (internal quotation marks omitted).

Plaintiff alleges that he is a citizen of Florida. Compl. 2. Although a prisoner does not acquire a new domicile in the state in which he is incarcerated, no defendant has challenged Plaintiff's citizenship allegation. Accordingly, the Court assumes that Plaintiff was a citizen of Florida before he was incarcerated. Because the Entin Defendants are citizens of Florida, the Plaintiff is a citizen of the same state as any defendant, thereby destroying diversity of citizenship. See Bass & Ullman, P.C. v. Gov't Employees Ins. Co., No. 94-CV-3428 (MBM), 1994 WL 584554, at *1 (S.D.N.Y. Oct. 24, 1994) (a professional corporation is a citizen of the state where it is organized and exists) (citing 28 U.S.C. § 1332(c)(1)).

The Court also considers that Plaintiff could be a citizen of New York because he was tried and convicted in the Southern District of New York. The London Defendants are citizens of New York. Thus, if Plaintiff was a citizen of New York before he was incarcerated, such citizenship would also destroy diversity of citizenship.

Because Plaintiff has not demonstrated complete diversity between himself and the Defendants in this case, I find that the Court lacks diversity jurisdiction under 28 U.S.C. § 1332.

B. The Court Lacks Admiralty or Maritime Jurisdiction

Plaintiff also alleges that the Court has admiralty or maritime jurisdiction over his case. Compl 1. District courts have original jurisdiction over cases of admiralty or maritime jurisdiction pursuant to 28 U.S.C. § 1333(a). "The primary purpose of federal admiralty jurisdiction is to protect[ ] commercial shipping with uniform rules of conduct." Vasquez v. GMD Shipyard Corp., 582 F.3d 293, 298 (2d Cir. 2009) (quoting LeBlanc v. Cleveland, 198 F.3d 353, 356 (2d Cir. 1999) (internal quotation marks omitted).

Plaintiff's complaint raises tort claims against Defendants—malpractice, negligent misrepresentation, breach of duty, and conspiracy "to commit malicious acts." Compl. 5. Courts apply a two-part test to determine when a tort action falls within the federal courts' admiralty jurisdiction. Vasquez, 582 F.3d at 298. First, the alleged tort "must have occurred on or over `navigable waters.'" Id. (citing Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 534 (1995)). Second, "the activity giving rise to the incident must have had a substantial relationship to traditional maritime activity, such that the incident had a potentially disruptive influence on maritime commerce." Id. Even applying the "liberal reading" appropriately granted pro se submissions, Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 475 (2d Cir. 2006), Plaintiff has alleged no facts to suggest that either factor has been satisfied or that his case has any connection to maritime or admiralty jurisdiction.

C. The Court Lacks Federal Question Jurisdiction

Finally, in his opposition, Plaintiff argues that the Court has federal question jurisdiction. See Pl's. Opp. 2, ECF No. 44. Plaintiff's claims against his former counsel are tort claims rooted in state law. He does not assert any claims "arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. See also Williams v. Sindos, No. 08-CV-0378 (GBD), 2009 WL 613317, at *2 (S.D.N.Y. Mar. 9, 2009) ("[C]laims for legal malpractice are matters of state law and do not present a federal issue."). Accordingly, the Court lacks subject matter jurisdiction over Plaintiff's case pursuant to 28 U.S.C. § 1331.

II. The Court Declines to Address the Merits of Defendants' Motions to Dismiss for Failure to State a Claim

Defendants also argue that the complaint should be dismissed under Rule 12(b)(6) for failure to state a claim. Because I find that the Court lacks subject matter jurisdiction over Plaintiff's claims, all of which arise under state law, I do not reach the merits of those claims. See Fed. R. Civ. P. 23(h)(3) ("If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action."); Rhulen, 896 F.2d at 678 (noting that a "motion to dismiss for failure to state a claim may be decided only after finding subject matter jurisdiction") (citing Bell v. Hood, 327 U.S. 678, 682 (1946)).

CONCLUSION

Because I find that the Court lacks subject matter jurisdiction over Plaintiff's claims, I recommend that Defendants' motions to dismiss be GRANTED.

NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION

The parties shall have fourteen days from the service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed. R. Civ. P. 6(a), (d) (adding three additional days when service is made under Fed. R. Civ. P. 5(b)(2)(C), (D), or (F)). A party may respond to another party's objections within fourteen days after being served with a copy. Fed. R. Civ. P. 72(b)(2). Such objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Ronnie Abrams at the United States Courthouse, 40 Foley Square, New York, New York 10007, and to any opposing parties. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Abrams. The failure to file these timely objections will result in a waiver of those objections for purposes of appeal. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985).