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holding that Plaintiff, who were citizens of the United Kingdom but who had resided in Florida for more than eight years were not "citizens" of Florida for purposes of determining diversity jurisdiction
Summary of this case from Muzquiz v. MuzquizOpinion
Case No. 3:00-cv-1350-J-20TJC
August 30, 2001
ORDER
This cause is before the Court on Defendants' Motion to Dismiss for Lack of Subject Matter Jurisdiction (Doc. No. 95, filed July 30, 2001) and Plaintiffs' Verified Response in Opposition (Doc. No. 113, filed August 24, 2001). The sole issue presented by the Motion is whether the Plaintiffs, who are citizens of the United Kingdom but have resided in Florida since 1992, are "citizens" of Florida for purposes of determining diversity jurisdiction. If they are, complete diversity is lacking since the Defendants are themselves Florida citizens, and there would consequently be no basis for this Court to exercise subject matter jurisdiction in this case. See 28 U.S.C. § 1332.
The parties agree that there is no federal question jurisdiction.See 28 U.S.C. § 1331.
The undisputed facts are that Plaintiffs moved to Florida in December 1992, purchased a home here and rented additional properties in the state, procured Florida driver's licenses, opened a Florida bank account, and have not been domiciled in any other state since taking up residence in Florida. Citing these facts, and well established precedent that "citizenship" for diversity purposes means "domicile," which has in turn been defined as physical presence coupled with an intent to remain indefinitely, see. e.g., Scoggins v. Pollock, 727 F.2d 1025, 1026 (11th Cir. 1984), Defendants argue that Plaintiffs' residence in Florida and conduct suggesting an intent to remain amounts to domicile in Florida.
While Defendants' arguments would probably win the day if Plaintiffs were United States citizens, a separate analysis is required in this case, owing to Plaintiffs' status as citizens of the United Kingdom. Under the federal diversity statute, diversity may exist between "citizens of a State and citizens or subjects of a foreign state." 28 U.S.C. § 1332(a)(2). Since Plaintiffs are citizens of a foreign nation, there is an apparent basis for "alienage jurisdiction" under § 1332(a)(2). The statute goes on to explain, however, that "[f]or the purposes of this section . . . an alien admitted to the United States for permanent residence shall be deemed a citizen of the State in which such alien is domiciled." Id. § 1332(a). Plaintiffs might thus be considered "citizens" of Florida if they have been admitted for "permanent residence." While it is not disputed that Plaintiffs are not, and have never been, legal permanent residents of this country, Defendants implicitly contend that the particular facts in this case amount to actual, if not legal "permanent residence."
In Foy v. Shantz. Shatzman Aaronson. P.A., 108 F.3d 1347, the Eleventh Circuit held, on an issue of first impression, that the plain language of the statute required that only an alien who has established legal permanent residence — i.e., obtained a "green card" — can be considered a "citizen" of an American state. In that case, the plaintiffs were Australian nationals who had lived and worked in Florida for a number of years. Although they had applied for permanent residence in this country, they had not yet received it at the time they filed their lawsuit, and on appeal of the district court's dismissal for lack of subject matter jurisdiction, the court held that unless and until the plaintiffs obtained legal permanent residency, they would not be considered citizens of the United States and could therefore not be citizens of Florida. See id.; see also Jones v. Law Firm of Hill Ponton, 141 F. Supp.2d 1349, 1355 (M.D. Fla. 2001) ("To be a citizen of a state within the meaning of the diversity provision, a natural person must be both a citizen of the United States and a domiciliary of a state."). The court's holding in Foy is consistent with the weight of authority on the subject. See. e.g., Kato v. County of Westchester, 927 F. Supp. 714 (S.D.N.Y. 1996); Arai v. Tachibana, 778 F. Supp. 1535 (D.C. Haw. 1991); 13(B) Charles Alan Wright Arthur R. Miller, Federal Practice and Procedure § 3604 (2000) (noting that section 1332's "specific language, and in particular its description of "permanent residence' as a condition of the aliens' admission into the United States," suggests an interpretation consistent with the Eleventh Circuit's in Foy). As noted above, Plaintiffs had not established legal permanent residency at the time they instituted this action. As such, the Court concludes that there is a basis for subject matter jurisdiction in this case under 28 U.S.C. § 1332(a)(2).
Accordingly, it is ORDERED that:
Defendants' Motion to Dismiss for Lack of Subject Matter Jurisdiction (Doc. No. 95, filed July 30, 2001) is DENIED.
Plaintiffs' request for costs, expenses, and attorney's fees contained in their Response (Doc. No. 113, filed August 24, 2001) is DENIED.