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United States District Court, E.D. Pennsylvania

April 28, 2004.


The opinion of the court was delivered by: STEWART DALZELL, District Judge


Defendant Victor Shtatnov is a Pennsylvania citizen of indeterminate occupation.*fn1 Plaintiff Maya Kutchorkova is a Russian citizen and United States permanent resident who is embroiled in complex divorce proceedings with her husband, an American who amassed a fortune in the bottled water business in Russia and now lives in Hawaii with their four children. See Letter of Bryant to Wolf of 8/27/03, at 2 (Pl.'s Mot. Ex. 6).

Dissatisfied with the progress of her divorce case in the Russian courts, Kutchorkova moved to Philadelphia in March of 2003 in order to establish residency in Pennsylvania and file for divorce here. On April 16, 2003, Kutchorkova entered into a "Contract for Investigation of Marital Property Rights" with Shtatnov, whom she had met through her Russian legal advisers, and granted him an "Unlimited Power of Attorney Coupled with an Interest."*fn2 Shtatnov allegedly performed his duties under the Contract until Kutchorkova terminated their relationship on September 19, 2003. Shtatnov then filed this action in state court on December 11, 2003. According to Shtatnov's counselled complaint, he seeks a declaratory judgment that the assignment of marital property was irrevocable, compensatory damages of $10 million, $200,000 on a claim for unjust enrichment*fn3, and "a permanent injunction restraining defendant from exercising any rights that directly or indirectly conflict with the Unlimited Power of Attorney Coupled with an Interest."*fn4 Compl. ¶¶ 9, 12, 14, and 20.

  Kutchorkova timely removed the case to federal court on January 20, 2004. In the motion now before us, Shtatnov seeks remand on the ground that there is no diversity of citizenship because, at the time of filing, Kutchorkova was still domiciled in Pennsylvania.*fn5 Kutchorkova contends that she permanently abandoned her home in Pennsylvania in October of 2003 and has been domiciled in Hawaii since December 3, 2003. For the reasons provided below, we conclude that Kutchorkova's citizenship was diverse from Shtatnov's at the time of filing and removal, and we therefore deny the motion to remand.


  The removing defendant in a diversity action must establish that the parties were citizens of different states at both the commencement of the action and the time of removal.*fn6 Citizenship is synonymous with domicile, and under long-established law, domicile requires physical presence in the state with the intent to remain there indefinitely. Krasnov v. Dinan, 465 F.2d 1298, 1300 (3d Cir. 1972). When physical presence and intention to remain concur, the party acquires domicile instantly. Id. As our Court of Appeals has noted, "[p]ersuasive evidence of intent can include establishment of a home, place of employment, location of assets, . . . registration of car, and, generally, [the] centering [of] one's business, domestic, social, and civic life in a jurisdiction." Juvelis v. Snider, 68 F.3d 648, 654 (3d Cir. 1995) (internal citations omitted).

  With this standard in mind, we turn to consider whether Kutchorkova was a citizen of Hawaii at the relevant times.

  We begin with a chronology of Kutchorkova's whereabouts in 2003 and January of 2004. Kutchorkova traveled from Russia to New York in March of 2003, met with Shtatnov at the Waldorf Astoria Hotel, and filed for divorce in the Philadelphia County Court of Common Pleas on March 31st. After returning to Russia, she executed the Contract and Unlimited Power of Attorney, and then, in early May, she came back to America and took up residence in an apartment on Alnus Street in Northeast Philadelphia that she had rented in 2001. From May until mid-October, Kutchorkova worked briefly for a furniture store in Philadelphia and traveled extensively. According to her affidavit, she decided to leave Philadelphia when her lawyer advised her to establish residency in Hawaii and pursue her divorce there.*fn7 Kutchorkova Aff. ¶¶ 14-15 (Def.'s Ex. 1). On October 15, 2003, Kutchorkova filled out a change of address card directing the Postal Service to send her mail to a friend in Los Angeles, and she then flew to Russia.*fn8

  On December 2-3, 2003, Kutchorkova traveled from Moscow to Maui and checked into an apartment suite that her husband maintains at the Aston Kaanapali Shores resort in Lahaina, where he and the children live. See Def.'s Ex. 16 (bill showing 12/3/03 check-in date); Kutchorkova Dep. of 4/13/04, at 82-87 (Def.'s Ex. 14) (stating that, although her husband controls access to the apartment and the hotel required her to pay for her stay, she considers it a marital asset).

  On December 4th, Kutchorkova opened a checking account at First Hawaiian Bank and began looking for an apartment in the local papers. She also filed for divorce in the Hawaiian courts, declaring under penalty of perjury that she is "currently domiciled on the Island of Maui" and giving the hotel as her address. Kutchorkova Dep. of 2/5/04, at 31-33 (Def.'s Ex. 22); Compl. & Matrimonial Action Information (Def.'s Ex.4). Four days later, Kutchorkova rented a mailbox at Westside Copy and Graphics in Lahaina, arranged for the Postal Service to deliver her mail there, and notified her credit card company of the new mailing address. App. for Delivery of Mail Through Agent (Def.'s Ex. 17); Letter from Individualized BankCard Services to Kutchorkova of 2/27/04 (Def.'s Ex. 18) (confirming change of address on 12/8/03). During her time in Lahaina, Kutchorkova also took several day trips to Honolulu on legal business and spent time with her children. K. Dep. of 4/13/04, at 26-27; K. Dep. of 2/5/04, at 32.

  On December 16th, Kutchorkova flew back to Moscow for the Christmas season. After returning to Lahaina on January 12, 2004, she temporarily moved into a condominium at Whaler's Village in Lahaina. She also found a part-time job at a jewelry shop and registered for some community college courses. Toward the end of the month, she signed a lease for a one-bedroom, furnished apartment commencing February 1, 2004. K. Dep. of 4/13/04, at 87-89, 94-99; Rental Agreement of 1/30/04 (Def.'s Ex. 11).

  Based on this record, it is obvious that Kutchorkova was physically present in Hawaii on December 11th, and her actions, family ties, and declarations show that she intends to remain there indefinitely. She left the Philadelphia apartment in mid-October, and she lost any reason to live there once the Court of Common Pleas dismissed her divorce action on November 10th. Moreover, by December 11th she had found temporary lodgings in Lahaina, established a mailing address and bank account there, declared that she was living in Hawaii on court documents, and had started the process of finding a place to live. By January 20th, Kutchorkova had returned to Lahaina from her holiday travels and had intensified her search for a job and apartment. Most important of all, Kutchorkova's four young children live in Lahaina, and her efforts to be near them and secure a divorce with custodial rights show that Hawaii is the center of her family life for the indefinite future.

  In support of his motion to remand, Shtatnov makes much of the fact that Kutchorkova has not yet obtained a Hawaii driver's license. We acknowledge that Hawaiian law requires Kutchorkova to have obtained a license by now. However, we are constrained to note that it is not uncommon for a newcomer who, like Kutchorkova, possesses a valid license from another state to stave off the unpleasantness of a visit to the Department of Motor Vehicles.

  Finally, we note that the only evidence Shtatnov has produced that links Kutchorkova to Philadelphia after she went to Lahaina is her copy of the Ladies' Home Journal for March of 2004, which the Postal Service delivered to the apartment on Alnus Street. See Pl.'s Ex. 7. The editors and readers of the Journal will surely forgive us if we decline to attach any significance to the fact that Kutchorkova has neglected to update her subscription information.

  In sum, Kutchorkova has established that she was domiciled in Hawaii on December 11, 2003 and January 20, 2004. She was therefore diverse from Shtatnov at the time of filing and removal, and we must deny his motion to remand. An appropriate Order follows. ORDER

  AND NOW, this 28th day of April, 2004, upon consideration of plaintiff's motion to remand (docket entry # 5), defendant's response, and the parties' supplemental briefs, and in accordance with the accompanying Memorandum, it is hereby ORDERED that:

1. The motion is DENIED; and
  2. Plaintiff shall RESPOND to defendant's motion to dismiss by May 12, 2004.

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