Borderud v. Riverside Motorcars, LLC
| Decision Date | 13 May 2020 |
| Docket Number | No. 3:18-cv-1291 (VAB),3:18-cv-1291 (VAB) |
| Court | U.S. District Court — District of Connecticut |
| Parties | MARK BORDERUD, Plaintiff, v. RIVERSIDE MOTORCARS, LLC, JOSEPH SALINARDI, & CHRISTIAN SALINARDI, Defendants. |
Mark Borderud ("Plaintiff") has sued his former employer, Riverside Motorcars, LLC, ("Riverside"); Christian Salinardi, the alleged owner of Riverside; and Joseph Salinardi, the alleged General Manager of Riverside (collectively, "Defendants"), regarding commissions and expenses Defendants allegedly owe him. Compl. ¶¶ 3-7, 11-15, ECF No. 1 (Aug. 6, 2018). Mr. Borderud alleges claims under the Connecticut Wage Act, Conn. Gen. Stat. § 31-68, et seq. Compl. ¶ 1.
Mr. Salinardi previously moved to dismiss Mr. Borderud's claims for lack of subject matter jurisdiction, claiming that Mr. Borderud failed to meet the $75,000 threshold required for maintaining an action in federal court based on diversity jurisdiction. Rule 12(b)(1) Mot. to Dismiss for Lack of Subject Matter Jurisdiction, ECF No. 11 (Aug. 29, 2018) ("First Mot. to Dismiss"). The Court denied this motion. Ruling on First Mot. to Dismiss, ECF No. 29 (Jan. 25, 2019).
The Defendants have jointly moved to dismiss Mr. Borderud's claim for lack of subject matter jurisdiction again, this time claiming that Mr. Borderud did not meet the domicile requirements necessary to maintain a diversity action in federal court. Rule 12(b)(1) Mot. to Dismiss for Lack of Subject Matter Jurisdiction, ECF No. 40 (Feb. 14, 2020) ("Second Mot. to Dismiss").
For the following reasons, the Court DENIES Defendants' motion to dismiss.
For some period of time before April 28, 2016,2 Mr. Borderud allegedly sold cars for Riverside in Naugatuck, Connecticut. Compl. ¶¶ 3, 11.
As of September 2009, Mr. Borderud had his domicile in Connecticut. Exhibit 1 to Pl.'s Opp'n to Mot. to Dismiss (Pl.'s Resp. to First Set of Interrogs.), ECF No. 41-1 at 5 (Mar. 6, 2020) ("Pl.'s Ex. 1"). Mr. Borderud lived in Stratford, Connecticut until May 16, 2017. Id. From May 16, 2017 through September 2017, Mr. Borderud traveled throughout the southeastern and southern United States. Exhibit 2 to Pl.'s Opp'n to Mot. to Dismiss (Borderud Dep.) at 11, ECF No. 41-2 (Mar. 6, 2020) ("Pl.'s Ex. 2"). He asserts that he did not leave the United States during that period. Id.
From September 2017 to the present, Mr. Borderud has resided in Mexico. Pl.'s Ex. 1 at 5 (Pl.'s Resp. to First Set of Interrogs.); Pl.'s Ex. 2 at 12 (Borderud Dep.). He resided in San Miguel de Allende, Mexico from September 2017 to February 2018, and in Todos Santos, Mexico from February 29, 2018 to the present. Exhibits to Defs.' Mem. in Support of Mot. to Dismiss at 18 (Borderud Dep.), ECF No. 40-2 (Feb. 14, 2020) (" "). His address has been Todos Santos, Mexico since February 29, 2018. Defs.' Exs. at 16 (Borderud Dep.).
He holds a temporary residence card from Mexico. Pl.'s Ex. 2 at 4, 15 (Borderud Dep.). In his deposition testimony, he admits living in Mexico at the time he filed his Complaint onAugust 6, 2018. Defs.' Exs. at 23-24 (Borderud Dep.). He also owns a car that he keeps in Baja, Mexico, id. at 9, but he does not drive it because it is not registered, Pl.'s Ex. 2 at 9-10 (Borderud Dep.).
Mr. Borderud has two daughters who live in New York City, and he stays with one of them or the other when he visits the United States. Defs.' Exs. at 13-14 (Borderud Dep.).
On August 6, 2018, Plaintiff filed his Complaint. Compl. He asserts state law claims against Riverside Motorcars, LLC, Christian Salinardi, and Joseph Salinardi for breach of contract and failure to pay wages under the Connecticut Wage Act. Id. ¶ 1. He alleges that he was "an individual residing in New York, New York and [was] a citizen of New York" at the time he filed his Complaint. Id. ¶ 2. He alleges that Defendants either have a principal place of business in or are citizens of Connecticut. Id. ¶¶ 3, 5, 7.
On August 29, 2018, Mr. Salinardi, pro se, filed a motion to dismiss for lack of subject matter jurisdiction based on Mr. Borderud's alleged failure to meet the $75,000 threshold required for maintaining a diversity action in federal court. First Mot. to Dismiss.
On January 25, 2019, the Court denied Mr. Salinardi's motion to dismiss. Order, ECF No. 29 (Jan. 25, 2019).
On February 14, 2020, Defendants jointly moved to dismiss the Complaint for lack of subject matter jurisdiction, alleging that Mr. Borderud has failed to meet the domicile requirements necessary for maintaining a diversity action in federal court. Second Mot. to Dismiss. The Defendants included exhibits with the memorandum of law. Mem. of Law in Supp. of Mot. to Dismiss for Lack of Subject Matter Jurisdiction, ECF No. 40-1 (Feb. 14, 2020) ( ); Defs.' Exs. Defendants' exhibits contain excerpts from Mr. Borderud's August13, 2019 deposition, Defs.' Exs. at 1-4, 8-16, 20-31 (Borderud Dep.); online posts purportedly from Mr. Borderud's Instagram account, Defs.' Exs. at 5-7 (Instagram Posts); the notarized certification page from his responses to interrogatories, Defs.' Exs. at 17-19 ; an alleged printout from a website belonging to Mr. Borderud, Defs.' Exs. at 32-33 (Website: Mark Borderud: Transform Your View); and the ruling Greenblatt v. Gluck, No. 03 CIV.597 RWS, 2003 WL 1344953 (S.D.N.Y. Mar. 19, 2003), Defs.' Exs. at 35-40.
On March 6, 2020, Mr. Borderud filed a brief in opposition to Defendants' motion to dismiss. Opp'n to Mot. to Dismiss, ECF No. 41 ("Pl.'s Opp'n) (Mar. 6, 2020). He included two exhibits consisting of his answers and responses to Defendants' interrogatories and requests for production and excerpts from his August 13, 2019, deposition transcript. Pl.'s Ex. 1 (Pl.'s Resp. to First Set of Interrogs.); Pl.'s Ex. 2 (Borderud Dep.).
On March 16, 2020, Defendants replied to Mr. Borderud's opposition to the motion to dismiss. Reply to Pl.'s Opp'n to Mot. to Dismiss, ECF No. 42 (Mar. 16, 2020) ( ).
Federal courts are "courts of limited jurisdiction." Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 552 (2005). "Congress has granted district courts original jurisdiction over . . . certain cases between citizens of different states, so long as the requirements of complete diversity and amount in controversy are met." Purdue Pharma L.P. v. Kentucky, 704 F.3d 208, 213 (2d Cir. 2013). The burden of persuasion for establishing diversity jurisdiction rests on the party asserting it. Hertz Corp. v. Friend, 559 U.S. 77, 96 (2010); see also Herrick Co. Inc. v. SCS Commc'ns, Inc., 251 F.3d 315, 322-23 (2d Cir. 2001) (). The party invoking the court's jurisdiction must support allegationsof complete diversity with "competent proof." Linardos v. Fortuna, 157 F.3d 945, 947 (2d Cir. 1998). "[W]hen a federal court concludes that it lacks subject-matter jurisdiction, the court must dismiss the complaint in its entirety." Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006).
"A case is properly dismissed for lack of subject matter jurisdiction under [Federal Rule of Civil Procedure] 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it." Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000); Fed. R. Civ. P. 12(b)(1). "When considering a motion to dismiss pursuant to Rule 12(b)(1), the court must take all facts alleged in the complaint as true and draw all reasonable inferences in favor of plaintiff." Sweet v. Sheahan, 235 F.3d 80, 83 (2d Cir. 2000); see also Nat. Res. Def. Council v. Johnson, 461 F.3d 164, 171 (2d Cir. 2006) (quoting Sweet, 235 F.3d at 83). The court also may resolve disputed jurisdictional fact issues, however, "by referring to evidence outside of the pleadings, such as affidavits, and if necessary, hold an evidentiary hearing." Karlen ex rel. J.K. v. Westport Bd. of Educ., 638 F. Supp. 2d 293, 298 (D. Conn. 2009) (citing Zappia Middle E. Constr. Co. v. Emirate of Abu Dhabi, 215 F.3d 247, 253 (2d Cir. 2000)).
Subject matter jurisdiction based on diversity of citizenship exists where the civil action is (1) between "citizens of different States," or (2) between "citizens of a State and citizens or subjects of a foreign state." 28 U.S.C. § 1332(a)(1)-(2). In other words, "diversity jurisdiction does not exist unless each defendant is a citizen of a different state from each plaintiff." Owen Equip. & Erection Co. v. Kroger, 473 U.S. 365, 373 (1978) (emphasis in original); see also Van Buskirk v. United Grp. of Companies, Inc., 935 F.3d 49, 53 (2d Cir. 2019) ().
"In order to be a citizen of a State within the meaning of the diversity statute, a natural person must both be a citizen of the United States and be domiciled within the State." Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 828 (1989) (emphasis in original). In contrast, "United States citizens who are domiciled abroad are neither citizens of any state of the United States nor citizens or subjects of a foreign state, and § 1332(a) does not provide that the courts have jurisdiction over a suit to which such persons are parties." Force v. Facebook, Inc., 934 F.3d 53, 74 (2d Cir. 2019); Herrick Co., Inc. v. SCS Comm., Inc., 251 F.3d 315, 322 (2d. Cir. 2001); Cresswell v. Sullivan & Cromwell, 922 F.2d 60, 68 (2d Cir. 1990). A United States citizen domiciled abroad therefore is considered "stateless" for purposes of § 1332(a), Newman-Green, 490 U.S. at 828, and, thus, "a suit by or against a United States citizen domiciled abroad may not be premised on diversity," Force, 934 F.3d at 74. Although Congress's "rationale for...
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