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KATO v. CTY. OF WESTCHESTER

June 7, 1996

ISAO KATO, individually and on behalf of the Estate of HIROKO KATO, deceased, Plaintiffs, against COUNTY OF WESTCHESTER, Defendant.


The opinion of the court was delivered by: CONNER

 CONNER, Senior D.J.:

 On October 3, 1995, plaintiff Isao Kato, acting as an individual and as administrator of the estate of his deceased wife Hiroko Kato, filed this diversity action asserting claims under New York law for wrongful death, negligence, pain and suffering, fear of imminent death and loss of spousal and parental consortium. Defendant County of Westchester has made a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction. For the reasons set forth below, defendant's motion is denied.

 BACKGROUND

 The complaint in this action alleges that around 10 p.m. on August 10, 1994, Hiroko Kato was driving south on the Bronx River Parkway when a dead tree fell from the center median and struck her car, causing her death from multiple head injuries. The complaint further alleges that the Bronx River Parkway was under the exclusive control of the County of Westchester, which was negligent in failing to remove diseased or dead trees from the area near the roadway or to maintain adequate lighting near the scene of the accident.

 Plaintiff asserts that this case falls within this court's diversity jurisdiction. The complaint alleges that plaintiff Isao Kato is a citizen of Japan and an alien resident of the United States residing in Scarsdale, New York, and that at the time of her death, Hiroko Kato was also a citizen of Japan and an alien resident of the United States residing in Scarsdale. Defendant County of Westchester is a municipal corporation organized under the laws of New York State. Defendant contends that we lack subject matter jurisdiction over this action because Isao and Hiroko Kato are or were permanent residents of the United States and therefore should be treated as citizens of New York for purposes of determining whether diversity exists.

 DISCUSSION

 As the party claiming diversity jurisdiction, plaintiff has the burden of proving that it is proper. See Willis v. Westin Hotel Co., 651 F. Supp. 598, 601 (S.D.N.Y. 1986). Diversity must be complete, i.e., each plaintiff must be able to sue each defendant. See Willis, 651 F. Supp. at 601; 13B Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 3605, at 398-400 (1984).

 Under 28 U.S.C. § 1332(a)(2), *fn1" this court has subject matter jurisdiction over any civil action where the amount in controversy exceeds $ 50,000 and the action is between "citizens of a State and citizens or subjects of a foreign state." Section 1332(a) further provides that "for the purposes of this section, . . . an alien admitted to the United States for permanent residence shall be deemed a citizen of the State in which such alien is domiciled."

 Section 1332 does not define the phrase "alien admitted to the United States for permanent residence." In construing this provision, however, courts have quite sensibly looked to the immigration laws, and in particular to the definition of the similar language "lawfully admitted for permanent residence" set forth at 8 U.S.C. § 1101(a)(20), for guidance in determining whether an alien is admitted for permanent residence. See Miller v. Thermarite Pty. Ltd., 793 F. Supp. 306, 308 (S.D. Ala. 1992). Therefore, aliens who have been accorded lawful permanent resident status under the immigration laws are considered aliens "admitted for permanent residence," while aliens admitted to the United States on temporary nonimmigrant visas are not. See Chan v. Mui, 1993 U.S. Dist. LEXIS 14693, 1993 WL 427114, at *1 (S.D.N.Y. Oct. 20, 1993) (plaintiff was citizen of Hong Kong for diversity purposes although he lived in Oklahoma and his application for permanent resident status was pending when suit was filed); Miller, 793 F. Supp. at 306-08 (defendant present in United States on nonimmigrant temporary worker visa was citizen of Australia and Great Britain for diversity purposes); Kristensen v. Dampierre, 1990 U.S. Dist. LEXIS 8976, 1990 WL 103957, at *1-*2 (S.D.N.Y. July 19, 1990) (defendant admitted to United States on E-2 nonimmigrant temporary visa was citizen of France for diversity purposes). As one commentator has stated,

 
it is clear that [§ 1332(a)] affects only the status of those aliens with "green cards "--admitted to the United States for permanent residence. Thus, aliens present in this country on any lesser status will still be considered aliens, able to invoke alienage jurisdiction against a citizen of a state. . . .

 1 James W. Moore, Moore's Federal Practice P 0.75[1.-5], at 800.56 (1991).

 Furthermore, under 28 U.S.C. § 1332(c)(2), "the legal representative of the estate of a decedent shall be deemed to be a citizen only of the same State as the decedent. . . ." Despite some ambiguity occasioned by the fact that the statutory definition of "State" apparently does not include foreign states, see 28 U.S.C. § 1332(d), we agree with Judge Carter of this district who has held that "the most obvious and sensible meaning of § 1332(c) (2) . . . is that the representative of a decedent's estate is treated as having the citizenship of the decedent. Consequently, the representative of the estate of an alien is treated as an alien for purposes of diversity jurisdiction." See Geler v. Nat'l Westminster Bank U.S.A., 763 F. Supp. 722, 726 (S.D.N.Y. 1991).

 This court is satisfied that Isao Kato is present in this country on an E-2 visa and that prior to her death, Hiroko Kato also held an E-2 visa. See Affidavit of Isao Kato, dated Feb. 15, 1996, at PP 3, 5; Petition for Partially Limited Letters of Administration for Estate of Hiroko Kato, dated June 21, 1995, at 1 (indicating E-2 immigration status of plaintiff and decedent; filed prior to commencement of this litigation), attached as Exhibit A to Affidavit of Syma B. Funt, dated Mar. 1, 1996; Hiroko Kato's Passport, attached as Exhibit E to Affidavit of Syma B. Funt, dated Jan. 31, 1996 (indicating E-2 visa status). The E-2 visa may be issued to a citizen of a country that has a treaty of commerce or navigation with the United States who seeks to enter the United States "to develop and direct the operations of an enterprise in which he has invested . . . a substantial amount of capital." 8 U.S.C. § 1101(a) (15) (E) (ii); 22 C.F.R. § 41.51(b). The E-2 visa is a temporary nonimmigrant visa that is originally issued for a period of one year, although it is ...


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