Tevdorachvili v. Chase Manhattan Bank, 99 CV 6001 ILG.

• Decision Date: 07 July 2000
• Docket Number: No. 99 CV 6001 ILG.,99 CV 6001 ILG.
• Parties: Nikolai TEVDORACHVILI, Plaintiff, v. THE CHASE MANHATTAN BANK, Defendant.
• Court: U.S. District Court — Eastern District of New York

103 F.Supp.2d 632

Nikolai TEVDORACHVILI, Plaintiff, v. THE CHASE MANHATTAN BANK, Defendant.

No. 99 CV 6001 ILG.

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

July 7, 2000.

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Manuel W. Gottlieb, The Chase Manhattan Bank, New York City, for defendant.

Marina Tylo, Brooklyn, NY, for plaintiff.

MEMORANDUM and ORDER

GLASSER, District Judge.

Plaintiff Nikolai Tevdorachvili alleges that in August, 1998, wire transfers amounting to $157,000 were made from his checking account with the defendant Chase Manhattan Bank to an account with a Latvian bank called Ogres Komercbanka. Plaintiff alleges that the payment orders purportedly authorizing these transfers were issued without his knowledge, and that the signature they bear appearing to be his is a forgery. Plaintiff now brings this lawsuit against Chase, alleging breach of contract, breach of fiduciary duty, violation of New York Banking Law § 676, breach of implied duties of good faith and fair dealing, conversion, negligence and "gross negligence." Plaintiff seeks special and consequential damages, punitive damages, and a declaratory judgment directing Chase to enlist the services of a handwriting expert and to "utilize the conclusion" of that expert. Complaint at ¶ 46.

Defendant Chase has moved to dismiss the Complaint for lack of subject matter jurisdiction, insufficiency of service of process, and failure to state a claim as to all but the cause of action for breach of contract. For the reasons that follow, Chase's motions to dismiss for lack of subject matter jurisdiction and for insufficiency of service are denied, and Chase's motion to dismiss the Complaint, excepting the cause of action for breach of contract, for failure to state a claim is granted.

BACKGROUND

The Eastern District Civil Docket shows that the initial complaint in this matter was filed, and summons was issued on September 27, 1999. Three days later an amended complaint was filed, although close inspection of the two documents suggests that the only difference between them is in the caption of the initial complaint, where the word "amended" is crossed out. Otherwise the summonses both bear the same date, September 4, 1998, the complaints' signature pages are both signed by plaintiff's counsel, Marina Tylo, and dated September 14, 1998, and both complaints are accompanied by verifications signed by the plaintiff, and dated, inexplicably, September 10, 1998. Finally, the allegations of both complaints are identical.

One hundred and eighty-two days after the "amended" complaint was filed, service of both complaints upon Chase was executed on March 30, 2000. Return of service was filed with this Court on April 4, 2000.

Plaintiff alleges, and Chase does not dispute, that the Chase Manhattan Bank is a banking institution domiciled in New York. Of himself, plaintiff alleges that he "presently resides at 8700 25th Avenue, 4N, Brooklyn, New York." Complaint at ¶ 1.¹

Plaintiff also alleges that "[o]n or about 2/07/97 Plaintiff established an account at Chase Manhattan Bank ...." Id. Plaintiff further alleges that "on or about 8/24/99" he received notice of a wire transfer in the amount of $152,000 out of his account. Id. at ¶ 6.² Plaintiff describes responding to this notice with distress, and a visit to "the defendant bank's branch at which he [viz., the plaintiff] customarily transacted his various banking activities." Id. at ¶ 7. Plaintiff alleges that he was eventually "referred to the Manhattan headquarters of the defendant bank," where he discussed the matter with an investigator from Chase on August 25, 1998. Id. A few days later, a second payment order was executed against plaintiff's account with Chase, in the amount of $5,000. Once again, plaintiff alleges that he contacted Chase to complain that he had been the victim of fraud and forgery. Id. ¶¶ 15-16. Finally, plaintiff alleges that "[o]ver the next few months" after these purportedly fraudulent transfers, plaintiff "met with Mr. Boris Maltsev [an investigator with Chase who was able to communicate with plaintiff in Russian] on numerous occasions...." Id. at ¶ 17.

In his opposition to the defendant's motion to dismiss for lack of subject matter jurisdiction, plaintiff has submitted an affidavit by Irina Issatchenko, who states that since June 11, 1993, she has been married to the plaintiff. Issatchenko Aff. at ¶ 2. She also avers that her husband "has been and still remains a citizen of the Country of Russia," and that "[h]e is a resident and domiciliary of the City of Moscow, Russia." Id. at ¶ 3. The Issatchenko Affidavit concludes with this statement:

When my husband visits this country, whether for the purpose of business or pleasure, he stops over in the City of New York. Prior to me purchasing a house located at 24 Eyland Street, Staten Island, New York, and re-furbishing it, my husband used to stop over at 8700 25th Avenue, Brooklyn, his friend's residence.

Id. at ¶ 4. Plaintiff's opposition papers also include a copy of Tevdorachvili's Russian passport. Pl. Mem. in Opp., Exh. A. The document appears to be a passport issued by the Union of Soviet Socialist Republics, issued on December 14, 1995, and expiring on December 14, 2000.

Finally, on July 7, 2000, at oral argument, plaintiff's attorney submitted an affidavit from the plaintiff, attesting that he is not, and has never been, "either a citizen or a permanent resident of the United States of America and the State of New York." Tevdorachvili Aff. at ¶ 3.

DISCUSSION

I. Subject Matter Jurisdiction

Plaintiff's claims against Chase all arise under state law. Thus, this Court has subject matter jurisdiction over these claims only if plaintiff and Chase are of diverse citizenship. Franceskin v. Credit Suisse, No. 98-9376, 2000 WL 719494 at *4 (2d Cir. June 5, 2000). The diversity jurisdiction statute provides, in relevant part:

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 (1) citizens of different States; (2) citizens of a State and citizens or subjects or a foreign state ....

28 U.S.C. § 1332(a).

The elements of the citizenship requirement on diversity jurisdiction are familiar. Citizenship for diversity purposes is determined at the time an action is commenced. Maryland Casualty Co. v. W.R. Grace and Co., 23 F.3d 617, 622 (2d Cir.1993), cert. denied, 513 U.S. 1052, 115 S.Ct. 655, 130 L.Ed.2d 559 (1994). The inquiry focuses on the parties' domicile, a conceptual amalgam consisting in two parts: physical presence in a place and a state of mind evincing an intent to remain there. Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 48, 109 S.Ct. 1597, 104 L.Ed.2d 29 (1989).

"When the domicile of a party is in doubt, its determination requires an evaluation of all the circumstances of the case." 13B Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice & Procedure § 3612 at 529 (1984). The factors to be considered in the course of this evaluation include

current residence; voting registration and voting practices; location of personal and real property; location of brokerage and bank accounts; membership in unions, fraternal organizations, churches, clubs and other associations; place of employment or business; driver's license and automobile registration; [and] payment of taxes ....

Id. at 530-31; see also Connolly v. Spielman, 999 F.Supp. 270, 272-73 (N.D.N.Y. 1998) (applying same factors to find New York domicile against plaintiff's assertion of intent to establish Pennsylvania domicile).

It is well established that the party seeking to invoke the jurisdiction of the federal court has the burden of showing that such jurisdiction lies. United Food & Commercial Workers Union, Local 919, AFL-CIO v. CenterMark Properties Meriden Square, Inc., 30 F.3d 298, 301 (2d Cir.1994). Thus, the burden here is on the plaintiff Tevdorachvili to show that he is legally domiciled somewhere other than New York.

The evidence bearing most directly on this question is the copy Tevdorachvili's passport, since if he is a citizen of a foreign state, who at the same time does not have permanent resident status in the United States, then he is an alien for the purposes of diversity jurisdiction. This conclusion rests on a basic principle of alienage jurisdiction: "if an alien is a citizen of a foreign state, the fact that the person may be a resident of the United States is irrelevant unless the alien has received permanent residency status under the United States immigration law." 15 Moore's Federal Practice § 102.74 at 142 (3d ed.2000); 28 U.S.C. § 1332(a) ("For the purposes of this section ... an alien admitted to the United States for permanent residence shall be deemed a citizen of the State in which such alien is domiciled."). In Kato v. County of Westchester, 927 F.Supp. 714 (S.D.N.Y. 1996), the Court acknowledged that it was "somewhat counterintuitive" to say of a plaintiff who had lived in the United States for 27 years, cultivated "strong ties to the New York community," and displayed "every indication of wanting to remain in the United States indefinitely" that he was nevertheless an alien for diversity purposes. Id. at 717. The Court reasoned that the plaintiff, notwithstanding extensive contacts with the forum (which, in the case of any citizen of the United States, would have been conclusive of domicile in New York), was proceeding as the executor of a decedent who had been a Japanese citizen residing in the United States on a "temporary" E-2 visa that does not confer "permanent residency status" for the purposes of 28 U.S.C. § 1332(a). Id. at 715-16. It followed that the plaintiff should be treated as an alien. Id. at 716. See also Breedlove v. Nicolet, 32 U.S. (7 Pet.) 413, 431-32, 8 L.Ed. 731 (1833) (observing that, in a suit between citizens of...