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finding that defendant was domiciled in Florida at the time the action was commenced because defendant submitted a Florida driver's license, bank statements, credit card bills, and mobile phone bills addressed to defendant in Florida, vehicle registration in Florida, and an affidavit by defendant stating that he resides in Florida and intends to remain there
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04 Civ. 9405 (RMB).
July 5, 2005
DECISION AND ORDER
I. Background
On February 1, 2004, Plaintiff Ivia Gonzalez ("Plaintiff") and Defendant T. Rajkumar, also known as Tulsepersaud Rajkumar ("Defendant"), were involved in an automobile collision. (Plaintiff's Memorandum of Law ("Plaintiff's Memorandum") in Support of Notice of Motion to Remand ("Plaintiff's Motion to Remand"), filed January 13, 2005, at 5). Plaintiff filed a complaint against Defendant ("Complaint") in the Supreme court of the State of New York, County of Bronx, Index No. 20912/2004, on July 23, 2004, pursuant to the provisions of New York State Comprehensive Automobile Insurance Reparations Act alleging that "plaintiff has sustained serious injury. . . ." (Compl. ¶¶ 1, 2, Ex. D to Pl. Mot. Remand).
On October 25, 2004, Defendant filed an Answer ("Answer"). (Pl. Mem. at 6). At the same time, Defendant submitted a demand ("Defendant's Demand") which stated, "pursuant to CPLR § 3017 . . . [Defendant] hereby requests that plaintiff set forth a supplemental demand in writing of the total damages to which plaintiff deems herself entitled." (Def. Demand, Ex. A to Defendant's Affirmation in Opposition to Motion to Remand ("Defendant's Affirmation") filed February 11, 2005); see N.Y.C.P.L.R. § 3017(c). On November 22, 2004, Plaintiff submitted a response to Defendant's Demand ("Plaintiff's Response to Defendant's Demand") and alleged damages in the amount of ten million dollars ($10,000,000). (Pl. Resp. Def. Demand, Ex. B to Def. Affirmation).
On November 30, 2004, Defendant filed a Notice of Removal ("Defendant's Removal") to this Court on the grounds that "[t]his Court has original jurisdiction of this civil action pursuant to 28 U.S.C. § 1332 because there is complete diversity in the matter and the amount in controversy exceeds the sum of $75,000. . . ." (Def. Removal ¶ 5). Plaintiff filed Plaintiff's Motion to Remand alleging that diversity jurisdiction does not exist "since both parties resided in New York when this action commenced." (Pl. Mem. at 5). Defendant filed Defendant's Affirmation on February 11, 2005, and filed Defendant's sworn affidavit, dated January 19, 2005 ("January 19 Affidavit") on March 17, 2005. The Court requested additional letter briefing on June 7, 2005 regarding Defendant's asserted domicile in the State of Florida, and Defendant submitted a letter on June 14, 2005, accompanied by a sworn affidavit dated June 10, 2005 ("June 10 Affidavit"). Plaintiff did not reply.
Parties have waived oral argument.
For the reasons set forth below, Plaintiff's Motion to Remand is denied.
II. Legal Standard
"The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between . . . citizens of different States." 28 U.S.C. § 1332(a)(1). The existence of federal diversity jurisdiction "is determined by examining the citizenship of the parties at the time the action is commenced." Linardos v. Fortuna, 157 F.3d 945, 947 (2d Cir. 1998) (quotation omitted). An individual's citizenship is determined by his or her domicile which is that place "where a person has his true and fixed home and principal establishment, and to which, whenever he is absent he has the intention of returning." Palazzo v. Corio, 232 F.3d 38, 42 (2d Cir. 2000) (citation omitted). "A party alleging that there has been a change of domicile has the burden of proving . . . [change in domicile] by clear and convincing evidence." Id. (quoting Katz v. Goodyear Tire Rubber Co., 737 F.2d 238, 243-44 (2d Cir. 1984)).
A case becomes removable based on diversity jurisdiction, and the time to remove begins to run, when a document has been filed that "enables the defendant to intelligently ascertain removability from the face of such pleading, so that in its petition for removal, the defendant can make a short and plain statement of the grounds for removal as required by 28 U.S.C. § 1446(a)." Whitaker v. Am. Telecasting, Inc., 261 F.3d 196, 205-06 (2d Cir. 2001) (quoting Richstone v. Chubb Colonial Life Ins., 988 F. Supp. 401, 403 (S.D.N.Y. 1997)). "In cases where removal is based upon diversity, the facts required to support the removal petition include the amount in controversy. . . ."Whitaker, 261 F.3d at 206.
III. Analysis
Plaintiff alleges that the Court lacks subject matter jurisdiction because: (1) all parties were domiciled in New York at the time this action was commenced; (2) all parties voluntarily consented to the jurisdiction of New York State by operating vehicles in New York; and (3) Defendant failed to file a timely notice of removal. (Pl. Mem. at 5, 8, 9).
(1) Defendant's Domicile
Defendant's claim that he was domiciled in Florida at the time this action was commenced is (clearly and convincingly) supported by the following:
A. The January 19 Affidavit attests that: (1) Defendant resided in New York on the date of the accident; (2) he moved to Florida in February 2004, more than five (5) months before Plaintiff commenced this action; (3) he (initially) established residence at 15532 Lake Bella Vista Drive, Tampa, Florida; (4) he now resides at 1608 New Orleans Avenue, Tampa, Florida; (5) he intends to remain in Florida; and (6) he no longer maintains a residence in New York. (Jan. 19. Aff. ¶¶ 3, 4, 5).
B. Defendant provided the Court with a copy of a Florida driver's license, issued to him at 15532 Lake Bella Vista Drive, Tampa, Florida, on February 6, 2004, more than five (5) months before Plaintiff commenced this action. (See Florida driver's license, annexed to Jan. 19. Aff.)
C. Defendant provided the Court with copies of bank statements, credit card bills, and mobile phone bills addressed to him at 1608 New Orleans Avenue, Tampa, Florida, spanning a period from July 2004 to October 2004. (See above-referenced documents, annexed to Jan. 19. Aff.)
D. Defendant submitted a copy of a Florida Certificate of Title for a vehicle registered to him at 1608 New Orleans Avenue, Tampa, Florida, No. 68797993 ("Certificate of Title"), issued April 5, 2004, more than three (3) months before Plaintiff commenced this action. (See Certificate of Title, annexed to June 10 Aff.)
E. Defendant submitted a copy of a Florida Vehicle Registration for a vehicle registered to him at 1608 New Orleans Avenue, Tampa, Florida, issued on April 4, 2004 ("Vehicle Registration"), more than three (3) months before Plaintiff commenced this action. (See Vehicle Registration, annexed to June 10 Aff.)
F. Plaintiff submitted copies of two New York State automobile insurance record searches which reveal that Defendant surrendered New York license plates on February 23, 2004, more than five (5) months before Plaintiff commenced this action. (See Pl. Mot. Remand Ex. C).
Based on the foregoing, the Court finds clear and convincing evidence of Defendant's domicile in Florida prior to the commencement of this action. See Reynolds v. Wohl, 332 F. Supp.2d 653, 657-58 (S.D.N.Y. 2004) (finding, by clear and convincing evidence, that plaintiff had changed his domicile from New York based in part on the fact that "Plaintiff (a) registered his two cars in Connecticut, (b) changed his car insurance to reflect his brother's Connecticut address, (c) obtained a Connecticut driver's license; and (d) surrendered his New York license plates").
(2) Subject Matter Jurisdiction
Plaintiff argues that "[b]y operating a vehicle in New York State, the defendant statutorily consented to New York's jurisdiction by operation of law." (Pl. Mem. at 9). The fact that federal district courts have subject matter jurisdiction over diversity matters is established by 28 U.S.C. § 1332 and not by state law. See Grand Bahama Petroleum Co. v. Asiatic Petroleum Corp., 550 F.2d 1320, 1325 (2d Cir. 1977) ("In determining its own jurisdiction, a District Court of the United States must look to the sources of its power and not to the acts of states which have no power to enlarge or to contract the federal jurisdiction") (citation omitted); see also 28 U.S.C. § 1332(a) ("district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between . . . citizens of different States").
(3) Timely Removal
Defendant sought removal to this Court within thirty days of receipt from Plaintiff of a document that alleged an amount in controversy in excess of $75,000, (see, Def. Removal ¶¶ 3-7; Pl. Resp. Def. Demand at 10), subsequent to the filing of the Complaint. In the Complaint, Plaintiff alleged "serious injury" and demanded "a sum of money having present value which exceeds the jurisdictional limits of all lower courts which would otherwise have jurisdiction in this matter." (Compl. at 4). Plaintiff also alleged damage to her vehicle and demanded "the sum of . . . [$6,394.41] together with costs and disbursement of this action." (Compl. at 4). Defendant could readily ascertain from the face of the Complaint only that the amount in controversy exceeded the jurisdictional limits of lower New York courts plus $6,394.41, but not that the matter was appropriate for removal. Whitaker, 261 F.3d at 206; see Robins v. Harb, No. 05 Civ. 53S, 2005 WL 976526, at **1-2 (W.D.N.Y. Apr 26, 2005) (remanding where plaintiff had alleged "serious injury" but had not yet made a specific damages demand pursuant to N.Y.C.P.L.R. § 3017(c) that would render the matter removable); see also, Richstone v. Chubb Colonial Life Ins., 988 F. Supp. 401, 403 (S.D.N.Y. 1997) ("a defendant must be able to ascertain easily the necessary facts to support his removal petition. To allow a document with less information to satisfy the statute would require the movant to "guess" as to an actions' removability, thus encouraging premature, and often unwarranted, removal requests").
Plaintiff's Response to Defendant's Demand submitted on November 22, 2004, alleges damages in the amount of ten million dollars ($10,000,000.) (Pl. Resp. Def. Demand). This was the first "pleading that enable[d] . . . defendant to intelligently ascertain removability" and, accordingly, Plaintiff's time for removal began following the receipt of that pleading. Whitaker, 261 F.3d at 206. Defendant removed to this Court eight (8) days later on November 30, 2005, i.e., within the thirty day limit established by 28 U.S.C. § 1446(b). See 28 U.S.C. § 1446(b).
IV. Conclusion and Order
For the reasons stated herein, Plaintiff's Motion to Remand is denied.
Parties are directed to appear at a conference on July 29, 2005, at 9:15 a.m. in Courtroom 706, Thurgood Marshall Courthouse, 40 Centre Street, New York, NY 10007 and to complete a case management plan at that time. They are further directed to engage in good faith settlement efforts prior to the conference.