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TEVDORACHVILI v. CHASE MANHATTAN BANK
July 7, 2000
NIKOLAI TEVDORACHVILI, PLAINTIFF,
THE CHASE MANHATTAN BANK, DEFENDANT.
The opinion of the court was delivered by: Glasser, United States District Judge:
Plaintiff Nikolai Tevdorachvili alleges that in August, 1998,
wire transfers amounting to $157,000 were made from his checking
account with the defendant Chase Manhattan Bank to an account
with a Latvian bank called Ogres Komercbanka. Plaintiff alleges
that the payment orders purportedly authorizing these transfers
were issued without his knowledge, and that the signature they
bear appearing to be his is a forgery. Plaintiff now brings this
lawsuit against Chase, alleging breach of contract, breach of
fiduciary duty, violation of New York Banking Law § 676,
breach of implied duties of good faith and fair dealing,
conversion, negligence and "gross negligence." Plaintiff seeks
special and consequential damages, punitive damages, and a
declaratory judgment directing Chase to enlist the services of a
handwriting expert and to "utilize the conclusion" of that
expert. Complaint at ¶ 46.
Defendant Chase has moved to dismiss the Complaint for lack of
subject matter jurisdiction, insufficiency of service of process,
and failure to state a claim as to all but the cause of action
for breach of contract. For the reasons that follow, Chase's
motions to dismiss for lack of subject matter jurisdiction and
for insufficiency of service are denied, and Chase's motion to
dismiss the Complaint, excepting the cause of action for breach
of contract, for failure to state a claim is granted.
The Eastern District Civil Docket shows that the initial
complaint in this matter was filed, and summons was issued on
September 27, 1999. Three days later an amended complaint was
filed, although close inspection of the two documents suggests
that the only difference between them is in the caption of the
initial complaint, where the word "amended" is crossed out.
Otherwise the summonses both bear the same date, September 4,
1998, the complaints' signature pages are both signed by
plaintiff's counsel, Marina Tylo, and dated September 14, 1998,
and both complaints are accompanied by verifications signed by
the plaintiff, and dated, inexplicably, September 10, 1998.
Finally, the allegations of both complaints are identical.
One hundred and eighty-two days after the "amended" complaint
was filed, service of both complaints upon Chase was executed on
March 30, 2000. Return of service was filed with this Court on
April 4, 2000.
Plaintiff alleges, and Chase does not dispute, that the Chase
Manhattan Bank is a banking institution domiciled in New York. Of
himself, plaintiff alleges that he "presently resides at 8700
25th Avenue, 4N, Brooklyn, New York." Complaint at
Plaintiff also alleges that "[o]n or about 2/07/97 Plaintiff
established an account at
Chase Manhattan. . . ." Id. Plaintiff
further alleges that "on or about 8/24/99" he received notice of a
wire transfer in the amount of $152,000 out of his account. Id
at ¶ 6.*fn2 Plaintiff describes responding to this notice
with distress, and a visit to "the defendant bank's branch at
which he [viz., the plaintiff] customarily transacted his various
banking activities." Id. at ¶ 7. Plaintiff alleges
that he was eventually "referred to the Manhattan headquarters of
the defendant bank," where he discussed the matter with an
investigator from Chase on August 25, 1998. Id. A few
days later, a second payment order was executed against plaintiff's
account with Chase, in the amount of $5,000. Once again, plaintiff
alleges that he contacted Chase to complain that he had been the
victim of fraud and forgery. Id. ¶¶ 15-16. Finally,
plaintiff alleges that "[o]ver the next few months" after these
purportedly fraudulent transfers, plaintiff "met with Mr. Boris
Maltsev [an investigator with Chase who was able to communicate
with plaintiff in Russian] on numerous occasions. . . ." Id.
at ¶ 17.
In his opposition to the defendant's motion to dismiss for lack
of subject matter jurisdiction, plaintiff has submitted an
affidavit by Irma Issatchenko, who states that since June 11,
1993, she has been married to the plaintiff. Issatchenko Aff. at
¶ 2. She also avers that her husband "has been and still
remains a citizen of the Country of Russia," and that "[h]e is a
resident and domiciliary of the City of Moscow, Russia." Id. at
¶ 3. The Issatchenko Affidavit concludes with this statement:
When my husband visits this country, whether for the
purpose of business or pleasure, he stops over in the
City of New York. Prior to me purchasing a house
located at 24 Eyland Street, Staten Island, New York,
and re-furbishing it, my husband used to stop over at
8700 25th Avenue, Brooklyn, his friend's
Id. at ¶ 4. Plaintiff's opposition papers also include a copy
of Tevdorachvili's Russian passport. Pl. Mem. in Opp., Exh. A.
The document appears to be a passport issued by the Union of
Soviet Socialist Republics, issued on December 14, 1995, and
expiring on December 14, 2000.
Finally, on July 7, 2000, at oral argument, plaintiff's
attorney submitted an affidavit from the plaintiff, attesting
that he is not, and has never been, "either a citizen or a
permanent resident of the United States of America and the State
of New York." Tevdorachvili Aff. at ¶ 3.
I. Subject Matter Jurisdiction
Plaintiff's claims against Chase all arise under state law.
Thus, this Court has subject matter jurisdiction over these
claims only if plaintiff and Chase are of diverse citizenship.
Franceskin v. Credit Suisse, No. 98-9376, 2000 WL 719494 at *4
(2d Cir. June 5, 2000). The diversity jurisdiction statute
provides, in relevant part:
The district courts shall have original jurisdiction
of all civil actions where the matter in controversy
exceeds the sum or value of $75,000, exclusive of
interest and costs, and is between (1) citizens of
different States; (2) citizens of a State and citizens
or subjects or a foreign state. . . .
"When the domicile of a party is in doubt, its determination
requires an evaluation of all the circumstances of the case." 13B
Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal
Practice & Procedure § 3612 at 529 (1984). The factors to be
considered in the course of this evaluation include
current residence; voting registration and voting
practices; location of personal and real property;
location of brokerage and bank accounts; membership in
unions, fraternal organizations, churches, clubs and
other associations; place of employment or business;
driver's license and automobile registration; [and]
payment of taxes. . . .
Id. at 530-31; see also Connolly v. Spielman, 999 F. Supp. 270, 272-73
(N.D. N.Y. 1998) (applying same factors to find New York domicile
against plaintiff's assertion of intent to establish Pennsylvania
It is well established that the party seeking to invoke the
jurisdiction of the federal court has the burden of showing that
such jurisdiction lies. United Food & Commercial Workers Union.
Local 919. AFL-CIO v. Centermark Properties Meriden Square, Inc.,
30 F.3d 298, 301 (2d Cir. 1994). Thus, the burden here is on the