United States District Court, S.D. New York
June 30, 2004.
CALVIN GLASFORD and EVELYN ROMAN, Plaintiffs,
GRANT SCHREIER and ANDREW SCHREIER, Defendants.
The opinion of the court was delivered by: RICHARD CASEY, District Judge
MEMORANDUM OPINION & ORDER
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
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
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
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.