Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Lee v. Charles

United States District Court, Second Circuit

November 1, 2013

AMANDA LEE, Plaintiff,
v.
JOEL B. CHARLES, and JOHN W. WANY, Defendants.

OPINION & ORDER

JOHN F. KEENAN, District Judge.

Before the Court is Defendants' motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b) (1). Defendants assert that this Court lacks subject matter jurisdiction because the parties are all domiciled in New York. For the reasons that follow, this contention is rejected and the motion is denied.

I. Background

Plaintiff Amanda Lee alleges that at about 11:20 P.M. on September 18, 2012, she was walking westbound on York Avenue in the north crosswalk at East 68th Street in Manhattan when she was struck by a car owned by Defendant John W. Wany and driven by Defendant Joel B. Charles. Plaintiff claims that she sustained a "serious injury" as defined by New York Insurance Law § 5102 (d), and seeks $1 million plus interest, fees, and costs.

The complaint, which was filed on October 2, 2012, asserts that this Court has subject matter jurisdiction over the case because Plaintiff is a New Jersey citizen and Defendants are New York citizens. Defendants[1] have now filed a motion to dismiss on the grounds that Plaintiff changed her domicile to New York, thereby destroying the diversity of the parties.

The following facts are not in dispute. Plaintiff is a 29-year-old woman whose parents maintain a home in Mount Tabor, New Jersey. Her grandmother has an apartment in Jackson Heights, Queens, New York. Her driver's license was issued by New York on June 28, 2012. Until that date, Plaintiff had a New Jersey license, but testified at a deposition in a related action that she switched to a New York license so that she could apply for in-state tuition as a New York resident if she went back to school. (Miller Aff., Ex. 2 at 15.) She filed a "Non-resident and Part Year Resident Income Tax Return" with the state of New York for 2012, which lists her address as her parents' New Jersey home. ( Id. at 27.)

Plaintiff testified that she "go[es] back and forth between New Jersey and New York for work and school." ( Id. at 10.) During her time as an undergraduate at Hunter College, this meant sleeping in New York during the week and returning to New Jersey on weekends. At the time of the accident, she was working weekends at New York Presbyterian Weill Cornell Hospital, so she stayed with her grandmother on weekends and returned to New Jersey during the week except when she happened to pick up a weekday shift at the hospital, in which case she remained in New York. ( Id. at 11-12, 18.) On the date of the accident, Plaintiff told the responding police officers that she lived in Jackson Heights. ( Id. at 34.) As a result of the accident, in early October she commenced a four-month regimen of physical therapy in New Jersey. ( Id. at 41-42.)

In an affidavit accompanying her opposition to the instant motion, Plaintiff declares, "I never stopped considering my New Jersey home as my domicile." (Lee Aff. ¶ 17.) Plaintiff also avers that almost all of her personal property remains at her parents' house in New Jersey. Attached to the affidavit are documents offered to support her declaration, including bank and credit card statements addressed to her in New Jersey. However, other bills and financial statements are mailed to her grandmother's address in New York. (Miller Aff., Ex. 2 at 24; id. Ex. 3 at 7.)

II. Discussion

A. Legal Standard

To determine whether diversity jurisdiction exists, a district court looks to the parties' citizenship at the time the action was commenced, which in turn depends upon where they were domiciled. Linardos v. Fortuna , 157 F.3d 945, 947-48 (2d Cir. 1998). Domicile is "the place where a person has his true fixed home and principal establishment, and to which, whenever he is absent, he has the intention of returning." Id . "Although a person may have more than one residence, she may only have one domicile at any one time." Nat'l Artists Mgmt. Co. v. Weaving , 769 F.Supp. 1224, 1227 (S.D.N.Y. 1991) (citing Williamson v. Osenton , 232 U.S. 619 (1914)). One's domicile is "established initially at birth and is presumed to continue in the same place, absent sufficient evidence of a change." Palazzo ex rel. Delmage v. Corio , 232 F.3d 38, 42 (2d Cir. 2000); see also Hamilton v. Accu-Tek , 13 F.Supp.2d 366, 369 (E.D.N.Y. 1998) ("A college student retains the domicile of his parents when he goes off to college, absent a showing of the child's change of domicile."). The burden is on the party alleging a new domicile to prove, by clear and convincing evidence, both actual residence in the new locality and the intent to stay there indefinitely. Palazzo , 232 F.3d at 42; Gutierrez v. Fox , 141 F.3d 425, 429 (2d Cir. 1998); see also Herrick Co. v. SCS Commc'ns Inc. , 251 F.3d 315, 324 (2d Cir. 2001).

In probing a party's intent to change domicile, the court examines the totality of the evidence for "objective indicia" of intent. Hamilton v. Accu-Tek , 13 F.Supp.2d 366, 369 (E.D.N.Y. 1998). The court may consider such factors as the state where the person resides, where his family resides, "where he keeps his personal belongings, works, exercises his political rights, maintains religious or social affiliations, pays taxes, holds a driver's license, and maintains bank accounts." Bhatti v. Pettigrew, No. 11 Civ. 1044, 2012 WL 1107650, at *3 (S.D.N.Y. Apr. 3, 2012). Where the party is a college student or young adult, the court may also consider the location of his personal property, as well as whether "continuing aid and support... by parents bolster the assumption against a change in domicile." Hamilton , 13 F.Supp.2d at 370. Declarations of intent by the party are given "heavy, but not conclusive, weight." Id . But cf. Herzberg v. MegaSpirea Prods. SAS, No. 07 Civ. 10503, 2009 WL 702234, at *3 (S.D.N.Y. Mar. 10, 2009) (self-serving statement is insufficient if belied by objective indicia of actual residence and intent).

"The determination of domicile is a matter of federal common law, not state law." Pacho v. Enterprise Rent-A-Car , 510 F.Supp.2d 331, 334 (S.D.N.Y. 2007). Although a party's citizenship for diversity purposes is a mixed question of fact and law, the factual questions may be resolved by the court rather than a jury. Palazzo , 232 F.3d at 42-43. And while the court may conduct an evidentiary hearing if necessary, it need not do so in the absence of complex legal or factual questions. Steuben Foods, Inc. v. Int'l Dispensing Corp., ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.