Ner Tamid Congregation of N. Town v. Krivoruchko

• Citation: 620 F.Supp.2d 924
• Decision Date: 03 June 2009
• Docket Number: No. 08 C 1261.,08 C 1261.
• Court: United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
• Parties: NER TAMID CONGREGATION OF NORTH TOWN, Plaintiff, v. Igor KRIVORUCHKO, Defendant.

620 F.Supp.2d 924

NER TAMID CONGREGATION OF NORTH TOWN, Plaintiff, v. Igor KRIVORUCHKO, Defendant.

No. 08 C 1261.

United States District Court, N.D. Illinois, Eastern Division.

June 3, 2009.

As Amended June 10, 2009.

COPYRIGHT MATERIAL OMITTED

Jay R. Hoffman, Attorney at Law, Chicago, IL, for Plaintiff.

Thadford A. Felton, Arnstein & Lehr, LLP, Chicago, IL, for Defendant.

MEMORANDUM OPINION AND ORDER

JEFFREY COLE, United States Magistrate Judge.

INTRODUCTION

Plaintiff's Counsel: ... Well, where do you reside, sir?

Defendant: It's a good question.... (Krivoruchko Deposition at 49)

This seemingly simple question—the answer to which would prove so slippery and elusive to the defendant—has caused far more dispute and consternation than normally occurs where the question of residency is challenged. But since residence—at least permanent residence—is a component of domicile and thus intimately bound up in any inquiry into subject matter jurisdiction, see Koch v. Koch, 450 F.3d 703, 712, n. 7 (7th Cir.2006)("domicile is a person's legal home, the `permanent residence of a person or the place to which he [or she] intends to return even though he [or she] may actually reside elsewhere.'"), it is a question that must be considered with care.¹

The case began in 2007 when the defendant, a real estate developer, contracted with Ner Tamid Congregation to purchase property Ner Tamid owned in Chicago. But when the deadline for closing came— after having been extended once—Mr. Krivoruchko was unable to come up with the purchase price. He said he was unable to get financing because of the downturn in the real estate market, but there was no financing contingency clause in the contract. Ner Tamid sued him for breach of contract.

In his answer to the complaint, the defendant admitted that he is a citizen and resident of Florida. In an amended answer, that admission was repeated. Still later, in his response to the plaintiffs motion for summary judgment, the defendant for the third time admitted that he was a citizen and resident of Florida. But then, facing a ruling on the motion for summary judgment and by now on his third lawyer, the defendant, in a sudden volte face, insisted that those admissions were mistaken, and that he was and is actually a resident and citizen of Illinois. That being the case, the defendant said, the parties were not of diverse citizenship, and the complaint must be dismissed.

To say the least, the timing of the current motion to dismiss is rather suspicious. Indeed, one is tempted to say that "[t]he mind of justice, not merely its eyes, would have to be blind to attribute such an occurrence to mere fortuity." Avery v. Georgia, 345 U.S. 559, 564, 73 S.Ct. 891, 97 L.Ed. 1244 (1953) (Frankfurter, J., concurring). But suspicious timing, alone, is never outcome-determinative. Cf. Argyropoulos v. City of Alton, 539 F.3d 724, 734, 737 (7th Cir.2008). "Post hoc ergo propter hoc is the name of a logical error, not a reason to infer causation." United States v. Thompson, 484 F.3d 877, 879 (7th Cir.2007)(Easterbrook, C.J.). Accord, Argyropoulos, 539 F.3d at 734. And so we turn to the evidence that the parties have presented in support of their respective positions.²

I. BACKGROUND

A.

He's Says He's From Florida ...

When Ner Tamid sued in March of 2008, it alleged that Mr. Krivoruchko resided in Florida and was a citizen of that state. (Complaint, ¶ 3). A citizen of Illinois, Ner Tamid based federal jurisdiction on diversity of citizenship. (Complaint, ¶ 5). In his answer, filed May 16, 2008, Mr. Krivoruchko admitted he resided in Miami-Dade County, Florida and that he was a citizen of the state of Florida, and conceded that there was federal jurisdiction over this suit. (Answer, ¶¶ 3, 5). He did the same in his amended answer, filed in July of 2008. (Amended Answer, ¶¶ 3, 5). The first was signed by Frederick Sperling of Schiff Hardin, who had represented the defendant in other matters. The defendant then changed counsel, and so the amended answer was signed by George Vurdelja.

Ner Tamid then filed a motion for summary judgment, and the parties briefed the motion. Once again, on November 6, 2008, Mr. Krivoruchko admitted he was both a resident and a citizen of Florida; this time in his Local Rule 56.1(b) response to Ner Tamid's statement of facts. Mr. Vurdelja handled this submission as well. While it is certainly true that consent cannot confer jurisdiction by consent, the defendant's three admissions of residency and citizenship in three, separate filings prepared by two different attorneys pursuant to Rule 11, Federal Rules of Civil Procedure, are not without significance.

B. ... No, Wait, He Meant Illinois

About a month later, Mr. Krivoruchko changed lawyers again. And with that change came an epiphany: The two answers to the complaint and the Local Rule 56.1(b) response were all "mistaken." He was not, after all, a resident or citizen of Florida. He was, all along, a resident and citizen of Illinois. He moved to dismiss the case for lack of subject matter jurisdiction. That motion was supported by his affidavit, which conveniently ignored his prior admissions, all of which remained part of the record. No motion to amend the answer (or the Rule 56 admission) was made. It was not until the issue of the defendant's prior admissions was raised by the court that they were acknowledged. At the insistence of the court, Mr. Krivoruchko filed a motion to amend his amended answer. However, his current submission does not specifically address his Local Rule 56.1(b) admission.

In his opening brief in support of the motion to file a second amended answer, Mr. Krivoruchko put it this way:

While Defendant Krivoruchko mistakenly stated in his Answer that he was a citizen of Florida, such an admission was not done in bad faith or with ulterior motive. Defendant Krivoruchko simply did not understand what being a "citizen" of a state meant generally, or what role a party's citizenship played in the context of subject matter jurisdiction.

(Motion for Leave to File a Second Amended Answer, at 2).³

Two obstacles to this thesis are immediately apparent. First, the claim of mistake was not supported by affidavit, and a lawyer's unsupported statements in briefs are not evidence. See Woolard v. Woolard, 547 F.3d 755 (7th Cir.2008); United States v. Stevens, 500 F.3d 625, 628-629 (7th Cir.2007). Second, it is understandable that Mr. Krivoruchko was not conversant with the concept of "citizenship" as the term is used in the context of diversity jurisdiction. See, e.g., Dakuras, 312 F.3d at 258; Denlinger v. Brennan, 87 F.3d 214, 216 (7th Cir.1996). However, while he may not have understood the concept of citizenship—we put to the side that the defendant's two prior experienced lawyers certainly did—there is nothing particularly complicated about the concept of where one lives. Mr. Krivoruchko didn't simply say he was a citizen of Florida; he said he resided there. And he did so three times under the guidance of two different, accomplished lawyers. So the claim of mistake offered in the defendant's unsupported motion isn't particularly convincing.

Perhaps realizing that the unsupported claim of mistake was not much of an excuse, Mr. Krivoruchko changed his story by the time he filed his reply brief, just three weeks later. Of course, that is an impermissible tactic, for as the Seventh Circuit has admonished over and over, reply briefs are for replying, not for raising new matters or arguments that could and ought to have been advanced in the opening brief. See e.g., United States v. Boyle, 484 F.3d 943, 946 (7th Cir.2007)(arguments are forfeited); United States v. Alhalabi, 443 F.3d 605, 611 (7th Cir.2006); Carter v. Tennant Co., 383 F.3d 673, 679 (7th Cir. 2004); Autotech Technologies Ltd. Partnership v. Automationdirect.com, Inc., 235 F.R.D. 435, 437 (N.D.Ill.2006)(collecting cases).

The reply brief's "sandbagging" aside, South Coast Air Quality Management Dist. v. E.P.A., 554 F.3d 1076, 1081 (D.C.Cir.2009), as it turns out, he hadn't been mistaken as to his citizenship—and, apparently, his residency—as his opening brief lamented. Now he said he had no recollection of having anything to do with either his answer or amended answer. In support of this new explanation, Mr. Krivoruchko submitted an affidavit—he hadn't done so in his opening brief—in which he conceded that his previous attorneys provided him with copies of his answer and amended answer to review prior to filing them. (Krivoruchko Aff., ¶ 3). He said, however, that he did not recall having done so:

I do not recall reviewing my previous Answer or Amended Answer prior to the filing of those documents with the Court. I do not recall any of my previous attorneys discussing Plaintiffs allegations in paragraphs 3 or 5 of the Complaint with me. I do not recall any of my previous attorneys discussing my answers to paragraphs 3 or 5 of the Complaint in my Answer or Amended answer with me. I do not recall any of my previous attorneys discussing the issue of my citizenship in Florida or Illinois with me. I do not recall any of my previous attorneys discussing the issue of where I reside with me. I do not recall any of my previous attorneys discussing with me how citizenship affects the subject matter jurisdiction of a federal court over a dispute such as this one.

(Krivoruchko Aff., ¶¶ 4-10). This sort of vacillation in testimony and implausible selectivity of memory are appropriate factors to be weighed in determining credibility and the weight to be accorded to Mr. Krivoruchko's various representations in his affidavits. See Kadia v. Gonzales, 501 F.3d 817, 819-20 (7th Cir.2007)(Posner, J.); Mullins v. Hallmark Data Systems, 511 F.Supp.2d 928, 933 (N.D.Ill.2007)(collecting cases). More importantly, as we shall see, Mr. Sperling, Mr. Krivoruchko's first lawyer and the one who prepared the answer, had no such infirmity of memory and was quite clear that he...