Sekiguchi v. Long et al

Filing 11

ORDER (see attached) - In order to determine whether it has subject matter jurisdiction in this action, the Court hereby ORDERS Plaintiff to establish, by affidavit, both Plaintiff's own citizenship and the citizenship of all Defendants for div ersity purposes as of the date this action was commenced by the filing of Plaintiff's Complaint, i.e., August 23, 2013. Plaintiff shall file and serve such affidavit regarding citizenship on or before Wednesday, October 16, 2013. All case dead lines shall be stayed pending the Court's review of this affidavit. If, upon review, the Court determines that it possesses subject matter jurisdiction, the action may proceed. Otherwise, in the absence of such jurisdiction, the Court shall dismiss the action without prejudice. Signed by Judge Charles S. Haight, Jr. on 9/25/13.(Hornstein, A)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF CONNECTICUT
RAYMOND SEKIGUCHI,
Plaintiff,
v.

3:13-cv-01223 (CSH)

JOSEPH LONG, JOSHUA LONG, and
ROBERT POLLAK,
Defendants.

ORDER

HAIGHT, Senior District Judge:
I.

INTRODUCTION
Plaintiff Raymond Sekiguchi (hereinafter "Plaintiff") brings this action against Defendants

Joseph Long, Joshua Long, and Robert Pollak (hereinafter collectively "Defendants") alleging
"breach of fiduciary duty, negligence, negligent misrepresentations, unjust enrichment, and violations
[of] the Connecticut Unfair Trade Practices Act." [Doc. 1] at 1.
Plaintiff has asserted that this Court has subject matter jurisdiction based on diversity of
citizenship pursuant to 28 U.S.C. § 1332(a)(2), as "this is an action between citizens of the States
of New Jersey, California and Connecticut on the one hand and a resident of Japan on the other, and
the amount in controversy exceeds $75,000, exclusive of interest and costs." Id. at 2; see also, e.g.,
28 U.S.C. § 1332(a) (“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 ... (2) citizens of a State and citizens or subjects of a foreign state,” subject to specific

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exceptions.). As set forth below, however, Plaintiff has failed to allege sufficient facts to establish
that such diversity of citizenship exists. The Court therefore mandates confirmation of the
citizenship of all parties to this action.
II.

SUBJECT MATTER JURISDICTION
In general, if subject matter jurisdiction is lacking in an action before a court, the action must

be dismissed. Fed. R. Civ. P. 12(h)(3) ("If the court determines at any time that it lacks
subject-matter jurisdiction, the court must dismiss the action."). As the Second Circuit recently
noted, "[w]here jurisdiction is lacking, ... dismissal is mandatory." Lovejoy v. Watson, 475 F. App'x
792, 792 (2d Cir. 2012) (internal quotations and citation omitted).
Consequently a federal court must determine with certainty whether it has subject matter
jurisdiction over a case pending before it. If necessary, the court has an obligation to consider its
subject matter jurisdiction sua sponte. Joseph v. Leavitt, 465 F.3d 87, 89 (2d Cir.2006) (“Although
neither party has suggested that we lack appellate jurisdiction, we have an independent obligation
to consider the presence or absence of subject matter jurisdiction sua sponte.”), cert. denied, 549
U.S. 1282 (2007); see also, e.g., Univ. of South Alabama v. American Tobacco Co., 168 F.3d 405,
410 (11th Cir. 1999) (“a federal court is obligated to inquire into subject matter jurisdiction sua
sponte whenever it may be lacking”); Transatlantic Marine Claims Agency, Inc. v. Ace Shipping
Corp., 109 F.3d 105, 107-08 (2d Cir. 1997) (holding that district court may raise issue of subject
matter jurisdiction sua sponte at any time)). It is, in fact, "common ground that in our federal system
of limited jurisdiction any party or the court sua sponte, at any stage of the proceedings, may raise
the question of whether the court has subject matter jurisdiction; and, if it does not, dismissal is
mandatory." Manway Constr. Co. v. Housing Auth. of Hartford, 711 F.2d 501, 503 (2d Cir. 1983).
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In order for requisite diversity of citizenship to exist under 28 U.S.C. § 1332(a), a plaintiff's
citizenship must be diverse from the citizenship of all defendants to an action. See, e.g., St. Paul
Fire and Marine Ins. Co. v. Universal Builders Supply, 409 F.3d 73, 80 (2d Cir. 2005) ("Diversity
is not complete if any plaintiff is a citizen of the same state as any defendant.") (citing Owen
Equipment & Erection Co. v. Kroger, 437 U.S. 365, 373-74 (1978)). Such complete diversity "must
exist at the time the action is commenced," Universal Licensing Corp. v. Lungo, 293 F.3d 579, 581
(2d Cir. 2002) (emphasis added), which in the case at bar is August 23, 2013, the date on which
Plaintiff's Complaint was filed.
Plaintiff's statements concerning the citizenship of all Defendants, as well as Plaintiff's
statements concerning his own citizenship, fall short of demonstrating the Court's subject matter
jurisdiction. Plaintiff alleges that "Defendant Joseph Long is an individual and resident of New
Jersey," that "Defendant Joshua Long is an individual and resident of California," and that
"Defendant Robert Pollak is an individual and resident of Connecticut." [Doc. 1] at 2-3 (emphasis
added). Plaintiff also alleges that Plaintiff "is an individual who was at all relevant times residing
in and around Greenwich, Connecticut," but who "has subsequently relocated to Tokyo, Japan, where
he currently resides." Id. at 2 (emphasis added).
An individual's citizenship for diversity purposes, however, is determined by his or her
domicile, not his or her residence. See, e.g., Palazzo v. Corio, 232 F.3d 38, 42 (2d Cir. 2000).
Courts have "long ... held that a statement of residence, unlike domicile, tells the court only where
the parties are living and not of which state they are citizens." John Birch Soc. v. Nat'l Broadcasting
Co., 377 F.2d 194, 199 (2d Cir. 1967) (emphasis added). Thus it is "well-established that allegations
of residency alone cannot establish citizenship." Canedy v. Liberty Mut. Ins. Co., 126 F.3d 100, 1023

03 (2d Cir. 1997) (citing Leveraged Leasing Admin. Corp. v. PacifiCorp Capital, Inc., 87 F.3d 44,
47 (2d Cir. 1996)).
The differences between a domicile and a residence are straightforward. "In general, the
domicile of an individual is his true, fixed and permanent home and place of habitation," which is
to say, "the place to which, whenever he is absent, he has the intention of returning." Martinez v.
Bynum, 461 U.S. 321, 331 (1983); see also, e.g., Palazzo v. Corio, 232 F.3d at 42. In contrast, the
United States Supreme Court has described "residency" as occurring "when a person takes up his
abode in a given place, without any present intention to remove therefrom." Martinez v. Bynum, 461
U.S. at 331. A "residency," therefore, may be taken up for personal or business reasons and may be
either permanent or solely for a period of time. Id. The test for an individual's residency is thus
significantly less stringent than the "more rigorous domicile test." Id.
Given that "one can reside in one place but be domiciled in another," for jurisdictional
purposes, the term "'[d]omicile' is not necessarily synonymous with [the term] 'residence.'"
Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 48 (1989) (citations omitted).
Accordingly, while Plaintiff has alleged each party's residency, Plaintiff has not established any
party's citizenship at the time the action was commenced, i.e., August 23, 2013. For the reasons
explicated supra, a court may not and cannot simply infer the latter from the former. See, e.g.,
Realty Holding Co. v. Donaldson, 268 U.S. 398, 399 (1925). Accordingly, the citizenship of all
parties to this action must be confirmed.
III.

CONCLUSION
In order to determine whether it has subject matter jurisdiction in this action, the Court

hereby ORDERS Plaintiff to establish, by affidavit, both Plaintiff's own citizenship and the
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citizenship of all Defendants for diversity purposes as of the date this action was commenced by the
filing of Plaintiff's Complaint, i.e., August 23, 2013. Plaintiff shall file and serve such affidavit
regarding citizenship on or before Wednesday, October 16, 2013. All case deadlines shall be
stayed pending the Court’s review of this affidavit. If, upon review, the Court determines that it
possesses subject matter jurisdiction, the action may proceed. Otherwise, in the absence of such
jurisdiction, the Court shall dismiss the action without prejudice.
It is SO ORDERED.

Dated: New Haven, Connecticut
September 25, 2013
/s/ Charles S. Haight, Jr.
Charles S. Haight, Jr.
Senior United States District Judge

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