Opinion
08 Civ. 8152.
September 22, 2008
MEMORANDUM AND ORDER
According to the complaint, plaintiff, in a classic case of its right hand's ignorance of the activities of its left, made two $25 million wire transfers to affiliates of Lehman Brothers Holding Inc., viz. Lehman Brothers Securities Asia, Ltd., and defendant Lehman Brothers Asia Holdings Ltd. ("Lehman Asia"), in satisfaction of a single $25 million obligation. Efforts to obtain the return of the second wire transfer, which was made to Lehman Asia, evidently were to no avail.
On Saturday, September 20, 2008, plaintiff presented to me, in my capacity as Part I judge, its complaint against Lehman Asia and Citibank, N.A., which it then believed had custody of the $25 million, a proposed order to show cause with temporary restraining order ("TRO"), and supporting papers. Acting pursuant to Fed.R.Civ.P. 5(d)(2)(B), formerly Rule 5(e), I accepted the papers for filing on the representation of plaintiff's counsel that he would ensure that the filing fee is paid to the Clerk of the Court today. The requested TRO would have required Citibank either to segregate the funds into a separate interest-bearing account or to pay them into Court.
The complaint here, which premises jurisdiction on diversity or, more properly, alienage, asserts that the plaintiff is a Malaysian corporation, that Lehman Asia is a Hong Kong corporation, and that Citibank is a Delaware entity with a principal place of business in New York.
Federal courts are tribunals of limited jurisdiction. It is the plaintiff's burden, moreover, to plead and prove subject matter jurisdiction.
"Alienage jurisdiction does not extend to cases in which aliens are both a plaintiff and a defendant." Krause v. Forex Exchange Market, Inc., 396 F. Supp.2d 332, 337 (S.D.N.Y. 2005) (citing cases). Here, plaintiff and Lehman Asia both are aliens. Accordingly, it appears, on a preliminary basis, that plaintiff will be unable to establish subject matter jurisdiction. In consequence, I denied the temporary restraining order, as it seems most unlikely that plaintiff will prevail in this Court.
SO ORDERED.