United States District Court, S.D. New York
July 5, 2005.
IVIA GONZALEZ, Plaintiff,
T. RAJKUMAR, Defendant.
The opinion of the court was delivered by: RICHARD BERMAN, District Judge
DECISION AND ORDER
On February 1, 2004, Plaintiff Ivia Gonzalez ("Plaintiff") and
Defendant T. Rajkumar, also known as Tulsepersaud Rajkumar
("Defendant"), were involved in an automobile collision.
(Plaintiff's Memorandum of Law ("Plaintiff's Memorandum") in
Support of Notice of Motion to Remand ("Plaintiff's Motion to
Remand"), filed January 13, 2005, at 5). Plaintiff filed a
complaint against Defendant ("Complaint") in the Supreme court of
the State of New York, County of Bronx, Index No. 20912/2004, on
July 23, 2004, pursuant to the provisions of New York State
Comprehensive Automobile Insurance Reparations Act alleging that
"plaintiff has sustained serious injury. . . ." (Compl. ¶¶ 1, 2,
Ex. D to Pl. Mot. Remand).
On October 25, 2004, Defendant filed an Answer ("Answer"). (Pl.
Mem. at 6). At the same time, Defendant submitted a demand
("Defendant's Demand") which stated, "pursuant to CPLR § 3017 . . .
[Defendant] hereby requests that plaintiff set forth a
supplemental demand in writing of the total damages to which
plaintiff deems herself entitled." (Def. Demand, Ex. A to
Defendant's Affirmation in Opposition to Motion to Remand
("Defendant's Affirmation") filed February 11, 2005); see
N.Y.C.P.L.R. § 3017(c). On November 22, 2004, Plaintiff submitted
a response to Defendant's Demand ("Plaintiff's Response to
Defendant's Demand") and alleged damages in the amount of ten
million dollars ($10,000,000). (Pl. Resp. Def. Demand, Ex. B to Def. Affirmation).
On November 30, 2004, Defendant filed a Notice of Removal
("Defendant's Removal") to this Court on the grounds that "[t]his
Court has original jurisdiction of this civil action pursuant to
28 U.S.C. § 1332 because there is complete diversity in the
matter and the amount in controversy exceeds the sum of
$75,000. . . ." (Def. Removal ¶ 5). Plaintiff filed Plaintiff's
Motion to Remand alleging that diversity jurisdiction does not
exist "since both parties resided in New York when this action
commenced." (Pl. Mem. at 5). Defendant filed Defendant's
Affirmation on February 11, 2005, and filed Defendant's sworn
affidavit, dated January 19, 2005 ("January 19 Affidavit") on
March 17, 2005. The Court requested additional letter briefing on
June 7, 2005 regarding Defendant's asserted domicile in the State
of Florida, and Defendant submitted a letter on June 14, 2005,
accompanied by a sworn affidavit dated June 10, 2005 ("June 10
Affidavit"). Plaintiff did not reply.*fn1
For the reasons set forth below, Plaintiff's Motion to Remand
II. Legal Standard
"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 between
. . . citizens of different States." 28 U.S.C. § 1332(a)(1). The
existence of federal diversity jurisdiction "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) (quotation omitted). An individual's citizenship is
determined by his or her domicile which is that place "where a
person has his true and fixed home and principal establishment,
and to which, whenever he is absent he has the intention of returning." Palazzo v. Corio, 232 F.3d 38,
42 (2d Cir. 2000) (citation omitted). "A party alleging that
there has been a change of domicile has the burden of proving . . .
[change in domicile] by clear and convincing evidence." Id.
(quoting Katz v. Goodyear Tire & Rubber Co., 737 F.2d 238,
243-44 (2d Cir. 1984)).
A case becomes removable based on diversity jurisdiction, and
the time to remove begins to run, when a document has been filed
that "enables the defendant to intelligently ascertain
removability from the face of such pleading, so that in its
petition for removal, the defendant can make a short and plain
statement of the grounds for removal as required by
28 U.S.C. § 1446(a)." Whitaker v. Am. Telecasting, Inc., 261 F.3d 196,
205-06 (2d Cir. 2001) (quoting Richstone v. Chubb Colonial Life
Ins., 988 F. Supp. 401, 403 (S.D.N.Y. 1997)). "In cases where
removal is based upon diversity, the facts required to support
the removal petition include the amount in controversy. . . ."
Whitaker, 261 F.3d at 206.
Plaintiff alleges that the Court lacks subject matter
jurisdiction because: (1) all parties were domiciled in New York
at the time this action was commenced; (2) all parties
voluntarily consented to the jurisdiction of New York State by
operating vehicles in New York; and (3) Defendant failed to file
a timely notice of removal. (Pl. Mem. at 5, 8, 9).
(1) Defendant's Domicile
Defendant's claim that he was domiciled in Florida at the time
this action was commenced is (clearly and convincingly) supported
by the following:
A. The January 19 Affidavit attests that: (1)
Defendant resided in New York on the date of the
accident; (2) he moved to Florida in February 2004,
more than five (5) months before Plaintiff commenced
this action; (3) he (initially) established residence
at 15532 Lake Bella Vista Drive, Tampa, Florida; (4)
he now resides at 1608 New Orleans Avenue, Tampa, Florida; (5) he intends to remain in Florida;
and (6) he no longer maintains a residence in New
York. (Jan. 19. Aff. ¶¶ 3, 4, 5).
B. Defendant provided the Court with a copy of a
Florida driver's license, issued to him at 15532 Lake
Bella Vista Drive, Tampa, Florida, on February 6,
2004, more than five (5) months before Plaintiff
commenced this action. (See Florida driver's
license, annexed to Jan. 19. Aff.)
C. Defendant provided the Court with copies of bank
statements, credit card bills, and mobile phone bills
addressed to him at 1608 New Orleans Avenue, Tampa,
Florida, spanning a period from July 2004 to October
2004. (See above-referenced documents, annexed to
Jan. 19. Aff.)
D. Defendant submitted a copy of a Florida
Certificate of Title for a vehicle registered to him
at 1608 New Orleans Avenue, Tampa, Florida, No.
68797993 ("Certificate of Title"), issued April 5,
2004, more than three (3) months before Plaintiff
commenced this action. (See Certificate of Title,
annexed to June 10 Aff.)
E. Defendant submitted a copy of a Florida Vehicle
Registration for a vehicle registered to him at 1608
New Orleans Avenue, Tampa, Florida, issued on April
4, 2004 ("Vehicle Registration"), more than three (3)
months before Plaintiff commenced this action. (See
Vehicle Registration, annexed to June 10 Aff.)
F. Plaintiff submitted copies of two New York State
automobile insurance record searches which reveal
that Defendant surrendered New York license plates on
February 23, 2004, more than five (5) months before
Plaintiff commenced this action. (See Pl. Mot.
Remand Ex. C).
Based on the foregoing, the Court finds clear and convincing
evidence of Defendant's domicile in Florida prior to the
commencement of this action. See Reynolds v. Wohl, 332 F.
Supp.2d 653, 657-58 (S.D.N.Y. 2004) (finding, by clear and
convincing evidence, that plaintiff had changed his domicile from
New York based in part on the fact that "Plaintiff (a) registered
his two cars in Connecticut, (b) changed his car insurance to
reflect his brother's Connecticut address, (c) obtained a
Connecticut driver's license; and (d) surrendered his New York
license plates"). (2) Subject Matter Jurisdiction
Plaintiff argues that "[b]y operating a vehicle in New York
State, the defendant statutorily consented to New York's
jurisdiction by operation of law." (Pl. Mem. at 9). The fact that
federal district courts have subject matter jurisdiction over
diversity matters is established by 28 U.S.C. § 1332 and not by
state law. See Grand Bahama Petroleum Co. v. Asiatic Petroleum
Corp., 550 F.2d 1320, 1325 (2d Cir. 1977) ("In determining its
own jurisdiction, a District Court of the United States must look
to the sources of its power and not to the acts of states which
have no power to enlarge or to contract the federal
jurisdiction") (citation omitted); see also 28 U.S.C. § 1332(a)
("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 between . . .
citizens of different States").
(3) Timely Removal
Defendant sought removal to this Court within thirty days of
receipt from Plaintiff of a document that alleged an amount in
controversy in excess of $75,000, (see, Def. Removal ¶¶ 3-7;
Pl. Resp. Def. Demand at 10), subsequent to the filing of the
Complaint. In the Complaint, Plaintiff alleged "serious injury"
and demanded "a sum of money having present value which exceeds
the jurisdictional limits of all lower courts which would
otherwise have jurisdiction in this matter." (Compl. at 4).
Plaintiff also alleged damage to her vehicle and demanded "the
sum of . . . [$6,394.41] together with costs and disbursement of
this action." (Compl. at 4). Defendant could readily ascertain
from the face of the Complaint only that the amount in
controversy exceeded the jurisdictional limits of lower New York
courts plus $6,394.41, but not that the matter was appropriate
for removal. Whitaker, 261 F.3d at 206; see Robins v. Harb,
No. 05 Civ. 53S, 2005 WL 976526, at **1-2 (W.D.N.Y. Apr 26, 2005) (remanding
where plaintiff had alleged "serious injury" but had not yet made
a specific damages demand pursuant to N.Y.C.P.L.R. § 3017(c) that
would render the matter removable); see also, Richstone v.
Chubb Colonial Life Ins., 988 F. Supp. 401, 403 (S.D.N.Y. 1997)
("a defendant must be able to ascertain easily the necessary
facts to support his removal petition. To allow a document with
less information to satisfy the statute would require the movant
to "guess" as to an actions' removability, thus encouraging
premature, and often unwarranted, removal requests").
Plaintiff's Response to Defendant's Demand submitted on
November 22, 2004, alleges damages in the amount of ten million
dollars ($10,000,000.) (Pl. Resp. Def. Demand). This was the
first "pleading that enable[d] . . . defendant to intelligently
ascertain removability" and, accordingly, Plaintiff's time for
removal began following the receipt of that pleading. Whitaker,
261 F.3d at 206. Defendant removed to this Court eight (8) days
later on November 30, 2005, i.e., within the thirty day limit
established by 28 U.S.C. § 1446(b). See 28 U.S.C. § 1446(b).
IV. Conclusion and Order
For the reasons stated herein, Plaintiff's Motion to Remand is
Parties are directed to appear at a conference on July 29,
2005, at 9:15 a.m. in Courtroom 706, Thurgood Marshall
Courthouse, 40 Centre Street, New York, NY 10007 and to complete
a case management plan at that time. They are further directed
to engage in good faith settlement efforts prior to the