Eisenberg v. New England Motor Freight, Inc.

• Decision Date: 23 June 2008
• Docket Number: No. 08 Civ. 1469(VM)(DF).,08 Civ. 1469(VM)(DF).
• Citation: 564 F.Supp.2d 224
• Parties: Magda EISENBERG, Plaintiff, v. NEW ENGLAND MOTOR FREIGHT, INC. and Andre Hemraj, Defendants.
• Court: U.S. District Court — Southern District of New York

564 F.Supp.2d 224

Magda EISENBERG, Plaintiff, v. NEW ENGLAND MOTOR FREIGHT, INC. and Andre Hemraj, Defendants.

No. 08 Civ. 1469(VM)(DF).

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

June 23, 2008.

COPYRIGHT MATERIAL OMITTED

Raphael Weitzman, Weitzman Law Offices, L.L.C., New York, NY, for Plaintiff.

Todd Corey Rubenstein, Abrams Fensterman Fensterman Eisman Greenberg Formato & Einig, Lake Sucess, NY, for Defendants.

DECISION AND ORDER

VICTOR MARRERO, District Judge.

I. BACKGROUND

Plaintiff Magda Eisenberg ("Eisenberg") brought this action in New York State Supreme Court (the "State Court") alleging personal injury as a result of an automobile accident caused by the negligence of defendant Andre Hemraj ("Hemraj") while operating a vehicle owned by defendant New England Motor Freight, Inc. ("New England Motor") (collectively, "Defendants"). Defendants removed the case to this Court pursuant to 28 U.S.C. §§ 1332 and 1441. Eisenberg moved for an order of remand to the State Court, arguing that complete diversity of citizenship does not exist, and thus that the Court lacks subject matter jurisdiction.

By Order dated May 30, 2008, Magistrate Judge Debra Freeman, to whom this matter had been referred for supervision of pretrial proceedings, issued a Report and Recommendation (the "Report"), a copy of which is attached and incorporated hereto. The Report finds that Defendants had sufficiently demonstrated that both Hemraj and New England Motor are citizens of New Jersey for diversity purposes, and that subject matter jurisdiction thus exists, and therefore recommends that Eisenberg's motion be denied. Eisenberg filed timely objections to the Report challenging its findings and conclusions. For the reasons stated below, the Court denies Eisenberg's motion.

II. STANDARD OF REVIEW

A district court evaluating a Magistrate Judge's report and recommendation may adopt those portions of the (order) report to which no "specific written objection" is made, as long as the factual and legal bases supporting the findings and conclusions set forth in those sections are not clearly erroneous or contrary to law. Fed.R.Civ.P. 72(b); see also Thomas v. Arn, 474 U.S. 140, 149, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Greene v. WCI Holdings Corp., 956 F.Supp. 509, 513 (S.D.N.Y. 1997). "Where a party makes a `specific written objection ... after being served with a copy of the [magistrate judge's] recommended disposition,' however, the district court is required to make a de novo determination regarding those parts of the report." Cespedes v. Coughlin, 956 F.Supp. 454, 463 (S.D.N.Y.1997) (citing United States v. Raddatz, 447 U.S. 667, 676, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980)). The Court is not required to review any portion of a Magistrate Judge's report that is not the subject of an objection. See Thomas, 474 U.S. at 149. A district judge may accept, set aside, or modify, in whole or in part, the findings and recommendations of the Magistrate Judge as to such matters. See Fed.R.Civ.P. 72(a); DeLuca v. Lord, 858 F.Supp. 1330, 1345 (S.D.N.Y. 1994).

III. DISCUSSION

Having conducted a review of the full factual record in this litigation, including the pleadings, and the parties' respective papers submitted in connection with the underlying remand motion and in this proceeding, as well as the Report and applicable legal authorities, the Court denies Eisenberg's motion for substantially the reasons set forth in the Report. Eisenberg argues that the Report does not address the issue of ownership of the trailer at issue here, as to which Defendants allegedly have not provided discovery, or the potential joinder of the City of New York as an additional defendant. Those matters, however, are not presently before this Court. Consequently, a ruling as to what discovery may reveal concerning the ownership of the trailer, or a joinder of party that has not occurred, and what effect, if any, such joinder may have on this action, would be entirely premature. If the ownership records Eisenberg refers to conclusively contradicts the evidence now on record respecting New England Motor's citizenship and establishes that in fact New England Motor is a citizen of New York, Eisenberg would not be precluded at that time from raising the point.

IV. ORDER

For the reasons discussed above, it is hereby

ORDERED that the motion (Docket No. 5) of plaintiff Magda Eisenberg to remand this action to the Supreme Court of the State of New York is DENIED.

SO ORDERED.

REPORT AND RECOMMENDATION

DEBRA FREEMAN, United States Magistrate Judge.

TO THE HONORABLE VICTOR MARRERO, U.S.D.J.:

INTRODUCTION

In this personal injury case, which was originally commenced in New York State court, plaintiff Magda Eisenberg ("Plaintiff') claims that, on October 22, 2007, she was struck by a vehicle operated by defendant Andre Hemraj ("Hemraj")¹ and owned by defendant corporation New England Motor Freight, Inc. ("NEMF") (collectively "Defendants"). On February 12, 2008, Defendants removed the action to this Court pursuant to 28 U.S.C. § 1332 and 28 U.S.C. § 1441, on the purported ground that the amount in controversy exceeded $75,000, and there was diversity jurisdiction.² Now before the Court is Plaintiffs motion to remand (Dkt.5), in which Plaintiff argues that the parties to this case are not completely diverse and that this Court, thus, lacks subject matter jurisdiction.

For the reasons set forth below, I recommend that Plaintiffs motion for remand be denied.

BACKGROUND

The parties do not dispute that Plaintiff is a citizen of the State of New York, as she alleges in the Amended Complaint. (See Amended Verified Complaint, dated Nov. 15, 2007 ("Am.Compl."), at ¶ 1.) The issue for the Court on Plaintiffs motion to remand is whether either Hemraj or NEMF should also be considered a citizen of New York, which would defeat diversity jurisdiction.

In her Amended Complaint, Plaintiff alleges that Hemraj resides in New Jersey. (See Am. Compl., at ¶ 4.) In her motion, however, Plaintiff further asserts that Hemraj "transacts business in the State of New York" (see Plaintiffs Memorandum of Law, filed Mar. 5, 2008 ("Pl.Mem.") (Dkt.7), at 7), suggesting that this may be a criterion the Court should consider in determining his citizenship. Moreover, through an attorney affirmation submitted in reply, Plaintiff also suggests that Hemraj's place of residence is actually uncertain, given that, when a process server attempted to serve him with process at the New Jersey address specified on his driver's license, he was never found at that address, and the utilities at the New Jersey address were not found to be in his name. (See Reply Affirmation of Raphael Weitzman, Esq., in Opposition to Defendants' Opposition to Plaintiffs Motion to Remand, dated Mar. 25, 2008 ("Weitzman Reply Aff."), at ¶ 1.)

With respect to defendant NEMF, Plaintiff alleges in her Amended Complaint that NEMF was, incorporated under the laws of the State of New Jersey and that its principal "address" is also in New Jersey (see Am. Compl., at ¶ 2), but she further alleges that NEMF's principal "place of business" is in Valley Stream, New York (see id., at ¶ 3). Now, in her motion to remand, Plaintiff argues that NEMF should be considered a citizen of New York State because it maintains an office in New York, is licensed to conduct business and actually transacts business in New York, and derives revenue from New York. (See PL Mem., at 11.)

In opposition, Defendants present evidence that Hemraj is a New Jersey resident and citizen (see Declaration of Andre Hemraj, dated Mar. 18, 2008 ("Hemraj Decl."), at ¶ 3); see also Defendants' Memorandum in Opposition to Remand ("Def.Mem") (Dkt.18), at 6, and that NEMF should be considered a New Jersey citizen as well, for purposes of the jurisdictional analysis (see Def. Mem., at 5-6). According to Defendants, NEMF's principal place of business is, in fact, in New Jersey, and this determines its citizenship. Thus, Defendants contend that this Court has diversity jurisdiction under 28 U.S.C. § 1332, and that the action was properly removed under 28 U.S.C. § 1441(b).

DISCUSSION

I. APPLICABLE LEGAL STANDARDS

A. Removal Based on Diversity Jurisdiction

Any civil action brought in a state court may be removed to federal court where the federal court has "original jurisdiction" over the subject matter of the action. 28 U.S.C. § 1441(a). As, under 28 U.S.C. § 1332(a), the federal courts have original jurisdiction in all actions "where the matter in controversy exceeds the sura or value of $75,000, exclusive of interest and costs, and is between ... citizens of different states," any such action is subject to removal.

It is well established that diversity jurisdiction under 28 U.S.C. § 1332 requires complete diversity between all plaintiffs on the one hand, and all defendants on the other. See Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 373, 98 S.Ct. 2396, 57 L.Ed.2d 274 (1978) ("[D]iversity jurisdiction does not exist unless each defendant is a citizen of a different State from each plaintiff."). A federal court lacks jurisdiction if any plaintiff is of the same citizenship as any defendant. In order to determine whether a civil action filed in state court has been properly removed to federal court based on diversity jurisdiction, the court must therefore look to the citizenship of each party.

For the purposes of diversity jurisdiction, an individual's, citizenship depends on his or her domicile. See Palazzo v. Corio, 232 F.3d 38, 42 (2d Cir.2000) ("An individual's citizenship, within the meaning of the diversity statute, is determined by his domicile."). Domicile is the place where an individual has "his true fixed home and principal establishment, and to which, whenever he is absent, has the intention of returning." See Linardos v. Fortuna, 157 F.3d 945, 948 (2d Cir.1998) (quoting 13B Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice & Procedure §...