Reviakine v. Medkinov

Filing 29

ORDER denying 19 Motion to Remand to State Court. For the reasons stated in the attached memorandum and order the court denies plaintiffs motion to remand this action. Ordered by Judge Kiyo A. Matsumoto on 4/29/2016. (Fletcher, Camille)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------- X
Valentin Reviakine,
Plaintiff,
MEMORANDUM AND ORDER
15-CV-00227(KAM)

-againstVadim Mednikov,
Defendants.
--------------------------------------X
MATSUMOTO, United States District Judge:

Plaintiff Valentin Reviakine commenced this action
against defendant, Vadim Medkinov on October 21, 2014 in the
Supreme Court of New York, Kings County.

The action was removed

to this court, by defendant, on January 15, 2015.

Presently

before the court is plaintiff’s motion to remand these
proceedings to the Supreme Court of New York, Kings County based
on a lack of diversity jurisdiction.
For the reasons stated herein, plaintiff’s motion to
remand is denied.
BACKGROUND
Plaintiff alleges that he was hired by defendant as a
day laborer to paint the interior and exterior of defendant’s
house located in Greentown, Pennsylvania (the “Pennsylvania

Home”). 1

While painting the interior of the Pennsylvania Home,

plaintiff fell from a ladder and fractured his right leg.
Plaintiff filed this action in the Supreme Court of New York,
Kings County on October 21, 2014, alleging, among other things,
violations of labor safety laws and general negligence.
Defendant removed the action to this court based on diversity
jurisdiction on January 15, 2015.

Plaintiff moves to remand

this action to the Supreme Court of New York, Kings County based
on a lack of diversity jurisdiction.

Defendant contends that

diversity jurisdiction is proper because he has been domiciled
in Pennsylvania since 2006 and at all relevant times.

Defendant

appeared at a deposition on October 20, 2015 and has submitted
various documents supporting his claim of domicile in
Pennsylvania.
DISCUSSION
I.

Legal Standard
“The general rule is when, as in this case, diversity

is the sole basis for asserting removal jurisdiction, diversity
must exist both at the time the original action is filed in

1
The facts herein are taken from the Complaint, ECF No. 1-2, and the papers,
including the exhibits, submitted by the parties in support of the instant
motion. See ECF Nos. 19-21. “When determining whether subject matter
jurisdiction exists, the district court may examine evidence outside the
pleadings.” Dukes ex rel. Dukes v. New York City Employees' Ret. Sys., & Bd.
of Trustees, 581 F. App'x 81, 82 (2d Cir. 2014) (citing Makarova v. United
States, 201 F.3d 110, 113 (2d Cir. 2000)).

2

state court and at the time removal is sought to federal court.”
Adrian Family Partners I, L.P. v. ExxonMobil Corp., 79 F. App'x
489, 491 (2d Cir. 2003); see also United Food & Commercial
Workers Union, Local 919 v. CenterMark Properties Meriden
Square, Inc., 30 F.3d 298, 301 (2d Cir. 1994).

Where, as here,

jurisdictional facts are challenged, the party asserting
jurisdiction must support those facts with “competent proof” and
“justify its allegations by a preponderance of evidence.” Id. at
305(citations omitted); see also Linardos v. Fortuna, 157 F.3d
945, 947 (2d Cir. 1998).

Mere allegations of residency in a

state cannot establish citizenship.

See Canedy v. Liberty Mut.

Ins. Co., 126 F.3d 100, 103 (2d Cir. 1997).
“For purposes of diversity jurisdiction, a party’s
citizenship depends on his domicile.

Domicile has been

described 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.’” Linardos, 157 F.3d
at 948 (citations omitted). “It is possible to reside at one
place and be domiciled at another.”

Young v. Century House

Historical Soc’y, 117 F. Supp. 2d 277, 280 (N.D.N.Y. 2000)
(citing Mississippi Band of Choctaw Indians v. Holyfield, 490
U.S. 30, 47, 109 S.Ct. 1597, 104 L.Ed.2d 29 (1989)).

“In

addition, ‘[a] party may have multiple residences, but only one

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domicile.’” Id. (citing Connolly v. Spielman, 999 F. Supp. 270,
273 (N.D.N.Y. 1998)); see also National Artists Management Co.
v. Weaving, 769 F. Supp. 1224, 1227 (S.D.N.Y. 1991).
The factors to be considered in determining domicile
include but are not limited to: location of spouse and family;
voting registration; payment of taxes; location of real and
personal property (like furniture and automobiles); driver’s
license; location of bank account; place of employment; current
residence; and location of a person’s physician. Weaving, 769 F.
Supp. at 1228; see also Tevdorachvili v. Chase Manhattan Bank,
103 F. Supp. 2d 632, 637 (E.D.N.Y. 2000) (listing as relevant
factors: “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 . . .”); 13E Charles Alan
Wright et al., Federal Practice and Procedure § 3612 (3d ed.
2016).

“No single factor is dispositive.”

2d at 280.
examined.

Young, 117 F. Supp.

“Rather, the ‘totality of the evidence’ must be
Id. at 280-81(citing Weaving, 769 F. Supp. at 1228).
Here, defendant asserts, and has presented a bevy of

competent evidence establishing, that his domicile has been in

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Pennsylvania as early as 2006 and at all relevant times, in
October 2014 when this action was filed in the Supreme Court of
the State of New York and in January 2015 when the action was
removed to this court. 2
II.

Defendant was Domiciled in Pennsylvania at the Relevant
Times
Defendant has presented sufficient evidence

establishing that he was domiciled in Pennsylvania at the
relevant times.

Facts establishing that defendant was and

continues to be domiciled in Pennsylvania are as follows:
•

Defendant has stated, under oath, that he and his wife
bought the Pennsylvania Home, a single family residence,
in 2005 and they began living there in 2006; since moving
to Pennsylvania, defendant usually spends one to three
days per week in New York but never stays an entire week.

•

Defendant has presented a tax bill showing he owed
Pennsylvania school taxes as of August 1, 2014.

•

Defendant submitted his and his wife’s joint Pennsylvania

2 Plaintiff argues that defendant is asserting a change in domicile; plaintiff
is mistaken. Upon review of defendant’s removal papers (ECF No. 1) and the
opposition (ECF No. 20) to the present motion, the court finds no such
assertion. Further, in this posture of the case, defendant has the “burden
of persuasion,” as the party asserting diversity jurisdiction, of
“establishing specific initial domicile[] that support[s] the existence of
diversity jurisdiction.” Herrick Co. v. SCS Commc'ns, Inc., 251 F.3d 315, 324
(2d Cir. 2001). The defendant maintains that he was domiciled in
Pennsylvania at the relevant times in October 2014 when this action was filed
and in January 2015 when the action was removed, and has presented sufficient
evidence, clear and convincing evidence in fact, to support this assertion.

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state and federal income tax returns that list the
address of the Pennsylvania Home, for years 2010, 2011,
2012, 2013.
•

Defendant submitted his Pennsylvania driver’s license
which was issued in 2013 and lists the same Pennsylvania
Home address as the tax returns.

•

Defendant submitted certificates of insurance, vehicle
registrations 3 and invoices showing that he and his wife
have three motor vehicles that are registered, insured,
and maintained in Pennsylvania.

•

Defendant submitted a Certificate of Voter Registration
that shows he registered to vote in Pennsylvania in June
2006, and that as of 2015 he was still a Pennsylvania
voter.

Defendant has also stated under oath that he

voted in the 2008 and 2012 presidential elections in
Pennsylvania.
•

Defendant states that he conducts his personal banking in
Pennsylvania.

•

Defendant reported on his federal tax returns in 2010,
2011 and 2013 that he owned rental property in Brooklyn,
New York (the “East 29th Street Property”). Defendant

3

The registration for two of the vehicles were valid as of, or prior to, the
day this action was filed.

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maintains that he began renting out the East 29th Street
Property in 2006 when he and his wife moved into the
Pennsylvania Home.

He sold the East 29th Street Property

in the spring of 2013, prior to the relevant events in
October 2014 when plaintiff commenced the action and in
January 2015 when defendant removed the action to this
court.
Other courts have found parties with comparable fact
patterns to be domiciliaries in the states where they reside.
In Young, the court found that the party was domiciled in New
York even though he worked and spent the majority of his time in
New Jersey; the party also rented an apartment and saw doctors
and a physical therapist in New Jersey.
at 281-82.

Young, 117 F. Supp. 2d

Notwithstanding these facts, the court found that

the party’s domicile was in New York, where he resided on most
weekends.

The court noted that because most doctors only work

on weekdays, it is reasonable for a party to seek such services
near his employment in New Jersey.

Id. at 282.

Further when

determining that the domicile was in New York and not New
Jersey, the court found the following factors to be indicative
of a permanent residence: the party’s vehicle registration and
license were both in New York, the party was registered to vote
in New York, received mail in New York and the party used his

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New York address on his important records.

Id.

Here, defendant has presented an even more compelling
case for finding that he is domiciled in Pennsylvania, where he
resides, than the one presented in Young.

Beginning in 2006 and

at the relevant times, Plaintiff’s has owned and resided at the
Pennsylvania Home with his wife.

He has a Pennsylvania driver’s

license and he and his wife’s three vehicles are registered,
insured, and maintained in Pennsylvania.
registered, and has voted in Pennsylvania.

Defendant is
Further, defendant

uses the address of the Pennsylvania Home address on his
important records, such as his tax return and his driver’s
license.
Plaintiff contends that defendant uses healthcare and
financial services in New York which show that defendant is
domiciled in New York.

As discussed in Young, that a party sees

doctors and maintains business accounts in a particular state is
not dispositive.

It is not unusual for people to see doctors or

maintain business accounts with institutions near their place of
business.

See Young, 117 F. Supp. 2d at 282.
Plaintiff also contends, and defendant admits, that

defendant spends some nights in New York at rental properties to
accommodate his business dealings.

Plaintiff further points to

another property that defendant owns in New York, a house

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purchased in 2014 (the “Irwin Street Property”) that is
presently under renovation.

These facts are not dispositive,

however.
Courts have routinely found that spending significant
amounts of time in a state for work related purposes is not
sufficient to establish domicile.

See Sadesky v. Liberty

Chevrolet, Inc., No. 04-CV-1894 (KMK), 2005 WL 1026326, at *3
(S.D.N.Y. May 3, 2005) (holding that party was domiciled in New
Jersey even though party worked and resided in New York during
the workweek); Young, 117 F. Supp. 2d at 282 (finding that the
party was domiciled in New York, where he spent his weekends,
even though he spent the workweek in New Jersey).

Defendant

spends less time, on average one to three days per week, in New
York for work related purposes than the parties in Sadesky and
Young.

Further, that the defendant rents an apartment and an

office to conduct business in New York is not necessarily
sufficient to establish his domicile in New York.

See Sedasky,

2005 WL 1026326, at *3 (court found party was domiciled in New
Jersey where party’s workweek residence and other connections to
New York were a necessary accommodation for his employment);
Young, 117 F. Supp. 2d at 282 (finding domicile in New York
where plaintiff worked and resided at “his [rented] apartment in
New Jersey [during the workweek] and then returned to his

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condominium in New York on weekends”).
Moreover, the Irwin Street Property in New York is
under renovation and was uninhabitable at the relevant times;
therefore defendant did not and could not reside there.

See

Hicks v. Brophy, 839 F. Supp. 948, 952 (D. Conn. 1993) (finding
it “difficult to imagine how the [party] could, at that time,
maintain their domicile in [a] state” where their property was
“apparently uninhabitable”).

Defendant’s visits and other

connections to New York are primarily related to his business
dealings, consequently they are insufficient to establish
domicile.
The other objective indicia, as detailed above, point
decidedly in favor of finding that Pennsylvania has been
defendant’s domicile since 2006, and thus at the relevant times.
Of particular note is that defendant has stated, under oath,
that he resides with his wife in Pennsylvania and her vehicle is
registered and insured in Pennsylvania and he also submitted
evidence showing that he and his wife pay federal and state
income taxes in Pennsylvania.

These facts are given

considerable weight in finding that defendant is domiciled in
Pennsylvania.

Weaving, 769 F. Supp. at 1228 (“[T]he residence

of a married person’s spouse . . . is given considerable weight”
when determining domicile.).

“Home is the place where a person

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dwells and which is the center of his domestic, social and civil
life.”

Id. at 1227 (citations and quotations omitted); see also

Ming Li v. Colonial BT, LLC, No. 3:14-CV-999 CSH, 2014 WL
3579469, at *4 (D. Conn. July 21, 2014) (same).

Defendant’s

home is in Pennsylvania; he has established that his domestic
and civic life are centered there.
Accordingly, the court finds that defendant has
presented “sufficient credible evidence to establish” that he
resided in, and manifested intent to remain in, Pennsylvania
indefinitely, at the relevant times in October 2014 and January
2015.

Linardos, 157 F.3d at 948.

Consequently, the court finds

that defendant was domiciled in Pennsylvania and diversity
jurisdiction was proper when this action was instituted and upon
removal to this court.
CONCLUSION
For the foregoing reasons, the court denies
plaintiff’s motion to remand this action.

SO ORDERED.
Dated:

April 29, 2016
Brooklyn, New York

_____________/s/_____________
Kiyo A. Matsumoto
United States District Judge

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