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Redner v. Sanders - 99 Civ. 9306 (TPG), 2000 U.S. Dist. LEXIS 11877 (S.D.N.Y. Aug. 16, 2000)

Rule:

A person is a citizen of a state of the United States within the meaning of 28 U.S.C.S. § 1332 if he is a citizen of the United States and is domiciled within the state in question.

Facts:

The complaint alleges that plaintiff "is, and at all times herein mentioned was, a citizen of the United States residing in France," that two individual defendants are residents of the State of New York and the corporate defendant has its principal place of business in New York. The complaint avers that diversity jurisdiction exists because plaintiff "is a resident of a foreign state, while defendants are residents of the State of New York." The statute, 28 U.S.C. § 1332(a)(2), provides that "(a) 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...(2) citizens of a State and citizens or subjects of a foreign state."

However, plaintiff's complaint speaks of residence whereas the statute speaks of citizenship. The two are not synonymous.

It appears in fact that defendants are citizens of the State of New York. But for jurisdiction to exist under (a)(2) plaintiff would need to be a citizen of a foreign state, not merely a resident, and the complaint itself alleges that plaintiff is a citizen of the United States. Thus the case does not involve an action between citizens of the United States and a citizen of a foreign state. There is no jurisdiction under § 1332(a)(2).

In responding to the motion, plaintiff does not really defend the idea of jurisdiction based upon his location in France but shifts the ground to a discussion of his connection with California. Plaintiff has filed an affidavit stating that he was raised and educated in California commencing in 1948, and that while he has resided in France for the last several years (his attorney's brief says since 1990), he has maintained certain contacts with California, including a license to practice law, and a law office there which he states he has visited at least four times a year since living abroad. He has a California drivers' license. He recently solicited two San Francisco law offices for possible employment, although there is no indication of any affirmative response. Plaintiff's affidavit states that he has "not given up the idea of returning to California" and that he considers California as his domicile.

Issue:

Are plaintiff's factual submissions sufficient to demonstrate a California domicile?

Answer:

No.

Conclusion:

To the extent that plaintiff now argues for a California domicile, it would appear that he might be attempting to lay a basis for jurisdiction under § 1332(a)(1), which would, of course, allow a citizen of California to invoke diversity jurisdiction in a suit against citizens of New York. A person is a citizen of a state of the United States within the meaning of 28 U.S.C. § 1332 if he is a citizen of the United States and is domiciled within the state in question. Newman-Green Inc. v. Alfonzo-Larrain, 490 U.S. 826, 828, 104 L. Ed. 2d 893, 109 S. Ct. 2218 (1989).

However, plaintiff's factual submission is not sufficient to demonstrate a California domicile. Plaintiff's affidavit is entirely lacking in details about what his living in France has involved. Plaintiff provides no information about exactly where he lives, what kind of a residence he has, whether he has any family in France, or what professional activities he carries out in France.

Moreover, despite the discussion of domicile to some extent, neither plaintiff's affidavit nor his attorney's brief actually asserts the claim that there is jurisdiction on the basis of a California domicile or makes a request to amend the complaint to assert such a claim.

The action is dismissed for lack of subject matter jurisdiction. 

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