Popal v. Slovis

Filing 41

REPORT AND RECOMMENDATION TO THE HONORABLE LORNA G. SCHOFIELD: re 34 FIRST MOTION to Dismiss for Lack of Jurisdiction. filed by Harvey J. Slovis For the foregoing reasons, Slovis motion to dismiss should be denied. Any requests for an extension of time for filing objections must be directed to Judge Schofield. The failure to file these timely objections will result in a waiver of those objections for purposes of appeal. See 28 U.S.C. section 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b); Thomas v. Arn 474 U.S 140(1985) Objections to R&R due by 4/15/2013. (Signed by Magistrate Judge Frank Maas on 3/27/2013) Copies Sent By Chambers (djc) Modified on 3/27/2013 (djc).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-----------------------------------------------------------x
FARID POPAL,

:
Plaintiff,

USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: 3/27/2013

:

-against-

:

HARVEY J. SLOVIS,

:

REPORT AND
RECOMMENDATION TO
THE HONORABLE
LORNA G. SCHOFIELD

:

12 Civ. 3916 (LGS) (FM)

Defendant.

----------------------------------------------------------x
FRANK MAAS, United States Magistrate Judge.
On August 2, 2002, Farid Popal (“Popal”) was arrested in Freemont,
California and extradited to New York, where he was charged with the 1999 murder of
Samiya Haqiqi (“Haqiqi”). Following a trial, Popal was convicted of Murder in the
Second Degree, among other charges, and sentenced to twenty-five years to life. He is
currently serving that sentence at the Wende Correctional Facility in Erie County, New
York.
Popal’s counsel in the criminal case was Harvey Slovis, Esq. (“Slovis”).
On March 23, 2012, Popal filed this pro se diversity suit against Slovis. (ECF No. 1). In
his amended complaint, Popal alleges, inter alia, that Slovis quoted him a $50,000 flat fee
for a six-week trial, but failed to return any portion of that fee although the trial lasted
only twenty days. (ECF No. 33 (“Amended Complaint” or “Am. Compl.”)). Popal also
alleges impropriety related to Slovis’ handling of certain bail release funds. (See id.).
The Amended Complaint contains claims charging Slovis with breach of contract,

misrepresentation, undue influence, and breach of fiduciary duty, and seeks damages in
excess of $75,000. A similar suit previously was pending in state court.
Slovis now has moved to dismiss this action for want of subject matter
jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. (ECF No.
34). For the reasons explained below, the motion should be denied.
I.

Background
Popal moved from Afghanistan to the United States in 1989. (ECF No. 36

(Aff. of Francis Karam, Esq., sworn to on Jan. 15, 2013 (“Karam Aff.”), Ex. 10 (“Popal
Dep.”) at 14-15)). From 1989 to 2000, he resided in New York while working in an auto
mechanic shop. (Id. at 15). In July 1999, Popal began dating Haqiqi. (Karam Aff., Ex. 8
at 7). On November 12, 1999, Haqiqi disappeared after apparently having ended her
relationship with Popal earlier that evening. (Id. at 2). When investigators called Popal
on November 15, he stated that he was “apartment hunting,” but would voluntarily come
to the station for questioning. (Id.). Two days later, Popal contacted the police to report
that his car had been stolen. (Id. at 8). Two days after that, Popal was arrested for filing a
false report for a stolen vehicle. (Karam Aff., Ex. 9 at 3-4). He was questioned again
about Haqiqi’s disappearance but apparently was not detained.1 (Id.).

1

At trial, the prosecution introduced evidence that Popal had murdered Haqiqi,
incinerated her body at the auto shop, and disposed of other evidence, including his car. (See id.
at 2-3). Popal continues to deny any involvement in Haqiqi’s disappearance. (Popal Dep. at 16).
2

Early in 2000, Popal left New York to stay with family members in Canada.
(Popal Dep. at 15-16). In March or April 2000, he moved to California, after accepting a
job as a transmission rebuilder in San Jose. (Id. at 16). Popal’s father accompanied him
to California, where Popal claims the “rest of [his] family” had been living “for decades.”
(Id. at 42). In California, Popal stayed “at a friend’s house,” but later that year moved to
Nevada, where he obtained a driver’s license. (Id. at 18-19, 30). A few months later,
Popal returned to California and opened “Gear to Gear Transmissions,” an auto shop that
he operated in partnership with his father. (Id. at 19). The tax returns for that business
state that it started on January 1, 2002. (Karam Aff., Exs. 3-4). Popal also opened a bank
account in his name and obtained a California driver’s license that listed an address in
Concord, California. (Karam Aff., Ex. 2; Popal Dep. at 22). At some point, Popal
married a woman named Estorei in a religious ceremony, although the two were never
legally married. (Popal Dep. at 30, 33). Popal remained in California until his arrest in
August 2002. (Id. at 16; Karam Aff., Ex. 8 at 3).
II.

Legal Standard
Under Rule 12(b)(1), a court must dismiss a complaint if it lacks subject

matter jurisdiction over the claims asserted. In resolving the issue of subject matter
jurisdiction, a court is not limited to the face of the complaint and may consider evidence
outside the pleadings. Phifer v. City of N.Y., 289 F.3d 49, 55 (2d Cir. 2002). The
plaintiff has the burden of proving by a preponderance of the evidence that subject matter
jurisdiction exists. Id. (citing Makarova v. United States, 201 F.3d 110, 113 (2d Cir.
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2000); Shipping Fin. Servs. Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir. 1998)
(“jurisdiction must be shown affirmatively, and that showing is not made by drawing
from the pleadings inferences favorable to the party asserting it”)).
III.

Analysis
A.

Diversity Jurisdiction
Slovis argues that the Court lacks jurisdiction to hear Popal’s claims

because there is no diversity of citizenship between the parties. (See ECF No. 35 (Def.’s
Mem. of Law in Supp. of Def.’s Mot. to Dismiss) (“Def.’s Mem.”) at 3-10).
Federal courts are empowered to hear actions brought between “citizens of
different states” provided that the amount in controversy exceeds $75,000. 28 U.S.C.
§ 1332(a)(1). Citizenship is determined at the time a suit is filed. Linardos v. Fortuna,
157 F.3d 945, 947 (2d Cir. 1998). “An individual’s citizenship . . . is determined by his
domicile,” which is “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) (internal quotation
marks and citations omitted). A prisoner, even when incarcerated elsewhere, generally
retains his pre-incarceration domicile. Braten v. Kaplan, No. 07 Civ. 8498 (HB), 2009
WL 614657, at * 3 (S.D.N.Y. Mar. 10, 2009).
“A person’s domicile, once established, is presumed to continue absent
evidence that it has been changed.” Gutierrez v. Fox, 141 F.3d 425, 427 (2d Cir. 1998).
A party seeking to establish a change in his domicile must prove that change by clear and
4

convincing evidence. Bank of India v. Subramanian, No. 06 Civ. 2026 (WHP), 2007 WL
1424668, at *3 (S.D.N.Y. May 15, 2007) (citing Palazzo, 232 F.3d at 42). Factors that
may be considered in that determination include the party’s “current residence, voting
registration, driver’s license and automobile registration, location of brokerage and bank
accounts, membership in fraternal organizations, churches, and other associations, places
of employment or business, and payment of taxes.” Kennedy v. Trustees of the
Testamentary Trust of the Last Will and Testament of President John F. Kennedy, 633 F.
Supp. 2d 77, 81 (S.D.N.Y. 2009) (citations omitted).
The evidence in this case conclusively demonstrates that Popal was
domiciled in California at the time of his arrest. After moving to California in 2000,
Popal was employed at an auto shop before later opening his own transmission business.
He filed taxes for that business in California. (See Karam Aff., Exs. 3-4). He also
opened a bank account there and obtained a driver’s license with a California address.
Additionally, Popal’s “wife” and immediate family resided nearby. At the time of his
arrest, Popal had been living in California continuously, with the exception of his brief
stay in Nevada, for about one and one-half years. There is no evidence that after moving
to California Popal returned to New York for any purpose, owned or rented property
there, or expressed an intention to return. Instead, all of the available evidence suggests
that Popal’s intent was to remain in California for an indefinite period of time. This is
sufficient to establish his California citizenship for purposes of diversity jurisdiction.
Slovis contends that Popal’s deposition testimony regarding his intention to
remain in California should not be credited because it is “self serving” and contrary to
5

representations that he made in a complaint in an identical action that he filed against
Slovis in Supreme Court, Erie County in 2009. In that state court complaint, Popal
alleged that he was living at the Wende Correctional Facility in Alden, New York, and
thus was a “resident” of Erie County. (Karam Aff., Ex. 6 at 3). However, “[a] person
may be a resident of one locality but be domiciled in another.” Linardos, 157 F.3d at 948.
Here, it is clear that Popal was a “resident” of Erie County at the time he filed the state
court suit. Indeed, he was imprisoned there. Nevertheless, the fact that Popal was
incarcerated in Erie County does not mean, as Slovis argues, that this was also his
domicile. (See ECF No. 37 (Pl.’s Affirm. in Opp. to Def.’s Mot. to Dismiss) (“Pl.’s Opp.
Mem.”) at 5).
Slovis further contends that Popal retained his New York citizenship,
despite having moved to California, because he left New York as a “fugitive” in an effort
to evade investigation in the Haqiqi murder. (Def.’s Mem. at 7-8). It is questionable
whether Popal can properly be described as a fugitive since a warrant for his arrest had
not been issued when he left New York. In any event, mere fugitivity does not bar Popal
from having become domiciled in California after moving there, because “[a] fugitive
from justice can establish a legal ‘domicile’ where he is in hiding.” Bower v. El-Nady,
844 F. Supp. 2d 191, 195 (D. Mass. 2012) (quoting United States v. Otherson, 480 F.
Supp. 1369, 1371 n.4 (D.C. Cal. 1979)); cf. Stifel v. Hopkins, 477 F.2d 1116, 1123 (6th
Cir. 1973) (“Refugees or fugitives, who leave their homes because of unhappiness with
existing political conditions, fear of physical harm, or apprehension of prosecution can
establish domiciles within the jurisdictions in which they seek asylum”).
6

Slovis cites several cases which stand for the proposition that a fugitive
whose whereabouts are unknown is likely a citizen of the jurisdiction in which he was
domiciled before having fled. See Lloyd v. Leffler, 694 F.2d 489, 490 (7th Cir. 1982)
(“We have found no case involving the question of the domicile for diversity purposes of
a fugitive from justice. . . . Probably the last domicile of the fugitive before he fled should
be his domicile for diversity purposes”); Howell by Goerdt v. Tribune Entertainment Co.,
106 F.3d 215, 218 (7th Cir. 1997) (“. . . the domicile of a fugitive defendant will be taken
to be his domicile before he fled”); Mut. Assignment & Indemnification Co. v. LindWaldock & Co., LLC, 364 F.3d 858 (7th Cir. 2004) (“Maydak’s citizenship likely is his
domicile before going on the lam”). While the reasoning of those cases may well be
correct, they are inapposite because Popal’s whereabouts were not unknown. Bower, 844
F. Supp. 2d at 195. Thus, Popal’s domicile must be “determined by applying the usual
rule – presence in a place coupled with the intent to remain there, determined as of the
time litigation commences.” Id.
Popal’s reasons for leaving New York may, of course, be relevant in
determining whether he realistically intended to remain in California, since someone who
flees in order to escape an investigation may hope to return home if it is closed without an
arrest. Here, however, there simply is no evidence to suggest that Popal was merely
hiding out in California temporarily. To the contrary, the evidence persuasively shows
that he had begun a new life there. As noted above, Popal had opened his own business,
paid California taxes, obtained a California driver’s license, deposited funds in a local

7

bank account, and resided in the state in the vicinity of close family. All of these actions
clearly indicate an intention to remain in California.
In his papers, Slovis cites two cases, Hickox v. Centre Daily Times, No.
4:10-CV-1931, 2011 WL 2446313 (M.D. Pa. Mar. 30, 2011) (Report & Rec. of Carleson,
Mag. J.), and Durst v. Siegler, No. 04 Civ. 6981 (RMB), 2005 WL 3358599 (S.D.N.Y.
Dec. 7, 2005), neither of which compels a different result. In Hickox, a plaintiff on
probation obtained permission to “visit” his uncle in the State of Washington. 2011 WL
2446313, at *2. Despite having been in Washington for only a few months, the plaintiff
claimed (but offered no documentary evidence) that he had obtained a Washington
driver’s license, secured employment as a bus driver, operated his own business as a
notary public, and intended to become a citizen of Washington. Id. at *2, *5. Accepting
the plaintiff’s assertions at face value, the court nevertheless determined that he had failed
to meet his burden, due in large part to “the many indications in the record that strongly
suggest[ed] [his] continued ties to [Pennsylvania],” including the fact that he had been in
Washington for only a short period of time, and had agreed to notify his probation officer
immediately upon “returning home.” Id. at *4-5. Durst is similar in that the court
determined that the plaintiff had not established a change in citizenship (from New York
to Texas) because he retained significant connections to his former domicile. 2005 WL
3358599, at *7. Specifically, the plaintiff continued to maintain an apartment in New
York where he stayed a “couple months a year,” had a spouse who lived in New York,
conducted substantial personal financial dealings there, and kept a New York mailing
address because he “spent a minority of [his] time in Texas.” Id.
8

Here, by comparison, there is absolutely no evidence that Popal retained
any connections to New York after he moved to California. In an effort to fill this
evidentiary lacuna, Slovis notes that when Popal was called by the police in 1999, he
stated that he was “apartment hunting,” thereby arguably indicating an intention to remain
in New York. (Def.’s Mem. at 9). This, however, was before Popal moved. In any
event, even if the Court were to assume that Popal always hoped to return to New York
eventually, a “floating intention . . . to return to a former domicile at some undetermined
future time will not defeat the acquisition of a new domicile for diversity purposes.”
Blumatte v. Quinn, 521 F. Supp. 2d 308, 312 (S.D.N.Y. 2007) (quotations and citations
omitted).
In sum, because Popal has produced abundant evidence of his intent to
remain in California at the time of his arrest, and maintained no substantial ties to New
York, diversity jurisdiction exists.
B.

Colorado River Abstention
Slovis argues in the alternative that the Court should “decline to exercise

jurisdiction” pursuant to the abstention doctrine set forth in Colorado River Water
Conservation Dist. v. United States, 424 U.S. 800 (1976). (Def.’s Mem. at 10-12). In
Colorado River, the Supreme Court held that a federal court may abstain from
considering a case that is the subject of parallel state proceedings, in “exceptional
circumstances,” where resolution of the state court suit would result in a “comprehensive
disposition of litigation” and conserve judicial resources. 424 U.S. at 813, 817-18.

9

“Federal and state proceedings are ‘concurrent’ or ‘parallel’ for purposes of
abstention when the two proceedings are essentially the same; that is, there is an identity
of parties, and the issues and relief sought are the same.” Nat’l Union Fire Ins. Co. of
Pittsburgh v. Karp, 108 F.3d 17, 22 (2d Cir. 1997) (citing Telesco v. Telesco Fuel &
Masons’ Materials, Inc., 765 F.2d 356, 362 (2d Cir. 1985)). The Second Circuit has
identified six factors that courts should consider in determining whether abstention is
appropriate: “(1) whether the controversy involves a res over which one of the courts has
assumed jurisdiction; (2) whether the federal forum is less inconvenient than the other for
the parties; (3) whether staying or dismissing the federal action will avoid piecemeal
litigation; (4) the order in which the actions were filed, and whether proceedings have
advanced more in one forum than in the other; (5) whether federal law provides the rule
of decision; and (6) whether the state procedures are adequate to protect the plaintiff’s
federal rights.” Niagara Mohawk Power Corp. v. Hudson River-Black River Regulating
Dist., 673 F.3d 84, 100-01 (2d Cir. 2012) (quoting Woodford v. Cmty. Action Agency of
Greene Cnty., 239 F.3d 517, 522 (2d Cir. 2001)).
It is undisputed that Popal filed an essentially identical action in 2009
against Slovis in Supreme Court, Erie County. (See Karam Aff., Ex. 6). Thereafter, on
October 30, 2012, however, Popal filed an affirmation seeking to withdraw his complaint
in that action. (Pl.’s Opp. Mem., Ex. D). Although it is unclear whether there was a
formal order of dismissal, the New York State Unified Court System website lists the date
of the last appearance in the case as November 18, 2011, and further describes the “Case

10

Status” as “Disposed.”2 Although Slovis’ papers fail to make mention of the lack of any
progress in the Erie County action, the point is crucial since Colorado River abstention is
premised on there being duplicative litigation ongoing in state court. Colorado River, 424
U.S. at 817. Here, because Popal’s state court action appears to have been discontinued
(or is at least dormant), there is no basis for abstaining from exercising jurisdiction over
this case. See, e.g., Mohamad v. Smith, No. 09-943, 2010 WL 4637967, at *1 (W.D. Pa.
Nov. 8, 2010) (deeming Colorado River abstention inappropriate because the plaintiff
filed a motion to discontinue the action and the county court reported the case as
“discontinued”) (citing Superior Diving Co. v. Cortigene, 372 F. App’x 496, 498 (5th Cir.
2010)).
IV.

Conclusion
For the foregoing reasons, Slovis’ motion to dismiss should be denied.

V.

Notice of Procedure for Filing of Objections to this Report and Recommendation
The parties shall have fourteen days from the service of this Report and

Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule
72(b) of the Federal Rules of Civil Procedure. See also Fed. R. Civ. P. 6(a) and (d). Any
such objections shall be filed with the Clerk of the Court, with courtesy copies delivered
to the chambers of the Honorable Lorna G. Schofield and to the chambers of the
undersigned at the United States Courthouse, 500 Pearl Street, New York, New York
10007, and to any opposing parties. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(d),

2

A telephone inquiry that my Chambers made to the Office of the Clerk of Erie
County confirmed that this disposition is correct.
11

72(0). Any requests It)r ~1I1 extension ortime for liling oojections must oe directed to

Judge Scholleld. I he

r~lilure

to Ilk these limely objections will result in a waiver of those

objections I'm purposes oj" appeal.

:::X U.S.c.

~

636(b)( 1); r\'d. R. Civ. P. 6(a), 6(d),

72(0); Thomas v. Am, 474 U.S. 140 (19X5).

Dated:

1'\l'\\

York,

~ew

York

\1 arc h ::: 7, :2 () I 3

States Magistrate Judge

Coriel.) to:
Honorable Lorna G. Scholleld
Unitcd Statcs District Judge
Francis P. I(aram. Lsq. (by ECF)
Farid Popal (by l !nited States Mail)
DIN # 06-:\-2X70

Wende ('orrectiollal }'acility
Post ()rtICl' 150.\ I 1X7
Alden, ~e\\ York 14004-11 X7
12