On June 20, 2012, plaintiff Juneok Cho commenced this action against
defendant Hyundai Capital America, Inc., f/k/a and a/k/a Hyundai Motor
Finance Company ("Hyundai Capital"), alleging common law claims of
fraud, identity theft, and malicious and false prosecution.*fn1
(Compl. ¶¶ 41-67, Dkt. No. 1.) Pending is Hyundai Capital's
motion to dismiss for lack of subject matter jurisdiction pursuant to
Fed. R. Civ. P. 12(b)(1), or, in the
alternative, for jurisdictional discovery. (See Dkt. No. 6.) For the
reasons that follow, the motion is denied.
Cho contends that subject matter jurisdiction exists pursuant to 28
U.S.C. § 1332(a)(2), which states, in relevant part, that district
courts have original jurisdiction of actions between "citizens of a
State and citizens or subjects of a foreign state."*fn2
(See Compl. ¶¶ 9-10; Dkt. No. 8 ¶ 4.) Where, as here,
"jurisdiction is premised on diversity of citizenship, diversity must
exist at the time the action is commenced." Universal Licensing Corp.
v. Paolo del Lungo S.p.A., 293 F.3d 579, 581 (2d Cir. 2002) (citation
omitted). Once the existence of diversity jurisdiction is called into
question, either by an opposing litigant or the court, the invoking
party "bears the burden of proving facts to establish that
jurisdiction." Id. (internal quotation marks and citations omitted).
Hyundai Capital argues first that subject matter jurisdiction is absent because "a suit by a plaintiff domiciled abroad may not be premised on diversity as the basis for jurisdiction." (Dkt. No. 6, Attach. 13 at 7.) This contention is plainly incorrect. See Muang NG We & Massive Atl. Ltd. v. Merrill Lynch & Co., Inc., No. 99 CIV. 9687, 2000 WL 45440, at *1 (S.D.N.Y. Jan. 19, 2000) (stating that under 28 U.S.C. § 1332(a)(2), a suit in which "plaintiffs are citizens of foreign states" and "defendants are citizens of the United States" constitutes a "permissible [jurisdictional] configuration"); Kavowras v. Pinkerton, Inc., No. 97 CIV. 6098, 1998 WL 209617, at *1 (S.D.N.Y. Apr. 29, 1998) ("[A] plaintiff who relies on diversity of citizenship as the basis for jurisdiction must establish that he is a citizen of one state suing a citizen of another, or that he is a citizen of a foreign country suing a citizen of a state."); Eriksson v. Galvin, 484 F. Supp. 1108, 1127 (S.D.N.Y. 1980) ("[T]his action between foreign plaintiffs and United States citizens falls within the diversity jurisdiction of this Court."). It is clear that Hyundai Capital's erroneous argument is premised on a misinterpretation of Cresswell v. Sullivan & Cromwell, 922 F.2d 60 (2d Cir. 1990), and its progeny, which stand for the proposition that 28 U.S.C. § 1332(a) does not provide jurisdiction over actions to which United States citizens domiciled abroad are parties.*fn3 (See Dkt. No. 6, Attach. 13 at 2.)
The Cresswell line of cases is inapplicable to the instant action, however, because there is no suggestion that Cho is a citizen of the United States. (See Compl. ¶ 1; Dkt. No. 8 ¶ 20.)
Next, Hyundai Capital contends that the court cannot ascertain whether jurisdiction exists under 28 U.S.C. § 1332(a)(2) because Cho "has failed to plead - or otherwise attest - to whether he is a citizen of a foreign country." (Dkt. No. 9 at 9-10.)*fn4 This argument, too, must fail.
Cho claims that he "is a national and resident of the Republic of Korea" and that he resided there "at the time of commencement of this action."*fn5 (Compl. ¶ 1; Dkt. No. 8 ¶ 14.) Acknowledging this fact, Hyundai Capital argues, without support, that Cho's failure to "allege what country he actually claims to be a citizen of" is fatal. (Dkt. No. 9 at 7.) The Supreme Court, however, found to the contrary in JPMorgan Chase Bank v. Traffic Stream (BVI) Infrastructure Ltd., stating that, "[g]iven the object of the alienage statute . . . there is no serious question that 'nationals' were meant to be amenable to the jurisdiction of the federal courts." 536 U.S. 88, 99 (2002). Cho's status as a national of the Republic of Korea therefore brings him within the purview of 28 U.S.C. § 1332(a)(2).
Accordingly, 28 U.S.C. § 1332(a)(2) provides this court with
jurisdiction over the instant action between Cho, a foreign national
plaintiff, and Hyundai Capital, a California corporation.*fn6
Hyundai Capital's motion is therefore denied in its entirety.
WHEREFORE, for the foregoing reasons, it is hereby ORDERED that Hyundai Capital's motion to dismiss for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1), or, in the alternative, for jurisdictional discovery, (Dkt. No. 6) is DENIED; and it is further
ORDERED that Hyundai Capital file the appropriate responsive pleadings within the time allotted by the rules; and it is further
ORDERED that the parties notify Magistrate Judge Treece in order to schedule further proceedings in accordance with this Order; and it is further
ORDERED that the Clerk provide a copy of this Order to the ...