BEN-HAIM v. NEW ISRAEL FUND et al

Filing 25

OPINION. Signed by Chief Judge Jose L. Linares on 7/20/17. (DD, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT Of NEW JERSEY

SHARON S. BEN-HAIM et ano.,
Plaintiff,

Civil Action No.: 17-2194 (JLL)

and

OPINION

NEW ISRAEL FUND et at’.,
Defendants.

LINARES, Chief District Judge.

This matter comes before the Court by way of Plaintiff Sharon S. Ben-Haim’s Notice of
Motion to Remand to State Court. (ECF No. 13 (“P1. Mov. Br.”)). Defendants Ohr Torah Stone,
Yad Lisha, Zvia Moskowitz, New Israel Fund (“NIF”), Mavoi Saturn, and Batya Kahana-Dror
have Opposed Plaintiffs Motion, (ECF Nos. 17, 22). The Court has considered the parties’
submissions and decides this matter without oral argument pursuant to Rule 78 of the Federal
Rules of Civil Procedure. For the reasons set forth below, the Court grants Plaintiffs Motion to
Remand.
I.

BACKGROUND’

On February 23, 2017, Plaintiff filed the subject Complaint in the Superior Court of New
Jersey

naming

Defendants NIF, Mavoi Saturn, Batya Kahana-Dror, Ohr Torah Stone, Yad Lisha,

and Zvia Moskowitz. (ECF No. 1-1 (“Compl.”) at

¶J 3-9).

Plaintiff currently resides in the State

of New Jersey (Cornpl. at ¶ 1) and is a citizen of the United States (P1. Mov. Br. at 3). Defendant

This Background is derived from Plaintiffs Complaint, which the Court must accept as true at this stage of the
proceedings. SeeAlston i Coitntiywide Fin. Corp., 585 F.3d 753, 758 (3d Cir. 2009).

NIF is a California non-profit organization with offices in New York City. (Compi. at

¶

(Compi. at

Next, Defendant Ohr Torah Stone is a New York non-profit organization.

3-4).

¶

7).

Defendants Mavoi Saturn and Yad Lisha are both Israeli non-profit organizations (Compi. at ¶ 5,
8), and Defendants Batya Kahana-Dror and Zvia Moskowitz are citizens of Israel (Compi. at ¶ 69).
Plaintiff alleges that Defendants aided Plaintiffs ex-wife, Oshrat Abergel, in the abduction
of Plaintiffs child, Ofir Ben-Haim. (See Compi. at ¶ 26). Hence, Plaintiff brought this four count
complaint alleging Defendants committed: 1) intentional inference with custody, 2) defamation
and libel, 3) intentional infliction of emotional distress, and 4) civil conspiracy. (See Compl. at ¶J
52-84).
On March 31, 2017, Defendants removed the matter to this Court pursuant to 28 U.S.C.
1441 and 1446, claiming that this Court has jurisdiction pursuant to 28 U.S.C.

§

1332. (See ECF

No. 1 at 1-3). Defendants aver that the parties satisfy complete diversity under 28 U.S.C.
because “Plaintiff is a resident of New Jersey and

...

§

§

1332

none of the defendants are incorporated in

New Jersey, have their principal place of business in New Jersey, or reside in New Jersey.” (Id.
at 4). On April 24, 2017, Plaintiff filed the instant Motion to Remand this matter to the Superior
Court of New Jersey, Bergen County, Law Division. (P1. Mov. Br.). Plaintiff argues that removal
to this Court was improper because complete diversity is lacking since Plaintiff is a citizen of Israel
and Defendants Batya Kahana-Dror, Zvia Moskowitz, Mavoi Saturn, and Yad Lisha are either
citizens of Israel or Israeli non-profit organizations. (P1. Mov. Br. at 3-4). On May 4, 2017,
Defendants Zvia Moskowitz, Ohr Torah Stone, and Yad Lisha opposed the Motion to Remand

arguing that Plaintiff is a dual citizen of both the United States and Israel. (See ECF No. 17 at 2).
Therefore. Defendants assert that Plaintiff “is considered a Citizen of the State in which he is

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domiciled for purposes of diversity.” (Id.). Defendants NIF, Mavoi Saturn, and Batya Kahana
Dror have yet to file oppositions to the Motion to Remand.
II.

LEGAL STANDARD

A federal court is a court of limited jurisdiction whose power to hear a case must be
“authorized by Constitution and statute

.

.

.

.“

Kokkonen v. Guardian Ltfe Ins. Co. ofAm., 511

U.S. 375, 377 (1994). There is a presumption against this limited grant of jurisdiction. See id.

Moreover, a party asserting jurisdiction has the burden of establishing it. See Id. A party may
assert federal question jurisdiction or diversity jurisdiction. See 28 U.S.C.

§ 133 1-1332. No

federal question jurisdiction is being asserted by Plaintiff. Accordingly, the below analysis will
focus strictly on diversity jurisdiction.
Diversity jurisdiction under 2$ U.S.C.

§ 1332(a) grants the federal courts jurisdiction over

claims that exceed $75,000 and are between
(1) citizens of different States;
(2) citizens of a State and citizens or subjects of a foreign state, except that the
district courts shall not have original jurisdiction under this subsection of an action
between citizens of a State and citizens or subjects of a foreign state who are
lawfttlly admitted for permanent residence in the United States and are domiciled
in the same State;
(3) citizens of different States and in which citizens or subjects of a foreign state
are additional parties; and
(4) a foreign state, defined in section 1603(a) of this title, as plaintiff and citizens
of a State or of different States.
28 U.S.C.

§ 1332(a). A citizen of a State must “both be a citizen of the United States and be

domiciled within the State.” Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826. 828 (1989)
(emphasis in original). Typically, a citizen of the United States is one who is “born in the United
States, and subject to the jurisdiction thereofl,]” $ U.S.C.

§ 1401, or is one who applies for and is

granted citizenship through the Attorney General of the United States. See $ U.S.C.

§ 1421. If a

party holds dual citizenship, the court may only consider the party’s United States citizenship when

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determining diversity jurisdiction. See frett-Smith v. Vanterpool, 511 F.3d 396, 400 (3d Cir.
2008). “[Djornicile is established by an objective physical presence in the state or territory coupled
with a subjective intention to remain there indefinitely.” Washington v. Hovensa LLC, 652 F.3d
340, 344 (3d Cir. 2011).
Jurisdiction under 28 U.S.C.

§ 1332(a)(1) requires the parties to have complete diversity.

C.T Carden v. Arkoma Assocs, 494 U.S. 185, 187 (1990). “[T]hat is, no plaintiff can be a citizen
of the same state as any of the defendants.” Grand Union Supermarkets ofthe Virgen Islands, Inc.
v. HE. Lockhart Mgmt., Inc., 316 F.3d 408, 410 (3d

cir. 2003). Likewise, 28 U.S.C. § 1332(a)(2)

requires complete diversity of citizenship and prohibits this Court from hearing a matter where the
plaintiff and defendant are both citizens of a foreign state.

See Dresser Inthtstries, Inc. v.

Underwriters at Lloyd’s ofLondon, 106 f.3d 494, 498-99 (3d Cir. 1997). However, 28 U.S.C.

§

1 332(a)(3) does not require complete diversity between parties that are citizens of foreign states
so long as there is complete diversity between the parties that are citizens of different States. See
id. at 499.
III.

ANALYSIS

It is undisputed that four of the six Defendants are either citizens of Israel or Israeli non
profit organizations. Therefore, as noted above, since this matter involves citizens of a foreign
state, 28 U.S.C.

§ 1332(a)(1) is inapplicable. Moreover, 28 U.S.C. § 1332(a)(4) is inapplicable

because Plaintiff is not a foreign state as defined under 28 U.S.C.

§ 1603(a). Thus, the question

herein is whether this Court has diversity jurisdiction under 28 U.S.C.
Plaintiff is a citizen of a domestic State, then 28 U.S.C.

§‘

1332(a)(2) or (a)(3). If

§ 1332(a)(3) provides this Court with

subject matter jurisdiction. However, if Plaintiff is not a citizen of a domestic State, then this

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Court does not have diversity jurisdiction because the complete diversity requirement of 2$ U.S.C.

§ 1332(a)(2) is broken.
Defendants concede that Plaintiff is a citizen of Israel, but argue that he is also a dual citizen
of the United States, and, as such, this Court has subject matter jurisdiction under 2$ U.S.C.

§

1332. (See ECF No. 17 at 2; ECF No. 22 at 4-5). Defendants’ basis for this argument is that
Plaintiff has not explicitly denied being a citizen of the United States, has alleged in a previous
case that he is an “American,” and alleges now that he is residing in New Jersey. (See id.). These
three arguments may suffice to establish that Plaintiff is a resident of New Jersey, but fail to
establish that Plaintiff is a citizen of the United States. Defendants must establish both. See
Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. $26, $28 (1989).
Moreover, this Court and the Honorable Esther $alas, U.S.D.J., have both previously
dismissed the premise that Plaintiff is a dual citizen of Israel and the United States. In Ben-Haim
v. Edri, this Court remanded the action to the Superior Court of New Jersey for lack of subject
matter jurisdiction concluding it was without subject matter jurisdiction. See Ben-Haim v. Edri,
Civ. No. 15-3877, at 4 (D.N.J. Oct. 1,2015) (Linares, J.). Additionally, inBen-Haim v. Avraham,
Judge S alas dismissed the action for lack of subject matter jurisdiction finding that Plaintiff was
not a citizen of the United States. See Ben-Haim v. Avraham, Civ. No. 15-6669, at 7 (D.N.J. Sept.
6,2016) (Salas, J.) (“Plaintiffis deemed not to be a citizen ofa State, and this Court does not have
subject matter jurisdiction over this action under 28 U.S.C.

§ 1332(a)(2).”) (emphasis added).

Here, Defendants fail to persuade this Court to a contrary finding. Rather than submit
proof to this Court that Plaintiff is a citizen of the United States, Defendants merely present same
through argument of counsel, and thereby do not meet their burden of proof. See Kokkonen, 511
U.S. 375 at 377. Hence, this Court cannot conclude that Plaintiff is a citizen of the United States

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without further proof. Thus, 28 U.S.C.

§ 1332(a)(3) does not provide this court with diversity

jurisdiction because this action is between citizens of a foreign state. Moreover, complete diversity
is broken rendering 2$ U.S.C.

§ 1332(a)(2), likewise, inapplicable. See Dresser Indits., 106 F.3d

at 498-99. Accordingly, the Court is without subject matter jurisdiction and this action must be
remanded.
The Court declines to rule on the merits of Defendants’ Motions to Dismiss (ECF Nos. 10,
16) as it is without subject matter jurisdiction to do so.
IV.

CONCLUSION

For the reasons set forth above, Plaintiffs Motion to Remand is hereby granted. An
appropriate Order accompanies this Opinion.

DATED: July 2017
J9ES
Judge, United States District Court

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