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Hidalgo v. City of New York

United States District Court, S.D. New York

April 14, 2015

Brian Hidalgo, Plaintiff,
City of New York, et al., Defendants.


ALISON J. NATHAN, District Judge.

This is a slip-and-fall case presently before the Court on diversity jurisdiction. Defendant HP Creston Housing Development Fund Co. ("HP Creston") removed the case from New York Supreme Court, Bronx County on April 1, 2014. See Dkt. No. 2. Plaintiff Brian Hidalgo ("Hidalgo") now moves to remand the case back to the state court. For the following reasons, Hidalgo's motion is GRANTED.


Between February 2012 and March 3, 2013, Hidalgo resided at 271 Goldsmith Avenue, Apt. 232, Newark, New Jersey ("271 Goldsmith Avenue"). In early March 2013, Hidalgo began temporarily staying with his cousin Carlos Jordan, who then resided at 2333 Creston Avenue, Bronx, New York ("2333 Creston Avenue"). On or about March 7, 2013, Hidalgo slipped and fell on the exterior steps of 2333 Creston Avenue, sustaining severe injuries and giving rise to this action. See Pl.'s Ex. M ¶ 63. Shortly thereafter, on or about April 1, 2013, Hidalgo moved in with his Aunt at 337 East 112th Street, Apt. 1B, New York, New York ("337East112th Street").

The parties do not dispute these facts, but do dispute whether they represent a legal change in Hidalgo's domicile, which is the determinative consideration in assessing whether the Court may exercise diversity jurisdiction over this case.


The federal diversity jurisdiction statute provides that district courts shall, inter alia, have jurisdiction over cases arising between "citizens of different States." 28 U.S.C. § 1332(a)(1). "For purposes of diversity jurisdiction, a natural person's citizenship is determined by domicile." Nat'l Artists Mgmt. Co. v. Weaving, 769 F.Supp. 1224, 1227 (S.D.N.Y. 1991). See also Linardos v. Fortuna, 157 F.3d 945, 948 (2d Cir. 1998). Determining a person's domicile is a mixed question of law and fact reserved for the Court. See Weaving, 769 F.Supp. at 1228 (citing Katz v. Goodyear Tire and Rubber Co., 737 F.2d 238, 742 n.2 (2d Cir. 1984)). See also Palazzo ex. Rel. Delmage v. Corio, 232 F.3d 38, 42 (2d Cir. 2000). Although Hidalgo is the movant, the burden is on HP Creston, the party seeking to invoke federal jurisdiction, to demonstrate that diversity exists. See Weaving, 769 F.Supp. at 1228.

Domicile is not synonymous with residence and a party can reside in one place, yet be domiciled in another. See Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 47-49 (1989). Instead, 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." Corio, 232 F.3d at 42 (citing Linardos, 157 F.3d at 948). A person is born with a particular domicile and is presumed to retain it unless it can be shown that she has established a new domicile. See Weaving, 769 F.Supp. at 1228. In order to change domicile, "two things are indispensable: First, residence in a new domicil; 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." Lindaros, 157 F.3d at 948 (quoting Sun Printing & Publishing Ass'n v. Edwards, 194 U.S. 377, 383 (1904)). See also Mississippi Band a/ Choctaw Indians, 490 U.S. at 48 ("domicile is established by physical presence in a place in connection with a certain state of mind concerning one's intent to remain there."); accord 13E Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 3613 (3rd ed. 2009) ("Wright & Miller").

There is no minimum period necessary to establish domicile. See Weaving, 769 F.Supp. at 1227. See also Wright & Miller§ 3613 ("Any person suijuris may acquire a new domicile at any time and for any reason... No minimum residence period is required to effect a change for the purpose of determining diversity of citizenship jurisdiction.") Similarly, although intent to remain in the state is a key element of demonstrating a change of domicile, the person need not have the affirmative intent to remain there permanently. Rather, they must have no present intention to move to another state. See Weaving, 769 F.Supp. at 1227. See also Wright & Miller § 3613 ("But a litigant is not required to state-or even have-an intention to stay permanently at the new residence. Such a demanding requirement would prevent a significant portion of our mobile population from acquiring a new domicile. It is sufficient if the individual intends to remain at the new home for an indefinite period into the future.")

Courts take into account a number of factors when considering where a person is domiciled, including a party's "current residence, voting registration, driver's license and automobile registration, location of brokerage and bank accounts, members in fraternal organizations, churches, and other associations, places of employment or business, and payment of taxes." Kennedy v. Trustees of Testamentary Trust of Will of Kennedy, 633 F.Supp.2d 77, 81 (S.D.N.Y. 2009) aff'd, 406 F.Appx. 507 (2d Cir. 2010) (quoting Bank of India v. Subramanian, 06-cv-2026 (WHP), 2007 WL 1424668, at *3 (S.D.N.Y. May 15, 2007)). No single factor predominates and the Court must consider the totality of the circumstances. Id. (citing Weaving, 769 F.Supp. at 1228).


The sole question before the Court is where Hidalgo was domiciled on November 8, 2013, the day he initiated this suit in New York Supreme Court. Hidalgo and HP Creston each put forward evidence that, they contend, purports to show that Hidalgo was domiciled in either New York or New Jersey, respectively.

HP Creston notes a number of documents listing Hidalgo's address as 271 Goldsmith Avenue. The first is a discharge form from St. Barnabas Hospital relating to the March 6, 2013 hospital visit stemming from Hidalgo's slip-and-fall. The form lists Hidalgo's address as "271 GOLDSMITH AVE #23. NEWARK, New Jersey, 07112." See Declaration of Luis F. Ras ("Ras Decl."), Ex. D at 1. Second, HP Creston puts forward a pair of New York Fire Department ("FDNY") Ambulance Call Reports, dated March 6, 2013 and March 7, 2013, respectively, describing ambulance calls to assist Hidalgo at 2333 Creston Avenue in the Bronx. Both reports list Hidalgo's address as 271 Goldsmith Avenue. See id. at 2-6. Third, HP Creston highlights Hidalgo's possession of a New Jersey State Identification Card, issued on February 4, 2013, which similarly lists Hidalgo's residence as 271 Goldsmith Avenue. See Pl.'s Ex. J. Additionally, in his deposition testimony, Hidalgo acknowledged that he leased an apartment at 271 Goldsmith Avenue in Newark for one year, from February 2013 through early March 2013, and further that this was the only lease he had ever had for an apartment. See Pl.'s Ex. B ("Hidalgo Dep.") 12:7-10, 16:19-17:1.

This evidence certainly tends to suggest that Hidalgo was residing in New Jersey as of early March 2013, around the time the slip-and-fall occurred. However, a Plaintiffs residence or domicile at the time of the events giving rise to a cause of action is not the determinative consideration in assessing whether diversity jurisdiction exists. Rather, the "relevant date is that on which the complaint is filed." Hakkila v. Consol. Edison Co. of New York, 745 F.Supp. 988, 990 (S.D.N.Y. 1990) (citing Spanos v. Skouras Theatres Corp., 364 F.2d 161, 163 (2d Cir. 1966)). The remaining evidence, including documents more contemporaneous with the filing of ...

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