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Golisano v. Turek

United States District Court, W.D. New York

February 2, 2015

B. THOMAS GOLISANO, Plaintiff,
v.
WALTER TUREK, Defendant. WALTER TUREK, Counter-Claimant,
v.
B. THOMAS GOLISANO, Counter-Defendant. WALTUR TUREK, Third Party Plaintiff,
v.
BLUE TIE, INC. Third Party Defendant.

Glenn E. Pezzulo, Esq., Culley, Marks, Tanenbaum & Pezzulo, Rochester, NY, For Plaintiff/Counter-Defendant.

John G. Powers, Esq., Daniel B. Berman, Esq., Nina I. Brown, Esq., Hancock Estabrook, LLP, Syracuse, NY, For Defendant/Counter-Claimant.

DECISION AND ORDER

CHARLES J. SIRAGUSA, District Judge.

INTRODUCTION

This case, removed from New York State Supreme Court on diversity jurisdiction, is before the undersigned on Plaintiff's motion to remand, filed on August 11, 2014, ECF No. 7. For the reasons stated below, the Court grants defendant/counter-claimant Walter Turek limited discovery on the issue of plaintiff/counter-defendant B. Thomas Golisano's change of domicile.

BACKGROUND

Plaintiff commenced this breach of contract lawsuit by filing a complaint in state court alleging, inter alia, that defendant Walter Turek ("Turek") is "an individual residing [in]... Sarasota, Florida, " and that plaintiff B. Thomas Golisano ("Golisano") "is an individual residing at... Pittsford, New York, County of Monroe." Compl. ¶¶ 1-2, Jun. 10, 2014, ECF No. 1-2. Golisano is suing Turek to enforce Turek's guarantee of a loan. The loan at issue was made by JPMorgan Chase Bank, N.A., to BlueTie, Inc., with its principal place of business in Monroe County, New York, in the amount of $3, 500, 000.00, and guaranteed by Turek and two others. The borrower and guarantors defaulted, and Golisano then purchased the bank's right, title, and interest to the loan, including the guarantees.

Golisano alleges that Turek unconditionally guaranteed BlueTie's obligation to repay the loan, and that Turek failed to pay his pro-rata portion of the debt, amounting to $780, 190.83. Moreover, Golisano alleges that Turek has been unjustly enriched as well.

Turek removed the lawsuit to this Court, alleging diversity jurisdiction based on his position that at the time the action was commenced, he was a resident of Florida, and Golisano was a resident of New York. Notice of Removal, Jul. 22, 2014, ECF No. 1. Golisano moved to remand, alleging that he was actually a citizen of the State of Florida. Mot. to Remand, Aug. 11, 2014, ECF No. 7. Golisano filed an affidavit swearing that he is "a citizen of the State of Florida and [has] been since [he] filed a Declaration of Domicile in Florida in 2009." Golisano Aff.¶ 6, Aug. 8, 2014, ECF No. 7-4. Golisano also declares that he owns numerous properties in Florida, has a Florida driver's license, is registered to vote in Florida, and has a Homestead Exemption in Florida. Finally, he avows that his "domicile in Florida and citizenship has been recognized by the New York State Department of Taxation and Finance." Id .

STANDARDS OF LAW

As the Second Circuit explained in Palazzo v. Corio, 232 F.3d 38 (2d Cir. 2000):

A party's citizenship for purposes of the diversity statute, 28 U.S.C. § 1332 (1994), is a mixed question of fact and law. See, e.g., Francis v. Goodman, 81 F.3d 5, 7 (1st Cir.1996); State Farm Mutual Automobile Insurance Co. v. Dyer, 19 F.3d 514, 518 (10th Cir.1994); Sheehan v. Gustafson, 967 F.2d 1214, 1215 (8th Cir.1992). The legal components of the question are well established. An individual's citizenship, within the meaning of the diversity statute, is determined by his domicile. See, e.g., Linardos v. Fortuna, 157 F.3d 945, 948 (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. at 948 (internal quotation marks omitted). At any given time, a person has but one domicile. See, e.g., Rosario v. INS, 962 F.2d 220, 224 (2d Cir.1992). Domicile is established initially at birth and is presumed to continue in the same place, absent sufficient evidence of a change. See Linardos v. Fortuna, 157 F.3d at 948.
To effect a change of domicile, "two things are indispensable: First, residence in a new domicile; and, second, the intention to remain there. The change cannot be made, except facto et animo. Both are alike necessary. Either without the other is insufficient.'" Id. (quoting Sun Printing & Publishing Ass'n v. Edwards, 194 U.S. 377, 383, 24 S.Ct. 696, 48 L.Ed. 1027 (1904)). Questions as to a person's "intent to change, or not to change, his domicile from [one state] to [another]" are "factual" questions. Katz v. Goodyear Tire & Rubber Co., 737 F.2d 238, 244 (2d Cir.1984). A party alleging that there has been a change of domicile has the burden of proving the "require[d]... intent to give up the old and take up the new [domicile], coupled with an actual acquisition of a residence in the new locality, " and must prove those facts "by clear and convincing evidence." Id. at 243-44 (internal quotation marks omitted).

Palazzo, 232 F.3d at 42. Of course, if this case lacks complete diversity, this Court is without jurisdiction and would be required to grant Golisano's application to remand it to state court. 28 U.S.C.A. § 1447(c) (2014). "In resolving a motion to remand, courts must be mindful of considerations of federalism and the limited jurisdiction conferred on subject matter jurisdiction courts and should strictly construe[ ]' the federal removal statute, resolving all doubts in favor of remand.'" Vasura v. Acands, 84 F.Supp.2d 531, 533 ...


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