where the action is between "(1) citizens of different States; (2)
citizens of a State and citizens or subjects of a foreign state," and
"(3) citizens of different States and in which citizens or subjects of a
foreign state are additional parties." 28 U.S.C. § 1332(a).
Jordan is neither a citizen of a state nor a subject of a foreign state
within the meaning of 28 U.S.C. § 1332(a). The Second Circuit has
held that Bermudian corporations, such as Jordan, are not "citizens or
subjects of a foreign state" within the meaning of
28 U.S.C. § 1332(a)(2), because the United States does not recognize
Bermuda, a British Dependent Territory, as a foreign state. See Koehler
v. Bank of Bermuda (New York) Ltd., 209 F.3d 130, 139 (2d Cir. 2000),
amended, 229 F.3d 424 (2d Cir. 2000) See also Matimak Trading Co. v.
Khalily, 118 F.3d 76, 79-82 (2d Cir. 1997), cert. denied, 522 U.S. 1091
(1998) (Hong Kong corporation was not a citizen or subject of a foreign
state under § 1332(a)(2) because at the time of the suit, Hong Kong
was a British Dependent Territory); Chase Manhattan Bank v. Traffic
Stream (BVI) Infrastructure Ltd., 251 F.3d 334, 336-37 (2d Cir. 2001)
(citing Koehler and Matimak and holding that British Virgin Islands
corporation could not sue in federal court based on alienage jurisdiction
because the British Virgin Islands is a British Dependent Territory);
Universal Reinsurance Co., Ltd. v. St. Paul Fire & Marine Ins. Co.,
224 F.3d 139, 140-41 (2d Cir. 2000) (Bermuda corporation could not sue in
federal court on the basis of alienage jurisdiction).
Jordan has alleged that its principal place of business is in Illinois
and therefore it should be considered a citizen of that state for
diversity purposes. However, "for purposes of alienage jurisdiction, a
corporation s a citizen or subject of the entity under whose sovereignty
it is created." Koehler, 209 F.3d at 139 (citing Matimak, 118 F.3d at
78). Although § 1332(c)(1) deems a corporation to be a citizen both
of the state where it is incorporated and where it has its principal
place of business, Jordan has sought to remove the place of incorporation
entirely from the analysis of diversity. This reasoning runs contrary to
that of the Court of Appeals in cases involving traditional
sovereignties, See e.g., Creaciones Con Idea S.A. de C.V. v. Mashregbank
PSC, 232 F.3d 79, 82 (2d Cir. 2000); Franceskin v. Credit Suisse,
214 F.3d 253, 258 (2d Cir. 2000), and is questionable in light of the
fact that, for purposes of Section 1332(c), the Second Circuit has
"suggested that alien corporations are not citizens of the state in which
they have their principal place of business." Corporacion Venezolana de
Fomento v. Vintero Sales Corp., 629 F.2d 786, 790 (2d Cir. 1980) (citing
Clarkson Co., Ltd. v. Shaheen, 544 F.2d 624, 628 n. 5 (2d Cir. 1976)).
This question need not be resolved for even if Jordan were considered
to be a citizen of Illinois, the presence of Kaminsky, alleged to be a
citizen of the United States and a resident of the United Kingdom,
defeats diversity jurisdiction, for "United States citizens who are
domiciled abroad are neither citizens of any state of the United States
nor citizens or subjects of a foreign state, and § 1332(a) does not
provide that the courts have jurisdiction over a suit to which such
persons are parties." Cresswell v. Sullivan & Cromwell, 922 F.2d 60, 68
(2d Cir. 1990); see also Newman-Green, Inc. v. Alfonzo-Larrain,
490 U.S. 826, 828 (1989) ("In order to be a citizen of a State within the
meaning of the diversity statute, a natural person must both be a citizen
of the United States and be domiciled within the State."). Quite
"a suit by or against United States citizens domiciled abroad may not be
premised on diversity." Cresswell, 922 F.2d at 68 (citations omitted);
see also Herrick Co., Inc. v. SCS Communications, Inc., 251 F.3d 315,
322 (2d Cir. 2001).
For these reasons and those previously stated in the July 18 Opinion,
in the absence of a federal claim and diversity jurisdiction, the state
law claims are dismissed.
The defendants' motions are granted, and the Amended Complaint is
dismissed with costs and with prejudice.
Settle judgment on notice.