Bou-Assaly et al v. George P. Mann & Associates, P.C. et al

Filing 35

ORDER DISMISSING CASE for lack of subject matter jurisdiction Signed by District Judge George Caram Steeh. (MBea)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

WESSAM BOU-ASSALY,
and NANCY HAGE,
Plaintiffs,
Case No. 16-12159
vs.
HON. GEORGE CARAM STEEH
GEORGE P. MANN & ASSOCIATES, P.C.,
GEORGE P. MANN,
MARGOLIS LAW, P.C.,
and LAURENCE H. MARGOLIS,
Defendants.
___________________________________/
ORDER DISMISSING CASE FOR LACK
OF SUBJECT MATTER JURISDICTION
Plaintiffs filed this case in federal district court, asserting jurisdiction
under 28 U.S.C. § 1332(a)(2). The Court ordered plaintiffs to show cause
why the case should not be dismissed for lack of subject matter jurisdiction
given plaintiff Nancy Hage’s dual citizenship.
“Federal courts are courts of limited jurisdiction.” Kokkonen v.
Guardian Life Ins. Co. of America, 511 U.S. 375 (1994). The courts’
subject matter jurisdiction requirement limits it to hearing only those claims
which are authorized by the laws of its jurisdiction. See, e.g., 28 U.S.C. §§

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1331; 1332. “If a court determines at any time that it lacks subject-matter
jurisdiction, the court must dismiss the action.” Fed. R. Civ. P. 12(h)(3).
28 U.S.C. § 1332(a)(2) confers original jurisdiction over cases
between “citizens of a State and citizens or subjects of a foreign state”
where the amount in controversy exceeds $75,000. Id. The complete
diversity requirement, as articulated in Strawbridge v. Curtiss, 7 U.S. 267
(1806), applies to § 1332(a)(2). See e.g., Newman-Green, Inc. v. AlfonzoLarrain, 490 U.S. 826, 829 (1989); U.S. Motors v. General Motors Europe,
551 F.3d 420, 423 (6th Cir. 2008).
The parties here are not completely diverse. Plaintiff Wessam BouAssaly is a citizen of Lebanon and Canada. Plaintiff Hage is a citizen of
Lebanon and the United States of America. Both are currently domiciled in
the United Arab Emirates. All four defendants are citizens of the United
States of America domiciled in Michigan. Thus, Hage’s United States
citizenship destroys complete diversity.
Plaintiff relies on Aguirre v. Nagel, 270 F. Supp. 535 (E.D. Mich.
1967), for the proposition that a court may choose a dual citizen’s non
United States citizenship to satisfy diversity under § 1332(a)(2). In Aguirre,
a minor plaintiff with dual United States and Mexican citizenship sued a
United States citizen. Id. at 535. The Court recognized jurisdiction,
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determining that the plaintiff’s Mexican citizenship placed it within the literal
meaning of § 1332(a)(2). Id. at 536.
Plaintiff’s reliance on Aguirre is misguided. Aguirre has been heavily
criticized and several circuits have rejected its holding. Molinos Valle Del
Cibao, C. por A. v. Lama, 633 F.3d 1330, 1341 (11th Cir. 2011); Coury v.
Prot, 85 F.3d 244, 247-48 (5th Cir. 1996); Mutuelles Unies v. Kroll &
Linstrom, 957 F.2d 707, 711 (9th Cir. 1992); Action S.A. v. Marc Rich &
Co., Inc., 951 F.2d 504, 507 (2d Cir. 1991); Sadat v. Mertes, 615 F.2d
1176, 1187 (7th Cir. 1980). Aguirre is inconsistent with the complete
diversity requirement. These dual citizenship cases do not fall under the
statute’s intended purpose of providing “protective jurisdiction over matters
implicating international relations where the national interest was
paramount.” Sadat, 615 F.2d at 1182. Further, Aguirre gives dual citizens
an unfair advantage over solely United States citizens. Sadat v. Mertes,
464 F. Supp. 1311, 1313 (E.D. Wis. 1979), aff'd, 615 F.2d 1176 (7th Cir.
1980).
Federal courts approach questions of dual citizenship under §
1332(a)(2) by selecting one citizenship for the purpose of diversity rather
than applying multiple citizenships simultaneously. See e.g., Sadat, 615
F.2d at 1187. Ordinarily, “only the American nationality of the dual citizen
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should be recognized under 28 U.S.C. § 1332(a).” Id. However, a United
States citizen may assert that their foreign citizenship is dominant and must
be applied when analyzing diversity. Id. There is no singular test to
determine dominant citizenship. Courts have generally focused on the
status of a party’s citizenship, specifically whether the party is a naturalized
citizen and whether they have terminated or renounced their United States
citizenship. See e.g., id. at 1187-88.
Hage argues that her United States citizenship is not dominant. Her
argument fails. Hage is a naturalized citizen. Permitting naturalized
citizens “to use their prior nationality for purposes of diversity would be
incompatible with the oath they took upon becoming citizens, wherein they
renounced allegiance to foreign states or sovereignties.” Liakakos v.
CIGNA Corp., 704 F. Supp. 583, 585 (E.D. Pa. 1988). There is no
evidence that Hage has renounced or terminated her United States
citizenship. Further, contrary to her counsel’s allegations, there is no
evidence that Hage is legally “precluded from returning to and living in the
United States.” (Doc. 28: Plaintiffs’ Response to Court’s Show Cause
Order, at 7). Plaintiffs’ allege that Bou-Assaly is currently “an alien who no
longer holds a green card and has been deemed inadmissible in the United

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States.” (Doc. 1: Complaint, at 24). But Bou-Assaly’s status does not
impact Hage’s citizenship or her ability to return to the United States.
For the reasons stated above, the Court finds that Hage’s dual
citizenship bars subject matter jurisdiction under § 1332(a)(2). Additionally,
that Court finds that Hage’s domicile in the United Arab Emirates makes
her a stateless citizen, barring jurisdiction under §§ 1332(a)(1) and
1332(a)(3). Newman-Green, Inc., 490 U.S. at 826 (“In order to be a citizen
of a State within the meaning of the diversity statute, a natural person must
both be a citizen of the United States and be domiciled within the State.”).
The Complaint includes three counts. The relief sought in each count
specifically states that “Plaintiffs [Bou-Assaly and Hage] demand judgment
against Defendants in the amount to which they are entitled.” (Doc. 1;
Complaint, at 26, 29) (emphasis added). Therefore, Hage’s status as a
stateless, dual citizen bars subject matter jurisdiction on every count in this
case, and in accordance with Fed. R. Civ. P. 12(h)(3),
IT IS ORDERED that this case is dismissed without prejudice.
In addition to their show cause response, plaintiffs filed a Motion for
Leave to File Amended Complaint, seeking leave to “delete Ms. Hage as a
party to proceed only with Plaintiff Wessam Bou-Assaly’s malpractice
claims.” (Doc. 29 at 2). The Court does not have subject matter jurisdiction
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over this case permitting it to entertain this motion, so it shall be dismissed
as moot. Madison-Hughes v. Shalala, 80 F.3d 1121, 1131 (6th Cir. 1996)
(“Because the district court properly dismissed the case for lack of subject
matter jurisdiction, it also acted properly in dismissing these motions [to
amend and supplement the original complaint] as moot.”).
IT IS SO ORDERED.
Dated: January 3, 2017
s/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE

CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
January 3, 2017, by electronic and/or ordinary mail.
s/Marcia Beauchemin
Deputy Clerk

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