United States District Court, S.D. New York
March 29, 2004.
ELLEN GESTETNER and ZIGMUND GESTETNER, Plaintiffs, -against- CONGREGATION MERKAZ, et al., Defendants
The opinion of the court was delivered by: DEBORAH BATTS, District Judge
MEMORANDUM & ORDER
Defendants have moved for dismissal of the case for lack of subject
matter jurisdiction in the instant case.*fn1 Plaintiffs have responded.
As Defendants did not submit a reply brief, the Court deems the Motion to
Dismiss fully submitted.
Plaintiff Ellen Gestetner ("Gestetner") filed suit on February 4, 2002
alleging negligence. Gestetner was born in Germany on May 27, 1947
(Gestetner Aff. ¶ 1.) Shortly thereafter, she immigrated to America,
where she became a
naturalized citizen in 1952. (Id.) Gestetner married co-Plaintiff
Sigmund Gestetner,*fn2 a citizen of Canada, ("Sigmund") in 1966, and
that same year she then moved to Montreal, Quebec. (Id. ¶ 2.) She
then applied for permanent admission to Canada, (Gestetner Aff., Exh. A),
which the Department of Citizenship and Immigration of Canada granted on
December 19, 1966. (Gestetner Aff. ¶ 3.) She currently resides in
Montreal and has not returned to live in the United States at any point
since 1966. (Id. ¶¶ 5, 6.) In her Affidavit, Plaintiff claims to have
"abandoned my former residency in the United States and have established
residency in Canada." (Id. ¶ 7.)
The instant suit arose out of an alleged personal injury that occurred
on June 16, 2000 on the premises of Defendant Congregation Merkaz Ginas
Verodim ("Congregation Merkaz"), located at 29 Roosevelt Avenue in New
Square, New York. (Compl. ¶ 16.) In their Complaint, Plaintiffs claim
negligence and loss of consortium from Congregation Merkaz and its two
property managers Eliazer and Bails Danziger (collectively the
"Defendants"). Plaintiffs brought suit in
federal court, alleging diversity jurisdiction. In the course of
discovery, Gestetner responded to Defendants' "Notice of Admit" and
indicated that she was a United States citizen and retained a Social
Security number. (Gallin Aff., Exh. B, Response to Notice of Admit ¶¶
2, 3.) Sigmund is a citizen and resident of Canada. (Compl. ¶ 2.)
It is axiomatic that "subject matter jurisdiction remains `an
unwaivable sine qua non for the exercise of federal judicial power.'"
Herrick Co., Inc. v. SCS Communications, Inc., 251 F.3d 315, 321 (quoting
Curley v. Brignoli, Curley & Roberts Assocs., 915 F.2d 81, 83 (2d Cir.
1990). Indeed, Rule 12(h)(3) of the Federal Rules of Civil Procedure
states "[w]henever it appears by suggestion of the parties or otherwise
that the court lacks jurisdiction of the subject matter, the court shall
dismiss the case."
Defendants here contest the sole basis upon which Plaintiffs premise
jurisdiction, namely diversity jurisdiction pursuant to 28 U.S.C. § 1332.
That statute states in pertinent 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
(2) citizens of a State and citizens or subjects
of a foreign state . . .
28 U.S.C. § 1332(a).
The party seeking "to invoke jurisdiction under 28 U.S.C. § 1332 bears
the burden of demonstrating that the grounds for diversity exist and that
diversity is complete." Advani Enterprises, Inc. v. Underwriters at
Lloyds, 140 F.3d 157, 160 (2d Cir. 1998)(citation omitted). If such
jurisdictional grounds are lacking, dismissal is mandatory. United Food
& Commercial Workers Union Local 919 v. CenterMark Props. Meriden
Square, Inc., 30 F.3d 298, 301 (2d Cir. 1994). The Court may, when
determining motions in which subject matter jurisdiction is in dispute,
resolve jurisdictional factual issues by examination and reference to
outside materials, including affidavits. Kamen v. Am. Tel. & Tel. Co.,
791 F.2d 1006, 1011 (2d Cir. 1986). While the Court "will not draw
`argumentative inferences' in the plaintiff's favor," "it should construe
jurisdictional allegations liberally and take as true uncontroverted
factual allegations." Robinson, v. Overseas Military Sales Corp.,
21 F.3d 502, 507 (2d Cir. 1994).
"Whether federal diversity jurisdiction exists is determined by
examining the citizenship of the parties at
the time the action is commenced," Linardos v. Fortuna, 157 F.3d 945, 947
(2d Cir. 1998), and a party's change of domicile in mid-suit will not
affect the subject matter determination. Galu v. Attias, 923 F. Supp. 590
(S.D.N.Y. 1996)(citing Smith v. Sperling, 354 U.S. 91, 93 n.1 (1957)).
As the Supreme Court has noted "[i]n order to be a citizen of State
within the meaning of the diversity statute, a natural person must be
both a citizen of the United States and be domiciled within the state."
Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 828 (1989)(emphasis
in original). To establish domicile in a particular state, an individual
must have "both physical presence there and intent to stay." Universal
Reins. Co., Ltd, v. St. Paul Fire and Marine Ins. Co., 224 F.3d 139 (2d
Cir. 2000)(citing 15 Martin H. Redish, Moore's Federal Practice § 102.34
, at 102-64 (3d ed. 2000)). This distinction is key because "`United
States citizens domiciled abroad are neither citizens of any state of the
United States nor citizens or subjects of a foreign state,' so that `§
1332(a) does not provide that the courts have jurisdiction over a suit to
which such persons are parties.'" Herrick, 251 F.3d at 322 (2d Cir. 2001)
Cresswell v. Sullivan & Cromwell, 922 F.2d 60, 68 (2d Cir. 1990); Galu,
923 F. Supp. at 594 (citing cases).
A citizen of the United States does not lose her citizenship unless she
voluntarily relinquishes it. Action S.A. v. Marc Rich & Co., Inc.,
951 F.2d 504, 506 (2d Cir. 1991)("[L]oss of American citizenship required
a voluntary performance of an expatriating act," including "a specific
intent to relinquish United States citizenship.")(citing Vance v.
Terrazas, 444 U.S. 252, (1980) and Afroyim v. Rusk, 387 U.S. 253
(1967)). 8 U.S.C. § 1481, which sets out the process by which American
citizenship may be renounced, reads in part:
(a) A person who is a national of the United States
whether by birth or naturalization, shall lose his
nationality by voluntarily performing any of the
following acts with the intention of relinquishing
United States nationality
(1) obtaining naturalization in a foreign state
upon his own application or upon an application
filed by a duly authorized agent, after having
attained the age of eighteen years; or
(2) taking an oath or making an affirmation or other
formal declaration of allegiance to a foreign state
or a political subdivision thereof, after having
attained the age of eighteen years; or
(5) making a formal renunciation of nationality
before a diplomatic or consular officer of the
United States in a foreign state, in such form
as may be prescribed by the Secretary of State;
(6) making in the United States a formal written
renunciation of nationality in such form as may be
prescribed by, and before such officer as may be
designated by, the Attorney General, whenever the
United States shall be in a state of war and the
Attorney General shall approve such renunciation as
not contrary to the interests of national defense.
. . .
8 U.S.C. § 1481.
The acts enumerated by § 1481 do not, standing alone, revoke United
States citizenship. Indeed, the Second Circuit has "long required a
distinct manifestation of intent in addition to the mere performance of
an expatriating act." Action S.A. v. Marc Rich & Co., Inc., 951 F.2d 504,
507 (2d Cir. 1991) (citation omitted).
Plaintiffs argue that Gestetner has voluntarily renounced her
citizenship by applying for and receiving permanent resident status in
Canada an affirmative act which demonstrated her intent to renounce her
citizenship. They further cite to the facts that Gestetner has resided in
Canada for the past three and a half decades, has not owned or leased
land in the United States, has not incurred or paid taxes to the United
States, has not voted in any federal or state elections in the United
States, and has not worked in or received income from the United States.
Defendants argue that Gestetner is still an American
citizen and admitted such both at her Deposition and in her Notice
to Admit response. She retains an American social security number and has
not taken any of the necessary steps to renounce her citizenship.
It is clear to the Court that Plaintiff Gestetner is still an American
citizen. She has admitted having American citizenship despite a specious
argument that this admission is not truly indicative of her "present
citizenship status." (Pls. Memo, of Law in Oppos. at 3.) She has never
renounced her citizenship; applying for permanent residency status is
hardly tantamount to doing so.
It is clear from wording of § 1481 that she has done none of the
acts enumerated in the statute. Gestetner cites no evidence that she ever
relinquished her citizenship before an American representative in Canada,
that she obtained Canadian citizenship, or that she pledged allegiance to
or served in the Canadian government.
Plaintiffs can cite no cases that suggest or hold that applying for
permanent residency constitutes a renunciation of citizenship. Indeed, the
very cases they highlight in their brief undermine their argument. In
Cantoni v. Acheson, 88 F. Supp. 576, (N.D. Ca. 1950), a court found that
an American-born individual did not retain his American citizenship after
he had moved to Italy, took an
oath of allegiance to the Italian army, and voted in Italian elections; he
could not even speak English. In Davis v. District Dir., Immigration and
Naturalization Serv., 481 F. Supp. 1178 (D.D.C. 1979), the Court found
that plaintiff had renounced his citizenship at the American embassy in
France by signing formal renunciation papers in 1948; he was actually
issued an official "Certificate of Loss of Nationality of the United
States". Id. at 1179. Finally, in Richards v. Sec. of State, 752 F.2d 1413
(9th Cir. 1985), the plaintiff had renounced his American citizenship and
been naturalized as a Canadaian citizen. In the case at bar, there has
been no naturalization, no renunciation before an American consular
official, and no oath of allegiance to the Canadian army or government.
Plaintiff Gestetner is therefore an American citizen. As she has
indicated in her papers that she is domiciled in Montreal, Quebec, she
has no state citizenship for purposes of diversity jurisdiction.
Accordingly, § 1332(a)'s requirements have not been met and no subject
matter jurisdiction exists.*fn3
The Court finds that Plaintiff Gestetner is an American citizen without
a state domicile. Accordingly, § 1332(a) does not confer jurisdiction
to this Court, and the case is hereby dismissed without prejudice.