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WILLIS v. WESTIN HOTEL CO.

September 8, 1986

GRACE WILLIS,
v.
Plaintiff, WESTIN HOTEL COMPANY, WESTINGHOUSE ELECTRIC CORPORATION, Individually and d/b/a MILLAR ELEVATOR COMPANY and MILLAR ELEVATOR INDUSTRIES, INC., Defendants



The opinion of the court was delivered by: MOTLEY

Motley, J.

Plaintiff, a 72 year old woman, has brought this suit in diversity for personal injuries suffered in September 1984 while exiting from an allegedly defective elevator at her residence at the Plaza Hotel in New York City. Defendant Westin Hotel Company is the owner of the Plaza Hotel. Defendant Millar Elevator Company, which manufactured and serviced the elevator in question, is a wholly owned subsidiary of defendant Westinghouse Electric Corporation.

 Defendants Westin and Millar have now moved for dismissal of this suit pursuant to Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction, claiming that the requisite diversity of citizenship between the parties does not exist. Specifically, defendants challenge plaintiff's claim to be a citizen of Florida for diversity purposes. Defendants argue that plaintiff is actually a citizen of New York, a fact that would destroy the requisite complete diversity in this case in light of the New York citizenship of certain of the defendants. In the alternative, suggest defendants, plaintiff is not a citizen of any state for diversity purposes, and is thus not entitled to invoke federal diversity jurisdiction.

 After oral argument and a full hearing at which plaintiff appeared and testified, the court has concluded for the reasons that follow that plaintiff is a citizen of Florida. Accordingly, the requisite diversity of citizenship between the parties having been shown, defendants' motion to dismiss for lack of subject matter jurisdiction is denied.

 FACTS

 Plaintiff, Grace Willis, was unquestionably a resident and citizen of Florida until 1977. For several years up until that date plaintiff had lived in an apartment in Florida. In addition, she had paid her taxes there, had a Florida drivers' license, had voted there when she did, and was a registered member of the Florida Republican Party. Furthermore, in 1973 when she was divorced, the Florida court granting the divorce decree named her as a Florida domiciliary.

 Beginning in 1977, however, plaintiff began to lead an unusually transient life. She gave up her apartment and from that time on lived exclusively in luxury hotels, dividing her time between Palm Beach, Hawaii, and Manhattan. Although plaintiff would stay in each location for many months at a stretch, she resided at the hotels almost entirely on a day to day basis. Plaintiff continued to pay taxes as a Florida citizen though, maintained a Florida mailing address (a post office box), and kept up various other ties to the state such as storing her furniture there, using a Florida stockbroker, lawyer and accountant, and having a Florida bank account. All of these Florida ties, including the tax relationship and the mailing address, continued past the time of this lawsuit's filing in April 1985.

 At the time this action was commenced, plaintiff had resided in Manhattan for approximately two years except for a brief period in the spring of 1984. Except for this two month visit to Florida in 1984, plaintiff lived in New York at the Plaza Hotel on a day to day basis continuously from May or June 1983 until September 1984 when her accident occurred. After her accident and following her release from the hospital in October 1984, plaintiff continued her New York residence for over a year more at a different hotel on a residential basis.

 Plaintiff maintains two bank accounts in New York. Her Social Security checks are deposited in these accounts as are substantial amounts from stock dividends and other stock market gains. In the years preceding the commencement of this lawsuit, these New York bank accounts show significant activity, in terms of both withdrawals and deposits. Plaintiff also maintains a safe deposit box with one of her New York banks. The bank records reveal numerous visits by plaintiff to this safe deposit box between 1983 and the filing of this lawsuit. An additional financial contact plaintiff maintains in New York is her brokerage account with a New York stockbroker.

 Plaintiff claims to be a citizen of Florida, and to have been a Florida citizen at the inception of this litigation. She describes her lengthy stays in New York City as a matter essentially of summering here, or else of being compelled to remain for health reasons. Although plaintiff concedes that the medical compulsion for her long continued stay in New York was not specifically related to doctors' instructions, given plaintiff's advanced years and the severity of her accident and other medical problems, the court finds credible plaintiff's claim that her extended stay in New York City after September 1984 was not purely a matter of preference, much less of intent to make New York her home. The court also finds credible plaintiff's assertion that but for her accident she would have returned to Florida in the fall of 1984, and her statement that as of the time this action was initiated in April 1985, she intended to return to Florida and rent an apartment there.

 The citizenship of defendants is not contested. Defendants are variously Delaware and Pennsylvania corporations. As asserted in the pleadings and affidavits submitted in this case, the principal place of business of defendant Westin Hotel Company is Washington, while the principal place of business of both Westinghouse and Millar Elevator Corporation is New York.

 DISCUSSION

 As the party seeking to invoke this court's subject matter jurisdiction under 28 U.S.C. Section 1332, plaintiff has the burden of proving that complete diversity of citizenship exists between the parties. See Hawes v. Club Ecuestre El Comandante, 598 F.2d 698, 702 (1st Cir. 1979); Cf. Thomson v. Gaskill, 315 U.S. 442, 446, 86 L. Ed. 951, 62 S. Ct. 673 (1942); R.G. Barry Corp. v. Mushroom Makers, Inc., 612 F.2d 651, 655 (2d Cir. 1979). Complete diversity is a state of affairs where all plaintiffs are citizens of different states from all defendants. Geidel Fuel Oil Corp. v. Peninsula National Bank, 581 F. Supp. 19, 20 (E.D.N.Y. 1984). The diversity of the parties is determined as of the date of the filing of the lawsuit. See Haggerty v. Pratt Institute, 372 F. Supp. 760, 762 (E.D.N.Y. 1974); Huddleston v. Angeles Cooperative Creamery, 315 F. Supp. 307, 308 (W.D. Wash. 1970).

 Under 28 U.S.C. Section 1332(c), a corporation is deemed a citizen both of its state of incorporation and of the state where its principal place of business is located. Thus, for diversity purposes, defendants Westinghouse and Millar Elevator are both citizens of New York. If plaintiff is found to be a New York citizen, complete diversity of citizenship will be lacking. In the alternative, if plaintiff is found to be a citizen of no state, this suit will also fail for lack of subject matter jurisdiction because the diversity ...


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