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
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 ...