United States District Court, M.D. Pennsylvania
Richard Caputo United States District Judge
before me is a Motion to Dismiss for Lack of Jurisdiction
filed by Defendants Ilya Marder, Zoya Marder, and Eltech
Capital, LLC (“Defendants”). (Doc. 10).
Defendants move to dismiss the complaint on the ground that
diversity jurisdiction does not exist-Ilya and Zoya Marder
are Pennsylvania citizens like Plaintiffs Stanley and Sharon
Szumera, Defendants argue. (See Doc. 10-2). The
Szumeras respond that the evidence-a water bill, in
particular-shows otherwise. I agree with the Szumeras; I find
by a preponderance of the evidence that the Marders are
citizens of New York. Thus, diversity of citizenship (and
diversity jurisdiction) exists, and Defendants' Motion to
Dismiss will be denied.
and Zoya Marder (Mr. and Mrs. Marder, respectively) rent out
homes they own in Pike County, Pennsylvania, through their
company, Eltech Capital, LLC. (See Doc. 1 at
¶¶ 8-16). The Szumeras rented one of these homes.
(Id. ¶ 17). The front steps of the home were in
poor condition, and on January 12, 2018, the steps collapsed
as Stanley Szumera was walking on them. (Id.
¶¶ 18-19). So the Szumeras filed suit on January
10, 2019, alleging six state law causes of action. (See
Id. at 7-16).
responded with a motion to dismiss, contending that this
Court lacks diversity jurisdiction because both the Szumeras
and the Marders are Pennsylvania citizens. (Doc. 5). (Under
diversity jurisdiction, “no plaintiff [may] be a
citizen of the same state as any defendant, ”
Zambelli Fireworks Mfg. Co. v. Wood, 592 F.3d 412,
419 (3d Cir. 2010).) Defendants argued that the Marders are
citizens of Pennsylvania because they moved to a property in
Dingmans Ferry, Pennsylvania in 2012, and consider it their
permanent home. (See Doc. 5). Seeing as Defendants
were raising a factual attack to the Szumeras'
jurisdictional allegations, which state Defendants are New
York citizens, I denied the motion to dismiss and allowed the
parties to conduct jurisdictional discovery. (See
close of jurisdictional discovery, Defendants filed the
instant Motion, reiterating their earlier arguments and
providing evidence of Pennsylvania citizenship: a
declaration, a car registration, a driver's license, an
insurance policy, tax returns, mail, and bills. (See
Doc. 10; Doc. 10-4). The Szumeras responded, albeit six days
late under Local Rule 7.6, with the evidence they gathered
during discovery: interrogatories, business records, and a
water bill, among other things. (See Doc. 11). This
evidence, the Szumeras maintain, shows the Marders are New
York citizens, living in Brooklyn, who visit their Dingmans
Ferry property seasonally. (See id.). The Motion has
been fully briefed and is now ripe for review.
purposes of diversity jurisdiction, a natural person is
deemed a citizen of the state in which he is domiciled.
Swiger v. Allegheny Energy, Inc., 540 F.3d 179, 182
(3d Cir. 2008). Mere residency is not domicile. See
Krasnov v. Dinan, 465 F.2d 1298, 1300 (3d Cir. 1972). To
be domiciled in a state, a person must reside there and
intend to remain indefinitely. Id. at 1300-01. A
person may only have one domicile, and thus may be a citizen
of only one state for diversity jurisdiction purposes.
See Williamson v. Osenton, 232 U.S. 619, 625 (1914).
party claiming diversity of citizenship exists has the burden
of proving it by a preponderance of the evidence.
Krasnov, 465 F.2d at 1301. “In determining an
individual's domicile, a court considers several factors,
including ‘declarations, exercise of political rights,
payment of personal taxes, house of residence, and place of
business.'” McCann v. Newman Irrevocable
Trust, 458 F.3d 281, 286 (3d Cir. 2006) (quoting
Krasnov, 465 F.2d at 1301).
factors to be considered may include location of brokerage
and bank accounts, location of spouse and family, membership
in unions and other organizations, and driver's license
and vehicle registration.” Id. (citation
more thing bears mentioning: while “an individual's
domicile changes instantly if he ‘takes up residence at
the new domicile' and ‘intend[s] to remain there[,
]'” Washington v. Hovensa LLC, 652 F.3d
340, 345 (3d Cir. 2011) (quoting Krasnov, 465 F.2d
at 1300), once a domicile is acquired it is “presumed
to continue until it is shown to have been changed.”
Id. (quotation omitted). This presumption of
continuing domicile may be rebutted, but it does impose a
“heavier burden” of production on the party
seeking to rebut it. See Id. (quotation omitted).
“gravamen” of the Motion to Dismiss, Defendants
argue, is that Mr. Marder is a Pennsylvania citizen. (Doc. 14
at 5). So I will cut to the chase: the preponderance of the
evidence shows that Mr. Marder is a New York citizen. Yes,
Mr. Marder registered a car in Pennsylvania, has a
Pennsylvania driver's license, receives some mail there,
and files his taxes from there. (See Doc. 14 at 5).
(He also declared he lives in Pennsylvania-more on that
later.) But everything else points to New York: (1) Mrs.
Marder and their children live, work, and attend school in
New York “[d]uring the school time, ”
i.e., nine months of the year (Doc. 11-9 at 4); (2)
the Marder family is living with Mr. Marder's parents in
Brooklyn while their own Brooklyn property, currently
“merely being used as a mailing address, ” is
under construction (id. at 3-4); (3) Mr. and Mrs.
Marder have cell phone numbers with New York area codes
(id. at 4); (4) Mr. Marder's business, Eltech
Capital, maintains a Brooklyn address (Doc. 11-2 at 3); and
(5) the water bill from the Dingmans Ferry property reflects
significant water usage during the summer months, with no
water usage at all during October and December of 2018, and
January and May of 2019. (Doc. 11-7 at 4). (The water bill
reflects similarly seasonal usage between February of 2017
and February of 2018-less than 500 gallons of water (a day or
two's worth) were consumed in each of the non-summer
months, (Doc. 10-21 at 14).)
it more likely than not that the Marders are domiciled in New
York, as it is both where the they live most of the year, and
where they return after spending time elsewhere. See
Berger v. Berger, 210 F.2d 403, 405 (3d Cir. 1954)
(“[A]n individual is domiciled where he maintains a
fixed home to which, whenever he is absent, he has the
intention of returning.”). That makes the Marders New
York citizens, and their Dingmans Ferry property a vacation
home they use for recreational, car registration and
insurance, and tax-filing purposes. See Galva Foundry Co.
v. Heiden, 924 F.2d 729, 730 (7th Cir. 1991) (Posner,
J.) (defendant who registered to vote in Florida, had a
Florida driver's license, and listed Florida as his
permanent residence for tax purposes was still an Illinois
citizen; the defendant's actions, which projected an
“aura of fraud, ” could not negate his intent to
“spend most of the year in [Illinois]” and
holding otherwise would permit litigants with vacation homes
to “change domicile continually . . . in order to take
advantage of changes in tax law or to [manipulate] federal
diversity jurisdiction”); Hicks v. Brophy, 839
F.Supp. 948, 952 (D. Conn. 1993) (even though the plaintiffs
had, inter alia, a vacation home in Connecticut, a
Connecticut driver's license, a car registered there, and
a bank account there, the plaintiffs were New York ...