Combs v. Burgess: Mitchell Asks to Move to Dismiss for Lack of Subject-Matter Jurisdiction
Pre-Motion Letter · Filed Sept. 17, 2026
In the matter of Combs v. Burgess, et al., No. 1:25-cv-00650 (JPC) (S.D.N.Y.), Defendant Ariel Mitchell has filed a pre-motion letter asking United States District Judge John P. Cronan to permit a motion to dismiss the Amended Complaint for lack of subject-matter jurisdiction, meaning the court’s power to hear the case, and to stay or extend her deadline to answer. (ECF No. 127.)
Background
Sean “Diddy” Combs sued Nexstar Media Inc., Mitchell and Courtney Burgess for defamation on Jan. 22, 2025 (ECF No. 1). On Sept. 4, 2026, Judge Cronan denied Mitchell’s motion to dismiss for failure to state a claim. (ECF No. 122 at 26.) Three days before Mitchell’s letter, Combs’s counsel of record, Sher Tremonte LLP, moved to withdraw from the case (ECF Nos. 124, 125; see the earlier Dispatch). The court’s Sept. 17 order addresses that motion and Mitchell’s letter together.
The Pre-Motion Letter
The letter invokes Rule 6.A of the court’s Individual Rules and Practices, which it quotes as providing that a pre-motion letter “will stay that party’s obligation to answer or move against the complaint through the deadline to move to dismiss.” (ECF No. 127 at 1.)
Diversity Jurisdiction
The letter calls the case “a one cause of action, New York state-law, defamation case” in which Combs “invokes only diversity jurisdiction under 28 U.S.C. § 1332(a).” (Id. at 2.) Diversity jurisdiction lets a federal court hear a state-law case only when no plaintiff shares a state of citizenship with any defendant. The letter states that this “complete diversity of citizenship” is measured as of Jan. 22, 2025, when the action began. (Id.)
Domicile
Mitchell argues that “[c]itizenship for an individual is domicile, not residence and not the location of a jail cell,” domicile being a person’s fixed permanent home, and that “[a] person confined in this District is therefore presumed to retain the domicile he held before his incarceration.” (Id.) She relies on Fermin v. Moriarty, No. 96 Civ. 3022 (MBM), 2003 WL 21787351 (S.D.N.Y. Aug. 4, 2003), which the letter quotes as holding that “a prisoner does not acquire a new domicile when he is incarcerated in a state different from his previous domicile.” (Id.)
The Amended Complaint
The letter contends that the Amended Complaint “does not allege citizenship at all,” alleging only that Combs “presently resides in Brooklyn, New York.” (ECF No. 127 at 2 (citing ECF No. 61 ¶ 12).) It argues that Combs’s “pleaded connection to New York is his custodial placement at the Metropolitan Detention Center in Brooklyn,” and that “involuntary federal custody cannot create the voluntary presence and intent to remain indefinitely that domicile requires.” (Id. at 3.)
Florida Domicile
The letter states that Combs’s “own bail submission” in United States v. Combs, No. 24-cr-542 (AS) (S.D.N.Y. Sept. 18, 2024), says “he left his home in Miami and travelled to New York to surrender.” (Id. at 2.) It also cites O’Marcaigh v. Combs, No. 2:25-cv-03650 (C.D. Cal. Mar. 31, 2026), in which, it states, Judge Gee relied on evidence “establishing that he is a permanent resident and domiciliary of Florida.” (Id. at 3.)
Because Mitchell “was likewise a Florida citizen when this action was filed,” the letter argues, “complete diversity never existed.” (Id.) It adds that “subject-matter jurisdiction cannot be waived,” so the motion “is proper now” despite the Sept. 4 denial. (Id.)
Relief Requested
Mitchell asks the court to treat the letter as staying her time to answer; to set a “short briefing schedule” on the motion; and to stay “all answer and discovery obligations as to Mitchell until the Court rules on subject-matter jurisdiction.” Alternatively, she asks for a 30-day extension of her time to answer. (Id. at 3–4.)
The Other Side
The letter states that Combs’s counsel “can consent to extending the Answer for Defendant Mitchell” and “could not state a position” on the letter itself “in light of her current filing.” (Id. at 1.) Combs has not filed a response as of the court’s Sept. 17 order (ECF No. 128). That order does not state a ruling on Sher Tremonte’s motion to withdraw and directs counsel for Combs to file a status letter by Oct. 19, 2026, on whether he will proceed pro se, meaning without a lawyer, or retain new counsel.
What’s Next
In a Sept. 17, 2026 order (ECF No. 128), Judge Cronan noted the letter, which he described as filed “in anticipation of a motion to dismiss for lack of subject matter jurisdiction,” and adjourned sine die, meaning without setting a new date, “[t]he deadline for any party to respond to Mitchell’s pre-motion letter.” The order also adjourned sine die Defendants’ deadline to answer the Amended Complaint and stayed discovery “pending further order of the Court.” It does not set a briefing schedule on the proposed motion.
Counsel and Sources
Ariel Mitchell is represented by Steven A. Metcalf II of Metcalf & Metcalf, P.C. Sean Combs is represented by Michael Tremonte, Erica A. Wolff and Katie Renzler of Sher Tremonte LLP, which has moved to withdraw (ECF Nos. 124, 125). Nexstar Media Inc. is represented by Elizabeth A. McNamara, Alison Schary and Mary E. Goetz of Davis Wright Tremaine LLP. Source: ECF Nos. 122, 124, 125, 127 and 128 on the Combs v. Burgess docket.
Diddy Docket reports on public court records. Parties are presumed innocent or not liable unless proven otherwise. This is not legal advice.
- p. 1 — Letter from counsel for Defendant Ariel Mitchell to Judge John P. Cronan, Combs v. Burgess et al., No. 1:25-cv-00650 (JPC) (S.D.N.Y. Sept. 17, 2026) (ECF No. 127), p. 1 -- "Rule 6.A provides that “[a] party’s submission of a pre-motion letter in connection with a pre-answer motion to dismiss will stay that party’s obligation to answer or move against the complaint through the deadline to move to dismiss.”"
- p. 1 — Letter from counsel for Defendant Ariel Mitchell to Judge John P. Cronan, Combs v. Burgess et al., No. 1:25-cv-00650 (JPC) (S.D.N.Y. Sept. 17, 2026) (ECF No. 127), p. 1 -- "Plaintiff’s counsel, attorney Wolff indicated that in light of her current filing, she could not state a position to my filing this letter today. Plaintiff’s counsel can consent to extending the Answer for Defendant Mitchell."
- p. 2 — Letter from counsel for Defendant Ariel Mitchell to Judge John P. Cronan, Combs v. Burgess et al., No. 1:25-cv-00650 (JPC) (S.D.N.Y. Sept. 17, 2026) (ECF No. 127), p. 2 -- "This action is a one cause of action, New York state-law, defamation case. Plaintiff invokes only diversity jurisdiction under 28 U.S.C. § 1332(a). ... Diversity requires complete diversity of citizenship, measured as of the commencement of the action on January 22, 2025."
- p. 2 — Letter from counsel for Defendant Ariel Mitchell to Judge John P. Cronan, Combs v. Burgess et al., No. 1:25-cv-00650 (JPC) (S.D.N.Y. Sept. 17, 2026) (ECF No. 127), p. 2 -- "Citizenship for an individual is domicile, not residence and not the location of a jail cell. ... A person confined in this District is therefore presumed to retain the domicile he held before his incarceration"
- p. 2 — Letter from counsel for Defendant Ariel Mitchell to Judge John P. Cronan, Combs v. Burgess et al., No. 1:25-cv-00650 (JPC) (S.D.N.Y. Sept. 17, 2026) (ECF No. 127), p. 2 -- "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."
- p. 2 — Letter from counsel for Defendant Ariel Mitchell to Judge John P. Cronan, Combs v. Burgess et al., No. 1:25-cv-00650 (JPC) (S.D.N.Y. Sept. 17, 2026) (ECF No. 127), p. 2 -- "The Amended Complaint does not allege citizenship at all. It alleges only that Plaintiff “presently resides in Brooklyn, New York,” ECF 61 ¶ 12 ... Residence is not citizenship. ... Plaintiff’s own bail submission states that “he left his home in Miami and travelled to New York to surrender,”"
- p. 3 — Letter from counsel for Defendant Ariel Mitchell to Judge John P. Cronan, Combs v. Burgess et al., No. 1:25-cv-00650 (JPC) (S.D.N.Y. Sept. 17, 2026) (ECF No. 127), p. 3 -- "Plaintiff’s pleaded connection to New York is his custodial placement at the Metropolitan Detention Center in Brooklyn ... involuntary federal custody cannot create the voluntary presence and intent to remain indefinitely that domicile requires."
- p. 3 — Letter from counsel for Defendant Ariel Mitchell to Judge John P. Cronan, Combs v. Burgess et al., No. 1:25-cv-00650 (JPC) (S.D.N.Y. Sept. 17, 2026) (ECF No. 127), p. 3 -- "Judge Gee, relying on the evidence Plaintiff himself submitted establishing that he is a permanent resident and domiciliary of Florida, held that no general jurisdiction existed over him in California. ... Plaintiff cannot have it both ways"
- p. 3 — Letter from counsel for Defendant Ariel Mitchell to Judge John P. Cronan, Combs v. Burgess et al., No. 1:25-cv-00650 (JPC) (S.D.N.Y. Sept. 17, 2026) (ECF No. 127), p. 3 -- "Because Mitchell was likewise a Florida citizen when this action was filed, Plaintiff’s correct domicile — Florida, not MDC Brooklyn — means complete diversity never existed"
- p. 3 — Letter from counsel for Defendant Ariel Mitchell to Judge John P. Cronan, Combs v. Burgess et al., No. 1:25-cv-00650 (JPC) (S.D.N.Y. Sept. 17, 2026) (ECF No. 127), p. 3 -- "Because subject-matter jurisdiction cannot be waived, this motion is proper now even though the Court denied Mitchell’s Rule 12(b)(6) motion on September 4, 2026."
- p. 4 — Letter from counsel for Defendant Ariel Mitchell to Judge John P. Cronan, Combs v. Burgess et al., No. 1:25-cv-00650 (JPC) (S.D.N.Y. Sept. 17, 2026) (ECF No. 127), p. 4 -- "A short briefing schedule on a Rule 12(b)(1) / 12(h)(3) motion (Mitchell proposes moving papers 14 days after the Court authorizes the motion, opposition 14 days later, reply 7 days later) ... A stay of all answer and discovery obligations as to Mitchell until the Court rules on subject-matter jurisdiction"
- ECF No. 124 — Notice of Motion for Leave to Withdraw as Counsel, Combs v. Burgess et al., No. 1:25-cv-00650 (JPC) (S.D.N.Y. Sept. 14, 2026) (ECF No. 124) -- "granting Sher Tremonte LLP, and each of its attorneys who have appeared in this action, leave to withdraw as counsel of record for Plaintiff Sean Combs"
- p. 26 — Opinion and Order, Combs v. Burgess et al., No. 1:25-cv-00650 (JPC) (S.D.N.Y. Sept. 4, 2026) (ECF No. 122), p. 26 -- "Mitchell’s motion to dismiss is denied in its entirety."
- ECF No. 128 — Order, Combs v. Burgess et al., No. 1:25-cv-00650 (JPC) (S.D.N.Y. Sept. 17, 2026) (ECF No. 128) -- "On September 14, 2026, counsel for Plaintiff Sean Combs moved for leave to withdraw. Dkts. 124, 125. On September 17, 2026, Defendant Ariel Mitchell filed a pre-motion letter in anticipation of a motion to dismiss for lack of subject matter jurisdiction. Dkt. 127. ... by October 19, 2026, counsel for Plaintiff shall submit a status letter with any further information regarding whether Combs intends to proceed pro se or retain new counsel. ... The deadline for any party to respond to Mitchell’s pre-motion letter is adjourned sine die. ... Discovery in this action is stayed pending further order of the Court."