The opinion of the court was delivered by: J. CURTIS JOYNER
Plaintiff has moved this Court to remand this action to the Court of Common Pleas of Philadelphia County, Pennsylvania on the ground that the parties are not diverse. 28 U.S.C. § 1447(c) directs a district court to remand an action to state court if it appears that subject matter jurisdiction is lacking. A district court may remand an action on jurisdictional grounds any time before final judgment. Courts construe the removal statute strictly, and any doubts are resolved in favor of remand. Steel Valley Auth. v. Union Switch & Signal Div., 809 F.2d 1006, 1010 (3d Cir. 1987).
Plaintiff is a minor who was allegedly blinded in one eye due to the negligence of Defendant in manufacturing a defective product. Plaintiff was born and lives in Israel with her parents, and is a dual citizen of the United States and Israel. She claims her United States citizenship through her mother, who was born in the United States, in New York, and who maintains her United States citizenship to this day.
After further discovery, it became clear that Plaintiff was not domiciled in Pennsylvania and therefore was not a citizen of that state for diversity purposes. In fact, Plaintiff visited Pennsylvania just once, during a trip that lasted a few hours. Sharon Gefen Dep. pp. 28, 29. Plaintiff has lived in Israel for her entire life and only visits the United States on annual family trips, each lasting about three weeks. Id. at 24. Due to these minimal contacts with the United States, Defendant has developed a new legal argument devised to defeat Plaintiff's Motion to Remand.
Defendant now relies on 28 U.S.C. § 1332(a)(2) in its argument that this Court has subject matter jurisdiction over this action. 28 U.S.C. § 1332(a)(2) grants this Court subject matter jurisdiction in suits between citizens of a State and citizens of a foreign country. When an American citizen who is also a citizen of a foreign country sues in federal court, his American citizenship usually governs for diversity purposes. Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 829, 104 L. Ed. 2d 893, 109 S. Ct. 2218 (1989); Action S.A. v. Marc Rich & Co., 951 F.2d 504, 507 (2d Cir. 1991); Liakakos v. Cigna Corp., 704 F. Supp. 583, 585 (E.D. Pa. 1988). Therefore, an American with a dual citizenship is not considered a citizen of a foreign state under 28 U.S.C. § 1332(a)(2). Newman-Green, Inc., 490 U.S. at 829; Action S.A., 951 F.2d at 507. Defendant, however, cites dicta in Sadat v. Mertes, 615 F.2d 1176 (7th Cir. 1980), to support an exception to this rule.
The Sadat court, in an attempt to determine whether an American citizen domiciled in Egypt should be considered an alien under 28 U.S.C. § 1332(a)(2), discussed the theory of dominant nationality as an exception to the rule that United States citizenship governs. Dominant nationality in another country is found when a person:
(c) is a national of the respondent state and of another state, provided (i) his dominant nationality, by reason of residence or other association subject to his control (or control of a member of his family whose nationality determines his nationality) is that of the other state and (ii) he (or such member of his family) has manifested an intention to be a national of the other state and has taken all reasonably practical steps to avoid or terminate his status as a national of the respondent state.
Sadat, 615 F.2d at 1187 (quoting Restatement (Second) of the Foreign Relations Law of the United States § 171(c) (1965)) (emphasis added). In that situation, the person's lack of association with the United States and desire to relinquish her United States citizenship warrants the use of her foreign citizenship for diversity purposes. Id.
Defendant relies solely on this doctrine in its argument that this court has subject matter jurisdiction over this claim. Plaintiff's dominant nationality is Israel, Defendant argues, which forces this Court to consider Plaintiff an Israeli citizen under 28 U.S.C. § 1332(a)(2). Therefore, it would follow that the parties are diverse and that this Court has subject matter jurisdiction over this claim.
Defendant's argument fails, however, for two reasons. First, although the Sadat court discussed the dominant nationality theory it never concluded that it should prevail. Rather, the court "assum[ed] arguendo that a dual national whose dominant nationality is that of foreign country should be regarded as a 'citizen or subject of a foreign state' within the meaning of 28 U.S.C. § 1332(a)(2)." Sadat, 615 F.2d at 1187. The dominant nationality theory is not binding law in this circuit. This Court has been unable to find any ruling in the Third Circuit that has adopted this theory.
Plaintiff's mother waited three years after moving to Israel to obtain Israeli citizenship, instead of doing so immediately, because the three year wait allowed her to retain her American citizenship. Sharon Gefen Dep. p. 8. When Plaintiff was born, her mother filled out an application for and received a Department of State Report of Birth Abroad of a Citizen of the United States and a United States Passport for her. Id. at 12. Since then, Plaintiff and her mother have continued to comply with all requirements necessary to maintain their American citizenship, including payment of income taxes to the United States. These facts clearly show that Plaintiff has not "taken all reasonably practical ...