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GLASFORD v. SCHREIER

June 30, 2004.

CALVIN GLASFORD and EVELYN ROMAN, Plaintiffs,
v.
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.

BACKGROUND

  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.)

  DISCUSSION

  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. ¶ ...


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