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United States District Court, S.D. New York

June 30, 2004.


The opinion of the court was delivered by: RICHARD CASEY, District Judge


Calvin Glasford and Evelyn Roman ("Plaintiffs") move to remand this case to state court on the ground that the Court lacks diversity jurisdiction.*fn1 For the reasons stated below, Plaintiffs' motion is DENIED.


  On June 29, 2003, Plaintiffs were involved in a car accident in Westchester County, New York. (Complaint [Compl.] ¶ 19.) Grant Schreier operated the car that hit them; with him was his father, Andrew Schreier. (Id.) The car was leased to Andrew Schreier and is owned by Saab Leasing Co. (Id.)

  On September 4, 2003, Plaintiffs sued Andrew Schreier and Grant Schreier (collectively, "Defendants") in New York State Supreme Court, Bronx County, claiming that each sustained one million dollars in injuries. (Id. ¶¶ 24, 30.) Both Plaintiffs were domiciled in New York when they commenced this suit. (Id. ¶ 1.) Defendants timely filed a Notice of Removal pursuant to 28 U.S.C. § 1441 and 1446. The removal notice declared that Defendants were citizens of Florida on the date the Complaint was filed and thus the Court possessed diversity jurisdiction. Plaintiffs move to remand, contesting Defendants' assertion that they were domiciled in Florida on that date.

  It is undisputed that at the time of the accident, Defendants resided and were domiciled in Westchester County, New York. However, on September 1, 2003, Defendant Andrew Schreier moved from New York to Florida and began working at his brother-in-law's investment company the following day. (Affidavit of Andrew M. Schreier [A. Schreier Aff.] ¶ 3.) On September 3, 2003, Andrew Schreier sold his Scarsdale, New York home; one day later, he closed on a Florida condominium and began living there. (Id. ¶¶ 4-5.)

  At least two months before Plaintiffs brought this action, Andrew Schreier began to finalize personal and business affairs in New York in anticipation of the move. For example, he resigned from his New York law firm and shipped his office furniture to Florida. (Id.) In the spring of 2003, Mr. Schreier purchased an apartment in Manhattan, where he planned to stay during visits to New York. (Id. ¶ 21.) In June 2003, he advised the New York State Office of Court Administration that he would no longer be practicing law at his New York firm and ended his membership in a New York synagogue, where he had been a member for more than thirty years. (Id. ¶¶ 10-11.) Andrew Schreier also notified both the Metropolitan Opera and the New York Philharmonic that he would not be renewing his subscriptions, which had been in his family for several years. (Id. ¶¶ 11, 14, 15.) During the summer of 2003, he notified the Florida bar of his Florida address. (Id. ¶ 17.)

  Andrew Schreier's son and co-defendant, Grant Schreier, is an undergraduate student at New York University. He lives in university housing in New York. (Affidavit of Grant Schreier [G. Schreier Aff.] ¶ 2.)


  The district courts have original jurisdiction over all civil actions when the amount in controversy exceeds the sum of or value of $75,000 and involves a dispute between citizens of different states.*fn2 28 U.S.C. § 1332(a). Complete diversity of the parties must be shown to sustain federal jurisdiction. See Herrick Co. v. SCS Communication, Inc., 251 F.3d 315, 322 (2d Cir. 2001).

  For purposes of diversity, a party's citizenship is determined by his place of domicile. See Willis v. Westin Hotel Co., 651 F. Supp. 598, 601 (S.D.N.Y. 1986). Generally, a person's domicile is the place of "his true, fixed, and permanent home and principal establishment, and to which, whenever he is absent, he has the intention of returning." Vitro v. Town of Carmel, 433 F. Supp. 1110, 1112 (S.D.N.Y. 1977). The elements needed to establish domicile are: (1) residence in fact and (2) intent to remain indefinitely. Everett v. Brief, No. 82 Civ. 3153, 1985 WL 3563 (S.D.N.Y. Nov. 1, 1985). A person must be a domiciliary of one state but may have more than one residence. See Hamilton v. Accu-tek, 13 F. Supp.2d 366, 369 (E.D.N.Y. 1998).

  For purposes of diversity jurisdiction, a court looks to a party's domicile on the date the complaint was filed. See Spanos v. Skouras Theatres Corp., 364 F.2d 161, 163 (2d Cir. 1966). Accordingly, whether the Court possesses jurisdiction in this case depends on whether Defendants were domiciled in New York or Florida at the time the lawsuit was filed. As the parties seeking to invoke federal jurisdiction by asserting a change in domicile, Defendants have the burden of proving this change by clear and convincing evidence. See Katz v. Goodyear Tire & Rubber Co., 737 F.2d 238, 243 (2d Cir. 1984).

  I. Andrew Schreier

  The facts on record show that Andrew Schreier was a domiciliary of Florida when the Complaint was filed. First, he was physically present in Florida on September 4, 2003. Second, he has manifested an intent to indefinitely remain there as he made numerous changes in his professional and personal life. Before September 4, 2003, Andrew Schreier resigned from his New York law firm, informed the New York Office of Court Administration that he would no longer be practicing law in New York, notified the Florida bar of his Florida address, and began working in Florida. Andrew Schreier had sold his family home in Scarsdale, New York on September 3, 2003, the day before the Complaint was filed. He also ended his membership in various New York cultural organizations, from his synagogue to the Metropolitan Opera. Andrew Schreier's elderly parents live in Florida and he moved there in part to care for them, an additional fact supporting his claim that he intends to indefinitely remain in Florida. (A. Schreier Aff. ¶ 28.)*fn3 Defendants have demonstrated that Andrew Schreier was both living and working in the State of Florida at the time the Complaint was filed and that he intended to indefinitely remain there. Thus, for purposes of this case, he is deemed a Florida citizen.

  II. Grant Schreier

  The Court's conclusion that Andrew Schreier was a Florida citizen does not end the analysis. The requirement of complete diversity compels the Court to consider whether Grant Schreier was a New York citizen when this suit was commenced.

  Grant Schreier's status as a New York domiciliary and his intent to remain in New York changed as soon as his parents moved to Florida. Generally, a college student retains the domicile of his parents while he attends college. See Hamilton, 13 F. Supp.2d at 366. Accordingly, Grant Schreier's domicile changed when his father established Florida as his domicile. The determinative factor in cases dealing with students attending school out-of-state is whether the parents continue in their parental roles in supporting the minor child. See Mitchell v. Mackey, 915 F. Supp. 388, 391 (M.D. Ga. 1996). Here, Grant Schreier has remained financially dependent on his parents. See id. at 390. Thus, because his father was a Florida domiciliary on September 4, 2003, Grant Schreier attended New York University as an out-of-state student on that date. See Hakkila v. Consol. Edison Co. of New York, 745 F. Supp. 988, 990 (S.D.N.Y. 1990) (holding that out-of-state college students are presumed to be temporary residents and are not domiciled in state where they attend college.).

  In addition, the record demonstrates that Grant Schreier intended to make Florida his permanent home. For instance, Grant Schreier has asserted that he intends to remain in New York only during his college career. See Hamilton, 13 F. Supp.2d at 370 (stating that declarations of intent by person whose domicile is in question are given heavy, but not conclusive, weight). Moreover, most of his belongings and personal possessions have been moved to the Florida home, where he has his own bedroom and his bills and checking account statements are sent to the Florida address. (A. Schreier Aff. ¶¶ 21, 23-24; G. Schreier Aff. ¶¶ 6, 8.) Finally, Grant Schreier intended to go home to Florida for school vacations and has since done so. (A. Schreier Aff. ¶ 25; G. Schreier Aff. ¶ 7.) These facts demonstrate that when the Complaint was filed Grant Schreier intended to make Florida his domicile.

  Plaintiffs assert that Grant Schreier fails to meet the residence in fact requirement necessary to establish domicile because he was not physically present in Florida before September 4, 2003. Strictly construing this requirement, Plaintiffs are correct. However, the essence of the rules that courts have formulated to determine domicile do not require such strict formality. See, e.g., Mitchell, 915 F. Supp. at 391 ("The court finds that the law does not impose a formal requirement that [the party attempting to establish domicile] `set foot' [in Florida] or perform any other needless formality to `establish a physical presence' in Florida. As is often stated, home is where the heart is."). Under the facts of this case, the Court determines that despite not formally setting foot in Florida before the Complaint was filed, Grant Schreier intended to make Florida his permanent home.

  The above factors demonstrate that, like his father, Grant Schreier was domiciled in Florida when the Complaint was filed. His temporary residence in New York while he attends college does not change that status.


  Both Defendants were domiciled in Florida when the Complaint was filed and both are Florida citizens. As a result, there is complete diversity in this case. The Court therefore has jurisdiction to hear this matter pursuant to 28 U.S.C. § 1332(a). Plaintiffs' motion to remand is DENIED. The parties are directed to appear for a conference in this case on December 3, 2004, at 9:30 a.m. in Courtroom 14C, at which time all discovery must be complete.

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