NiChairmhaic v. Dembo et al

Filing 59

RULING granting 42 Motion to Dismiss for Lack of Jurisdiction; granting 43 Motion to Dismiss; granting 44 Motion to Dismiss for Lack of Jurisdiction. Signed by Judge Janet C. Hall on 5/19/2014. (Lewis, D)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
COLLEEN NICHAIRMHAIC,
Plaintiff,
v.
STEVEN DEMBO et al.,
Defendants.

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CIVIL ACTION NO.
3:13-CV-01184 (JCH)

MAY 19, 2014

RULING RE: DEFENDANTS’ MOTIONS TO DISMISS (Doc. Nos. 42, 43 & 44)
I.

INTRODUCTION
Plaintiff Colleen Nichairmhaic brings this suit against defendants Campbell

Barrett, Steven Dembo, Kenneth Savino, and John Doe I-IV, alleging intentional
infliction of emotional distress, abuse of process, malicious prosecution, vexatious
litigation, and tortious interference with business. See Second Amended Complaint
(“Sec. Am. Compl.”) (Doc. No. 41). Barrett and Dembo are attorneys who represented
Savino during divorce proceedings that he brought against Nichairmhaic. Sec. Am.
Compl. at ¶ 20. Savino and Nichairmhaic entered into a Marital Settlement Agreement
on March 25, 2013. Savino Aff. at ¶ 5.
Before the court are Barrett’s Motion to Dismiss (Doc. No. 42), Dembo’s Motion
to Dismiss (Doc. No. 43), and Savino’s Motion to Dismiss (Doc. No. 44). For the
reasons set forth below, defendants’ Motions to Dismiss are GRANTED.

II.

PROCEDURAL BACKGROUND
On August 17, 2013, Nichairmhaic filed this suit against the named defendants,

alleging in Count I of her original Complaint intentional infliction of emotional distress, in
Count II, tortious interference with business and contract, in Count III, violation of due
process, and in Count IV, discrimination. See Compl. (Doc. No. 1). On October 14,
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2013, Nichairmhaic filed an Amended Complaint against all defendants, further alleging
in Count I abuse of process, malicious prosecution, vexatious litigation, obstruction of
justice under section 1503 of title 18 of the United States Code, and mail fraud under
section 1341 of title 18 of the United States Code, and, in Count II, various interferences
with her rights under the United States Constitution. See Am. Compl. (Doc. No. 22).
On September 13, 2013, Barrett filed a Motion to Dismiss seeking to dismiss all
counts for failure to state a claim upon which relief can be granted under Rule 12(b)(6)
of the Federal Rules of Civil Procedure. See Def. Barrett’s Motion to Dismiss (Doc. No.
14). On September 18, 2013, Dembo also filed a Motion to Dismiss all counts for failure
to state a claim pursuant to Rule 12(b)(6). See Def. Steven Dembo’s Mot. to Dismiss
(Doc. No. 15).
On December 4, 2013, reading the original and Amended Complaint together,
this court dismissed Nichairmhaic’s federal claims and held that the Motions to Dismiss
the state law claims remained, pending Nichairmhaic’s response to the court’s Order to
replead her citizenship, as that word is used in section 1332 of title 28 of the United
States Code. See Ruling Re: Def. Barrett’s Mot. to Dismiss; Def. Dembo’s Mot. to
Dismiss; Def. Barrett’s Mot. to Strike Am. Compl.; Def. Dembo’s Mot. to Strike Am.
Compl. (Doc. No. 40).
In response to the court’s Order to replead citizenship, Nichairmhaic filed a
Second Amended Complaint on December 18, 2013. See Sec. Am. Compl. (Doc. No.
41). In her Second Amended Complaint, Nichairmhaic, a citizen of Ireland, alleges that
she became a Legal Permanent Resident in New York, in 2004. Sec. Am. Compl. at ¶¶
1, 2. While Nichairmhaic maintains residences in both Connecticut and New York, she

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alleges that she has maintained primary residency status in New York for over two
years. Id. at ¶ 2. She claims that she maintains an apartment and vehicle in
Connecticut because her minor child resides and attends school there, and that
defendant Savino assists with the rental payments for this apartment. Id. at ¶ 13; Opp’n
to Mot. to Dismiss of Def. Savino at ¶ 5. Nichairmhaic alleges that she “has only ever
worked and paid taxes in New York and has not had an income or paid taxes in any
other State in the last thirteen years.” Sec. Am. Compl. at ¶ 3. Nichairmhaic further
alleges that she works as a New York attorney and is not admitted to practice in any
other state. Id. at ¶ 4. Nichairmhaic claims that she maintains a bank account in New
York, id. at ¶ 5, has a phone number with a New York area code, id. at ¶ 6, and
purchased a dog in New York in 2013 with New York veterinary insurance, id. at ¶ 9.
Nichairmhaic serves as Vice President of the Emerald Association of Long Island1 and
states that she is a member of the New York State Trial Lawyers Association. Id. at ¶ 8.
Although Nichairmhaic stayed with defendant Savino in his home in Connecticut from
April 2009 through July 2011, id. at ¶ 12, she alleges that she has spent the majority of
her time in New York since the parties separated, id. at ¶ 11.
The defendants have moved to dismiss this action pursuant to Rule 12(b)(1) of
the Federal Rules of Civil Procedure for lack of subject matter jurisdiction.2 The

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See also Opp’n to Mot. to Dismiss of Def. Savino Ex. D (Doc. No. 50-4).

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On December 19, Barrett filed a Motion to Dismiss for lack of subject matter jurisdiction. See
Def. Barrett’s Mot. to Dismiss (Doc. No. 42). On December 30, 2013, Dembo also filed a Motion to
Dismiss pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure for lack of subject
matter jurisdiction and failure to state a claim upon which relief can be granted, adopting in full all
arguments, pertaining to subject matter jurisdiction, raised by co-defendant Barrett in his Motion to
Dismiss and Memorandum of Law in Support. See Def. Steven Dembo’s Mem. of Law in Supp. of Mot. to
Dismiss at 1, 4 (Doc. No. 43-1). On December 31, 2013, Savino similarly filed a Motion to Dismiss
seeking to dismiss all counts for lack of subject matter jurisdiction and for failure to state a claim. See

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defendants argue that this action cannot be maintained in federal court on account of a
lack of complete diversity between the parties. See Defs.’ Motions to Dismiss (Doc.
Nos. 42, 43 & 44). The defendants contend that Nichairmhaic is not domiciled in New
York and is in fact a citizen of Connecticut. See id. According to the defendants,
Nichairmhaic’s primary residence is in Avon, Connecticut, where she has a tenancy
interest in her apartment. See Barrett Mem. of Law in Supp. of Mot. to Dismiss at 3-6
(“Barrett Mem. in Supp.”); Def. Savino’s Mem. of Law in Supp. of Mot. to Dismiss Pl.’s
Sec. Am. Compl. at 9 (“Savino Mem. in Supp.”). Nichairmhaic has no property interest
in her New York address because it is owned by her aunt and uncle. See Savino Aff. at
¶ 13, Ex. N (Doc. No. 46).
Furthermore, Nichairmhaic asserted her Connecticut residence to the
Connecticut Superior Court during the dissolution proceedings of her marriage to
defendant Savino. See Savino Mem. in Supp. at 8; Barrett Mem. in Supp. at 3. For
instance, Barrett contends that Nichairmhaic’s claims are contradicted by statements
she made in relation to the matrimonial litigation in the Connecticut Superior Court. See
Barrett Mem. in Supp. at 3. First, Barrett notes that the Connecticut Judicial Branch
website lists Nichairmhaic’s Connecticut address in the case detail for Savino v. Savino,
Docket No. HHD-FA11-4057497. Id. Second, Barrett highlights that Nichairmhaic has
sought unsuccessfully to relocate to New York with the minor child. Id. Third, Barrett
points to several statements Nichairmhaic made during the state court proceedings,
several of which were made under oath, which indicate that Nichairmhaic considered
her Connecticut address to be her primary address. Id. at 3-5. Nichairmhaic also
Def. Savino’s Mot. to Dismiss Pl.’s Second Am. Compl. (Doc. No 44). The defendants’ Motions to
Dismiss Nichairmhaic’s Second Amended Complaint are presently before the court.

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entered into a Marital Settlement Agreement with Defendant Savino, under which she
agreed to a shared parenting plan and to not remove the minor child from Hartford
County without an agreement or court order. See Savino Aff. at ¶ 6;3 Barrett Mem. in
Supp. at 4. Nichairmhaic and Savino’s Marital Settlement Agreement further requires
Nichairmhaic to undergo counseling with Wendy Habelow, Ph.D, whose office is located
in Avon, Connecticut. Barrett Mem. in Supp. at 4; Savino Aff. Ex. F at ¶ v (Doc. No. 46).
Defendants further point to other facts that indicate that Nichairmhaic is a citizen
of Connecticut, not New York. For instance, despite Nichairmhaic’s claim that she is
employed as an attorney in New York, financial affidavits dated March 2013 and
November 2013 state that she is not employed. See Savino Aff. at ¶ 4 ,9; Barrett Mem.
in Supp. at 5. Nichairmhaic is also affiliated with Atlantian Films, LLC, located in Avon,
Connecticut. See Savino Mem. in Supp. at 9; Barrett Mem. in Supp. at 5-6. Moreover,
contrary to Nichairmhaic’s assertion that she has not paid taxes in any state other than
New York, Sec. Am. Compl. at ¶ 3, Nichairmhaic filed a Connecticut state income tax
return dated March 21, 2011 and provided her Connecticut address on her federal joint
tax return, see Savino Mem. in Supp. at 10.

Savino also maintains that Nichairmhaic

owns a vehicle registered in Connecticut, Savino Aff. at ¶ 10,4 and submits a copy of a
check dated April 18, 2013 that lists Nichairmhaic’s Avon, Connecticut address, Savino
Aff. Ex. F (Doc. No. 46).

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Savino submitted a copy of the Marital Settlement Agreement dated March 25, 2013. See
Savino Aff. Ex. B (Doc. No. 46).
4

See also Savino Aff. Ex. M (Doc. No. 46).

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III.

STANDARD OF REVIEW
Under Federal Rule of Civil Procedure 12(b)(1), a case must be dismissed for

lack of subject matter jurisdiction “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). In determining whether to dismiss for lack of subject matter jurisdiction, “a
court must accept as true all material factual allegations in the complaint.” Shipping
Fin. Servs. Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir. 1998) (citing Scheuer v.
Rhodes, 416 U.S. 232, 236 (1974)). However, “jurisdiction must be shown affirmatively,
and that showing is not made by drawing from the pleadings inferences favorable to the
party asserting it.” Id. (citing Norton v. Larney, 266 U.S. 511, 515 (1925)). In assessing
a Rule 12(b)(1) motion, a court “may resolve the disputed jurisdictional fact issues by
referring to evidence outside of the pleadings, such as affidavits, and if necessary, hold
an evidentiary hearing.” Zappia Middle E. Const. Co. Ltd. v. Emirate of Abu Dhabi, 215
F.3d 247, 253 (2d Cir. 2000).
However, the court holds a pro se complaint “to less stringent standards than
formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007)
(citation and internal quotation marks omitted). Therefore, because Nichairmhaic
proceeds pro se, the court must construe the Complaint liberally and interpret
Nichairmhaic’s submissions “to raise the strongest arguments that they suggest.”
Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (emphasis in
original, citation and internal quotation marks omitted).
IV.

DISCUSSION
In the present case, the defendants’ Motions to Dismiss hinges on the resolution

of a jurisdictional issue of fact: whether Nichaimhaic is a citizen of New York or
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Connecticut. It is well settled that a federal court has diversity jurisdiction over an action
only where there is complete diversity between the parties. See Int'l Shipping Co., S.A.
v. Hydra Offshore, Inc., 875 F.2d 388, 391 (2d Cir. 1989). The parties do not dispute
that the defendants are citizens of Connecticut. Therefore, if Nichairmhaic is a citizen of
Connecticut, this action must be dismissed; however, if Nichairmhaic is a citizen of New
York, the court must deny the defendants’ Motions to Dismiss for lack of subject matter
jurisdiction.
For the purposes of diversity jurisdiction, “district courts shall not have original
jurisdiction . . . between citizens of a State and citizens or subjects of a foreign state
who are lawfully admitted for permanent residence in the United States and are
domiciled in the same State.” 28 U.S.C. § 1332(a)(2). The Second Circuit has defined
“domicile” as “‘the place where a person has his true fixed home and principal
establishment, and to which, whenever he is absent, he has the intention of returning.’”
Palazzo ex rel. Delmage v. Corio, 232 F.3d 38, 42 (2d Cir. 2000) (quoting Linardos v.
Fortuna, 157 F.3d 945, 948 (2d Cir.1998). Although a person may have more than one
residence, “[a]t any given time, a person has but one domicile.” Id.; see also Mississippi
Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 48 (1989).
Diversity is determined “at the time the action is commenced.” Linardos, 157
F.3d at 947. The party seeking to invoke the court’s diversity jurisdiction bears the
burden of proving by a preponderance of the evidence the existence of complete
diversity. McNutt v. Gen. Motors Acceptance Corp. of Indiana, 298 U.S. 178, 189
(1936). “‘That party must allege a proper basis for jurisdiction in his pleadings and must
support those allegations with “competent proof” if a party opposing jurisdiction properly

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challenges those allegations.’” Universal Licensing Corp. v. Paola del Lungo S.p.A.,
293 F.3d 579, 581 (2d Cir. 2002) (quoting Linardos, 157 F.3d at 947).
“Where, as here, there is evidence that the parties have more than one
residence, or the residence is unclear, the court should focus on the intent of the
parties.” Hicks v. Brophy, 839 F. Supp. 948, 950 (D. Conn. 1993) adhered to on
reconsideration, 841 F. Supp. 466 (D. Conn. 1994) (citing National Artists Management
Co., Inc. v. Weaving, 769 F.Supp. 1224, 1227 (S.D.N.Y.1991)). In determining a party’s
intent, a court “must examine the entire course of a person's conduct in order to draw
the necessary inferences as to the relevant intent.” Id. at 950-51 (internal citation and
quotation marks omitted). Although “‘[t]he party's own statements concerning his
intentions are relevant . . . they are of slight weight when they come into conflict with
other facts that tend to disclose a contrary intent.’” Id. at 951 (quoting National Artists,
769 F.Supp. at 1227–28).
In ascertaining intent, the court reviews the “‘totality of the evidence’” and
considers multiple factors. Id. While no single factor can conclusively establish a
party’s domicile, relevant factors include where the person is employed, exercises her
civil and political rights, pays personal taxes, maintains bank accounts, obtained a
driver’s license, and maintains real and personal property. Id. Additionally, the court
may consider “whether the person owns or rents his place of residence, how permanent
the residence appears, and the location of a person's physician, lawyer, accountant,
dentist, stockbroker, etc.” Id. (citing National Artists, 769 F.Supp. at 1228).
Nichairmhaic has failed to present evidence sufficient to demonstrate that her
domicile is in New York. While she alleges that she maintains her primary residence in

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New York, is employed as an attorney in New York, maintains a bank account in New
York, and pays income taxes in New York, see Sec. Am. Compl. at ¶¶ 2-5, she has
failed to support these factual allegations with “competent proof,” Universal Licensing,
293 F.3d at 581. The court notes that Nichairmhaic has failed to submit evidence that is
easily accessible to her in support of her claims, such as photocopies of a New York
lease agreement, income tax returns, pay stubs and W-2s, or bank account
information.5 Rather, she concedes that she maintains a vehicle and an apartment in
Connecticut.6 Opp’n to Mot. to Dismiss of Def. Savino at ¶ 5. Although Nichairmhaic
submits evidence that she is affiliated with a New York, non-profit organization,—i.e.
was involved in a fund-raising dinner—this factor alone is not compelling on the
question of domicile. See id. at ¶ 8; Opp’n to Mot. to Dismiss of Def. Savino Ex. D (Doc.
No. 50-4).
On the other hand, defendants have presented evidence of statements
Nichairmhaic made during the course of proceedings in the Connecticut Superior
Court,7 which contradict Nichairmhaic’s aforementioned claims that she was domiciled
in New York at the time this action commenced, on August 17, 2013. See generally,
Savino Mem. in Supp.; Savino Aff.; Barrett Mem. in Supp. The defendants have further

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Furthermore, Nichairmhaic does not even claim that her primary care physician is located in
New York or that she has a title interest and/or mortgage in her New York residence.
6

Although Savino was awarded full custody of the minor child in December 2013 and
Nichairmhaic contends that she only maintains a residence in Connecticut due to the shared parenting
plan, this is immaterial as to the question of Nichairmhaic’s domicile in this case because Savino and
Nichairmhaic had shared custody of the child when this action commenced in August 2013. See Sec.
Am. Compl. at ¶ 13.
7

Savino and Nichairmhaic entered into a Marital Settlement Agreement on March 25, 2013.
Savino Aff. at ¶ 5.

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demonstrated that Nichairmhaic is affiliated with a Connecticut organization, Savino
Mem. in Supp. at 9; Barrett Mem. in Supp. at 5-6; is required to attend counseling
sessions in Connecticut, Barrett Mem. in Supp. at 4; Savino Aff. Ex. F at ¶ v (Doc. No.
46); and does not have a property interest in her New York residence, see Savino Aff. at
¶ 13, Ex. N (Doc. No. 46). In light of the totality of the evidence presented, the court
concludes that Nichairmhaic has failed to show that her domicile is in New York, and
thus this court lacks diversity jurisdiction in this case.
V.

CONCLUSION
For the reasons set forth above, the court GRANTS defendants’ Motions to

Dismiss.
SO ORDERED.
Dated at New Haven, Connecticut this 19th day of May, 2014.

/s/ Janet C. Hall
Janet C. Hall
United States District Judge

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