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May 27, 1997

DOMINGO GUTIERREZ, Plaintiff, against BERNARD FOX, Defendant.

The opinion of the court was delivered by: SCHEINDLIN



 Plaintiff Domingo Gutierrez brought a personal injury action against defendant Bernard Fox arising out of an automobile accident. On July 18, 1996, plaintiff filed the action in the Southern District of New York based on diversity of citizenship. Plaintiff asserted that he was a resident of New Jersey, while defendant was a resident of New York. After a three day jury trial, a verdict was rendered in favor of plaintiff. Based on the testimony at trial, the Court raised the issue of whether complete diversity existed between the two parties. A hearing was held on May 6, 1997, to address this issue. For the reasons stated below, I find that plaintiff and defendant were both citizens of New York at the commencement of this action. As a result, this Court has no jurisdiction over this action.


 Before considering the relevant facts, it is my strong assumption that both parties have engaged in deliberate manipulation of the jurisdiction of this Court. In order to invoke this Court's jurisdiction, plaintiff originally asserted that he was domiciled in New Jersey, seeking this federal forum to obtain a speedy resolution of his claim. Defendant, for his part, was all too happy to avoid a New York County jury as opposed to a Southern District of New York jury, which includes New York, Westchester, Orange, Rockland, and Dutchess counties. Although defendant alluded to the jurisdictional issue during trial, he never pressed it. See Trial Transcript at 66-68. *fn1"

  Post-verdict, the landscape has changed. Plaintiff, unhappy with the jury's damages award, now appears to have realized that he was a New York domiciliary in July 1996 when this lawsuit was filed. Plaintiff's counsel asserts that prior to this point in the proceedings, he was unaware of all of the facts relevant to his client's domicile. Defendant, pleased with the jury verdict, no longer intimates that jurisdiction is lacking, but now vigorously argues that plaintiff was domiciled in New Jersey, diversity existed between the parties, and judgment should be entered. While this abuse of the Court's jurisdiction is troubling, the fact remains that the Court cannot exercise jurisdiction by consent, by waiver, or as a sanction. See Pennsylvania v. Union Gas Co., 491 U.S. 1, 26, 109 S. Ct. 2273, 105 L. Ed. 2d 1 (1989).


 When plaintiff filed this action in July 1996, he alleged that he was a resident of Jersey City, New Jersey. See Complaint at P 4. As noted above, plaintiff now maintains that he was domiciled in New York at the time this lawsuit was filed. During his deposition, plaintiff testified that he lived approximately 200 days of the year at an apartment in New York City with his common law wife, Marisol Baez, and their daughter, and the remainder of the year at his mother's home in New Jersey. Deposition of Domingo Gutierrez, dated November 26, 1996, ("Gutierrez Dep.") at 19. From March 18 through October 31, 1996, plaintiff worked in New York, and New York State and City taxes were deducted from his paychecks. See Plaintiff's Exhibit ("PX") 2. Plaintiff filed a New York State tax return in 1996, and identified the New York apartment as his residence. See PX 5. At the time the action was filed, plaintiff also maintained a bank account in New York when he filed this action, but not in New Jersey. Transcript of May 6, 1997 Hearing ("Tr.") at 23-24. His primary physician was located in New York. Gutierrez Dep. at 29, 66; Tr. at 23. Plaintiff also applied for unemployment compensation in New York during 1996. Tr. at 27. Interestingly, defendant's insurance carrier sent plaintiff to a New York physician for his post-litigation physical.

 On the other hand, plaintiff held a New Jersey driver's license and car registration during 1996, Tr. at 30, although he obtained a New York license in January 1997. Tr. at 36. Plaintiff also gave the New Jersey address as his residence to some of his treating physicians, id. at 31-32, although each of these physicians was located in New York. Tr. at 23. Finally, during his deposition, plaintiff stated that he stayed with Ms. Baez in New York during the week as a "convenience for commuting." Gutierrez Dep. at 21.


 Under 28 U.S.C. ยง 1332(a), a federal court has subject matter jurisdiction over cases in which the citizenship of each plaintiff is diverse from the citizenship of each defendant. See Caterpillar Inc. v. Lewis, 136 L. Ed. 2d 437, 117 S. Ct. 467, 472 (1996). Diversity is determined as of the time the lawsuit was filed. See Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 830, 104 L. Ed. 2d 893, 109 S. Ct. 2218 (1989). Subject matter jurisdiction cannot be waived by either party and can be raised at any time by either party or on a court's own motion. See United Food & Commercial Workers Union, Local 919 v. CenterMark Properties Meriden Square, Inc., 30 F.3d 298, 303 (2d Cir. 1994).

 For purposes of diversity, a person's citizenship is determined by his domicile. *fn2" See Newman-Green, 490 U.S. 826 at 828. Domicile requires two elements: the party's physical presence in the state and the intent to remain in the state indefinitely. National Artists Management Co. v. Weaving, 769 F. Supp. 1224, 1227 (S.D.N.Y. 1991) (citing Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 104 L. Ed. 2d 29, 109 S. Ct. 1597 (1989)). "Domicile has been generally defined as a person's 'home' or permanent base of operation." National Artists, 769 F. Supp. 1224 at 1227. "Although a person may have more than one residence, [he] may only have one domicile at any one time." Id. (citation omitted).

 Where there is evidence that the party has more than one residence, a court should focus on the party's intent. See id. (citing Brignoli v. Balch, Hardy & Scheinman, Inc., 696 F. Supp. 37, 41 (S.D.N.Y. 1988)). "To ascertain intent, a court must examine the entire course of a person's conduct in order to draw the necessary inferences as to the relevant intent." Brignoli, 696 F. Supp. at 41. Thus, a court must look to the "totality of the evidence" to determine a party's domicile, keeping in mind that no single factor is conclusive. National Artists, 769 F. Supp. 1224 at 1228.

 When determining whether a party has the intent to remain indefinitely for purposes of domicile, a court should consider the following factors: voting registration; place of employment; current residence; location of real and personal property; location of spouse and family; driver's license; automobile registration; location of bank account; payment of taxes; tax return address; and location of a person's physician. See 3 Moore's Federal Practice P 102.36[1] at 102-81 through 86 (3d ed. 1997); see also National Artists, 769 F. Supp. at 1228 (voting, taxes, property, driver's license, bank accounts, places of business or employment, location of physician); Boston Safe Deposit & Trust Co. v. Morse, 779 F. Supp. 347, 349 (S.D.N.Y. 1991)(residence, location of family and personal belongings, transaction of financial and business matters, payment of taxes, driver's license). A party's own statements about his or her intent are relevant; however, they are given only limited weight if they conflict with objective facts that tend to support a contrary intent. See National Artists, 769 F. Supp. at 1228.

  While there is evidence indicating that plaintiff had two residences, objective indicia suggest that plaintiff intended to remain in New York indefinitely at the time this action was filed. Plaintiff lived for the majority of the year in New York with Ms. Baez and their daughter. He worked in New York and paid New York State and New York City taxes. He listed his New York address as his residence on his tax return and for payroll purposes with his employer. His primary physician was located in New York, and he sought medical attention in New York for the injuries sustained in the accident at issue in this case. He maintained a bank account in New York rather than New Jersey.

 Plaintiff's statements of his intent, while inconsistent, are not dispositive. Plaintiff stated at the hearing that he made a final decision in January 1997 to live permanently with Ms. Baez and their daughter in New York. See Tr. at 28. Although one could infer that prior to January 1997, plaintiff did not intend to remain in New York, plaintiff also testified that throughout 1996, his intent was to live with Ms. Baez in New York. Tr. at 36. Earlier, at his deposition, plaintiff testified that he stayed with Ms. Baez five days a week for convenience. Gutierrez Dep. at 21. However, this statement does not require a finding that plaintiff did not intend to remain in New York indefinitely, whether for ease of commuting or otherwise.

 On balance, considering the totality of the evidence, I find that plaintiff intended to remain in New York indefinitely when he filed this lawsuit in July 1996. I therefore conclude that plaintiff was domiciled in New York when this action was filed. Because defendant was also domiciled in New York, the citizenship of the parties was not diverse. Accordingly, the Court lacks subject matter jurisdiction and this matter is dismissed without prejudice to refile the action in State court. The Clerk of the Court is directed to close this case.


 Shira A. Scheidlin


 Dated: New York, New York

 May 27, 1997

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