Bevilaqua v. Bernstein

• Decision Date: 03 September 1986
• Docket Number: No. 86 Civ. 10084 (EW).,86 Civ. 10084 (EW).
• Citation: 642 F. Supp. 1072
• Parties: Dominic BEVILAQUA, Plaintiff, v. Stanley M. BERNSTEIN, M.D. and The Lincoln Medical Practice, Defendants.
• Court: U.S. District Court — Southern District of New York

642 F. Supp. 1072

Dominic BEVILAQUA, Plaintiff, v. Stanley M. BERNSTEIN, M.D. and The Lincoln Medical Practice, Defendants.

No. 86 Civ. 10084 (EW).

United States District Court, S.D. New York.

September 3, 1986.

Grutman, Miller, Greenspoon & Hendler, New York City, for plaintiff; Norman Roy Grutman, Adrienne DeLuca, of counsel.

Wilson, Elser, Moskowitz, Edelman & Dicke, New York City, for defendants; Marshal S. Endick, Gerard McEnery, of counsel.

OPINION

EDWARD WEINFELD, District Judge.

Plaintiff Dominic Bevilaqua commenced this suit on December 30, 1985, seeking damages for medical malpractice from defendants Stanley M. Bernstein and the Lincoln Medical Practice, which Bernstein owns. Plaintiff alleges in his complaint that this Court has subject matter jurisdiction over his suit under 28 U.S.C. § 1332 because the opposing parties are of diverse citizenship and the amount in controversy exceeds $10,000. Defendants were citizens of the State of New York when plaintiff commenced his suit. They maintain, however, and plaintiff denies, that plaintiff was also a citizen of the State of New York at that time. Defendants thus claim that diversity of citizenship is lacking and move for dismissal of plaintiff's complaint pursuant to Fed.R.Civ.P. 12(h)(3) and for the imposition of sanctions pursuant to Fed.R. Civ.P. 11. Plaintiff opposes defendants' motion and moves to compel defendants to comply with discovery requests and for the imposition of Rule 11 sanctions.

Jurisdiction under 28 U.S.C. § 1332 requires that there be complete diversity of citizenship between opposing parties. Whether diversity exists is determined as of the time the action is commenced. See Anderson v. Watt, 138 U.S. 694, 702-03, 11 S.Ct. 449, 451, 34 L.Ed. 1078 (1891); Spanos v. Skouras Theaters Corp., 235 F.Supp. 1, 3 (S.D.N.Y.1964), aff'd, 364 F.2d 161 (2d Cir.), cert. denied, 385 U.S. 987, 87 S.Ct. 597, 17 L.Ed.2d 448 (1966). Once a plaintiff's allegations of diversity are challenged by a defendant, plaintiff must prove by a preponderance of the evidence that diversity in fact exists. See McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 785, 80 L.Ed. 1135 (1936); Arnold v. Troccoli, 344 F.2d 842, 845 (2d Cir.1965); Kaufman and Broad, Inc. v. Gootrad, 397 F.Supp. 1054, 1055 (S.D.N.Y.1975); Haymes v. Columbia Pictures Corp., 16 F.R.D. 118, 120 (S.D.N. Y.1954).

For the purposes of § 1332, the term "citizenship" is synonymous with "domicile." See Delaware, L. & W.R. Co. v. Petrowsky, 250 F. 554, 557 (2d Cir.1918), cert. denied, 247 U.S. 508, 38 S.Ct. 427, 62 L.Ed. 1241 (1918); Yonofsky v. Wernick, 362 F.Supp. 1005, 1016 (S.D.N.Y.1973); Spanos v. Skouras Theaters Corp., 235 F.Supp. 1, 3 (S.D.N.Y.1964), aff'd, 364 F.2d 161 (2d Cir.1966), cert. denied, 385 U.S. 987, 87 S.Ct. 597, 17 L.Ed.2d 448 (1966); Haymes v. Columbia Pictures Corp., 16 F.R.D. 118, 120 (S.D.N.Y.1954). Once domicile is established in one state, it is presumed to continue in existence, even if the party leaves that state, until the adoption of a new domicile is proven. See Desmare v. United States, 93 U.S. (3 Otto) 605, 610, 23 L.Ed. 959 (1876); Sun Printing & Publishing Ass'n v. Edwards, 194 U.S. 377, 383, 24 S.Ct. 696, 698, 48 L.Ed. 1027 (1904); Haymes v. Columbia Pictures Corp., 16 F.R.D. 118, 120 (S.D.N.Y.1954).

Proof of a change of domicile requires proof that the party: (1) was physically present at the site of the new domicile and (2) intended to remain there indefinitely. See Rohrbach v. Coven, 85-4855, slip op. (S.D.N.Y. March 28, 1986) Available on WESTLAW, DCTU database; Haymes v. Columbia Pictures Corp., 16 F.R.D. 118, 120 (S.D.N.Y.1968). In ascertaining the intent of the party, that party's entire course of conduct may be taken into account. The party's own statements concerning his intentions are relevant, but they are of slight weight when they come into conflict with other facts that tend to disclose a contrary intent. See District of Columbia v. Murphy, 314 U.S. 441, 456, 62 S.Ct. 303, 310, 86 L.Ed. 329 (1941); State of Texas v. State of Florida, 306 U.S. 398, 425, 59 S.Ct. 563, 576, 83 L.Ed. 817 (1939).

Plaintiff received treatment from the defendant Bernstein in January and February of 1985. At that time, plaintiff was and had been a resident of the State of New York, was employed there, paid taxes to the state, and was a registered voter there. The complaint alleges that on or about February 25, 1985, he went to Richmond, Virginia for medical treatment where his family resided. From November 1985 to January 1986, plaintiff was in Rhode Island visiting friends. It was during this period, on December 30, 1985, that plaintiff commenced this action. On January 10, 1986, he returned to New York for the first time since he went to Virginia. He took up residence again in New York City, and resumed work there in February 1986 at the place of his former employment. Since then, he has continued to reside and work in New York City.

Plaintiff asserts that when this suit was commenced his domicile was in the State of Virginia. In support of this claim he states that when he left New York State on February 26, 1985, to live with his parents and obtain medical care in Virginia, he became a resident of Virginia and intended to remain there indefinitely. He notes that was continuously absent from New York State for ten months, from February 26, 1985 until January 10, 1986, and that in leaving New York he dropped out of courses in which he was enrolled, gave up his apartment, and left his job. It is on the basis of these facts that plaintiff claims he has met his burden of proof that he adopted a new domicile in Virginia.

In determining where a party intends to make his domicile, courts have traditionally looked to a variety of objective indicia of such intent, including where one resides, pays taxes, works, is registered to vote, and is licensed to drive. Based upon these indicia, it is clear that prior to his departure from New York, plaintiff was domiciled in, and a citizen of, the State of New York. At that time, plaintiff had an apartment in New York, attended classes in New York, had a full time job in New York, paid New York State income...