Ceglia v. Zuckerberg et al

Filing 335

DECLARATION signed by Lisa T. Simpson re 318 MOTION to Dismiss filed by Mark Elliot Zuckerberg, Facebook, Inc. filed by Mark Elliot Zuckerberg, Facebook, Inc.. (Attachments: # 1 Exhibit A)(Snyder, Orin)

EXHIBIT A

C
0 R R I C K

ORRICK, HERRINGTON & SUTCLIFFE Lip
51 WEST 52ND STREET
NEW YORK, NEW YORK 10019-6142
tel -1-1-212-506-5000
fax #[phone]
WWW.ORRICK.COM

August 5, 2010

VIA FACSIMILE AND E-MAIL

Terrence M. Connors, Esq.
James ‘NV. Grable, Esq.
Connors & Vilardo, LLP
1000 liberty Building
424 Main Street
Buffalo, NY 14202

-

Re: Ceglia v. Zuckerberg, et aL 1:10-cv-00569-RJA
Dear Messrs. Connors and Grable:
As you know, we represent Defendants in the above-captioned matter. You have told us that you
may file a motion to remand this action to the New York Supreme Court based on the purported
absence of federal diversity jurisdiction. Specifically, you have told me that your remand motion
would argue that defendant Mark Zuckerberg is a domiciliary of New York. This letter will serve to
inform you that there is no basis in fact or law for such an argument. A motion to remand on this
basis would lack any evidentiary support and violate Rule 1 1 of the Federal Rules of Civil Procedure.
Second Circuit law is clear. Diversity jurisdiction is based on the cithenship of the state in which
the party is domiciled. Linardos v. Fortuna, 157 F.3d 945, 948 (2d Cit. 1998). Domicile 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.” Id. A party’s domicile is judged at the time the action is
brought and based on the totality of the circumstances. Universa1Licensing Corp. v. Paola delLungo
S.P.A., 293 F3.d 579, 581 (2d Cit. 2002); see also Hodge v. SunQu Hong No. 05 Civ. 027(A), 2006 WL
2669467 at *2 (W.D.N.Y. Sept. 15, 2006) (Arcara, J.) (describing relevant factors). Moreover, while
no single factor is determinative, a party’s residence at the time the case is filed is prima facie
evidence of his domicile. Kavowras v. Pinkerton Inc., No. 97 Civ. 6098 (MBM), 1998 WL 209617, at *1
(S.D.N.Y. Apr. 29, 1998).
There can be no dispute that Mr. Zuckerberg is a domiciliary of California. We have obtained and
are in the possession of a wide range of official government documents and other documentary

0
ORRICK
Terrence M. Connors, Esq.
James W. Grable, Esq.
August 5, 2010
Page 2

evidence that conclusively establish what I have told you all along: Mr. Zuckerberg resides and
makes his home in California. These documents include, among many others, the following:
.

Residential Lease-Rental Agreement for California Residence

.

California Voter Registration Documents

.

State of California Department of Motor Vehicles Validated Registration Card

.

State of California Driver’s License

.

Federal Tax Returns

.

California Tax Returns

.

IRS Form W-2

.

ADP Earnings Statements
Bank Statements

.

Brokerage Account Statements

.

Credit Card Statements

•

Utility Bills

•

Records of California-based Personal Service Professionals

•

Publicly available statements

This overwhelming and incontrovertible documentary evidence precludes any notion that Mr.
Zuckerberg is a domiciliary of New York. Of course, it is well-documented that Mr. Zuckerberg
was born in New York and resided there earlier in his life. The law is clear, however, that his
historic birthplace and parental home are not determinative of his domicile in this action. Rather,
his domicile at the time this action was filed indisputably California is what counts.
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0
ORRICK
Terrence M. Connors, Esq.
James W. Grable, Esq.
August 5, 2010
Page 3

If you find it necessary to review the documentation described above, we can make it available for
inspection at your earliest convenience. In the event that you file a motion to remand in the face of
this dispositive evidence, we will seek sanctions, including our attorneys’ fees and costs, pursuant to
Rule 11 and 28 U.S.C § 1927.

This letter is sent without waiver of or prejudice to Defendants’ other rights and remedies, each of
which is expressly reserved.

cc:

Paul A. Argentieri (via facsimile)
Michael B. Powers (via e-mail)