The opinion of the court was delivered by: Stein, District Judge.
Plaintiffs Shlomo Marcus and Jewelry Dynasty, Inc. brought
this diversity action against defendants "Five J" Jewelers
Precious Metals Industry Ltd. ("Five J"), Joseph Berger, and
Alon Berger to recover for services rendered by Marcus while
working as an agent of Five J to sell jewelry. Defendants have
moved, prior to discovery proceedings, to dismiss the complaint
for lack of subject matter jurisdiction on the grounds that
complete diversity of citizenship is destroyed by the Israeli
citizenship of plaintiff Marcus and the three defendants. For
the reasons set forth below, defendants' motion is granted.
Shlomo Marcus is a citizen of Israel who has been domiciled in
New York since 1984 and became a permanent U.S. resident on July
11, 1985. See Aff. of Shlomo Marcus, dated Aug. 2, 2000, ¶¶ 3,
5; Aff. of Shlomo Marcus, dated Feb. 20, 2000, ¶ 81. At all
relevant times, Marcus was an employee of plaintiff Jewelry
Dynasty, Inc., a New York corporation engaged in the business of
selling gold jewelry. See Compl. ¶¶ 4, 9. Five J is an Israeli
corporation that maintains its principal place of business in
Tel Aviv, Israel.*fn1 See Compl. ¶ 5; Aff. of Richard S.
Kanowitz, dated Jan. 5, 2000, ¶ 1. The Bergers are citizens and
residents of Israel and are officers of Five J. See Compl. ¶¶
6-7; Kanowitz Aff. ¶ 1; see also Aviner v. "Five J" Jewelers
Precious Metals Indus., Ltd., No. 99 Civ. 1800, slip op. at 2-4
(S.D.N.Y. Oct. 18, 1999) (dismissing suit against Five J and
Joseph and Alon Berger on forum non conveniens grounds);
Kanowitz Aff., Ex. E.
"[A]t the initial stage of litigation, a party seeking to
establish jurisdiction need only make a prima facie showing by
alleging facts which, if true, would support the court's
exercise of jurisdiction." New Moon Shipping Co. v. Man B&W
Diesel Ag, 121 F.3d 24, 29 (2d Cir. 1997) (citing Marine
Midland Bank, N.A. v. Miller, 664 F.2d 899, 904 (2d Cir.
1981)). "[T]he facts must be viewed in the light most favorable
to the plaintiff," and "[a] disputed fact may be resolved in a
manner adverse to the plaintiff only after an evidentiary
hearing." Id. (citations omitted).
II. Diversity jurisdiction
Subject matter jurisdiction premised on diversity of the
parties' citizenship is governed by 28 U.S.C. § 1332.*fn2
Prior to 1988, the courts of appeals uniformly held that this
statute "did not confer jurisdiction over a lawsuit involving an
alien on one side, and an alien and a citizen on the other
side." Saadeh v. Farouki, 107 F.3d 52, 55 (D.C.Cir. 1997)
(collecting cases); see Buti v. Impressa Perosa, S.R.L.,
935 F. Supp. 458, 461-62 (S.D.N.Y. 1996) (collecting Second Circuit
cases), aff'd on other grounds, 139 F.3d 98 (2d Cir.), and
cert. denied, 525 U.S. 826, 119 S.Ct. 73, 142 L.Ed.2d 57
(1998). This narrow holding was the product of two general
principles: first, that "Article III of the Constitution does
not give Congress the power to grant the federal courts
jurisdiction over an action between two aliens"; and second,
that the diversity statute requires "complete diversity" in the
sense that "diversity jurisdiction does not exist unless each
defendant is a citizen of a different State from each
plaintiff." Lloyds Bank PLC v. Norkin, 817 F. Supp. 414, 416-18
(S.D.N.Y. 1993) (quotation omitted). Although the first
principle is a matter of constitutional law, the requirement of
complete diversity is not, since the Constitution itself
requires not complete diversity but "only minimal diversity,
that is, diversity of citizenship between any two parties on
opposite sides of an action, regardless of whether other parties
may be co-citizens." Saadeh, 107 F.3d at 54 (citation
omitted). For almost two centuries, federal courts have
consistently required complete diversity of the parties as a
matter of statutory construction. See, e.g., Owen Equipment &
Erection Co. v. Kroger, 437 U.S. 365, 373-77 & n. 13, 98 S.Ct.
2396, 57 L.Ed.2d 274 (1978); Strawbridge v. Curtiss, 7 U.S. (3
Cranch) 267, 267-68, 2 L.Ed. 435 (1806), overruled on other
grounds, Louisville, Cincinnati & Charlestown R.R. Co. v.
Letson, 43 U.S. (2 How.) 497, 555, 11 L.Ed. 353 (1844);
Leveraged Leasing Admin. Corp. v. PacifiCorp Capital, Inc.,
87 F.3d 44, 47 (2d Cir. 1996).
In 1988, however, Congress amended 28 U.S.C. § 1332, effective
May 18, 1989, to add the following provision: "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." 28 U.S.C. § 1332(a); see
Judicial Improvements and Access to Justice Act, Pub.L. No.
100-702, § 203, 102 Stat. 4642, 4646 (1988). Courts have
uniformly agreed that this provision eliminates diversity
jurisdiction of suits in which a permanent resident alien
appears opposite a citizen of the alien's state of domicile.
See Engstrom v. Hornseth, 959 F. Supp. 545, 549 (P.R. 1997).
For example, pursuant to the 1988 amendment, Marcus — a
permanent resident alien domiciled in New York — is deemed to be
a citizen of New York; therefore, there would be no diversity
jurisdiction were he to sue another citizen of New York. Courts
have sharply disagreed, however, whether the added provision
creates diversity jurisdiction of suits in which a permanent
resident alien appears opposite another alien. Compare Singh v.
Daimler-Benz AG, 9 F.3d 303, 305-12 (3d Cir. 1993), with
Saadeh, 107 F.3d at 57-61 (D.C.Cir. 1997). See generally 15
James Wm. Moore, Moore's Federal Practice § 102.78, at 102-146
to — 148.4 (Daniel R. Coquillette et al. eds., 3d ed. 2000).
This Court concludes that the 1988 revision to
28 U.S.C. § 1332 does not expand diversity jurisdiction to encompass this
latter category of suits, for substantially the same reasons as
set forth in the prior decisions of other judges of the Southern
District of New York. See Buti, 935 F. Supp. at 460-63; A.T.X.
Export, Ltd v. Mendler, 849 F. Supp. 283, 283-84 (S.D.N.Y.
1994); Lloyds Bank PLC, 817 F. Supp. at 415-19. To begin with,
"the language of a statutory provision, if clear and unambiguous
on its face, is presumed to bear its plain meaning unless the
text suggests an absurd result." Nussle v. Willette,
224 F.3d 95, 100 (2d Cir. 2000). Here, adhering strictly to the statutory
language would indeed produce an absurd result, since "to find
subject matter jurisdiction, the Court [would have to] conclude
that Congress abandoned the rule of complete diversity,
enunciated nearly two hundred years ago in Strawbridge and
regularly applied since to, inter alia, actions with aliens on
both sides, but did so without comment." Lloyds Bank PLC,
817 F. Supp. at 418. Thus, recourse to the legislative history of the
provision is appropriate, and that history indicates Congress'
purpose was to narrow, rather than to expand, the scope of
diversity jurisdiction. See Saadeh, 107 F.3d at 57-61; Lloyds
Bank PLC, 817 F. Supp. at 418-19; Arai v. Tachibana,
778 F. Supp. 1535, 1538-40 & n. 6 (Haw. 1991); H.R.Rep. No. 100-889,
at 22-23, 44-45 (1988), reprinted in 1988 U.S.C.C.A.N. 5982,
598384, 6005; 134 Cong. Rec. S31,049-55 (1988) (statement of
Because the requirement of complete diversity is preserved,
application of this provision to the facts of this case becomes
straightforward. There is no dispute that Marcus is "an alien
admitted to the United States for permanent residence" within
the meaning of 28 U.S.C. § 1332(a). See Foy v. Schantz,
Schatzman & Aaronson, 108 F.3d 1347, 1349 (11th Cir. 1997);
Aff. of Shlomo Marcus, dated Aug. 2, 2000, Ex. A. Nor is there
any dispute that Joseph and Alon Berger are citizens of Israel
and that Five J is an Israeli corporation. Accordingly, all
defendants and ...