that psychological care in the context of civil proceedings, rather than criminal, was a preferable course of treatment for Galu. Id. at 4. Attias believed that if Galu was found incompetent, the charges may be dropped and civil institutional care could be arranged. Id. P 7. For these reasons, Attias did not move for reconsideration of the court's order for an incompetency evaluation. At some unspecified point thereafter, Galu informed the court that she intended to sue Attias for malpractice, and the court relieved Attias of her representation of Galu. Id. P 8.
On June 2, 1994, the Metropolitan Corrections Center issued an evaluation which concluded that Galu suffered from a "vast delusional belief system" regarding the conspiracies against her and recommended a finding of Galu's incompetency. See First Am. Compl. P 8; Pltff. 3(g) Stmt. P 2. On June 23, 1994, the court found Galu to be incompetent. First Am. Compl. P 8. Thereafter, Galu was transferred to a prison psychiatric ward in Kentucky for an evaluation of dangerousness. Id. A psychiatric report dated October 5, 1994 concluded that Galu was not dangerous. Second Galu Aff., Exh. 4. Based upon the psychiatric report and the government's representation that it no longer intended to seek an indictment against Galu, the court dismissed the criminal complaint and released Galu from custody. Second Galu Aff., Exhs. 3, 4.
On December 5, 1995, Galu filed the instant diversity action against Attias, a New York resident. Galu claims Attias committed legal malpractice by failing to "re-oppose" the government's motion for a competency exam. First Am. Compl. PP 6,7. Galu also claims that Attias negligently and intentionally inflicted emotional distress suffered while in pre-trial incarceration undergoing a competency exam.
Id. PP 5, 7. Galu seeks $ 35 million in damages resulting from her pre-trial incarceration. Id. P 8.
Pursuant to Federal Rule of Civil Procedure 56(c), Attias moves for summary judgment on the grounds that 1) the Court lacks subject matter jurisdiction under the diversity statute, 2) the Court lacks jurisdiction over Attias's person, and 3) Galu's claims of negligence and infliction of emotional distress fail as a matter of law. Thereafter, Attias withdrew her objection to any defects in personal and subject matter jurisdiction. See Attias Mem. at 2. Pursuant to Federal Rule of Civil Procedure 56(g), Galu cross-moves for summary judgment on the ground that Attias filed affidavits in support of her motion in bad faith. See First Galu Aff. PP 1, 6, at 1, 5.
As a preliminary matter, because defects in subject matter jurisdiction cannot be waived, the Court must determine the existence of jurisdiction. See Commodity Futures Trading Comm'n v. Schor, 478 U.S. 833, 851, 92 L. Ed. 2d 675, 106 S. Ct. 3245 (1986). Because Galu has failed to establish diversity of citizenship within the meaning of the diversity statute, 28 U.S.C. § 1332(a)(1), the Amended Complaint must be dismissed. A plaintiff suing in diversity must establish that he is a citizen of one state suing a citizen of another state, or a citizen of a foreign country suing a citizen of a state. See 28 U.S.C. § 1332(a)(1)(2); see also Sadat v. Mertes, 615 F.2d 1176, 1180 (7th Cir. 1980). However, it is well-established that no diversity jurisdiction exists in an action brought by an American citizen domiciled abroad who is not a citizen of any particular state. See id. ; Smith v. Carter, 545 F.2d 909, 911-12 (5th Cir.), cert. denied, 431 U.S. 955, 53 L. Ed. 2d 272, 97 S. Ct. 2677 (1977); Vidal v. South American Securities Co., 276 F. 855, 875 (2d Cir. 1922); Gefen v. Upjohn Co., 885 F. Supp. 123, 125-26 (E.D. Pa. 1995); Willis v. Westin Hotel, 651 F. Supp. 598, 602 (S.D.N.Y. 1986); Simmons v. Rosenberg, 572 F. Supp. 823, 824 (E.D.N.Y. 1983); Berhalter v. Irmisch, 75 F.R.D. 539, 541 (W.D.N.Y. 1977); Mohr v. Allen, 407 F. Supp. 483, 487-88 (S.D.N.Y. 1976); Kaufman and Broad, Inc. v. Gootrad, 397 F. Supp. 1054, 1055 (S.D.N.Y. 1975).
For the purpose of § 1332(a)(1), a party's citizenship is determined by domicile. See Williams v. Osenton, 232 U.S. 619, 624-25, 58 L. Ed. 758, 34 S. Ct. 442 (1914); Willis, 651 F. Supp. at 601. Domicile requires both presence and an intention to remain for the indefinite future. See Texas v. Florida, 306 U.S. 398, 424, 83 L. Ed. 817, 59 S. Ct. 563 (1939); Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 48, 104 L. Ed. 2d 29, 109 S. Ct. 1597 (1989). At any one time, a party can have multiple residences but only one domicile. See, e.g., Osenton, 232 U.S. at 625. Diversity of citizenship is determined as of the date the action is commenced. See Freeport-McMoran v. KN Energy, Inc, 498 U.S. 426, 426-29, 112 L. Ed. 2d 951, 111 S. Ct. 858 (1991); Maryland Casualty Co. v. W.R. Grace & Co., 23 F.3d 617, 622 (2d Cir. 1994). Once the action is commenced by the filing of the initial complaint, a party's change of domicile does not affect the presence or absence of diversity. See Smith v. Sperling, 354 U.S. 91, 93 n.1, 1 L. Ed. 2d 1205, 77 S. Ct. 1112 (1957). An individual's residence at the time the law suit is commenced is prima facie evidence of his domicile. See Krasnov v. Dinan, 465 F.2d 1298, 1301 (3d Cir. 1972); see also District of Columbia v. Murphy, 314 U.S. 441, 455-56, 86 L. Ed. 329, 62 S. Ct. 303 (1941) (residency for purposes of state taxes).
In her First Amended Complaint, Galu states that she is an American citizen who is a "resident alien of France domiciled at 'Les Ecrins' ave du Bijou, 01210 Ferney-Voltaire France." First Am. Compl. P 1. Generally, such a formal judicial admission in a pleading would be conclusive. See American Title Ins. Co. v. Lacelaw, 861 F.2d 224, 226 (9th Cir. 1988); White v. ARCO/Polymers, Inc., 720 F.2d 1391, 1396 (5th Cir. 1983); Frederic P. Wiedersum Ass. v. Nat'l Homes Constr. Corp., 549 F.2d 62, 65 (2d Cir. 1976). However, in an effort to construe her pro se pleadings liberally, see Haines v. Kerner, 404 U.S. 519, 30 L. Ed. 2d 652, 92 S. Ct. 594, reh'g denied, 405 U.S. 948, 30 L. Ed. 2d 819, 92 S. Ct. 963 (1972), the Court has searched all of Galu's filings for a jurisdictional basis. By affidavit, Galu proffers some evidence connecting her more recently to California, including a California drivers license, her parents' California residence, and various visits to California. See Second Galu Aff. PP 3, 4, at 1.
However, because Galu states that it was not until after she filed the complaint in the instant action that she decided to make California her domicile, no diversity existed on the date the action was filed. Indeed, Galu claims to have lived in France as a resident alien since 1974. First. Am. Compl. P 1. Her incarceration in Kentucky and New York while undergoing competency examination does not alter her domicile. See Stifel v. Hopkins, 477 F.2d 1116, 1121 (6th Cir. 1973); White v. Fawcett Publications, 324 F. Supp. 403, 404 (W.D. Mo. 1971); see also 1 Moore's Federal Practice, P0.142 (5.-2), p. 1484, n. 5.
Although between 1991 and 1993, while involved in her civil litigations, Galu travelled between New York, California and France, including a six month stay with her parents in 1991, see First Am. Compl. P 2, upon being released from pre-trial incarceration when the criminal complaint was dismissed on December 1, 1994, Galu returned to France under her non-resident alien visa and set up a home in an effort to be near her estranged French boyfriend. See Second Galu Aff. PP 6, 7, at 2, 3.
On December 5, 1994, while living in France, Galu filed the instant action. Thereafter, on December 29, 1994, Galu learned from French authorities that her visa, due to expire in 1997, would not be renewed. See Second Galu Aff. P 6, at 2. In light of a temporary restraining order preventing her from seeing her boyfriend and the fact that her visa would not be renewed, Galu decided to return to her parents' home in California upon the expiration of her French residency in 1997. See id. P 7, at 3; Plaintiff's "Joint Pre-Trial Order" dated September 18, 1995, Off. Doc. 20 ("Pltff. PTO") P 1. During the pendency of most of this action, Galu has been institutionalized in a psychiatric facility in France.
Based upon foregoing undisputed facts and all rational inferences derived therefrom in Galu's favor, the Court concludes as a matter of law that Galu was domiciled in France on December 5, 1994, the date she filed the instant action. See Krasnov, 455 F.2d 1289, 1301. At that time, she had moved to France and rented housing with an intention to be near her boyfriend. Only after filing the instant action did she decide to return to California when her visa expired in 1997. In an effort to establish domicile in California at the time she filed this action, Galu states that she always "knew deep down that I would return 'home' to California." Second Galu Aff. P 4, at 2. However, an eventual desire to return is insufficient to overcome the undisputed evidence that she was domiciled in France at the time of filing the complaint. See Gilbert v. David, 235 U.S. 561, 569, 59 L. Ed. 360, 35 S. Ct. 164 (1915)("[if] a person has actually removed to another place, with an intention of remaining there for an indefinite time, and as a place of fixed present domicile, it is to be deemed his place of domicile, notwithstanding he may entertain a floating intention to return at some future period") (citation omitted).
In any event, Galu asserts no evidence upon which a fact finder could rationally conclude that Attias was negligent in her representation of Galu. Summary judgment is appropriate where "there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); Aldrich v. Randolph Cent. School Dist., 963 F.2d 520, 523 (2d Cir.), cert. denied, 506 U.S. 965, 113 S. Ct. 440, 121 L. Ed. 2d 359 (1992). While the Court must draw all reasonable inferences in favor of the non-moving party in assessing whether a genuine issue of material fact exists, a party opposing summary judgment may not simply rest on the allegations in his pleadings. See Anderson, 477 U.S. at 248. To survive summary judgment, Galu must present specific facts based upon personal knowledge or otherwise admissible in evidence showing that there is a genuine issue for trial. See id. ; Gnazzo v. G.D. Searle & Co., 973 F.2d 136, 138 (2d Cir. 1992).
Where, as here, Galu has failed to allege a basis which could give rise to a reasonable inference of malpractice, her claim must be dismissed. To state a claim for legal malpractice, a plaintiff must show 1) the existence of an attorney-client relationship, 2) negligence by the attorney, 3) proximate cause between the negligence and the loss sustained and 4) actual damages. See Prudential Ins. Co. of Am. v. Dewey, Ballantine, 170 A.D.2d 108, 114, 573 N.Y.S.2d 981 (1st Dep't 1991), aff'd, 80 N.Y.2d 377, 590 N.Y.S.2d 831, 605 N.E.2d 318 (1992); Gray v. Wallman & Kramer, 184 A.D.2d 409, 413, 585 N.Y.S.2d 46 (1st Dep't 1992). A lawyer who "reasonably believes that the client cannot adequately act in the client's own interest" may take "protective action." See Model Rules of Professional Conduct Rule 1.14(b) (Discussion Draft 1983); Model Code of Professional Responsibility EC 7-12 (1980).
It follows that where, as here, a criminal defense attorney reasonably believes that her client may be incompetent, and indeed the client admits her need for institutionalization, the attorney's refusal to seek vacatur of a court's order for a competency exam is reasonable as a matter of law. See Bundy v. Dugger, 816 F.2d 564, 567 n.2 (11th Cir.), cert. denied, 484 U.S. 870, 98 L. Ed. 2d 149, 108 S. Ct. 198 (1987)("if defense counsel suspects that defendant is unable to consult with him 'with a reasonable degree of rational understanding,' he cannot blindly accept his client's demand that his competency not be challenged") (quoting Dusky v. United States, 362 U.S. 375 (1966)) (citations and internal quotations omitted). Indeed, because other circuits have held that a criminal defense attorney has an affirmative duty to investigate her client's competency, see id. ; Futch v. Dugger, 874 F.2d 1483, 1487 (11th Cir. 1989) (citing Foster v. Dugger, 823 F.2d 402, 405 (11th Cir. 1987), cert. denied, 487 U.S. 1241, 101 L. Ed. 2d 946, 108 S. Ct. 2915 (1988), Attias may well have been obliged to consent to the competency exam on behalf of her client.
Nor can Attias be held liable for refusing to pursue a litigation strategy, such as that advanced by Galu, which she reasonably believes to be uncolorable. "A lawyer is not required to pursue objectives or employ means simply because a client may wish that lawyer to do so." Model Rules of Professional Conduct Rule 1.2 cmt. Because a lawyer is prohibited from taking action "when it is obvious that such action would serve merely to harass or maliciously injure another" or is otherwise uncolorable, see New York Code of Professional Responsibility DR 7-101, codified in N.Y. Jud. Law. App. 1992 & Supp. 1996, Attias was constrained by her ethical obligations to refuse to advance Galu's collateral conspiracy theories at trial in lieu of a competency exam. See Thompson v. Wainwright, 787 F.2d 1447, 1451 (11th Cir. 1986) (defense counsel cannot "blindly follow" defendant's instructions concerning his defense, especially where counsel suspects defendant's judgment impaired by "mental difficulties"); see also Model Rules of Professional Conduct Rule 1.2 cmt; New York Code of Professional Responsibility DR 7-101(B)(1)("in the representation of a client, a lawyer may, where permissible, exercise professional judgment to waiver or fail to assert a right or position of the client"). This is especially true where, as here, the attorney's strategy successfully averted the risk of conviction and ultimately resulted in the dismissal of all criminal charges.
In addition, Galu fails to allege any damages recoverable under a malpractice claim. A plaintiff suing in malpractice can recover only pecuniary loss but not for mental or psychological suffering. See Walker v. Stroh, 192 A.D.2d 775, 596 N.Y.S.2d 213 (3rd Dep't 1993); Dirito v. Stanley, 203 A.D.2d 903, 611 N.Y.S.2d 65, 65 (4th Dep't 1994); Green v. Leibowitz, 118 A.D.2d 756, 757, 500 N.Y.S.2d 146 (2d Dep't 1986). Therefore, Galu cannot recover in malpractice for the alleged psychological trauma suffered during her treatment. Moreover, because Attias was appointed counsel, and Galu therefore paid no fees for the allegedly negligent representation, she suffered no pecuniary loss of that nature.
Galu's claim of intentional infliction of emotional distress also fails. To establish such a claim, a plaintiff must show that the defendant engaged in 1) extreme or outrageous conduct, 2) with the intent to cause, or in disregard of a substantial probability of causing, severe emotional distress, 3) causal connection between the conduct and the injury, and 4) severe emotional distress. See Howell v. New York Post Co., 81 N.Y.2d 115, 121-22 (1993). Liability exists "only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in civilized community'")(quoting Murphy v. American Home Products Corp., 58 N.Y.2d 293, 303, 461 N.Y.S.2d 232, 448 N.E.2d 86 (1983). Because Galu has alleged no basis upon which a fact finder could rationally conclude that Attias engaged in extreme or outrageous conduct, her claim must fail. See Howell, 81 N.Y.2d at 121.
Galu's claim for negligent infliction of emotional distress must likewise be dismissed. Although a plaintiff asserting a claim for negligent infliction of emotional distress need not establish a physical injury, she must allege conduct that "unreasonably endangers the plaintiff's physical safety." Losquadro v. Winthrop University Hospital, 628 N.Y.S.2d 770, 771 (2d Dep't 1995); see also Bovsun v. Sanperi, 61 N.Y.2d 219, 229, 473 N.Y.S.2d 357, 461 N.E.2d 843 (1984); Glendora v. Gallicano, 206 A.D.2d 456, 456, 615 N.Y.S.2d 45 (2d Dep't 1994). New York courts have cautioned against permitting a cause of action for infliction of emotional distress as a substitute for traditional tort or contract claims. See Green v. Leibowitz, 118 A.D.2d 756, 757, 500 N.Y.S.2d 146 (2d Dep't 1986); Sanders v. Rosen, 159 Misc. 2d 563, 605 N.Y.S.2d 805, 811 (Sup. Ct. 1993) (citing Murphy v. American home Products, 58 N.Y.2d 293, 303, 461 N.Y.S.2d 232, 448 N.E.2d 86 (1983)). Galu's allegations that the examination of her dangerousness consisted of "Russian Goulag style" torture are based upon no more than the prescription of unpleasant anti-psychotic medication, which clearly does not rise to the level of an unreasonable danger of physical safety. See Losguadro, 628 N.Y.S.2d at 771. Furthermore, Galu sets forth no factual basis for any rational finding that Attias was negligent or could reasonably have foreseen any unreasonable danger for her personal safety. Moreover, Galu, who admits that her experience during the incompetency exam was worsened by her own refusal to cooperate, has also failed to establish that Attias caused the emotional distress of which she complains. See Pltff. 3(g) Stmt. P 2. It follows that Galu's claim must be dismissed. See Bovsun, 61 N.Y.2d at 229.
For the reasons set forth above, Attias' motion for summary judgment shall be and hereby is granted, and Galu's cross motion for summary judgment shall be and hereby is denied. The Clerk of Court is directed to enter judgment and close the above-captioned action.
It is SO ORDERED.
Dated: New York, New York
April 30, 1996
John E. Sprizzo
United States District Judge