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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


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 Page 2 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 Page 3 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 Page 4 $75,000, exclusive of interest and costs, and is between —


(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 Page 5 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 [2], 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) (quoting Page 6 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; or Page 7


(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 Page 8 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 Page 9 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 Page 10


  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.


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