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July 7, 2000


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 ¶ 1.*fn1

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 residence.

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. . . .

28 U.S.C. § 1332(a).

The elements of the citizenship requirement on diversity jurisdiction are familiar. Citizenship for diversity purposes is determined at the time an action is commenced. Maryland Casualty Co. v. W.R. Grace and Co., 23 F.3d 617, 622 (2d cir. 1993), cert. denied, 513 U.S. 1052 (1994). The inquiry focuses on the parties' domicile, a conceptual amalgam consisting in two parts: physical presence in a place and a state of mind evincing an intent to remain there. Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 48 (1989).

"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 domicile).

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 plaintiff ...

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