United States District Court, S.D. New York
GABRIEL W. GORENSTEIN, UNITED STATES MAGISTRATE JUDGE
order of April 13, 2017 (Docket # 181), the Court directed
the parties to submit sworn statements regarding their
citizenship to confirm that this Court has subject matter
jurisdiction over this action under 28 U.S.C. § 1332,
the federal diversity statute. The parties filed these
statements on May 3, 2017. Under 28 U.S.C. § 1332(a)(2),
diversity jurisdiction exists between
citizens of a State and citizens or subjects of a foreign
state, except that the district courts shall not have
original jurisdiction under this subsection of an action
between citizens of a State and citizens or subjects of a
foreign state who are lawfully admitted for permanent
residence in the United States and are domiciled in the same
discussed in the April 13 order, the Court required
information to establish the domicile of the defendants,
which is used to determine “citizenship” under
section 1332. See Palazzo ex rel. Delmage v. Corio,
232 F.3d 38, 42 (2d Cir. 2000) (“An individual's
citizenship, within the meaning of the diversity statute, is
determined by his domicile.”). “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 42 (citation and internal quotation marks
omitted). Up until this point, defendants had only made
statements regarding their “residence, ” which is
relevant only to the extent it assists in establishing
domicile. See Avant Capital Partners, LLC v. W108 Dev.
LLC, 2016 WL 3660756, at *1 (S.D.N.Y. June 30, 2016);
see also Linardos v. Fortuna, 157 F.3d 945, 948 (2d
Cir. 1998) (effecting a change in domicile requires residence
in a new domicile and the intention to remain there
indefinitely) (citing Sun Printing & Publ'g
Ass'n v. Edwards, 194 U.S. 377, 383 (1904)).
Court also required information regarding the parties'
immigration status because federal diversity jurisdiction
does not exist between citizens of a State and
“citizens or subjects of a foreign state who are
lawfully admitted for permanent residence in the United
States and are domiciled in the same State.” 28 U.S.C.
§ 1332(a)(2); accord Smith v. Sorkin, 2013 WL
5718485, at *1 (S.D.N.Y. Oct. 17, 2013). Before the Court
issued its order, the plaintiff had alleged that he was a
citizen of Russia and Israel who resided in Connecticut and
Israel, but had not clarified his immigration status. Second
Amended Complaint, filed Feb. 1, 2016 (Docket # 126) ¶
parties' sworn statements reflect the following regarding
the parties' citizenship, immigration status, and
domicile at the time of the filing of the complaint on June
• Plaintiff is a citizen of Russia and Israel.
Chigirinskiy Decl ¶ 4. His principal residence in the
United States until March 2015 was in New York, New York.
Id. ¶ 5. At the time the case was removed to
federal court in June 2014, plaintiff held an O1 visa.
Id. ¶¶ 3-4. He did not become a lawful
permanent resident of the United States until March 2016.
Id. ¶ 4.
• Defendant Panchenkova became a citizen of the United
States on December 19, 2013. Panchenkova Decl. ¶ 4. She
has resided in Greenwich, Connecticut since August 2009, and
purchased property there in July 2011. Id. ¶ 5.
At the time she removed the case to federal court,
Panchenkova “lived in Connecticut permanently and
intended to continue living there permanently.”
Id. ¶ 7.
• Defendant Smukler became a U.S. citizen in 1997 and is
a citizen of the Untied States and Russia. Smukler Aff.
¶ 2. He was domiciled in New Jersey at the time the case
was removed to federal court, and his sole place of residence
since 1999 has been Montclair, New Jersey. Id.
at the time of the filing of the complaint, defendant
Panchenkova was a citizen of the United States and the state
of Connecticut. Plaintiff was a citizen of Russia and Israel
- “foreign states” under section 1332 - and was
not lawfully admitted for permanent residence. Thus, the
requirements of section 1332(a)(2) are met as between
plaintiff and Panchenkova. At the time defendant Smukler was
named as a defendant in the case, on February 1, 2016, he was
a citizen of the United States and the state of New Jersey
and thus was also diverse as to plaintiff.
additional Russian citizenship does not defeat diversity
because “only the American nationality of the dual
citizen should be recognized under 28 U.S.C. §
1332(a).” Action S.A. v. Marc Rich & Co.,
Inc., 951 F.2d 504, 507 (citation and internal quotation
marks omitted), abrogated on other grounds as recognized
by Day Spring Enters., Inc. v. LMC Intern., Inc., 2004
WL 2191568 (W.D.N.Y. Sept. 24, 2004); accord Feiliks
Int'l Logistics H.K. Ltd. v. Feiliks Glob. Logistics
Corp., 2017 WL 1207563, at *2 (2d Cir. Apr. 3, 2017).
That plaintiff became a lawful permanent resident after the
suit's removal also does not affect subject matter
jurisdiction because the requirements of section 1332 are
analyzed as of the time of the filing of the complaint.
Freeport-McMoRan, Inc. v. K N Energy, Inc., 498 U.S.
426, 428 (1991); OneWest Rank. N.A. v. Melina, 827
F.3d 214, 218 (2d Cir. 2016).
the amount in controversy is over $75, 000, diversity
jurisdiction exists under 28 U.S.C § 1332(a)(2).