Velez v. MAM Trucking Services, Inc. et al

Filing 10

ORDER: granting 7 Motion to Remand to State Court. For the reasons stated above, the matter is REMANDED to Supreme Court, Bronx County. The Clerk of Court is directed to remand the case to Supreme Court, Bronx County and close the case. SO ORDERED. (Signed by Judge Analisa Torres on 4/27/2021) (ama) Transmission to Docket Assistant Clerk for processing.

involves a claim in excess of $75,000.00[.]”).
When Plaintiff filed this action, he did not allege his domicile or residence, just that he
worked for a New York company, and that he was driving his employer’s car with a New
York state registration number at the time of the accident. Compl. ¶¶ 48–50. Plaintiff now
maintains that he was domiciled in New York when he filed this lawsuit. He avers that, at that
time, he was a New York resident, Velez Aff. ¶ 3, ECF No. 7-7, that he was employed in New
York, id. ¶ 2, and that he kept all of his personal belongings in New York, id. ¶ 3. His
landlord states that Plaintiff rented a room from her and her mother in New York from June
2016 until November 2020. Cabargas Aff. ¶ 2, ECF No. 7-8. Plaintiff has submitted (1) a cell
phone bill in his name, dated October 11, 2020, and bearing the address of his New York
apartment at the top, ECF No. 7-12, and (2) an E-ZPass bill in his name, covering November
2019 through January 2020, also addressed to his New York apartment, ECF No. 7-13. In
addition, Plaintiff has New York car insurance, ECF No. 8-7, and saw medical providers in
New York, ECF Nos. 8-8–8-9.
Plaintiff avers that he has continuously lived in New York since 2016 and that his
sister lived in New Jersey until September 2020. Velez Aff. ¶¶ 2–6. He states that he did not
live in New Jersey on the date of the accident, the date he filed his complaint, or the date of
removal. Id. ¶ 7. Plaintiff avers, and his sister concurs, that his sister helped him “with
personal matters while she lived in New Jersey” and that he received some of his mail at her
address. Id.; Granada Aff. ¶ 3, ECF No. 7-9.
On the other hand, Plaintiff listed an address in New Jersey on the accident report.
ECF No. 8-4. He also listed a New Jersey address on his car insurance forms and a medical
release form, although he purchased New York car insurance coverage and his medical

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providers were located in New York. ECF Nos. 8-7–8-9. Finally, Plaintiff visited one doctor
in New Jersey. ECF No. 8-10.
DISCUSSION
28 U.S.C. § 1331 provides that “[t]he district courts shall have original jurisdiction of
all civil actions arising under the Constitution, laws, or treaties of the United States.” Under
28 U.S.C. § 1441, a defendant may “remove an action to the United States District Court in
any civil action brought in a State court of which the district courts of the United States have
original jurisdiction.” Purdue Pharma L.P. v. Kentucky, 704 F.3d 208, 213 (2d Cir. 2013)
(quotation marks and citation omitted). “Congress has granted district courts original
jurisdiction over cases in which there is a federal question . . . and certain cases between
citizens of different states, so long as the requirements of complete diversity and amount in
controversy are met[.]” Id. (citing 28 U.S.C. §§ 1331, 1332).
“A party seeking removal bears the burden of showing that federal jurisdiction is
proper.” Montefiore Med. Ctr. v. Teamsters Local 272, 642 F.3d 321, 327 (2d Cir. 2011).
“[R]emoval statutes are to be strictly construed against removal and all doubts should be
resolved in favor of remand.” Am. Standard, Inc. v. Oakfabco, Inc., 498 F. Supp. 2d 711, 715
(S.D.N.Y. 2007) (citations omitted).
For purposes of diversity jurisdiction, a person’s citizenship is determined by his
domicile at the time the complaint was filed. See Newman–Green, Inc. v. Alfonzo–Larrain,
490 U.S. 826, 830 (1989); Linardos v. Fortuna, 157 F.3d 945, 947 (2d Cir. 1998). Domicile
requires the party’s physical presence in the state and the intent to remain there indefinitely.
Nat’l Artists Mgmt. Co. v. Weaving, 769 F. Supp. 1224, 1227 (S.D.N.Y. 1991) (citing Miss.
Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 48 (1989)). “Domicile has been defined

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generally as a person’s ‘home’ or permanent base of operations.” Id. (citation omitted).
“Although a person may have more than one residence, [he] may only have one domicile at
any one time.” Id. (citation omitted). Where there is evidence that the party has more than
one residence, courts should focus on the party’s intent. See id. (citing Brignoli v. Balch,
Hardy & Scheinman, Inc., 696 F. Supp. 37, 41 (S.D.N.Y. 1988)). “To ascertain intent, a court
must examine the entire course of a person’s conduct in order to draw the necessary inferences
as to the relevant intent.” Brignoli, 696 F. Supp. at 41 (quotation marks and citation omitted).
Thus, courts must consider the “totality of the evidence” to determine a party’s domicile,
including location of physician and location of personal belongings. Nat’l Artists Mgmt. Co.,
769 F. Supp. at 1228; Bos. Safe Deposit & Tr. Co. v. Morse, 779 F. Supp. 347, 349 (S.D.N.Y.
1991). A party’s own statements about his intent are also relevant, but are only given limited
weight if they conflict with objective facts indicating contrary intent. Nat’l Artists Mgmt. Co.,
769 F. Supp. at 1227–28.
Although there is limited evidence indicating that Plaintiff resided in New
Jersey—Plaintiff listed a New Jersey address on three forms and visited a New Jersey doctor,
ECF Nos. 8-7–8-10—all other evidence suggests that Plaintiff intended to remain in New
York indefinitely at the time this action was filed. Defendants’ evidence points to this
conclusion. The forms Defendants submitted that apparently provide “ample proofs that
Plaintiff resides in New Jersey,” Def. Opp’n at 5, ECF No. 8, also show that Plaintiff’s doctors
are based in New York and that he has New York vehicle insurance. ECF Nos. 8-7–8-9.
Plaintiff attests that, at the time he filed his lawsuit, he was a New York resident, Velez Aff.
¶ 3, he was employed in New York, id. ¶ 2, and he kept all of his personal belongings in New
York, id. ¶ 3. His landlord has confirmed that Plaintiff rented a room in New York from June

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2016 until November 2020. Cabargas Aff. ¶ 2. Plaintiff also submitted bills in his name,
covering the date he filed his lawsuit, and bearing the address of his New York apartment.
ECF Nos. 7-12–7-13.
Although Plaintiff’s statements of his intent are not dispositive, they do not contradict
any evidence Defendants have put forth. Plaintiff avers that he has continuously lived in New
York since 2016 and that his sister lived in New Jersey until September 2020. Velez Aff. ¶¶ 2–6.
He explains, and his sister concurs, that his sister helped him “with personal matters while she
lived in New Jersey” and that he received some of his mail at her address. Id.; Granada Aff.
¶ 3.
On balance, considering the totality of the evidence, the Court finds that Plaintiff
intended to remain in New York indefinitely when he filed this lawsuit on October 1, 2020.
Plaintiff, therefore, was domiciled in New York when this action was filed. Because
Defendants NR Trucking Services Inc. and Elmer Fernandez-Garcia were also domiciled in
New York, Notice of Removal ¶ 7, the citizenship of the parties is not diverse. Accordingly,
the Court lacks subject matter jurisdiction and the matter is REMANDED to Supreme Court,
Bronx County.

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CONCLUSION
For the reasons stated above, the matter is REMANDED to Supreme Court, Bronx
County. The Clerk of Court is directed to remand the case to Supreme Court, Bronx County
and close the case.
SO ORDERED.
Dated: April 27, 2021
New York, New York

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